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John Durham Suggests April Lorenzen Thinks He Bullied Her

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In a truly hysterical self-own, the Federalist’s Margot Cleveland read this John Durham filing and (in addition to claiming that Marc Elias’ grand jury appearance must mean he testified to crime-fraud excepted matters even though he previously testified publicly about this matter without any such exception) predicted that the “corrupt media” would soon quote “false charges” of threats and intimidation “by this weekend.”

Then she quoted precisely those charges.

In addition to detailing all of the information the special counsel’s office had already provided Sussmann or would shortly, in requesting an extension to finish discovery, Durham’s team stressed the breadth of Sussmann’s discovery demands and the transparency with which those demands were met.

For instance, Sussmann’s attorneys requested “all of the prosecution team’s communications with counsel for witnesses or subjects in this investigation, including, ‘any records reflecting any consideration, concern, or threats from your office relating to those individuals’ or their counsels’ conduct…and all formal or informal complaints received by you or others’ about the conduct of the Special Counsel’s office.”

After noting that “communications with other counsel are rarely discoverable,” the government said it expects to produce responsive documents later this week. But the special counsel office added, “it is doing so despite the fact that certain counsel persistently have targeted prosecutors and investigators on the Special Counsel’s team with baseless and polemical attacks that unfairly malign and mischaracterize the conduct of this investigation.”

For instance, “certain counsel have falsely accused the Special Counsel’s Office of leaking information to the media and have mischaracterized efforts to warn witnesses of the consequences of false testimony or false statements as ‘threats’ or ‘intimidation,’” Durham explained to the court.

In other words, with Sussmann’s lawyers soon to receive this cache of complaints against Durham’s team, watch for the corrupt media to be quoting those false charges by this weekend, spinning a narrative of a corrupt special counsel’s office.

Cleveland was, as far as I saw, the first to quote those charges and one of the only ones to do so before the weekend. But given that, in the past, she has presented evidence that undermined Durham’s conspiracy theories without admitting that they did, I’d say she qualifies for her own designation as corrupt. A self-fulfilling prediction!

That said, I suspect that Durham is trying to get ahead of something potentially more problematic.

In the Sussmann indictment, Durham needlessly referred to April Lorenzen — who had used the pseudonym “Tea Leaves” to speak of the Alfa Bank allegations in 2016 and who could have been referred to by that same pseudonym here — by the moniker “Originator-1.” That introduced additional confusion and with it implied, without charging Lorenzen, that she had made up the anomalous data at the core of the allegation. It’s sort of like referring to someone by the pseudonym “Forger-1” or “Lady-with-the-Knife-1” in an indictment; it respects DOJ’s rules against naming uncharged individuals, but does so in such a way that insinuates wrong-doing.

Indeed, in the indictment, Durham repeatedly called the anomalous data “purported,” barely hiding that he believes Lorenzen manufactured the data, even though a shit-ton of evidence from later in 2016 makes it clear Lorenzen believed the anomaly was real and important.

Durham’s treatment of Lorenzen is all the more problematic given that she was among those that, this NYT story credibly argued, Durham had cited out of context in the indictment.

The indictment quotes August emails from Ms. Lorenzen and Mr. Antonakakis worrying that they might not know if someone had faked the DNS data. But people familiar with the matter said the indictment omitted later discussion of reasons to doubt any attempt to spoof the overall pattern could go undetected.

[snip]

The indictment suggested Ms. Lorenzen’s reaction to the paper was guarded, describing an email from her as “stating, in part, that it was ‘plausible’ in the ‘narrow scope’ defined by” Mr. Joffe. But the text of her email displays enthusiasm.

“In the narrow scope of what you have defined above, I agree wholeheartedly that it is plausible,” she wrote, adding: “If the white paper intends to say that there are communications between at least Alfa and Trump, which are being intentionally hidden by Alfa and Trump I absolutely believe that is the case,” her email said.

So Lorenzen has good cause to be miffed with Durham’s insinuations in the indictment.

Which brings us to the passage that Cleveland face-planted on.

Durham brags that he has been so kind as to respond to Sussmann’s request for records suggesting that Durham’s team might be bullying or bribing witnesses.

On December 10, 2021, the defense requested, among other things, all of the prosecution team’s communications with counsel for witnesses or subjects in this investigation, including, “any records reflecting any consideration, concern, or threats from your office relating to those individuals’ or their counsels’ conduct. . . and all formal or informal complaints received by you or others” about the conduct of the Special Counsel’s Office.” Although communications with other counsel are rarely discoverable, especially this far in advance of trial, the Government expects to produce certain materials responsive to this request later this week. The Government notes that it is doing so despite the fact that certain counsel persistently have targeted prosecutors and investigators on the Special Counsel’s team with baseless and polemical attacks that unfairly malign and mischaracterize the conduct of this investigation. For example, certain counsel have falsely accused the Special Counsel’s Office of leaking information to the media and have mischaracterized efforts to warn witnesses of the consequences of false testimony or false statements as “threats” or “intimidation.” Despite the inflammatory and unfounded nature of these accusations, the Special Counsel’s Office intends to produce these materials to the defense to avoid any suggestion that it seeks to conceal these communications for some bad purpose.

Sussmann made this request after having been shown — months after he was indicted — James Baker’s interview reports with Durham’s team, which Sussmann’s lawyers noted at a December 8 status hearing had radically changed from his past sworn statements. Sussmann’s lawyers made it clear they may argue at trial that Baker’s testimony changed because Durham threatened to charge the former FBI lawyer if he didn’t change his story. And that’s clearly why, just days after seeing how dramatically Baker’s sworn testimony did change, Sussmann made this discovery request. Sussmann wants to test whether Durham has been pressuring witnesses — Baker, as well as others — to back Durham’s baseless conspiracy theories.

Durham is turning over this material not, as he suggests, out of the spirit of generosity. Rather, he’s turning it over because, to survive as Special Counsel long enough to write his report, he needs to avoid giving Merrick Garland cause to fire him. Sussmann has effectively put Durham on notice that he’s going to ask every witness whether they were bullied to tell a false story. And if Durham were to sit on records even hinting at such bullying, withholding them in discovery when the complaint is bound to come out at trial would provide Garland that cause for firing.

Which makes it all the more interesting that Durham stated he had included reports of calls with Lorenzen’s lawyer specifically.

numerous reports of phone calls between the Special Counsel team and counsel for several witnesses or subjects in this investigation, including counsel for the individual referred to in the Indictment as “Originator-1;”

Complaints from Lorenzen would be neither Jencks — the requirement to provide the interview reports and grand jury testimony from witnesses the prosecution plans to call at trial — nor Giglio — the requirement to tell defendants about any benefits witnesses received for their testimony. That’s because Durham is treating Lorenzen as a subject of the investigation, not a witness. Like all Fusion employees, Rodney Joffe, and all but one employee of the Clinton Campaign, she is not listed as having been interviewed. That suggests either that Durham still wants to charge Lorenzen as part of his conspiracy charge or that he tried to subpoena her and she told him she’d invoke the Fifth. (According to an earlier Sussmann filing, Durham has immunized at least one witness and he could do so with Lorenzen as well if he really wanted her testimony.)

Of course Lorenzen has a complaint. While I don’t think Durham leaked her identity (he doesn’t need to because there’s a whole slew of researchers, including suspected Russian agents, who guarantee anything he says will soon be attached to a name), he improperly included insinuations about Lorenzen not backed by any evidence as part of his grand conspiracy theory about why Sussmann lied. He has done real reputational damage to Lorenzen without presenting any evidence to back such damage.

Durham provided Sussmann whatever complaints she made about the reputational harm he had done to cover his ass — to ensure it doesn’t get him fired — because Sussmann has the ability to obtain (and may have already obtained) such records from Lorenzen directly.

For now, then, Durham has protected himself.

But if it were to come out, as I think is likely, that DOJ has in its possession information about someone who claimed to have brokered one of the more incendiary parts of the Alfa Bank story, someone who fabricated other Internet routing data in May 2016 (the month that, Alfa Bank claims, its own data started getting spoofed), it might make any bullying Durham has done of Lorenzen the kind of thing that would be actionable against Durham. All the more so if Durham had not provided such information in discovery to Sussmann (which would be shocking, but I’m getting used to being shocked by Durham’s incompetence).

Durham has covered his ass, for now. But if it came out that Durham insinuated Lorenzen had fabricated this data even though DOJ knows of a more likely candidate to have done so, that would cause all sorts of new problems for him.

John Durham Flew to Italy to Get Joseph Mifsud’s Blackberries But Never Walked Across DOJ to Obtain James Baker’s Phones He Forgot He Knew Were There

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Back in 2019, when John Durham undercut DOJ Inspector General Michael Horowitz’s conclusion that, for all the problems in the Carter Page FISA, the investigation itself was properly predicated and there was no evidence that the investigation into Trump’s associates had been politicized, Durham pointed to what he claimed was the broader scope of his own investigation that gave him reason to believe the predication was not clearcut.

I have the utmost respect for the mission of the Office of Inspector General and the comprehensive work that went into the report prepared by Mr. Horowitz and his staff.  However, our investigation is not limited to developing information from within component parts of the Justice Department.  Our investigation has included developing information from other persons and entities, both in the U.S. and outside of the U.S.  Based on the evidence collected to date, and while our investigation is ongoing, last month we advised the Inspector General that we do not agree with some of the report’s conclusions as to predication and how the FBI case was opened.

Durham pointed both to his review of other agencies — such as the CIA review he has now completed without results — and the boondoggles he took with Billy Barr overseas as the basis (he claimed) to know more than Michael Horowitz.

Durham’s statement came shortly after he obtained two Blackberries — one dating to 2011 and the other to 2014 — that once belonged to Joseph Mifsud. By all reports, the George Papadopoulos conspiracy theories that Barr and Durham were chasing on the trip to Italy where they got those phones amounted to nothing. Taxpayers paid for Durham to fly overseas to collect information that predates the Russian operation by years, all because a sworn liar invented excuses for his crime after the fact.

It’s not that Horowitz ignored the Coffee Boy’s conspiracy theories. Rather than taking a junket to Italy to rule out Papadopoulos’ fevered speculation, Horowitz just looked in the FBI’s informant database and called the CIA.

164 During October 25, 2018 testimony before the House Judiciary and House Committee on Government Reform and Oversight, Papadopoulos stated that the source of the information he shared with the FFG official was a professor from London, Joseph Mifsud. Papadopoulos testified that Mifsud provided him with information about the Russians possessing “dirt” on Hilary Clinton. Papadopoulos raised the possibility during his Congressional testimony that Mifsud might have been “working with the FBI and this was some sort of operation” to entrap Papadopoulos. As discussed in Chapter Ten of this report, the OIG searched the FBI’s database of Confidential Human Sources (CHS), and did not find any records indicating that Mifsud was an FBI CHS, or that Mifsud’s discussions with Papadopoulos were part of any FBI operation. In Chapter Ten, we also note that the FBI requested information on Mifsud from another U.S. government agency, and received a response from the agency indicating that Mifsud had no relationship with the agency and the agency had no derogatory information on Mifsud.

[snip]

484 Papadopoulos has stated that the source of the information he shared with the FFG was a professor from London, Joseph Mifsud, and has raised the possibility that Mifsud may have been working with the FBI. As described in Chapter Ten of this report, the OIG searched the FBI’s database of Confidential Human Sources (CHSs) and did not find any records indicating that Mifsud was an FBI CHS, or that Mifsud’s discussions with Papadopoulos were part of any FBI operation. The FBI also requested information on Mifsud from another U.S. government agency and received no information indicating that Mifsud had a relationship with that agency or that the agency had any derogatory information concerning Mifsud.

This comparison is one reason it is so damning that Durham just admitted that he never sought to obtain (and falsely claims he never knew about) two phones formerly used by James Baker that were in the custody of DOJ IG all that time.

[I]n early January 2022, the Special Counsel’s Office learned for the first time that the OIG currently possesses two FBI cellphones of the former FBI General Counsel to whom the defendant made his alleged false statement, along with forensic reports analyzing those cellphones. Since learning of the OIG’s possession of these cellphones, the Government has been working diligently to review their contents for discoverable materials. The Government expects to make those materials available to the defense later this week.

The John Durham investigation made a big effort to obtain two dated phones based on a conspiracy theory, but didn’t even seek to obtain phones he should have known were in DOJ possession before indicting someone based off the single witness testimony of that person. Crazier still, in an update to the Court, Durham admitted that he learned but then forgot that Horowitz had obtained one of them during his prior investigation of Baker for a suspected leak.

This is not the only damning admission of investigative negligence in John Durham’s request for an extension of the deadline — which turns out to be a request for the deadline he originally requested — for what he calls discovery (but what is actually basic investigative steps he should have taken long before indicting Sussmann).

For example, in his indictment of Michael Sussmann, Durham gives the impression that Rodney Joffe only obtained data from the US in 2016 to hunt down damning data about Donald Trump. But in response to a Sussmann request, Durham conducted a review of all the 17,000 unclassified emails involving the email domain from one of Joffe’s companies, finding 226 from 2016 alone that pertain to this issue. As Sussmann has argued, lying to hide Joffe’s involvement in this would be counterproductive given how closely he works with FBI.

[T]o the extent the Indictment alleges that the FBI General Counsel and FBI might have done various things like ask “further questions,” taken additional or more incremental steps,” “allocated its resources differently or more efficiently,” or “uncovered more complete information” but for Mr. Sussmann’s purported false statement, the Special Counsel should be required to particularlize those potential questions, additional steps, resource allocations, or more complete information. Id. This is particularly necessary because [Joffe] — far from being a stranger to the FBI — was someone with whom the FBI had a long-standing professional relationship of trust and who was one of the world’s leading experts regarding the kinds of information that Mr. Sussmann provided to the FBI. The notion that the FBI would have been more skeptical of the information had it known of Tech Executive-1’s involvement is, in a word, preposterous.

Similarly, the indictment makes much of the fact that Sussmann shared information with the NYT that ultimately led to an infamous October 31 story. It suggests without evidence that Sussmann — or even the Congressional sources who obviously played a role in the story — were the only ones pushing the Alfa Bank story to the NYT. It further suggests, falsely, that all the material NYT obtained on Alfa Bank came from Joffe’s effort. Crazier still, until Sussmann asked, Durham hadn’t pulled the details from a meeting the FBI (one that included James Baker and Bill Priestap, almost certain to be witnesses at Sussmann’s trial) had with the NYT.

On September 27, November 22, and November 30, 2021, the defense requested, in substance, “any and all documents including the FBI’s communications with The New York Times regarding any of [the Russian Bank-1] allegations in the fall of 2016.” In a subsequent January 10, 2022 letter, the defense also asked for information relating to a meeting attended by reporters from the New York Times, the then-FBI General Counsel, the then-FBI Assistant Director for Counterintelligence, and the then-FBI Assistant Director for Public Affairs. In response to these requests, the Special Counsel’s Office, among other things, (i) applied a series of search terms to its existing holdings and (ii) gathered all of the emails of the aforementioned Assistant Director for Public Affairs for a two-month time period, yielding a total of approximately 8,900 potentially responsive documents. The Special Team then reviewed each of those emails for relevant materials and produced approximately 37 potentially relevant results to the defense.

Pulling these records would have been just the first step Durham should have taken to figure out what other entities might have been pushing this story to the NYT and what specific allegations those entities were pushing to test some of the insinuations Durham makes in the indictment. Yet Durham never thought to look for these records before he indicted Sussmann.

Still, Durham’s failure to do anything to understand what DOJ IG had done in its parallel investigation is the most remarkable.

Before Durham was formally appointed, Billy Barr’s top aide Seth DuCharme seemed to be attempting to deconflict the investigation by bringing the two men together to talk about scope.

Perhaps Durham’s public rebuke of Horowitz undermined any cooperation since then (though Durham was certainly happy to take the Kevin Clinesmith case that Horowitz had wrapped up in a bow and claim it as his only visible sign of life for years).

But according to Durham’s filing, he didn’t reach out to Horowitz’s office until three weeks after indicting Sussmann (and perhaps more importantly, less than four weeks before indicting Igor Danchenko, in whose prosecution the DOJ IG investigation plays a central role). Durham presents his team reaching out to another unit at DOJ that he knew to have relevant material as some great feat of diligence rather than something he should have done years earlier.

On October 7, 2021, at the initiative of the Special Counsel’s Office, the prosecution team met with the DOJ Inspector General and other OIG personnel to discuss discoverable materials that may be in the OIG’s possession. The Special Counsel’s office subsequently submitted a formal written discovery request to the OIG on October 13, 2021, which requested, among other things, all documents, records, and information in the OIG’s possession regarding the defendant and/or the Russian Bank-1 allegations. The Special Counsel also requested any transcripts or other documents within the OIG’s possession containing certain search terms. In response, the OIG provided, and the Government has produced to the defense in redacted form, relevant transcripts of interviews conducted by the OIG during its review of the FBI’s Crossfire Hurricane investigation.

That’s what led Durham to discover, for the first time, the anonymous tip of the same sort — weird forensic data discovered by Joffe — that Sussmann shared with DOJ IG in the same time period Durham was investigating.

It wasn’t until Durham asked the FBI Inspection Division for call data associated with Baker’s phone this month that they told him — because Durham had apparently never asked, not even given the endless focus on Peter Strzok and Lisa Page texts Horowitz obtained way back in 2017 — that DOJ IG had two phones that Baker had used. After Durham publicly claimed not to have known about the phones, DOJ IG then informed him that he learned DOJ IG obtained one of them in 2018 during a different investigation of Baker.

Durham’s belated outreach to DOJ IG may in fact be what first led Durham to discover the interview DOJ IG did with Baker on July 15, 2019 — shortly after deconfliction meetings in advance of Durham’s appointment — in which Baker said something that materially conflicts with the statements Baker has made to Durham, statements that in fact confirm Sussmann’s story.

Durham also obtained a transcript — the only one he provided to Sussmann in unredacted form — about some other investigation that Horowitz is currently conducting.

the transcript of an interview conducted by the DOJ Office of Inspector General in connection with an administrative inquiry that is currently ongoing;

And now, part of the reason Durham is asking for a delay in his existing deadline is that requests of Horowitz he should have made at the beginning of any investigation into whether Sussmann falsely set up Trump are proving too onerous for DOJ IG (which is working on a slew of reports on events that aren’t five years past) to do on their own.

Third, in January 2022, the OIG informed the Special Counsel’s Office for the first time that it would be extremely burdensome, if not impossible, for the OIG to apply the search terms contained in the prosecution team’s October 13, 2021 discovery request to certain of the OIG’s holdings – namely, emails and other documents collected as part of the OIG’s investigation. The OIG therefore requested that the Special Counsel’s Office assist in searching these materials. The Government is attempting to resolve this technical issue as quickly as possible and will keep the defense (and the Court as appropriate) updated regarding its status.

At this point, four months after indicting Michael Sussmann and two years after claiming he knew better than Michael Horowitz, Durham doesn’t know whether he even consulted the same records that Horowitz did.

As noted, if the same is true with respect to the Danchenko case, it is potentially lethal to Durham’s case, because his investigative theory (which is that Danchenko is responsible for FBI’s failure to act on problems with the dossier) is fundamentally incompatible with Horowitz’s (which is that it was FBI’s fault for not acting).

Durham does know, however, that he didn’t consult something that Horowitz did: Baker’s actual phones.

And that may have a real impact at trial.

At a status conference, Durham’s prosecutors dismissed the possibility that they had bullied Baker into telling the story they wanted him to tell on threat of prosecution: that Sussmann affirmatively lied about having a client, which conflicts with several other claims he had previously made under oath. They said (in a scheduling motion), instead, that once Durham’s prosecutors refreshed Baker’s memory with notes from Bill Priestap and someone else he spoke with after the Sussmann meeting, Baker remembered that Sussmann had actually affirmatively lied.

Mr. Baker made these statements before he had the opportunity to refresh his recollection with contemporaneous or near-contemporaneous notes that have been provided to the defense in discovery. Indeed, the defendant’s motion entirely ignores law enforcement reports of Mr. Baker’s subsequent three interviews with the Special Counsel’s Office in which he affirmed and then re-affirmed his now-clear recollection of the defendant’s false statement.

Effectively, they claimed they had better information when questioning Baker than anyone previously had.

Durham is going to have to present that to the jury, probably through the testimony of one of the FBI agents involved.

But that claim only works if Durham’s team had a more complete record than Horowitz’s team did when they asked the same questions. Durham doesn’t know whether that’s true or not yet, because he never bothered to figure out what Horowitz had. The delay Durham wants to do investigative work he should have done years ago is a delay, in part, to see whether that claim has any basis in fact. (And at least in December, Durham had only provided a heavily redacted transcript of what went on between Baker and the IG.)

All parties know one thing, however: That when Horowitz conducted questioning of Baker in 2019 about this topic, unlike Durham, he had consulted with Baker’s own phone. Durham can no longer claim to have been more thorough than Horowitz, because he just admitted he didn’t even bother consulting Baker’s phones and is only now getting around to checking what else Horowitz might have consulted that he did not.

John Durham indicted Michael Sussmann on the last possible day he could have under the statutes of limitation. And now, he’s asking for a delay in discovery deadlines (if not a delay in Sussmann’s trial), so he can do basic investigative work he should have done before the statutes of limitation tolled.

Update: Judge Cooper has granted Durham’s extension.

Update: Holy shit it gets better! Durham just had to admit that, in an earlier investigation of Baker, he learned DOJ IG had obtained this phone.

After reviewing the Special Counsel’s Office’s public filing, the DOJ Office of Inspector General (“OIG”) brought to our attention based on a review of its own records that, approximately four years ago, on February 9, 2018, in connection with another criminal investigation being led by then-Acting U.S. Attorney Durham, an OIG Special Agent who was providing some support to that investigation informed an Assistant United [sic] Attorney working with Mr. Durham that the OIG had requested custody of a number of FBI cellphones. OIG records reflect that among the phones requested was one of the two aforementioned cellphones of the then-FBI General Counsel. OIG records further reflect that on February 12, 2018, the OIG Special Agent had a conference call with members of the investigative team, including Mr. Durham, during which the cellphones likely were discussed. OIG records also reflect that the OIG subsequently obtained the then-FBI General Counsel’s cellphone on or about February 15, 2018. Special Counsel Durham has no current recollection of that conference call, nor does Special Counsel Durham currently recall knowing about the OIG’s possession of the former FBI General Counsel’s cellphones before January 2022.

This post has been updated to reflect how Durham learned he already knew of the phones.

Timeline of Sussmann discovery

September 16, 2021: Michael Sussmann indictment

September 27: Sussmann asks for:

  • All evidence from wiretaps or eavesdropping (there appears to be none)
  • All communications regarding Sussmann’s security clearance reviews (900 pages)
  • Any documents pertaining to FBI treatment of anonymous tips (with repeated follow-ups)
  • All FBI communications with the NYT regarding Alfa Bank allegations in 2016 (with repeated follow-ups)
  • Materials regarding relationship between Joffe’s companies and government agencies; FBI results for 2016 result in 226 emails

October 7: Durham team meets with DOJ IG to discuss discoverable material in DOJ IG possession

October 13: Durham issues a formal discovery request to DOJ IG

October 13: Sussmann asks for Priestap’s notes

October 20: Sussmann reviews Priestap’s notes

October 25: Sussmann reply memo reveals he still hasn’t received taxi billing records and other identifiable Brady material, including an “unclassified grand jury testimony of an immunized witness, that either exculpate[s] Mr. Sussmann or conflict[s] with the core allegations that the Special Counsel has made against him”

October 29: Sussmann’s team obtains clearance

November 3: Igor Danchenko indictment

Week of November 15: Durham turns over some, but not all, of Baker’s statements, including conflicting DOJ IG fragment

November 22: Sussmann follow-up on request for FBI communications with NYT; after previously accepting June trial date, Durham proposes July 25

November 30: Sussmann follow-up on request for FBI communications with NYT; says Durham is missing some of the CIA employees in February 9, 2017 meeting

December 6: Sussmann moves for trial date, describing that Durham needs four more months for discovery

December 7: Durham response; Sussmann first gets Baker grand jury transcripts; just three grand jury transcripts provided by that point

December 8: Status conference at which Sussmann attorney reveals they’ve just seen Baker grand jury transcript

December 10: Sussmann asks for records “any records reflecting any consideration, concern, or threats from your office relating to those individuals’ or their counsels’ conduct. . . and all formal or informal complaints received by you or others”

December 14: Scheduling order

December 17: DOJ IG gives Durham forensic report arising from previous Sussmann tip

December 23: Durham gives Sussmann forensic report from DOJ IG tip

Early January 2022: OIG says it can’t get through the discovery on Crossfire Hurricane investigation by itself

January 5: Durham asks FBI Inspection Division about call log data for Baker’s phone

January 6:  FBI Inspection Division tells Durham that DOJ IG has Baker’s phones

January 7: Durham asks DOJ IG about the phones

January 10: DOJ IG provides the information on Baker’s phones; Sussmann asks for information regarding meeting with NYT, James Baker, Bill Priestap, and Michael Kortan (result did not come up on searches, so Durham had to search through 8,900 pages of Kortan’s records, resulting in 37 results)

January 20: Durham asks to have until “the end of March” for discovery (effectively, his originally requested deadline); Sussmann tells Durham he met with DOJ IG in person in March 2017 about anonymous tip

January 21: Sussmann response agreeing to February 11; DOJ IG confirms they did meet with Sussmann

January 25: Durham submits filing claiming he never knew DOJ IG had Baker’s phones (in response DOJ IG reminds Durham he already knew of one of the phones)

January 26: DOJ IG provides second forensic reports on the phones to Durham

January 28: Unclassified discovery originally due; Cooper grants extension to March 18 in the morning; Durham provides initial forensic reports to Sussmann and then (at 11:52PM) informs court he had previously been informed of Baker’s phone years ago

February 11: Classified discovery due

February 18: Motion to Dismiss due

March 18: 404(b) and remaining Jencks and Giglio due

March 25: Durham’s initial and second requested discovery deadline

May 16: Existing trial date

 

Hot and Cold Running John Durham Conspiracy Conspiracies

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I’d like to congratulate Assistant [Durham] Special Counsel Michael Keilty. In what is close to a first from Durham’s team, he submitted a filing without obvious glaring errors (like the Criminal Information for Kevin Clinesmith that revealed the Durham team didn’t even know for what crime Carter Page had been investigated or their persistent cut-and-paste errors).

The filing is a motion for miscellaneous relief, asking Judge Anthony Trenga to require Igor Danchenko to waive any conflict he might have because his new defense attorneys, Danny Onorato and Stuart Sears, are at the same firm as (according to Josh Gerstein) Robert Trout, who is representing, “the 2016 “Hillary for America” presidential campaign (the “Clinton Campaign”), as well as multiple former employees of that campaign, in matters before the Special Counsel.”

The filing is entirely reasonable.

It simply asks that Judge Trenga inquire into the conflict presented by partners from the same firm representing multiple investigative Durham subjects and ensure that if Danchenko chooses to continue with Onorato and Sears as his attorneys, he does so waiving any potential conflict down the road.

Notwithstanding the potential conflicts involved, the government believes that this potential conflict is waivable, should the defendant so choose, assuming a knowing, intelligent and voluntary waiver is executed.

Based on the foregoing, the government respectfully requests that Court inquire into the conflict issues set forth herein.

It’s how Keilty gets there — as well as the Durham’s team uneven treatment of the connectivity of their investigation — that I find interesting. Remember: The Clinton campaign is referenced in Michael Sussmann’s indictment, though Durham already had to confess that the indictment overstated Sussmann’s contacts with members of the campaign.

But Durham’s effort to implicate the Hillary campaign in Danchenko’s actions is more of a stretch, going through Charles Dolan and entailing treating Hillary as a more dangerous adversary than Russian intelligence.

Again, the Paul Manafort report may be the most provably correct report in the entire dossier. Claiming (correctly) that Manafort was ousted not just because of his corrupt ties in Ukraine — a claim that Republicans have spent five years claiming was just a propaganda campaign launched by Democrats — but also because others wanted him out actually undercuts the story that has always claimed to be the most useful to Democrats. The report on Embassy staff changes was, Durham suggests, based directly off quotes Dolan got from the staffer in question; indeed, Durham points to the accuracy of those quotations to prove the report came from Dolan. There was a flourish added — that the person in question was untainted by involvement with the Russian election operation — which Danchenko disclaims, but there’s no evidence the flourish comes from Dolan (or even Danchenko — it’s the kind of thing Steele seems to have added). In other words, assuming Dolan was the source for the things Durham claims he was, Dolan seems to have been the most accurate source for the dossier.

There was an unbelievable amount of shit in the dossier and it would be useful if there were an accounting of how that happened (which Durham is not doing here). The Danchenko-to-Steele reporting process (which, contrary to Durham’s claims, Danchenko candidly laid out in his first interviews with the FBI) was one source of the problems with the dossier. But at least as much of the shit seems to come from Danchenko’s sources, several of whom had ties to Russian intelligence and who may have been deliberately injecting disinformation into the process. Instead of focusing on that — on Russians who may have been deliberately feeding lies into the process — Durham instead focuses on Dolan, not because Durham claims he wittingly shared bad information to harm Trump (his one lie served to boost an accurate story that went against the grain of the Democrats’ preferred narrative), but because as a Democrat he — not Russian spies — is being treated by Durham as an adversary.

Plus, at least as alleged in the Danchenko indictment, there’s no firsthand Hillary witness necessary to Danchenko’s conviction. The witnesses to Danchenko’s five alleged lies are all FBI personnel. The evidence against Danchenko regarding the four claimed lies about Sergei Millian involve Danchenko’s own emails and — !!! — the hearsay Twitter account of someone once and possibly still suspected of being a Russian agent. Dolan’s testimony about what he and Danchenko discussed six years ago at the Moscow Ritz will undoubtedly be of interest to the jury and still more interest to the frothy right, but not only is that not necessary to prove the single count claiming Danchenko lied about Dolan’s role in all this, it falls short of proof that Danchenko didn’t go from that lunch to speak to personnel at the Ritz himself.

Even though no one with a paid gig on the Hillary campaign is needed (or even, at least as charged, conceivably useful) as a witness against Danchenko, here’s how Keilty lays out the potential conflict.

As discussed above, the Clinton Campaign, through Law Firm-1 and U.S. Investigative Firm-1, commissioned and financed the Company Reports in an attempt to gather and disseminate derogatory information about Donald Trump. To that end, U.K. Person-1 relied primarily on the defendant to collect the information that ultimately formed the core of the allegations contained in the Company Reports. The Indictment alleges that certain statements that the defendant made to the FBI about information contained in the Company Reports, were knowingly and intentionally false. Thus, the interests of the Clinton Campaign and the defendant could potentially diverge in connection with any plea discussions, pre-trial proceedings, hearings, trial, and sentencing proceedings. Areas of inquiry that may become relevant to defense counsel’s representation of the defendant, and which also may become issues at trial or sentencing, include topics such as (1) the Clinton Campaign’s knowledge or lack of knowledge concerning the veracity of information in the Company Reports sourced by the defendant, (2) the Clinton Campaign’s awareness or lack of awareness of the defendant’s collection methods and sub-sources, (3) meetings or communications between and among the Clinton Campaign, U.S. Investigative Firm-1, and/or U.K. Person-1 regarding or involving the defendant, (4) the defendant’s knowledge or lack of knowledge regarding the Clinton Campaign’s role in and activities surrounding the Company Reports, and (5) the extent to which the Clinton Campaign and/or its representatives directed, solicited, or controlled the defendant’s activities. On each of these issues, the interests of the Clinton Campaign and the defendant might diverge. For example, the Clinton Campaign and the defendant each might have an incentive to shift blame and/or responsibility to the other party for any allegedly false information that was contained within the Company Reports and/or provided to the FBI. Moreover, it is possible that one of these parties might also seek to advance claims that they were harmed or defrauded by the other’s actions, statements, or representations. In addition, in the event that one or more former representatives of the Clinton Campaign (who are represented by defense counsel’s firm) are called to testify at any trial or other court proceeding, the defendant and any such witness would be represented by the same law firm, resulting in a potential conflict. Finally, it is also likely that defense counsel’s firm already has obtained privileged information from the Clinton Campaign regarding matters involving or relating to the defendant, the Company Reports, and the conduct alleged in the Indictment.

Some of this is the kind of fevered conspiracy theorizing that has fueled Durham for 950 days so far and sustains the Durham presumption that Hillary Clinton is a greater adversary to the United States than Russian intelligence operatives. None of it is contained within the existing indictment. It doesn’t envision as a possibility that this was all a clusterfuck better suited to a child’s game of telephone than the conspiracy Durham needs it to be. It also seems to forget that even if Danchenko lied to Christopher Steele, that would not amount to fraud on the Hillary campaign.

But it is a road map to what Durham is planning: an attempt to sic various participants in the 2016 efforts against each other such that they start entering cooperation agreements in which they spin up the grand conspiracy Durham is certain exists. It’s certainly sound prosecutorial strategy for Keilty to alert Judge Trenga that down the road they seek to pit all the subjects of their investigation against each other such that down the road, people who have never been alleged to have interacted with Danchenko personally might one day testify against him, all to support the claim that the Hillary campaign engaged in a conspiracy to defraud the FBI, DOJ, and DARPA funders.

But it raises questions about something that happened in the other active prosecution of the Durham investigation, Michael Sussmann’s. Based on court filings and what was said at a December 8 hearing in the Sussmann case, Durham has the following evidence about what Sussmann did or did not say:

  • A report written by Durham investigators, probably in conjunction with a 2017 leak investigation, in which “Durham or someone on his team questioned James Baker’s credibility.”
  • An October 3, 2018 Baker interview that conflicts with the indictment.
  • An October 18, 2018 Baker interview that conflicts with the indictment.
  • A July 15, 2019 Baker interview that conflicts with the indictment.
  • The first Durham interview with Baker on this subject, in June 2020, that conflicts with the indictment.
  • Three more Durham interviews with Baker on this subject that align with the indictment.
  • Grand jury testimony that must align with the indictment, but which had not been released to Sussmann’s cleared lawyers before the December 8 hearing.
  • Hearsay testimony from Bill Priestap that generally aligns with the indictment.
  • Hearsay testimony from another FBI witness that differs in some respects from Priestap’s and may or may not align with the indictment.
  • Testimony from two CIA witnesses at a different meeting that may or may not align with the indictment.
  • A report based on notes that have been destroyed, the final version of which differs somewhat from the indictment and may or may not align with it.
  • A draft (there seems to be some disagreement whether it is a memorandum to the file or emails) of that CIA report that reflects Sussmann mentioning a client — which therefore dramatically undermines the indictment.
  • At least one 302 reflecting an interview with Baker about another aspect of the Durham investigation.

Had Mueller believed it ethical to charge someone with evidence this contradictory — and I’m really not exaggerating when I say this — he had the goods to charge Trump with agreeing to give Russia sanctions relief in exchange for an impossibly lucrative real estate deal in Moscow. He could have charged Paul Manafort with trading $19 million in debt relief for the campaign strategy and help carving up Ukraine. He could have charged Roger Stone — and through him, Donald Trump — with entering into cooperation with the Russian hacking team before they spent September hacking Hillary’s analytics, for a still unexplained purpose.

This list of conflicting evidence that Durham has is a testament to the recklessness with which he has decided to pursue his own feverish conspiracy theories. It doesn’t mean he won’t get there. He might! It means he’s engaging in extraordinary conduct to get there.

It’s the last bullet I find particularly interesting. In the December 8 hearing, AUSA Andrew DeFilippis explained, “We did a meeting w/Mr. Baker in which we did not touch on charged conduct. We did not produce to defense.” That is, they’re withholding at least one 302 of a Durham interview in this investigation with Baker. Judge Christopher Cooper responded that he, “won’t disturb USG’s view that this is not discoverable.”

So on the one hand, Durham’s prosecutors are arguing that a conspiracy not yet charged creates conflicts for an Igor Danchenko indictment that doesn’t implicate any paid members of the Hillary campaign. But on the other hand, they’re arguing that the same investigation is sufficiently bracketed that they’re not required to provide Sussmann the records of what exposure Baker himself may have that might persuade him to change his story.

Sussmann’s attorney Sean Berkowitz observed that Baker had obviously changed his story. Durham’s team explains that’s because Baker refreshed his memory (though what we’ve seen of the contemporary records suggest there are two possible readings of them). But Sussmann could well argue that, because of criminal exposure himself, Baker changed his story to reflect what Durham wanted it to be.

As I have said, repeatedly, Durham needs Sussmann to have lied to have any hope of building this conspiracy case, and if he fails, each of the parts are far weaker.

And while claiming the conspiracy case he has not yet charged creates already existing conflicts, he’s still going to withhold the evidence of the conspiracy he’s trying to create.

John Durham Admits He Overstated Evidence in His Michael Sussmann Materiality Statement

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In my post laying out Michael Sussmann’s motion for a Bill of Particulars, I expressed the following:

  • His claim that he needed the exact quote of the lie he purported told Jim Baker was well-founded
  • Durham would respond to Sussmann’s demand for more specificity about materiality by saying that was up to the jury
  • Sussmann surely knew the names of the other people at a CIA meeting where, Durham alleges, just two people present now claim that Sussmann lied about having a client
  • Sussmann surely knew there were no people on the Clinton Campaign with whom he had — as Durham had insinuated in a materiality statement — [personally] coordinated; he knew any such communications happened through Marc Elias

As I tweeted out here, Durham’s response to Sussmann affirms all of those predictions.

  • Durham responded to the request for the exact quote of the lie Sussmann purportedly told by block-quoting the indictment (which doesn’t quote his lie), but not providing the actual lie he told or the context in which he allegedly told it; in the process, Durham seemed to commit that he was not charging Sussmann with a lie of omission but only alleging Sussmann omitted material information with an alleged affirmative lie
  • Durham quoted the traditional definition of materiality (not the one DOJ espoused with Mike Flynn), and said it was up to the jury to decide
  • Durham admitted that he introduced the CIA lie as 404b information, not an actual charge (and seemed to concede he has no proof that Sussmann told exactly the same lie to the CIA as he allegedly did to the FBI)

But it’s Durham’s response to the request for the names of the Clinton Campaign people with whom Sussmann allegedly coordinated that I find most telling. Sussmann had asked for the identity of the Clinton Campaign people that Durham mentioned in a passage (bolded below) from paragraph 6 of the indictment that Durham used as one of three prongs in his materiality statement.

Finally, Mr. Sussmann seeks the identities of certain representatives and agents of the Clinton Campaign mentioned in the Indictment that the Special Counsel has refused to provide to date.7 The Indictment alleges that Mr. Sussmann, Tech Executive-1, and Law Firm-1 “coordinated, and were continuing to coordinate, with representatives and agents of the Clinton Campaign with regard to the data and written materials that Sussmann gave to the FBI and the media.” Indictment ¶ 6. The Indictment does not identify by name the alleged “representatives and agents of the Clinton Campaign.” Id.

The animating theory of the Special Counsel’s Indictment is that Mr. Sussmann was secretly working on behalf of the Clinton Campaign, and he intentionally and falsely stated that he was not acting on behalf of any client in order to conceal his ties to the campaign. The Special Counsel should not be permitted, on the one hand, to allege that Mr. Sussmann was working on behalf of the Clinton Campaign, but on the other hand, decline to identify the specific individuals with whom he was purportedly working. Among other things, Mr. Sussmann may wish to call such individuals as witnesses in his defense at trial, but, unless he knows of their identities, he will have no ability to do so. At base, an indictment must provide a defendant with the “essential facts constituting the offense charged.” Fed R. Crim. P. 7(c)(1). And no facts could be more essential than the names of the witnesses involved.

Having made these allegations, the Special Counsel must illuminate them—by identifying the relevant individuals referenced—to allow Mr. Sussmann to decide how to respond appropriately. See Butler, 822 F.2d at 1193 (the indictment must enable the defendant to understand the charges against him and prepare a defense); cf. Hubbard, 474 F. Supp. at 80 (ordering bill of particulars to define “unnecessarily vague” phrases used in the indictment). Therefore, Mr. Sussmann respectfully asks this Court to order the Special Counsel to provide a bill of particulars identifying, by name, the “representatives and agents of the Clinton Campaign” with respect to Paragraph 6.

7 The Special Counsel has identified virtually all of the other anonymous individuals and entities referred to in the Indictment (except, as noted above, the Agency-2 employees).

In my post, I suggested that Sussmann isn’t so much trying to get these names, but because he knows this claim is false, he’s trying to get Durham to admit that there are no names — because (Sussmann knows) he didn’t coordinate directly with the Clinton Campaign.

Sussmann likely doesn’t really need these names because he likely knows that Durham has nothing to substantiate this claim. If he did, Durham would have described such evidence in his speaking indictment.

And Durham’s response cedes the point: In response to a question about the “agents and representatives of the Clinton Campaign” with whom Sussmann directly coordinated referenced in paragraph 6, Durham explains that that reference is just a “summary” of “facts” later alleged in paragraphs 25(e), 20(d), and 20(g).

Paragraph 6 is a portion of the “Introduction and Overview” section of the Indictment that summarizes facts later alleged with specificity. And the later parts of the Indictment provide details underlying the more generalized allegation in Paragraph 6. For example, Paragraph 25(e) of the Indictment states that [Elias] had exchanged emails about the [Alfa Bank] allegations with the Clinton Campaign’s campaign manager, communications director, and foreign policy advisor which the defendant had provided to a newspaper. Ind. ¶ 25(e). Indeed, the government also provided the true identities of each of those referenced individuals to defense counsel in a discovery letter dated October 20, 2021. Likewise, Paragraphs 20(d) and 20(g) allege that the defendant, one of his law partners, and [Rodney Joffe] each communicated via email with an investigative firm that was at the time acting as an agent of the Clinton Campaign. The government similarly has provided the identity of that investigative firm to the defense in its October 20 discovery letter, even though counsel was undoubtedly already aware of that firm’s identity. Moreover, it was a production of information by the defendant’s counsel (i.e., a privilege log) that first alerted the government to these cited emails. Accordingly, the defendant is neither entitled to, nor needs any greater detail, regarding the identities of the individuals identified in Paragraph 25(e) at this stage, and any further information in that regard will be disclosed in due course in discovery prior to trial. At bottom, the defendant’s demand here is not an appropriate use of a motion for a bill of particulars and should be denied.

In response to the request for the identities of the Clinton Campaign people he was coordinating with, Durham pointed to the following allegations:

d. In or around the same time period [mid-August 2016], SUSSMANN, [Marc Elias], and personnel from [Fusion GPS] began exchanging emails with the subject line, “Connecting you all by email.”

[snip]

g. Later in or about August 2016, [Rodney Joffe] exchanged emails with personnel from [Fusion GPS].

[snip]

e. On or about September 15, 2016, [Elias] exchanged emails with the Clinton Campaign’s campaign manager, communications director, and foreign policy advisor concerning the [Alfa Bank] allegations that SUSSMANN had recently shared with [Franklin Foer]. [Elias] billed his time for this correspondence to the Clinton Campaign with the billing entry, “email correspondence with [Jake Sullivan], [name of campaign manager], [name of communications director] re: [Alfa Bank] Article.” [emphasis added by Durham]

That is, in response to a question, tell me what agents of the Clinton Campaign Sussmann and Joffe and Perkins Coie coordinated with, which is something (Durham claims) Sussmann lied to hide, Durham responded by pointing to 1) an email where Elias connected Fusion GPS and Sussmann via email (well after the identification of the Alfa Bank anomaly), 2) emails that Joffe exchanged with Fusion GPS, and 3) an email that Elias sent Jake Sullivan and others about the Franklin Foer article.

Effectively, Durham’s response admits that he has presented no evidence either Sussmann or Joffe ever spoke directly to members of the Clinton Campaign about the Alfa Bank allegations. He sustains the claim only by raising Elias, whom he doesn’t mention in that materiality statement.

He also admits that he is treating Fusion GPS as an agent of the Clinton Campaign, which it arguably is, but only through Perkins Coie. The indictment presents no evidence that the Campaign was directly managing Fusion, or even aware of it. There’s no place in this indictment where the Clinton Campaign provided directions into this effort that would amount to an instruction to feed information to the FBI, something that goes to the heart of whether or not Sussmann was representing Hillary at the meeting with Baker. (Right wing conspiracists have, in recent days, pointed back to Sussmann’s June 2016 efforts to get the FBI to attribute the DNC hack to Russia, conflating an interest in attribution to Russia and a later effort to investigate Trump’s ties to Russia.)

Durham might not even have the content of his emails with Fusion GPS or Elias’ emails with Sullivan and others. He only knows of these communications, Durham explains, because Sussmann invoked privilege over them in a privilege log shared with Durham.

In the indictment, Durham makes much of something April Lorenzen (the security expert who used the name Tea Leaves during this project but whom Durham has needlessly referred to as Originator-1) said on August 20, 2016 that reflects an obvious technical point: “even if we found what [Joffe] asks us to find in DNS, we don’t see the money flow, and we don’t see the content of some message saying, ‘send money here’.” That is, the DNS traffic they were following was proof of some kind of messaging. But it was not proof of what was being said. Durham may have the same problem: he may not have proof regarding what direction these communications flowed and what was really said.

I would not be remotely surprised if Durham used the fact that he obtained a false statements indictment as a basis to obtain a probable cause warrant to obtain these communications via other means (perhaps via whatever company hosts Perkins Coie’s email) such that an FBI filter team could do their own privilege determination of them. Durham is working on a theory that this is all two parallel conspiracies to defraud the government, and would need to use a crime-fraud exception to get to content that, he believes as a matter of faith, would prove the case. A big part of this investigation is an exercise in exposing Hillary to the same invasive investigative scrutiny as Trump (as if the Clinton email and Clinton Foundation investigations didn’t already do that), and Trump’s attorneys keep having their communications seized. So I’m sure Durham would relish seizing the communications of Elias and Sussmann.

That said, for the existing indictment charging only Sussmann with a single false statement, Durham claims that Sussmann lied to James Baker by disclaiming that both his work to chase down this Alfa Bank anomaly and his scheduling of a meeting at which he gave Baker a heads up that a media outlet was going to publish the story in order to hide that he was “coordinating” with the Clinton Campaign. But Durham presents no evidence Sussmann ever spoke to anyone at the Clinton Campaign on this topic … and the only evidence he presents that anyone spoke to Hillary’s people comes well after the white papers provided to the FBI were substantially complete.

This doesn’t really fly in an indictment charging just Sussmann. It effectively treats this as a conspiracy, without (yet) charging a conspiracy. With his response to Sussmann’s motion for a Bill of Particulars, Durham has effectively accused and treated all the named people of engaging in a conspiracy without showing any evidence that they were doing anything other than trying to understand an anomaly involving Trump’s company and a Russian bank.

John Durham Is the Jim Jordan of Ken Starrs

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Last Thursday, John Durham indicted Michael Sussmann, the Perkins Coie lawyer who advised the DNC, DCCC, and Clinton Campaign about cybersecurity in 2016 as they struggled to deal with a hostile nation-state attack aiming — in part — to help elect their opponent. The indictment accuses Sussmann of lying to FBI General Counsel James Baker at a September 19, 2016 meeting at which Sussmann shared information about the curious DNS traffic between a server used by a Trump marketing contractor and Alfa Bank.

emptywheel’s long history of debunking the Alfa Bank story

Before I unpack the indictment, let me remind readers that when this story first publicly broke, I explained why the Spectrum Health (aka my boob hospital at the time) aspect of the allegations made no sense, criticized Hillary’s team (including Jake Sullivan) for jumping on the story, and echoed Rob Graham’s criticism of the researchers who accessed DNS data to conduct this research.

In addition to his technical debunking, Robert Graham made an equally important point: researchers shouldn’t be accessing this data for ad-lib investigations into presidential candidates, and it’s not even clear who would have access to it all except the NSA.

The big story isn’t the conspiracy theory about Trump, but that these malware researchers exploited their privileged access for some purpose other than malware research.

[snip]

In short, of all the sources of “DNS malware information” I’ve heard about, none of it would deliver the information these researchers claim to have (well, except the NSA with their transatlantic undersea taps, of course).

[snip]

[B]efore Tea Leaves started pushing this story to the press, the FBI had been investigating it for two months.

Which, to my mind, raises even more questions about the anonymous researchers’ identities, because (small world and all) the FBI likely knows them, in which case they may have known that the FBI wasn’t jumping on the story by the time they started pitching it.

Or the FBI doesn’t know them, which raises still more questions about the provenance of these files.

Ah well, if President Hillary starts a war with Russia based off Iraq-War style dodgy documents, at least I’ll have the satisfaction of knowing my boob clinic is right there on the front lines.

In March 2017, I observed that the weird Alfa Bank entry in the Steele dossier suggested a feedback loop between the Alfa Bank server story and the dossier project. Then days after that, I noted all the ways that the packaging of this story made it more suspect.

In 2018, I complained about the way Dexter Filkins had strained to sustain the story, while noting that people ought to look more closely at why Alfa Bank might be the focus here; the Mueller Report since confirmed that within weeks after the story broke publicly, Vladimir Putin pushed Oligarchs from Alfa Bank to fight harder against western sanctions, something that the alleged source for the Alfa Bank entry in the dossier seemed to parrot.

In short, I not only have consistently criticized this story, but done so in ways that anticipate the most justifiable parts of the indictment. It’s only the last bit — how the Alfa narrative echoes Putin’s interests — that this indictment doesn’t incorporate.

I guess with five more years Durham might get there…

So in unpacking this indictment, I’m in no way defending the Alfa Bank – Trump Tower story. It was a sketchy allegation, the packaging of it was suspect, and those who conducted the research arguably violated ethical guidelines.

I got to where Durham got in this indictment years and years ago. But that doesn’t make it a crime.

John Durham’s “narrative”

Moreover, that doesn’t mean Durham should tell as strained a “narrative” as those who packaged up this story. Central to Durham’s indictment is an assumption that if a victim of a crime who believed at the time that the crime had a — since confirmed — political goal reports suspicious, potentially related details, the victim must be motivated exclusively out of self-interest, not good citizenship or a concern about national security. That is, this entire indictment assumes that when Russia attacks a Presidential candidate, that is not itself a national security concern, but instead nothing more than a political dispute.

Effectively, John Durham has made it a crime for someone victimized by a Russian influence operation to try to chase down Russian influence operations.

Tech Executive-1 and Clinton both had retained Perkins Coie long before this, with Sussmann getting involved specifically for cybersecurity help in the wake of the Russian hack

The indictment, perhaps deliberately, obscures the timeline and facts leading up to the charged lie. But here’s the story it tells. First, all of Durham’s subjects established contracts with each other, even though all of those contracts (including Fusion GPS’) had scopes far larger than oppo research on Trump’s relationship with Russia.

  • In February 2015, Tech Executive-1 (whom I’ll call TE-1 for brevity) retained Sussmann to deal with a US government agency [Durham does not say whether this matter was resolved or continued in this period in 2016, which is central to the question of what kind of client of Sussmann’s TE-1 was].
  • In April 2015, the Clinton Campaign retained Perkins Coie and made Marc Elias the Campaign’s General Counsel.
  • In April 2016, the victim of a Russian government election-related attack, the DNC, retained Sussmann to help it deal with aftermath, which included meeting with the FBI. As the indictment describes this was not just legal support but cybersecurity.
  • [After a Republican retained them first and on a date that Durham doesn’t reveal,] Perkins Coie retained Fusion GPS to conduct oppo research on Trump pertaining to Russia [and other topics, though Durham doesn’t mention those other topics].

Durham only mentions in passing, later, that the researchers involved here similarly knew each other through relationships that focused on cybersecurity and predated these events.

Via means and on specific dates that Durham doesn’t always provide, Tea Leaves, TE-1, Sussmann, and two Researchers got the DNS data showing an anomaly

There are two sets of research here: that done in a university setting and that done at companies associated with TE-1, though TE-1 is the pivot to both. As depicted, Durham suggests the former are more legally exposed than the latter.

  • By some time in late July 2016 [the exact date Durham doesn’t provide], a guy who always operated under the pseudonym Tea Leaves but whom Durham heavy-handedly calls “Originator-1” instead had assembled “purported DNS data” reflecting apparent DNS lookups between Alfa Bank and “mail1.trump-email.com” that spanned from May 4 through July 29.
  • Tea Leaves was a business associate of TE-1 and via means Durham doesn’t describe, the data Tea Leaves gathered was shared with TE-1.
  • “In or about July 2016” [at a time that, because of the laws of physics, must post-date the late July date when Tea Leaves collected this data and the date when he shared them with TE-1], TE-1 alerted Sussmann to the data.
  • On July 31, Sussmann billed the Clinton Campaign for 24 minutes with the billing description, “communications with Marc Elias regarding server issue.”
  • At some point [Durham doesn’t provide even a month, but by context it was at least as early as July 2016 and could have been far, far earlier], TE-1’s company provided a university with data for a government contract ultimately not contracted until November 2016, including the DNS data from an Executive Branch office of the US government that Tech Exec-1’s company had gotten as a sub-contractor to the US government. [This date of this is critical because it would be the trigger for a Conspiracy to Defraud charge, if Durham goes there.]
  • In or about August 2016 [Durham doesn’t provide a date], a federal government was finalizing but had not yet signed a cybersecurity research contract with [presumably] that same university to receive and analyze large quantities of public and non-public data “to identify the perpetrators of malicious cyber-attacks and protect U.S. national security.” Tea Leaves was the founder of a company that the university was considering [Durham doesn’t provide the date of consideration, but generally these things precede finalization] for a subcontract with the government contract.

TE-1 directs employees of companies under his control to research this issue

Though Durham’s indictment is somewhat vague, at least one piece of research from companies associated with TE-1 was shared with the FBI; it appears that other threads of research were not shared.

  • In or about early August 2016 [the dates of which Durham doesn’t provide], TE-1 directed personnel at two companies in which he had an ownership interest to search for what the indictment calls, “any Internet data reflecting potential connections or communications between Trump or his associates and Russia,” which Durham describes to be “derogatory information on Trump.” In connection with this tasking, TE-1 later stated [on a date Durham doesn’t describe] he was working with someone who had close ties to the Democratic Party.
  • At some point, an individual tasked with this work described being “uncomfortable regarding this tasking,” [Durham doesn’t describe when he learned this or whether there is any contemporaneous proof].
  • At some point [Durham doesn’t describe the date], TE-1 provided one of his companies with personal (but publicly available) data from six Trump associates and one purported US-based lobbyist for Alfa Bank and directed these individuals should be the focus of that company’s data queries and analysis [Durham doesn’t say whether these six associates overlapped with the people Fusion had been tasked to research, nor does he allege they got included in the eventual reports to the FBI; both details are needed to assess his case].
  • On August 12, 2016, Sussmann, Elias, and TE-1 met in Elias’ office; Sussmann billed his time to the Clinton Campaign describing, “confidential meetings with Elias, others.”
  • On August 15, employees at one of the companies queried their holdings against a set of addresses that referred to Trump and/or Alfa Bank.
  • During the same time period [Durham doesn’t specify when], employees at Internet Company-3 drafted a written paper that included technical observations that Sussmann would later convey to the FBI.

Around the time this started, Sussmann met Fusion and a bunch of meetings happened that were billed to Hillary

  • On July 29, Sussmann and Marc Elias met with Fusion GPS [Durham doesn’t affirmatively claim this data pertained to the server issue], and Sussmann billed his time to the Hillary Campaign under “General Political Advice,” a different description than all the other Fusion meetings that Durham more credibly claims relate to the Alfa Bank allegation.
  • Around “the same [August] time period” [Durham doesn’t provide the date], Sussmann, Elias, and Fusion personnel began exchanging emails with the subject line, “Connecting you all by email;” [Durham doesn’t say who initiated the email, but it suggests that before this period, Sussmann and Fusion did not have direct contact].
  • On August 17, 2016, Sussmann, Elias, and TE-1 conducted an additional conference call, for which Sussmann billed his time to the Clinton campaign, noting “telephone conference with” TE-1 and Elias.
  • On August 19, 2016, Sussman and Elias had another in-person meeting that Sussmann described as a meeting with TE-1, which was billed as a “confidential meeting with Elias, others.”

Researchers 1 and 2 and Tea Leaves worked with TE-1 on a “storyline” and “narrative” with varying degrees of skepticism expressed

This is the stuff Durham–with some justification–will and has used to taint all this as a political project.

  • On July 29, Researcher-2 emailed Researcher-1 the data compiled by Tea Leaves [Durham provides no evidence that TE-1 was involved in this exchange].
  • On August 19, Researcher-1 queried Internet data maintained by TE-1’s company [it is not clear but this suggests it was not the data turned over to the University] for the aforementioned mail1.trump-email.com domain. Researcher-1 then emailed TE-1 with the list of domains that had communicated with it, saying the list, “does not make much sense with the storyline you have.”
  • On August 20, Tea Leaves emailed Tech Exec-1, Researcher-1, and Researcher 2, stating that, “even if we found what [TE-1] asks us to find in DNS, we don’t see the money flow, and we don’t see the content of some message saying, ‘send money here’.” Tea Leaves then explained that one could fill out sales forms and cause them, “to appear to communicate with each other in DNS.” Tea Leaves then noted that “it’s just not the case that you can rest assured that Hillary’s opposition research and whatever professional gov and investigative journalists are also digging come up with the same things.”
  • On August 20, TE-1 clarified that the task was “indeed broad,” and that,
    • Being able to provide evidence of *anything* that shows an attempt to behave badly in relation to this [Durham doesn’t describe what the antecedent of “this” is], the VIPs would be happy. They’re looking for a true story that could be used as the basis for closer examination.
  • Still on August 20, seemingly distinguishing between that task and the Alfa Bank allegations, TE-1 said, “the prior hypothesis was all that they needed: mailserver dedicated or related to trump … and with traffic almost exclusively with Alfa was sufficient to do the job. … Trump has claimed he and his company have had NO dealings with .ru other than the failed Casino, and the Miss universe pageant. He claims absolutely NO interaction with any financial institutions. So any potential like that would be jackpot.” [Ellipses original]
  • On August 21, TE-1 emailed the recipients [but not, apparently, Sussmann], urging them to do further research on Trump which would “given the base of a very useful narrative.” He added that he didn’t believe the trump-email.com domain was a secret communications channel but a “red herring,” because the host was “a legitimate valid company,” stating they could “ignore it, together with others that seem to be part of the marketing world.”
  • On August 22, Researcher-1 raised doubts about whether, using only the tools they were currently using, they could prove their hypothesis. Among the concerns raised is that they couldn’t prove that “this is not spoofed [] traffic.” [brackets original; bolded in the original]
  • Later in or about August 2016 [on dates Durham doesn’t provide], TE-1 exchanged emails with personnel from Fusion.

Sussmann drafts a white paper and (via unstated means) TE-1 gets Researchers 1 and 2 and Tea Leaves to review it

  • Between September 5 and September 14, Sussmann drafted a white paper, generally billing his time to the Clinton Campaign, but on September 14, billing time to both Clinton and TE-1.
  • On September 14, TE-1 [not Sussmann] sent the white paper he had drafted to Researcher 1, Researcher 2, and Tea Leaves to ask them if a review of less than an hour would show this to be plausible. Though some of them noted how limited the standard of “plausibility” was, they agreed it was plausible, and Researcher 2 said [Durham does not quote the specific language here] “the paper should be shared with government officials.”

Sussmann shares this and other information with James Baker and–Durham claims–affirmatively lies about whether he is representing someone

  • Both before the September 19 meeting and after it (notably in a September 12 meeting involving the NYTimes, in which Marc Elias also participated), Sussmann spoke to the press about what Durham credibly suggests was the Alfa Bank white paper. Sussmann billed this to Clinton.
  • On September 19, Sussmann met with Baker and provided him with three white papers and a thumb drive with data. Durham doesn’t actually make clear where all three of these came from.
  • On September 19, Sussmann met with James Baker. Durham claims that “he stated falsely that he was not acting on behalf of any client” [which Durham cannot quote because there’s no contemporaneous record], that he had been approached by multiple cyber experts [Durham doesn’t say whether the three he named were Researcher 1, Researcher 2, and Tea Leaves or other people, as seems to be the case], three white papers [which I may return to because this is another problematic spot in his story], and some of the data, which Durham calls “purported.”
  • Immediately after the September 19 meeting, Baker met with Bill Priestap whose notes read:
    • Michael Sussman[n] — Atty: Perkins Coie — said not doing this for any client
      • Represents DNC, Clinton Foundation, etc. []
      • Been approached by Prominent Cyber People (Academic or Corp. POCs), People like: [three names redacted]
  • Durham substantiates a claim that Sussmann billed the meeting itself to Hillary to a description, “work and communications regarding confidential project,” that does not, at least as he quotes it, mention a meeting with the FBI General Counsel at all.

Some of this — the reference to crafting a narrative and a storyline — is damning and validates my discomfort with the political nature of this project five years ago. Other parts of this emphasize the researchers’ insistence on truth from at least parts of this effort. Still others (such as the recognition that this could be spoofed data) will almost certainly end up being presented as exculpatory if this ever goes to trial, but Durham seems to think is inculpatory.

In one place, Durham describes “aforementioned views,” plural, that the Alfa Bank data was a “red herring,” something only attributed to TE-1 in the indictment, seemingly presenting TE-1’s stated view on August 21 to everyone involved, including Sussmann, who does not appear to have been on that email chain. He claims Sussmann, Researcher 1 and 2, TE-1, and Tea Leaves drafted the white paper(s) shared with the FBI, but all he substantiates is a less than one hour review by everyone but Sussmann. He leaves out a great deal of detail about what Jean Camp and someone using the moniker Tea Leaves did and said, publicly, after the FBI meeting, which may totally undercut Durham’s “narrative.”

But other parts, even of the story that Durham tells, are problematic for his narrative. First, there is not (yet) the least hint that Tea Leaves — whom he calls “The Originator” — fabricated this data (or even packaged it up misleadingly, though I think there is evidence he did). Nor is there the least hint that TE-1 asked Tea Leaves to come up with the data. That part of the story is fundamentally important and Durham simply ignores it with that legally unnecessary — particularly given that Durham clearly labels this person as Tea Leaves — moniker “Originator,” giving the anomalous forensic data a kind of virgin birth. And while two of the four tech experts described herein (there appear to be at least three others not described) expressed some doubt about the meaning of it, none of them seems to have doubted that there was an anomaly in the Trump marketing server and Alfa Bank.

Based on this story, though, Durham insinuates Sussmann fed information that he, Sussmann, knew to be bullshit to the FBI on behalf of both Hillary and TE-1, and in so doing affirmatively hid that the bullshit “storyline” was designed to help Hillary which (he claims) would have led the FBI to treat it differently.

In spite of a lot of thus far extraneous details, that’s the only crime he has alleged.

The existing case is remarkably weak

As a number of people have noted, as charged this is a remarkably weak case. Ben Wittes dedicates a section of his post on this indictment to those weaknesses. They are, succinctly:

  • The evidence regarding the core allegation in the indictment pits Sussmann’s word against James Baker’s; there are no other witnesses.
  • After the meeting with Baker, Sussmann repeatedly admitted under oath he was representing a client, a detail which could be exculpatory or inculpatory.
  • Baker testified to Congress he did believe Sussmann was representing a client (meaning Baker will be used to discredit Baker, the one witness to Sussmann’s alleged lie).
  • Even in Bill Priestap’s nearly-contemporaneous notes which are the only documentation of Sussmann’s comments, he describes Sussmann as Hillary’s lawyer (including for the Clinton Foundation, which may be incorrect), so FBI knew full well that Sussmann represented Hillary.
  • Priestap’s notes may be inadmissible hearsay at trial.

The NYT article predicting these charges also claim Durham is conflating Sussmann’s tracking of his hourly work with the actual money charged to the Hillary campaign.

Moreover, internal billing records Mr. Durham is said to have obtained from Perkins Coie are said to show that when Mr. Sussmann logged certain hours as working on the Alfa Bank matter — though not the meeting with Mr. Baker — he billed the time to Mrs. Clinton’s 2016 campaign.

[snip]

They are also said to have argued that the billing records are misleading because Mr. Sussmann was not charging his client for work on the Alfa Bank matter, but needed to show internally that he was working on something. He was discussing the matter with Mr. Elias and the campaign paid a flat monthly retainer to the firm, so Mr. Sussmann’s hours did not result in any additional charges, they said.

There are a number of other ways that Sussmann’s presumably well-funded defense will combat these charges. But as to the allegation buried amid all these details, Durham’s evidence is weak.

Durham’s materiality broadcasts his bid for a ConFraudUS conspiracy

But that’s not what this is about.

Durham is not just alleging that Sussmann was hiding that he was working for Hillary. He is also claiming that Sussmann was at the same time representing TE-1 at that meeting. In the indictment, I think that’s based on a single data point — that Sussmann billed TE-1’s company for “communications regarding confidential project” on September 14. I’m not sure whether that makes the false statements case still weaker or stronger.

But it’s a key part of where Durham obviously wants to go.

Not only are many of the details Durham included in the indictment irrelevant to the false statements charge, but if they were crimes by themselves, they would have been tolled under any five year statute of limitations already. There are only two conceivable purposes for including them in this indictment. First, to give the Alfa Bank Oligarchs more cause to sue more people, effectively a US prosecutor assisting Russians in cynical lawfare. Durham’s investigation incorporates stuff the Oligarchs have already liberated, so is itself derivative of Russian lawfare. Effectively, that means that a prosecutor working for Bill Barr’s DOJ pursued a prosecution that was complementary to an intelligence-related effort by foreigners who pay Kirkland & Ellis a lot of money. Sussmann will have real cause to question whether Brian Benczkowski (who recused from matters involving this aspect of Alfa Bank) or any other Kirkland & Ellis lawyer had a role in this strand of the investigation.

Then there’s the most obvious way to extend the statute of limitations on the events that happened in July and August 2016: to include them in a conspiracy that continued after those dates (and indeed, Durham refers to Elias, Researcher 1 and 2, and Tea Leaves in the way DOJ often uses to refer to charged or uncharged co-conspirators).

Given the extended statement Durham includes to explain why Sussmann’s alleged lie is material under the charged statute, that’s undoubtedly where Durham wants to head with his investigation.

SUSSMANN’s lie was material because, among other reasons, SUSSMANN’s false statement misled the FBI General Counsel and other FBI personnel concerning the political nature of his work and deprived the FBI of information that might have permitted it more fully to assess and uncover the origins of the relevant data and technical analysis, including the identities and motivations of SUSSMANN’s clients.

Had the FBI uncovered the origins of the relevant data and analysis and as alleged below, it might have learned, among other things that (i) in compiling and analyzing the Russian Bank-1 allegations, Tech Executive-1 had exploited his access to non-public data at multiple Internet companies to conduct opposition research concerning Trump; (ii) in furtherance of these efforts, Tech Executive-1 had enlisted, and was continuing to enlist, the assistance of researchers at a U.S.-based university who were receiving and analyzing Internet data in connection with a pending federal government cybersecurity research contract; and (iii) SUSSMAN, Tech Executive-1, and Law Firm-1 had coordinated, and were continuing to coordinate, with representatives and agents of the Clinton Campaign with regard to the data and written materials that Sussmann gave to the FBI and the media.

Don’t get me wrong. This will clearly pass the incredibly low standard for materiality under existing precedent. Though Sussmann will surely make much of citing the invented standard Billy Barr used to try to dismiss the Mike Flynn prosecution, which first requires the investigation in question to be legitimate.

The Government is not persuaded that the January 24, 2017 interview was conducted with a legitimate investigative basis and therefore does not believe Mr. Flynn’s statements were material even if untrue. Moreover, we not believe that the Government can prove either the relevant false statements or their materiality beyond a reasonable doubt.

[snip]

In any event, there was no question at the FBI as to the content of the calls; the FBI had in its possession word-for-word transcripts of the actual communications between Mr. Flynn and Mr. Kislyak. See Ex. 5 at 3; Ex. 13. at 3. With no dispute as to what was in fact said, there was no factual basis for the predication of a new counterintelligence investigation. Nor was there a justification or need to interview Mr. Flynn as to his own personal recollections of what had been said. Whatever gaps in his memory Mr. Flynn might or might not reveal upon an interview regurgitating the content of those calls would not have implicated legitimate counterintelligence interests or somehow exposed Mr. Flynn as beholden to Russia.

If DOJ had no interest in figuring out whether Trump was undermining sanctions to pay off a quid pro quo, they sure as hell have no interest in launching a 3-year investigation to figure out the tie between these allegations and Hillary that was obvious to Priestap in real time, particularly given how quickly the FBI dismissed the allegations in 2017 and given that the allegations are not publicly known to have had a tie to their larger Russian investigation.

Still, while Durham will have no trouble proving Sussmann’s claimed lie meets the standards of materiality, Durham’s claims for it are ridiculous.

It’s a load of horseshit that FBI would have treated this tip any differently — which amounted to investigating it, alerting the press there was nothing to it, then dismissing it pretty quickly, as far as is public — if they knew that Sussmann was formally being paid at that meeting by Hillary, if he in fact was. Priestap knew Sussmann was representing Hillary and said as much in the best evidence Durham has! In fact, FBI’s warning to the NYT about this story in October could be presented as evidence that FBI already incorporated an assumption this came from Hillary.

Likewise, it’s a load of horseshit that FBI couldn’t know that the Bureau needed to ID the researchers behind the project. If I was able to figure that was important out before the 2016 election, and I did, then the experts at the FBI surely figured that out.

But what Durham’s materiality statement emphasizes — what Durham claims Sussmann intended to hide with his claimed lie — is that, “researchers at a U.S.-based university … were receiving and analyzing Internet data in connection with a pending federal government cybersecurity research contract.” That’s the significance of ¶¶23a through e of the indictment, which describe how TE-1 provided data that included some from an Executive Branch office of the U.S. government, which his company had obtained “as a sub-contractor in a sensitive relationship between the U.S. government and another company,” to the university at which Researcher 1 and 2 were working, and both with his university researcher allies and employees of his own company, he tasked people to research Donald Trump. Durham is suggesting that subset of data taints the whole pool that TE-1 shared, making it a Federal interest.

It’s not just that Durham is working on a theory that Sussmann deliberately dealt garbage to the FBI (which GOP sources also did on the Clinton Foundation) while trying to hide that fact. It’s that data originally sourced from the government was used in doing that research.

It’s actually the kind of argument that DOJ prosecutors typically succeed with. Except it’s all premised on proving that Sussman was trying to hide all this in his meeting with Baker. Even if the evidence surrounding the meeting weren’t so flimsy, this is another degree of motive that Durham is straining mightily to make.

Durham needs Sussmann to have lied, because a deliberate attempt to obscure the rest is necessary for his “storyline.” His evidence that Sussmann lied — much less, deliberately — is shoddy. But if he can’t get that, then his hopes for a larger “narrative” collapse.

The parts of the story Durham doesn’t tell

That becomes more clear when you consider some details that Durham doesn’t include in his indictment.

Two details that were public to everyone involved make it clear why Durham’s silence about the exact dates in July when this operation started is so corrupt.

On July 22, WikiLeaks published emails that were at the time believed and since have been confirmed by the FBI to have been hacked by Russia. Durham hides the dates in July when many of these events transpired, but everything he includes suggests this activity post-dated the time when WikiLeaks published stolen emails and the entire security community in the US, surely including every researcher mentioned in this story, coalesced on the belief that Russia was the culprit. Durham refers to Russia’s attack on Hillary (and therefore on the US) inaccurately as, “the hacking of its email servers by the Russian government” and “a hack” (the hack went well beyond just email and continued through the period of Sussmann’s meeting with Baker). But, amazingly, Durham’s “narrative” doesn’t account for the fact that Hillary was targeted not just with an attack but with an information operation. And the timeline he presents here affirmatively hides that these events took place after the entire security community understood that there was an information operation aspect to the attack.

Then, on July 27, Trump gave a press conference in Florida where he said numerous things that make all the actions of Sussmann and others justifiable on national security grounds. First, Trump raised doubts about the Russian attribution of the DNC hack that, by that point in July, was the consensus among national security experts, undoubtedly including every tech expert mentioned in this indictment.

I watched this guy Mook and he talked about we think it was Russia that hacked. Now, first of all was what was said on those that’s so bad but he said I watched it. I think he was live. But he said we think it was Russia that hacked.

And then he said — and this is in person sitting and watching television as I’ve been doing — and then he said could be Trump, yeah, yeah. Trump, Trump, oh yeah, Trump. He reminded me of John Lovitz for “Saturday Night Live” in the liar (ph) where he’d go yes, yes, I went to Harvard, Harvard, yes, yes. This is the guy, you have to see it. Yes, it could be Trump, yes, yes. So it is so farfetched. It’s so ridiculous. Honestly I wish I had that power. I’d love to have that power but Russia has no respect for our country.

And that’s why — if it is Russia, nobody even knows this, it’s probably China, or it could be somebody sitting in his bed. But it shows how weak we are, it shows how disrespected we are. Total — assuming it’s Russia or China or one of the major countries and competitors, it’s a total sign of disrespect for our country. Putin and the leaders throughout the world have no respect for our country anymore and they certainly have no respect for our leader. So I know nothing about it.

Trump then offered his bullshit explanation for why he wouldn’t release his tax returns, framing it in terms of whether he had business ties to Russia.

TRUMP: Because it’s under order. And I’ll release them when the audits completed. Nobody would release when it’s under — I’ve had audits for 15 or 16 years. Every year I have a routine audit. I’m under audit, when the audits complete I’ll release them. But zero, I mean I will tell you right now, zero, I have nothing to do with Russia, yes?

Trump then said the nation-state hack of his opponent wasn’t the important thing, the content of the emails that were released was, thereby encouraging the press to participate in the information operation aspect of this attack.

He already did something today where he said don’t blame them, essentially, for your incompetence. Let me tell you, it’s not even about Russia or China or whoever it is that’s doing the hacking. It was about the things that were said in those e-mails. They were terrible things, talking about Jewish, talking about race, talking about atheist, trying to pin labels on people — what was said was a disgrace, and it was Debbie Wasserman Schultz, and believe me, as sure as you’re sitting there, Hillary Clinton knew about it. She knew everything.

Trump then asked Russia to further hack his opponent.

Russia, if you’re listening, I hope you’re able to find the 30,000 e-mails that are missing.

Trump then doubled down on the comment he made about his taxes, assuring the press that he had “zero” business ties with Russia.

TRUMP: No, I have nothing to do with Russia, John (ph). How many times do I have say that? Are you a smart man? I have nothing to with Russia, I have nothing to do with Russia.

And even — for anything. What do I have to do with Russia? You know the closest I came to Russia, I bought a house a number of years ago in Palm Beach, Florida.

Palm Beach is a very expensive place. There was a man who went bankrupt and I bought the house for $40 million and I sold it to a Russian for $100 million including brokerage commissions. So I sold it. So I bought it for 40, I told it for 100 to a Russian. That was a number of years ago. I guess probably I sell condos to Russians, OK?

QUESTION: (OFF-MIKE)

TRUMP: Of course I can. I told you, other than normal stuff — I buy a house if I sold it to a Russian. I have nothing to do with Russia. I said that Putin has much better leadership qualities than Obama, but who doesn’t know that?

QUESTION: (OFF-MIKE)

TRUMP: Of course not. I own the Trump organization. Zero, zero. Go ahead.

Trump then reiterated his claim that no one could attribute the DNC hack to Russia.

TRUMP: No, but they seem to be, if it’s Russians. I have no idea. It’s probably not Russia. Nobody knows if it’s Russia. You know the sad thing is? That with the technology and the genius we have in this country, not in government unfortunately, but with the genius we have in government, we don’t even know who took the Democratic National Committee e-mails. We don’t even know who it is.

I heard this morning, one report said they don’t think it’s Russia, they think it might be China. Another report said it might be just a hacker, some guy with a 200 I.Q. that can’t get up in the morning, OK? Nobody knows. Honestly they have no idea if it’s Russia. Might be Russia. But if it’s any foreign country, it shows how little respect they have for the United States. Yes, ma’am.

Finally, Trump also stated that he would consider lifting sanctions on Russia.

QUESTION: I would like to know if you became president, would you recognize (inaudible) Crimea as Russian territory? And also if the U.S. would lift sanctions that are (inaudible)?

TRUMP: We’ll be looking at that. Yeah, we’ll be looking.

Each of these comments, individually, would have raised eyebrows. The same comments, made by an American citizen, would equally have raised alarms among those committed to cybersecurity.

But for a presidential candidate to encourage the hostile nation-state information operation targeting his opponent, then ask the hostile nation-state to further target her, in conjunction with the repeated denials of any business ties to Russia raised real, legitimate questions about whether Trump was putting his own interests above the national security of the country.

You might excuse Durham for excluding this from his indictment because after all he was busy indicting a ham sandwich based on hearsay evidence he might be able to exclude these facts at trial. Except that an August 20 comment from TE-1 that Durham quotes in his indictment may be a direct reference to (and at the least incorporates knowledge of) this press conference.

Trump has claimed he and his company have had NO dealings with .ru other than the failed Casino, and the Miss universe pageant. He claims absolutely NO interaction with any financial institutions. So any potential like that would be jackpot.

That is, Durham included what appears to be a reference to the July 27 press conference. It appears (though Durham obscures this point) that all the actions laid out in this indictment post-date the press conference. Virtually everyone in the US committed to ensuring America’s national security was alarmed by Trump’s comments in this press conference. Yet Durham doesn’t acknowledge that all these actions took place in the wake of public comments that made it reasonable for those committed to cybersecurity to treat Donald Trump as a national security threat, irrespective of partisan affiliation.

Durham will work hard to exclude detail of Trump’s press conference from trial. But I assume that if any of the named subjects of this investigation were to take the stand at trial, they would point out that it was objectively reasonable after July 27 to have national security concerns based on Trump’s encouragement of Russia’s attack on Hillary Clinton and his defensive denials of any business ties. Any of the named subjects of the indictment would be able to make a strong case that there was reason to want to, as a matter of national security, test Trump’s claim to have no financial ties to Russia. Indeed, the bipartisan SSCI Report concluded that Trump posed multiple counterintelligence concerns, and therefore has concluded that Durham’s portrayal of politics as the only potential motive here to be false.

Central to Durham’s theory of prosecution is that there was no sound national security basis to respond to anomalous forensic data suggesting a possible financial tie between Trump and Russia. Except that, after that July 27 speech — and all of these events appear to post-date it — that theory is unsustainable.

The parts of the story Durham doesn’t tell

And not only was it objectively reasonable to test whether Trump’s claims to have “zero” business ties to Russia were false, but those suspecting that Trump was hiding such ties were, in fact, correct.

According to Michael Cohen, when Trump walked off the stage from that July 27 press conference, Cohen asked Trump why he had claimed that he had zero business ties with Russia when he had in fact been pursuing an impossibly lucrative deal to brand a Trump Tower in Moscow. And we now know that within hours of Trump’s request, GRU hackers made a renewed assault on Hillary’s own servers. By the time security researchers pursued anomalous data suggesting covert communications with a Russian bank, Cohen had already participated in discussions about working with two sanctioned Russian banks to fund the Trump Tower deal, had agreed to work with a former GRU officer to broker it, had spoken to an aide of Dmitry Peskov, and had been told that Putin was personally involved in making the deal happen. Just on the Trump Tower basis alone, Trump had publicly lied in such a way that posed a counterintelligence risk to America.

But that was not the only thing that Trump had done by the date when a bunch of security researchers responded to anomalous forensic data to test whether Trump was hiding further ties to Russia’s attack on Hillary Clinton.

In March, Trump hired Paul Manafort, a financially desperate political operative with close ties to a Russian intelligence officer, Konstantin Kilimnik, who (SSCI provided three redacted examples of) may have been involved in the hack-and-leak operation. In April, Manafort started leveraging his relationship with Trump to try to make money. In May, Manafort started regularly sending Kilimnik the campaign’s internal polling data. All that happened before researchers started testing Trump’s claims to have had no tie to Russia. On July 28, Kilimnik emailed Manafort to set up a meeting to talk about the future of Ukraine. Just days after the researchers started the inquiry, on August 2, Manafort met with Kilimnik to discuss carving up Ukraine in the same meeting where he described his strategy to win the election.

In April, an academic with close ties to Russia, Joseph Mifsud, told an unqualified braggart whom Trump had added to his team to pretend he had a foreign policy plan, George Papadopoulos, that Russia had thousands of Hillary’s emails that they intended to release to help Trump.

In May, according to Rick Gates’ testimony, Roger Stone started claiming he had advance knowledge of what would become the WikiLeaks releases. On or about June 15, per Gates, Stone told him that “he had contact with Guccifer 2.” According to a warrant affidavit targeting Stone, he searched Google on “Guccifer” before the Guccifer website went up that day. On June 23, Manafort called Stone and then the two old friends met for 30 minutes in the Trump cafeteria. On June 30, Stone spoke to Trump. According to multiple sources (including Michael Cohen), Stone knew of the DNC drop before it happened.

In June, Don Jr accepted a meeting with Natalia Veselnitskaya at which he believed he would get dirt on Hillary Clinton. At the meeting, Veselnitskaya asked Don Jr to end sanctions on Russia, and the candidate’s son said his dad would reconsider it if he won.

In short, the researchers who, in the wake of Trump’s damning comments, were testing whether Trump had lied about having ties to Russia, not only had objectively reasonable reasons to do that research. But their suspicions were proven correct, over and over again.

Durham describes the outcome of the FBI investigation into the allegations this way:

The FBI’s investigation of these allegations nevertheless concluded that there was insufficient evidence to support the allegations of a secret communications channel with Russian Bank-1. In particular, and among other things, the FBI’s investigation revealed that the email server at issue was not owned or operated by the Trump Organization but, rather, had been administered by a mass marketing email company that sent advertisements for Trump hotels and hundreds of other clients.

Nothing here suggests the FBI disproved that this was an anomaly.

And there’s one more detail that Durham didn’t include in the Sussmann indictment: on July 26, Australia first shared their report about what George Papadopoulos told Alexander Downer in May. The next day, July 27, the FBI Legat in the UK got the tip. On July 31 — before the substantive research into the Alfa Bank allegation began — the FBI opened an UNSUB investigation into who got advance warning about the Russian operation and shared it with George Papadopoulos. In other words, by hiding the dates when Tea Leaves first discovered the anomalous data, Durham is hiding not just the damning things that publicly happened before the Alfa Bank operation got started, but probably details about the tip that turned into the Crossfire Hurricane investigation.

In the wake of the Sussmann indictment, the usual Russian denialists have claimed that this proves that what they call “Russiagate” was all a fraud.

Such claims defy the rules of physics, suggesting that events that happened after the FBI opened an investigation to learn how and why the Trump campaign (via three channels, as it turns out) learned of the Russian attack in advance were in fact the cause of it.

It is likely that Durham will be able to exclude all these details from a Michael Sussmann trial, at least if it remains just a false statements case. He will be able to convince Judge Christopher Cooper, who is presiding over the case, that this information — that the researchers not only had reason to believe Trump presented a cybersecurity risk to the country, but that the researchers turned out to be right, and that FBI had itself determined there was reason to carry out the same kinds of investigations that the researchers did, possibly before any one of them took a single step — is irrelevant to the case against Sussmann. But if Durham charges ConFraudUS based on a claim that it was illegitimate to look into why Donald Trump was inviting Russia to hack his opponent, it will become centrally important that, before these researchers started conducting their investigation, the FBI had likewise decided such an investigation had merit.

The Alfa Bank story was sleazy and unethical. But it was still, nevertheless, an instance where someone representing the victim of a nation-state attack attempted to chase down information that may have pertained to that nation-state attack.

John Durham will go down in history as the guy who decided that torturing detainees, even in excess of legal guidance, was not a crime, but a victim sharing concerns about nation-state hacking is.

Update: It’s likely that Richard Burt was one of the people investigated as part of this effort. Per the Mueller Report, he was the person Petr Aven asked to establish a tie with Trump’s transition in 2016.

After the December 2016 all-hands meeting, A ven tried to establish a connection to the Trump team. A ven instructed Richard Burt to make contact with the incoming Trump Administration. Burt was on the board of directors for LetterOne (L 1 ), another company headed by Aven, and had done work for Alfa-Bank. 1169 Burt had previously served as U.S. ambassador to Germany and Assistant Secretary of State for European and Canadian Affairs, and one of his primary roles with Alfa-Bank and Ll was to facilitate introductions to business contacts in the United States and other Western countries. 1170

While at a L1 board meeting held in Luxembourg in late December 2016, Aven pulled Burt aside and told him that he had spoken to someone high in the Russian government who expressed interest in establishing a communications channel between the Kremlin and the Trump Transition Team. 1171 Aven asked for Burt’s help in contacting members of the Transition Team. 1172 Although Burt had been responsible for helping Aven build connections in the past, Burt viewed Aven’s request as unusual and outside the normal realm of his dealings with Aven. 1173

Burt, who is a member of the board of CNI (discussed at Volume I, Section IV.A.4, supra), 1174 decided to approach CNI president Dimitri Simes for help facilitating A ven’ s request, recalling that Simes had some relationship with Kushner. 1175 At the time, Simes was lobbying the Trump Transition Team, on Burt’s behalf, to appoint Burt U.S. ambassador to Russia.1176

Burt contacted Simes by telephone and asked if he could arrange a meeting with Kushner to discuss setting up a high-level communications channel between Putin and the incoming Administration. 1177 Simes told the Office that he declined and stated to Burt that setting up such a channel was not a good idea in light of the media attention surrounding Russian influence in the U.S. presidential election. 1178 According to Simes, he understood that Burt was seeking a secret channel, and Simes did not want CNI to be seen as an intermediary between the Russian government and the incoming Administration. 1179 Based on what Simes had read in the media, he stated that he already had concerns that Trump’s business connections could be exploited by Russia, and Simes said that he did not want CNI to have any involvement or apparent involvement in facilitating any connection. 118

Update: Corrected scope of Benczkowski’s recusal. His should cover the server issue (and Alfa Bank issues for the first two years he was CRM).

Update: Brian Krebs wrote a post laying out all the people who still believe there’s something going on technically. I don’t think that’s inconsistent, at all, with this one. As noted, everyone who looked at this believes it’s an anomaly. What I keep pointing to is the aftermath of that anomaly got Alfa Bank to act in a certain way that is consistent with Putin’s interests. Krebs notes that it has also led to a lot of scrutiny of security researchers in the US, not unlike the way the aftermath of the Steele dossier discredited most top Russian experts in the US government.

Update: This transcript of Preet Bharara and Joyce Vance discussing the many weaknesses of the Durham indictment largely replicates what I’ve laid out here but is worth a review.

Sidney Powell Submits Evidence Proving Materiality of Flynn’s Lies

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In my third post about how stupid Sidney Powell is, I present this exhibit, which DOJ thinks helps Mike Flynn. These are hand-written notes of an FBI attorney recording a meeting talking about Flynn’s interview the earlier day. Powell thinks this exhibit helps her because people at the meeting thought the Logan Act — which was never the key point of investigating Flynn — would be an “uphill battle.” She also focuses on FBI GC Jim Baker’s question about how you’d prosecute false statements when you wouldn’t prosecute the underlying crime — which, on January 25, 2017, might have been the Logan Act.

Still, the notes point out what a glaring counterintelligence problem Flynn was because of his overt lies about what he said to Russia.

For years Flynn’s boosters have claimed that FBI and DOJ didn’t recognize his lies as lies. Here they are doing so.

But one of the first things on the page (after a discussion of Flynn’s trip to Dominican Republic) — one of the first things these FBI lawyers discussed when trying to make sense of the National Security Advisor lying his ass off about his conversations with the Russian Ambassador is this:

Toll records. Did Flynn “talk to admin first”?

As I have noted repeatedly, Peter Strzok and Joe Pientka knew when they interviewed Flynn that he was lying about having raised sanctions with Sergey Kislyak.

What they didn’t know — because they hadn’t gotten National Security Letters on Flynn earlier in the investigation, as they normally would have — was whether or not Flynn’s claims not to have spoken to anyone in advance of his call, and not to have known about Obama’s sanctions, were true.

The way they planned to figure that out was to obtain Flynn’s toll records, which they did, in February and March. That showed, not only, that he was using a whole slew of phones. But that in addition to the lies the FBI identified immediately, he told other lies, lies to hide that he had consulted with Mar-a-Lago.

And Sidney Powell, bless her soul, has just provided proof that that was virtually the first thing FBI turned to try and figure out.

Once the FBI obtained proof that Flynn had consulted with those attending Donald Trump, the entire meaning of his lies would change. As would the Administration’s willingness to fight to reverse the investigation back to before the moment when Flynn’s consultations with Mar-a-Lago — the possibility he undermined sanctions on orders from Donald Trump — became the entire point.

How Twelve Years of Warning and Six Years of Plodding Reform Finally Forced FBI to Do Minimal FISA Oversight

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Earlier this week, the government released the reauthorization package for the 2018 Section 702 certificates of FISA. With the release, they disclosed significant legal fights about the way FBI was doing queries on raw data, what we often call “back door searches.” Those fights are, rightly, being portrayed as Fourth Amendment abuses. But they are, also, the result of the FISA Court finally discovering in 2018, after 11 years, that back door searches work like some of us have been saying they do all along, a discovery that came about because of procedural changes in the interim.

As such, I think this is wrong to consider “FISA abuse” (and I say that as someone who was very likely personally affected by the practices in question). It was, instead, a case where the court discovered that FBI using 702 as it had been permitted to use it by FISC was a violation of the Fourth Amendment.

As such, this package reflects a number of things:

  • A condemnation of how the government has been using 702 (and its predecessor PAA) for 12 years
  • A (partial — but thus far by far the most significant one) success of the new oversight mechanisms put in place post-Snowden
  • An opportunity to reform FISA — and FBI — more systematically

This post will explain what happened from a FISA standpoint. A follow-up post will explain why this should lead to questions about FBI practices more generally.

The background

This opinion came about because every year the government must obtain new certificates for its 702 collection, the collection “targeted” at foreigners overseas that is, nevertheless, designed to collect content on how those foreigners are interacting with Americans. Last we had public data, there were three certificates: counterterrorism, counterproliferation, and “foreign government,” which is a too-broadly scoped counterintelligence function. As part of that yearly process, the government must get FISC approval to any changes to its certificates, which are a package of rules on how they will use Section 702. In addition, the court conducts a general review of all the violations reported over the previous year.

Originally, those certificates included proposed targeting (governing who you can target) and minimization (governing what you can do once you start collecting) procedures; last year was the first year the agencies were required to submit querying procedures governing the way agencies (to include NSA, CIA, National Counterterrorism Center, and FBI) access raw data using US person identifiers. The submission of those new querying procedures are what led to the court’s discovery that FBI’s practices violated the Fourth Amendment.

In the years leading up to the 2018 certification, the following happened:

  • In 2013, Edward Snowden’s leaks made it clear that those of us raising concerns about Section 702 minimization since 2007 were correct
  • In 2014, the Privacy and Civil Liberties Oversight Board (which had become operational for the first time in its existence almost simultaneously with Snowden’s leaks) recommended that CIA and FBI have to explain why they were querying US person content in raw data
  • In 2015, Congress passed the USA Freedom Act, the most successful reform of which reflected Congress’ intent that the FISA Court start consulting amicus curiae when considering novel legal questions
  • In 2015, amicus Amy Jeffress (who admitted she didn’t know much about 702 when first consulted) raised questions about how queries were conducted, only to have the court make minimal changes to current practice — in part, by not considering what an FBI assessment was
  • In the 2017 opinion authorizing that year’s 702 package, Rosemary Collyer approved an expansion of back door searches without — as Congress intended — appointing an amicus to help her understand the ways the legal solution the government implemented didn’t do what she believed it did; that brought some (though not nearly enough) attention to whether FISC was fulfilling the intent of Congress on amici
  • In the 2017 Reauthorization (which was actually approved in early 2018), Congress newly required agencies accessing raw data to submit querying procedures along with their targeting and minimization procedures in the annual certification process, effectively codifying the record-keeping suggestion PCLOB had made over two years earlier

When reviewing the reauthorization application submitted in March 2018, Judge James Boasberg considered that new 2017 requirement a novel legal question, so appointed Jonathan Cederbaum and Amy Jeffress, the latter of whom also added John Cella, to the amicus team. By appointing those amici to review the querying procedures, Boasberg operationalized five years of reforms, which led him to discover that practices that had been in place for over a decade violated the Fourth Amendment.

When the agencies submitted their querying procedures in March 2018, all of them except FBI complied with the demand to track and explain the foreign intelligence purpose for US person queries separately. FBI, by contrast, said they already kept records of all their queries, covering both US persons and non-US persons, so they didn’t have to make a change. One justification it offered for not keeping US person-specific records as required by the law is that Congress exempted it from the reporting requirements it imposed on other agencies in 2015, even though FBI admitted that it was supposed to keep queries not just for the public reports from which they argued they were exempted, but also for the periodical reviews that DOJ and ODNI make of its queries for oversight purposes. FBI Director Christopher Wray then submitted a supplemental declaration, offering not to fix the technical limitations they built into their repositories, but arguing that complying with the law via other means would have adverse consequences, such as diverting investigative resources. Amici Cedarbaum and Amy Jeffress challenged that interpretation, and Judge James Boasberg agreed.

The FBI’s querying violations

It didn’t help FBI that in the months leading up to this dispute, FBI had reported six major violations to FISC involving US person queries. While the description of those are heavily redacted, they appear to be:

  • March 24-27, 2017: The querying of 70K facilities “associated with” persons who had access to the FBI’s facilities and systems. FBI General Counsel (then run by Jim Baker, who had had these fights in the past) warned against the query, but FBI did it anyway, though did not access the communications. This was likely either a leak or a counterintelligence investigation and appears to have been discovered in a review of existing Insider Threat queries.
  • December 1, 2017: FBI conducted queries on 6,800 social security numbers.
  • December 7-11, 2017, the same entity at FBI also queried 1,600 queries on certain identifiers, though claimed they didn’t mean to access raw data.
  • February 5 and 23, 2018: FBI did approximately 30 queries of potential sources.
  • February 21, 2018: FBI did 45 queries on people being vetted as sources.
  • Before April 13, 2018: an unspecified FBI unit queried FISA acquired metadata using 57,000 identifiers of people who work in some place.

Note, these queries all took place under Trump, and most of them took place under Trump’s hand-picked FBI Director. Contrary to what some Trump apologists have said about this opinion, it is not about Obama abuse (though it reflects practices that likely occurred under him and George Bush, as well).

These violations made it clear that Congress’ mandate for better record-keeping was merited. Boasberg also used them to prove that existing procedures did not prevent minimization procedure violations because they had not in these instances.

As he was reviewing the violations, Boasberg discovered problems in the oversight of 702 that I had noted before, based off my review of heavily redacted Semiannual Reports (which means they should have been readily apparent to everyone who had direct access to the unredacted reports). For example, Judge Boasberg noted how few of FBI’s queries actually get reviewed during oversight reviews (something I’ve pointed out repeatedly, and which 702 boosters have never acknowledged the public proof of).

As noted above, in 2017 the FBI conducted over three million queries of FISA-acquired information on just one system, [redacted]. See Supplemental FBI Declaration at 6. In contrast, during 2017 NSD conducted oversight of approximately 63,000 queries in [redacted] and 274,000 queries in an FBI system [redacted]. See Gov’t Response at 36.

Personnel from the Office of Intelligence (OI) within the Department of Justice’s National Security Division (NSD) visit about half of the FBI’s field offices for oversight purposes in a given year. Id at 35 & n 42. Moreover OI understandably devotes more resources to offices that use FISA authorities more frequently, so those offices [redacted] are visited annually, id at 35 n. 42, which necessitates that some other offices go for periods of two years or more between oversight visits. The intervals of time between oversight visits at a given location may contribute to lengthy delays in detecting querying violations and reporting them to the FISC. See, e.g., Jan. 18, 2019, Notice [redacted] had been conducting improper queries in a training context since 2011, but the practice was not discovered until 2017).

He also noted that the records on such queries don’t require contemporaneous explanation from the Agent making the query, meaning any review of them will not find problems.

The FBI does not even record whether a query is intended to return foreign-intelligence information or evidence of crime. See July 13, 2018, Proposed Tr. at 14 (DOJ personnel “try to figure out” from FBI query records which queries were run for evidence of crime purposes). DOJ personnel ask the relevant FBI personnel to recall and articulate the bases for selected queries. Sometimes the FBI personnel report they cannot remember. See July 9, 2018, Notice.

Again, I noted this in the past.

In short, as Boasberg was considering Wray’s claim that the FBI didn’t need the record-keeping mandated by Congress, he was discovering that, in fact, FBI needs better oversight of 702 (something that should have been clear to everyone involved, but no one ever listens to my warnings).

FISC rules the querying procedures do not comply with the law or Fourth Amendment

In response to Boasberg’s demand, FBI made several efforts to provide solutions that were not really solutions.

The FBI’s first response to FISC’s objections was to require General Counsel approval before accessing the result of any “bulk” queries like the query that affected 70K people — what it calls “categorical batch queries.”

Queries that are in fact reasonably likely to return foreign-intelligence information are responsive the government’s need to obtain and produce foreign-intelligence information, and ultimately to disseminate such information when warranted. For that reason, queries that comply with the querying standard comport with § 1801 (h), even insofar as they result in the examination of the contents of private communications to or from U.S. persons. On the other hand, queries that lack a sufficient basis are not reasonably related to foreign intelligence needs and any resulting intrusion on U.S. persons’ privacy lacks any justification recognized by§ 1801 (h)(l). Because the FBI procedures, as implemented, have involved a large number of unjustified queries conducted to retrieve information about U.S. persons, they are not reasonably designed, in light of the purpose and technique of Section 702 acquisitions, to minimize the retention and prohibit the dissemination of private U.S. person information.

But Boasberg was unimpressed with that because the people who’d need to consult with counsel would be the most likely not to know they did need to do so.

He also objected to FBI’s attempt to give itself permission to use such queries at the preliminary investigation phase (before then, FBI was doing queries at the assessment stage).

The FBI may open a preliminary investigation with even less of a factual predicate: “on the basis of information or an allegation indicating the existence of a circumstance” described in paragraph a. orb. above. Id. § II.B.4.a.i at 21 (emphasis added). A query using identifiers for persons known to have had contact with any subject of a full or preliminary investigation would not require attorney approval under § IV.A.3, regardless of the factual basis for opening the investigation or how it has progressed since then.

Boasberg’s Fourth Amendment analysis was fairly cautious. Whereas amici pushed for him to treat the queries as separate Fourth Amendment events, on top of the acquisition (which would have had broad ramifications both within FISA practice and outside of it), he instead interpreted the new language in 702 to expand the statutory protection under queries, without finding queries of already collected data a separate Fourth Amendment event.

Similarly, both Boasberg and the amici ultimately didn’t push for a written national security justification in advance of an actual FISA search. Rather, they argued FBI had to formulate such a justification before accessing the query returns (in reality, many of these queries are automated, so it’d be practically impossible to do justifications before the fact).

Boasberg nevertheless required the FBI to at least require foreign intelligence justifications for queries before an FBI employee accessed the results of queries.

The FBI was not happy. Having been told they have to comply with the clear letter of the law, they appealed to the FISA Court of Review, adding apparently new arguments that fulfilling the requirement would not help oversight and that the criminal search requirements were proof that Congress didn’t intend them to comply with the other requirements of the law. Like Boasberg before them, FISCR (in a per curium opinion from the three FISCR judges, José Cabranes, Richard Tallman, and David Sentelle) found that FBI really did need to comply with the clear letter of the law.

The FBI chose not to appeal from there (for reasons that go beyond this dispute, I suspect, as I’ll show in a follow-up). So by sometime in December, they will start tracking their backdoor searches.

FBI tried, but failed, to avoid implementing a tool that will help us learn what we’ve been asking

Here’s the remarkable thing about this. Something like this has been coming for two years, and FBI is only now beginning to comply with the requirement. That’s probably not surprising. Neither the Director of National Intelligence (which treated its intelligence oversight of FBI differently than it did CIA or NSA) nor Congress had demanded that FBI, which can have the most direct impact on someone’s life, adhere to the same standards of oversight that CIA and NSA (and an increasing number of other agencies) do.

Nevertheless, 12 years after this system was first moved under FISA (notably, two key Trump players, White House Associate Counsel John Eisenberg and National Security Division AAG John Demers were involved in the original passage), we’re only now going to start getting real information about the impact on Americans, both in qualitative and quantitative terms. For the first time,

  • We will learn how many queries are done (the FISC opinion revealed that just one FBI system handles 3.1 million queries a year, though that covers both US and non US person queries)
  • We will learn that there are more hits on US persons than previously portrayed, which leads to those US persons to being investigated for national security or — worse — coerced to become national security informants
  • We will learn (even more than we already learned from the two reported queries that this pertained to vetting informants) the degree to which back door searches serve not to find people who are implicated in national security crimes, but instead, people who might be coerced to help the FBI find people who are involved in national security crimes
  • We will learn that the oversight has been inadequate
  • We will finally be able to measure disproportionate impact on Chinese-American, Arab, Iranian, South Asian, and Muslim communities
  • DOJ will be forced to give far more defendants 702 notice

Irrespective of whether back door searches are themselves a Fourth Amendment violation (which we will only now obtain the data to discuss), the other thing this opinion shows is that for twelve years, FISA boosters have been dismissing the concerns those of us who follow closely have raised (and there are multiple other topics not addressed here). And now, after more than a decade, after a big fight from FBI, we’re finally beginning to put the measures in place to show that those concerns were merited all along.

William Barr Ratchets Up the “Witch Hunt” over an Investigation He Judges to be “Anemic” Given the Threat

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Bill Barr hit the right wing news circuit today to make vague claims designed to feed the hoax about inappropriate spying on the Trump campaign. With both the WSJ and Fox, he obfuscated about what led him to ask John Durham to conduct what amounts to at least the third review of the origins of the Russia investigation.

“Government power was used to spy on American citizens,” Mr. Barr told The Wall Street Journal, in his first interview since taking office in February. “I can’t imagine any world where we wouldn’t take a look and make sure that was done properly.”

He added: “Just like we need to ensure that foreign actors don’t influence the outcome of our elections, we need to ensure that the government doesn’t use its powers to put a thumb on the scale.”

[snip]

In his Wednesday interview, he declined to elaborate or offer any details on what prompted his concerns about the genesis of the Russia probe.

[snip]

Mr. Barr wouldn’t specify what pre-election activities he found troubling, nor would he say what information he has reviewed thus far or what it has shown. He said he was surprised that officials have been so far unable to answer many of his questions.

“I have more questions now than when I came in,” he said, but declined to detail them.

Given his inability to point to a reason to start this (aside from Trump’s direct orders), it’s worth looking back at something Barr said in his May 1 Senate Judiciary Committee hearing. Mike Lee attempted to get the Attorney General to substantiate his claim — made on April 10 — that the Trump campaign had been inappropriately spied on. In response, Barr explained his spying comment by suggesting that if the “only intelligence collection that occurred” were the FISA warrant on Carter Page and the use of Stefan Halper to question George Papadopoulos, it would amount to an “anemic” effort given the counterintelligence threat posed.

One of the things I want to look — there are people — many people seem to assume that the only intelligence collection that occurred was a single confidential informant and a FISA warrant. I’d like to find out whether that is, in fact, true. It strikes me as a fairly anemic effort if that was the counterintelligence effort designed to stop the threat as it’s being represented.

Over the course of this exchange, Barr admits he doesn’t know or remember what the Mueller Report says about Carter Page, and Lee displays that he’s unfamiliar with several points about Page in the Mueller Report:

  • The report shows that Page had had two earlier ties to Russian intelligence before joining the Trump campaign, not just the one in 2013
  • After Page’s conversations with Viktor Podobnyy were quoted in the latter’s criminal complaint, Page went to a Russian official at the UN General Assembly and told him he “didn’t do anything” with the FBI
  • Page defended sharing intelligence with people he knew were Russian spies by explaining, “the more immaterial non-public information I give them, the better for this country”
  • Dmitry Peskov was Page’s trip to Moscow in July 2016 and Deputy Prime Minister Arkady Dvorkovich spoke about working with Page in the future
  • Mueller ultimately concluded that “Page’s activities in Russia — as described in his emails with the Campaign — were not fully explained”
  • According to Konstantin Kilimnik, on December 8, 2016 “Carter Page is in Moscow today, sending messages he is authorized to talk to Russia on behalf of DT on a range of issues of mutual interest, including Ukraine”
  • The declinations discussion appears to say Page could have been charged as a foreign agent, but was not

Even with all the details about Page Lee appears to be unfamiliar with, there are more that he cannot know, because they’re protected as grand jury materials.

Which is to say neither of these men knew enough about the investigation on May 1 to be able to explain why Barr needed to do an investigation except that Barr thought not enough spying occurred so he was sure there must be more. Had Barr read the IG Report laying out some of these issues, he would know that the investigation was anemic, in part because on August 15, Peter Strzok lost an argument about how aggressively they should pursue the investigation.

In a text message exchange on August 15, 2016, Strzok told Page, “I want to believe the path you threw out for consideration in Andy’s office—that there’s no way he gets elected—but I’m afraid we can’t take that risk. It’s like an insurance policy in the unlikely event you die before you’re 40….” The “Andy” referred to in the text message appears to be FBI Deputy Director Andrew McCabe. McCabe was not a party to this text message, and we did not find evidence that he received it.

In an interview with the OIG, McCabe was shown the text message and he told us that he did not know what Strzok was referring to in the message and recalled no such conversation. Page likewise told us she did not know what that text message meant, but that the team had discussions about whether the FBI would have the authority to continue the Russia investigation if Trump was elected. Page testified that she did not find a reference in her notes to a meeting in McCabe’s office at that time.

Strzok provided a lengthy explanation for this text message. In substance, Strzok told us that he did not remember the specific conversation, but that it likely was part of a discussion about how to handle a variety of allegations of “collusion between members of the Trump campaign and the government of Russia.” As part of this discussion, the team debated how aggressive to be and whether to use overt investigative methods. Given that Clinton was the “prohibitive favorite” to win,

Strzok said that they discussed whether it made sense to compromise sensitive sources and methods to “bring things to some sort of precipitative conclusion and understanding.” Strzok said the reference in his text message to an “insurance policy” reflected his conclusion that the FBI should investigate the allegations thoroughly right away, as if Trump were going to win. Strzok stated that Clinton’s position in the polls did not ultimately impact the investigative decisions that were made in the Russia matter.

So the investigation was anemic, and it was anemic because the guy Lee blames for unfairly targeting Trump wasn’t permitted to investigate as aggressively as he believed it should be investigated.

In the exchange, Barr also says he doesn’t want to get into the “FISA issue,” on account of the IG investigation into it — which would seem to leave just the Halper-Papadopoulos exchange to investigate.

DOJ’s IG has probably given the initial results of its investigation into FISA to FBI. I say that because of Chris Wray’s objection to the use of the word “spying” to describe predicated surveillance, Trump’s attack on Wray because of it, and the unsealing of the names of additional people at the FBI involved in interviewing Mike Flynn — Mike Steinbach, Bill Priestap, James Baker — as well as Principal Associate Deputy Attorney General Matt Axelrod in two of the documents tied to his sentencing released last night. That would suggest there’s nothing substantive there (which is not surprising, given how much more damning the information about Page is than we previously knew).

Which would mean the biggest reason Barr is starting this witch hunt is that the investigation was so anemic to begin with.

The Dossier Is Not the Measure of the Trump-Russia Conspiracy

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It seems like the whole world has decided to measure Trump’s conspiracy with Russia not from the available evidence, but based on whether the Steele dossier correctly predicted all the incriminating evidence we now have before us.

The trend started with NPR. According to them (or, at least, NPR’s Phillip Ewing doing a summary without first getting command of the facts), if Michael Cohen didn’t coordinate a Tower-for-sanctions-relief deal from Prague, then such a deal didn’t happen. That’s the logic of a column dismissing the implications of the recent Cohen allocution showing that when Don Jr took a meeting offering dirt on Hillary as “part of Russia and its government’s support for Mr. Trump,” he knew his family stood to make hundreds of millions if they stayed on Vladimir Putin’s good side.

Item: Cohen ostensibly played a key role in the version of events told by the infamous, partly unverified Russia dossier. He denied that strongly to Congress. He also has admitted lying to Congress and submitted an important new version of other events.

But that new story didn’t include a trip to Prague, as described in the dossier. Nor did Cohen discuss that in his interview on Friday on ABC News. Could the trip, or a trip, still be substantiated? Yes, maybe — but if it happened, would a man go to prison for three years without anyone having mentioned it?

As I noted, Mueller laid out the following in the unredacted summary of Cohen’s cooperation.

Consider this passage in the Mueller Cohen sentencing memo.

The defendant’s false statements obscured the fact that the Moscow Project was a lucrative business opportunity that sought, and likely required, the assistance of the Russian government. If the project was completed, the Company could have received hundreds of millions of dollars from Russian sources in licensing fees and other revenues. The fact that Cohen continued to work on the project and discuss it with Individual 1 well into the campaign was material to the ongoing congressional and SCO investigations, particularly because it occurred at a time of sustained efforts by the Russian government to interfere with the U.S. presidential election. Similarly, it was material that Cohen, during the campaign, had a substantive telephone call about the project with an assistant to the press secretary for the President of Russia.

Cohen’s lies, aside from attempting to short circuit the parallel Russian investigations, hid the following facts:

  • Trump Organization stood to earn “hundreds of millions of dollars from Russian sources” if the Trump Tower deal went through.
  • Cohen’s work on the deal continued “well into the campaign” even as the Russian government made “sustained efforts … to interfere in the U.S. presidential election.”
  • The project “likely required[] the assistance of the Russian government.”
  • “Cohen [during May 2016] had a substantive telephone call about the project with an assistant to the press secretary for the President of Russia [Dmitri Peskov].”

But because the new Cohen details (along with the fact that he booked tickets for St. Petersburg the day of the June 9 meeting, only to cancel after the Russian hack of the DNC became public) didn’t happen in Prague, it’s proof, according to NPR, that there is no collusion. [Note, NPR has revised this lead and added an editors note labeling this piece as analysis, not news.]

Political and legal danger for President Trump may be sharpening by the day, but the case that his campaign might have conspired with the Russian attack on the 2016 election looks weaker than ever.

There are other errors in the piece. It claims “Manafort’s lawyers say he gave the government valuable information,” but they actually claimed he didn’t lie (and it doesn’t note that the two sides may have gone back to the drawing board after that public claim). Moreover, the column seems to entirely misunderstand that Manafort’s plea (would have) excused him from the crimes in chief, which is why they weren’t charged. Nor does it acknowledge the details from prosecutors list of lies that implicate alleged GRU associate Konstantin Kilimnik in an ongoing role throughout Trump’s campaign.

Then there’s the NPR complaint that Mike Flynn, after a year of cooperation, is likely to get no prison time. It uses that to debunk a straw man that Flynn was a Russian foreign agent.

Does that sound like the attitude they would take with someone who had been serving as a Russian factotum and who had been serving as a foreign agent from inside the White House as national security adviser, steps away from the Oval Office?

That’s never been the claim (though the Russians sure seemed like they were cultivating it). Rather, the claim was that Flynn hid details of Trump’s plans to ease sanctions, an easing of sanctions Russians had asked Don Jr to do six months earlier in a meeting when they offered him dirt. The 302 from his FBI interview released last night makes it clear that indeed he did.

Finally, NPR is sad that Carter Page hasn’t been charged.

Will the feds ever charge Trump’s sometime foreign policy adviser, Carter Page, whom they called a Russian agent in the partly declassified application they made to surveil him?

This is not a checklist, where Trump will be implicated in a conspiracy only if the hapless Page is indicted (any case against whom has likely been spoiled anyway given all the leaking). The question, instead, is whether Trump and his spawn and campaign manager and longtime political advisor (the piece names neither Don Jr nor Roger Stone, both of whom have been saying they’ll be indicted) entered into a conspiracy with Russians.

In short, this piece aims to measure whether there was “collusion” not by looking at the evidence, but by looking instead at the Steele dossier to see if it’s a mirror of the known facts.

But NPR isn’t the only outlet measuring reality by how it matches up to the Steele dossier. This piece describes that Michael Isikoff thinks, “All the signs to me are, Mueller is reaching his end game, and we may see less than what many people want him to find,” in part because of the same three points made in the NPR piece (Cohen didn’t go to Prague, no pee tape has been released, and Flynn will get no prison time), but also because Maria Butina — whose investigation was not tied to the Trump one, but whom Isikoff himself had claimed might be — will mostly implicate her former boyfriend, Paul Erickson. In the interview, Isikoff notes that because the dossier has not been corroborated, calling it a “mixed record, at best … most of the specific allegations have not been borne out” and notes his own past predictions have not been fulfilled.  Perhaps Isikoff’s reliance on the dossier arises from his own central role in it, but Isikoff misstates some of what has come out in legal filings to back his claim that less will come of the Mueller investigation than he thought.

Then there is Chuck Ross. Like Isikoff, Ross has invested much of his investigative focus into the dossier, and thus is no better able than Isikoff to see a reality but for the false mirror of the dossier. His tweet linking a story laying out more evidence that Michael Cohen did not go to Prague claims that that news is “a huge blow for the collusion narrative.”

Even when Ross wrote a post pretending to assess whether the Michael Cohen plea allocution shows “collusion,” Ross ultimately fell back on assessing whether the documents instead proved the dossier was true.

Notably absent from the Mueller filing is any indication that Cohen provided information that matches the allegations laid out in the Steele dossier, the infamous document that Democrats tout as the roadmap to collusion between the Trump campaign and Russian government.

The most prominent allegation against Cohen in the 35-page report is that he traveled to Prague in August 2016 to meet with Kremlin insiders to discuss paying off hackers who stole Democrats’ emails.

The Isikoff comments appear to have traveled via Ross to Trump’s Twitter thumbs, all without assessing the evidence in plain sight.

Meanwhile, Lawfare is erring in a parallel direction, checking on the dossier to see “whether information made public as a result of the Mueller investigation—and the passage of two years—has tended to buttress or diminish the crux of Steele’s original reporting.”

Such an exercise is worthwhile, if conducted as a measure of whether Christopher Steele obtained accurate intelligence before it otherwise got reported by credible, public sources. But much of what Lawfare does does the opposite — assessing reports (it even gets the number of reports wrong, saying there are 16, not 17, which might be excusable if precisely that issue hadn’t been the subject of litigation) out of context of when they were published. Even still, aside from Steele’s reports on stuff that was already public (Carter Page’s trip to Moscow, Viktor Yanukovych’s close ties to Paul Manafort), the post reaches one after another conclusion that the dossier actually hasn’t been confirmed.

There’s the 8-year conspiracy of cooperation, including Trump providing Russia intelligence. [my emphasis throughout here]

Most significantly, the dossier reports a “well-developed conspiracy of co-operation between [Trump and his associates] and the Russian leadership,” including an “intelligence exchange [that] had been running between them for at least 8 years.” There has been significant investigative reporting about long-standing connections between Trump, his associates and Kremlin-affiliated individuals, and Trump himself acknowledged that the purpose of a June 2016 meeting between his son, Donald Trump Jr. and a Kremlin-connected lawyer was to obtain “dirt” on Hillary Clinton. But there is, at present, no evidence in the official record that confirms other direct ties or their relevance to the 2016 presidential campaign.

There’s the knowing support for the hack-and-leak among Trump and his top lackeys.

It does not, however, corroborate the statement in the dossier that the Russian intelligence “operation had been conducted with the full knowledge and support of Trump and senior members of his campaign team.”

There’s Cohen’s Trump Tower deal.

These documents relate to Cohen’s false statements to Congress regarding attempted Trump Organization business dealings in Russia. The details buttress Steele’s reporting to some extent, but mostly run parallel, neither corroborating nor disproving information in the dossier.

There’s Cohen’s role in the hack-and-leak, including his trip to Prague.

Even with the additional detail from the Cohen documents, certain core allegations in the dossier related to Cohen—which, if true, would be of utmost relevance to Mueller’s investigation—remain largely unconfirmed, at least from the unredacted material. Specifically, the dossier reports that there was well-established, continuing cooperation between the Trump campaign and the Kremlin; that Cohen played a central role in the coordination of joint efforts; and that he traveled to Prague to meet with Russian officials and cut-outs.

There’s Papadopoulos, who (as Lawfare admits) doesn’t show up in the dossier; here they argue he could have, without asking why Steele missed him running around London talking to people who traveled in Steele’s circles.

We revisit his case because it resonates with one of the themes of the dossier, which is the extensive Russian outreach effort to an array of individuals connected to the Trump campaign. Steele’s sources reported on alleged interactions between Carter Page and Russian officials, but Papadopoulos’s conduct would have fit right in.

Again, except for the stuff that was publicly known, Lawfare assesses one after another claim from the dossier and finds that Mueller’s investigation has not corroborated the specific claims, even while Mueller has provided ample evidence of something else going on. But that doesn’t stop Lawfare from claiming that Mueller has “confirm[ed] pieces of the dossier.”

The Mueller investigation has clearly produced public records that confirm pieces of the dossier. And even where the details are not exact, the general thrust of Steele’s reporting seems credible in light of what we now know about extensive contacts between numerous individuals associated with the Trump campaign and Russian government officials.

However, there is also a good deal in the dossier that has not been corroborated in the official record and perhaps never will be—whether because it’s untrue, unimportant or too sensitive. As a raw intelligence document, the Steele dossier, we believe, holds up well so far. But surely there is more to come from Mueller’s team. We will return to it as the public record develops.

In the end, I actually think Mueller may show that Trump, Stone, and Manafort did abet the hack-and-leak campaign, certainly the later parts of it, and that the Trump Tower deal was a key part of the quid pro quo. That’s aside from anything that Trump did with analytics data made available, if it was. But Mueller has just shown the outlines of where a case in chief might fit thus far. And where has has, those outlines raise one after another question of why Steele missed evidence (like the June 9 meeting) that was literally sitting in front of him. No one is answering those questions in these retrospectives.

One reason this effort, coming from Lawfare, is particularly unfortunate is because of a detail recently disclosed in Comey’s recent testimony to Congress. As you read, remember that this exchange involves Mark Meadows, who is the source of many of the most misleading allegations pertaining to the Russian investigation. In Comey’s first appearance this month (given Comey’s comments after testifying yesterday, I expect we’ll see more of the same today when his transcript is released), Meadows seemed to make much of the fact that Michael Sussman, who works with Marc Elias at Perkins Coie, provided information directly to Lawfare contributor James Baker.

Mr. Meadows. So are you saying that James Baker, your general counsel, who received direct information from Perkins Coie, did so and conveyed that to your team without your knowledge?

Mr. Comey. I don’t know.

Mr. Meadows. What do you mean you don’t know? I mean, did he tell you or not?

Mr. Comey. Oh, I — well —

Mr. Meadows. James Baker, we have testimony that would indicate that he received information directly from Perkins Coie; he had knowledge that they were representing the Democrat National Committee and, indeed, collected that information and conveyed it to the investigative team. Did he tell you that he received that information from them? And I can give you a name if you want to know who he received it from.

Mr. Comey. I don’t remember the name Perkins Coie at all.

Mr. Meadows. What about Michael Sussmann?

Mr. Comey. I think I’ve read that name since then. I don’t remember learning that name when I was FBI Director. I was going to ask you a followup, though. When you say “that information,” what do you mean?

Mr. Meadows. Well, it was cyber information as it relates to the investigation.

Mr. Comey. Yeah, I have some recollection of Baker interacting with — you said the DNC, which sparked my recollection — with the DNC about our effort to get information about the Russian hack of them —

Mr. Meadows. Yeah, that’s — that’s not — that’s not what I’m referring to.

Mr. Comey. — but I don’t — I don’t remember anything beyond that.

Mr. Meadows. And so I can give you something so that you — your counsel can look at it and refresh your memory, perhaps, as we look at that, but I guess my concern is your earlier testimony acted like this was news to you that Perkins Coie represented the Democratic National Committee, and yet your general counsel not only knew that but received information from them that was transmitted to other people in the investigative team. [my emphasis]

I have long wondered how the Perkins Coie meeting with the FBI on the hack timed up with the hiring, by Fusion GPS working for Perkins Coie, of Christopher Steele lined up, and that appears to be where Meadows is going to make his final, desperate stand. An earlier version of this hoax revealed that it pertained to materials on hacking, but did not specify that Steele had anything to do with it (indeed, Steele was always behind public reporting on the hack-and-leak).

Still, it would be of more public utility for Lawfare to clarify this detail than engage in yet another exercise in rehabilitating the dossier.

Instead, they — just like everyone else choosing not to look for evidence (or lack thereof) in the actual evidence before us — instead look back to see whether Steele’s dossier was a mirror of reality or something else entirely. If it’s the latter — and it increasingly looks like it is — then it’s time to figure out how and what it is.

Update: Cheryl Rofer did a line by line assessment of Steele’s dossier which is worthwhile. I would dispute a number of her claims (and insist that Steele’s reporting on the hacks be read in the temporal context in which he always lagged public reporting) and wish she’d note where the public record shows facts that actually conflict with the dosser. But it is a decent read.

As I disclosed in July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

James Baker Channels a Road Map He and Comey and Andrew McCabe Might Navigate

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Some weeks ago, I used Leon Jaworski’s Road Map to imagine what an equivalent Robert Mueller Road Map, packaging grand jury information to share with the House Judiciary Committee, might look like.

Among other things I showed the close parallel between John Dean’s attempt to craft a cover story and Don McGahn’s attempts to do the same. That section included how Nixon worked Henry Petersen, then Assistant Attorney General for Criminal Division, to try to influence the investigation.

After substantiating what would have been the indictment against Nixon, the Watergate Road Map showed how Nixon had John Dean and others manufacture a false exonerating story. The Road Map cited things like:

  • Nixon’s public claims to have total confidence in John Dean
  • Nixon’s efforts to falsely claim to the Attorney General, Richard Kleindienst, that former AG John Mitchell might be the most culpable person among Nixon’s close aides
  • Nixon’s instructions to his top domestic political advisor, John Ehrlichman, to get involved in John Dean’s attempts to create an exculpatory story
  • Press Secretary Ron Ziegler’s public lies that no one knew about the crime
  • Nixon’s efforts to learn about what prosecutors had obtained from his close aides
  • Nixon’s private comments to his White House Counsel to try to explain away an incriminating comment
  • Nixon’s ongoing conversations with his White House Counsel about what he should say publicly to avoid admitting to the crime
  • Nixon’s multiple conversations with top DOJ official Henry Petersen, including his request that Petersen not investigate some crimes implicating the Plumbers
  • Nixon’s orders to his Chief of Staff, HR Haldeman, to research the evidence implicating himself in a crime

This is an area where there are multiple almost exact parallels with the investigation into Trump, particularly in Don McGahn’s assistance to the President to provide bogus explanations for both the Mike Flynn and Jim Comey firings — the former of which involved Press Secretary Sean Spicer and Chief of Staff Reince Priebus, the latter of which involved Trump’s top domestic political advisor Stephen Miller. There are also obvious parallels between the Petersen comments and the Comey ones. Finally, Trump has made great efforts to learn via Devin Nunes and other House allies what DOJ has investigated, including specifically regarding the Flynn firing.

One key point about all this: the parallels here are almost uncanny. But so is the larger structural point. These details did not make the draft Nixon indictment. There were just additional proof of his cover-up and abuse of power. The scope of what HJC might investigate regarding presidential abuse is actually broader than what might be charged in an indictment.

The equivalent details in the Mueller investigation — particularly the Comey firing — have gotten the bulk of the press coverage (and at one point formed a plurality of the questions Jay Sekulow imagined Mueller might ask). But the obstruction was never what the case in chief is, the obstruction started when Trump found firing Flynn to be preferable to explaining why he instructed Flynn, on December 29, to tell the Russians not to worry about Obama’s sanctions. In the case of the Russia investigation, there has yet to be an adequate public explanation for Flynn’s firing, and the Trump team’s efforts to do so continue to hint at the real exposure the President faces on conspiracy charges. [my emphasis]

Another section showed how Nixon was commenting on what he had said to Petersen and Attorney General Kleindienst was like Trump’s comments on Jim Comey and other DOJ officials.

That was all written from the outside.

Today, former FBI General Counsel James Baker performs the same task. He doesn’t describe the effort as such. Rather, he just says he finds certain things — particularly those having to do with Henry Petersen — attracted his (and Sarah Grant’s, with whom he wrote this) attention.

One of the aspects of the recently released Watergate “road map” and related documents that attracted our attention is the set of materials pertaining to interactions, direct and indirect, between President Richard M. Nixon and two senior Department of Justice officials.

The whole post starts with a description of how Petersen told Nixon that Haldeman and Ehrlichman were implicated in the break-in and advised him to fire them, only to have the President respond that he would not.

One of the officials later testified: “He said he couldn’t believe it. You know, just these are fine upstanding guys. Just couldn’t be, you know.” He impressed on the president, “We are here to alert you. We think we’ve got something. We could be wrong, but we are telling you it’s time for you to move to protect yourself and the presidency.” And he urged the president to “get rid” of the staffers in question; the president responded, “‘Yeah, and I don’t think I should. I’ve got to think about this and that and a thousand other things.’”

The parallel here, of course, is Mike Flynn, whom Sally Yates recommended Trump fire, but whom Trump kept on for almost two weeks because he had ordered him to engage in the suspect behavior in question.

The post goes on to describe how Nixon got that top DOJ figure to provide information on a DOJ investigation investigating him personally.

In addition, on two occasions President Nixon asked Petersen for written summaries of aspects of the Justice Department’s investigation, including information regarding Haldeman and Ehrlichman: “[H]e asked for a full exposition. Having got into it this far, he felt he needed all the information, and I said I would undertake to . . . try to do that.” The president asked Petersen “to be kept informed of these things” but did not expect Petersen to divulge grand jury material. Petersen said that he ultimately determined that he could not provide any additional information at that time because it would have involved disclosing grand jury material; the president accepted that conclusion. In the following two weeks, however, Petersen did provide the president with “very general” information about the investigation, and the president on one occasion asked him, “‘Well, what else is new?’”

According to the president’s logs, between March 13, 1973, and April 30, 1973, President Nixon had seven meetings and initiated 19 phone calls with Petersen. These calls included four on April 15, 1973, after Kleindienst and Petersen met with the president to recommend that he fire Haldeman and Ehrlichman, including one call from 11:45 p.m. to 11:53 p.m. It is difficult to recount concisely the details of all of these communications to the extent that they are reflected in the information that we reviewed. Suffice it to say that these communications and other information in the attachments to the road map indicate that the Justice Department provided the White House with certain information about the course of the investigation on an ongoing basis.

The president, in short, was using a senior Justice Department official to gather intelligence about an ongoing criminal investigation in which he was personally implicated.

The post also explains how Nixon tried to influence Petersen to speed up the investigation and by offering promotions.

On at least one occasion, President Nixon commented to Petersen on the pace of the investigation. Petersen testified: “Well, there was some discussion about the need for, you know—‘Hurry up and get this over with.’ ‘Yes. We’ll make haste as reasonably as we can.’”

President Nixon also discussed Petersen’s future role with him, as they concurrently discussed a live investigative matter. Petersen testified: “there were statements, during the course of the President’s conversations with me, ‘Now, you’ll have to serve as White House counsel,’ or, ‘You’re the adviser to the President now,’ which I, frankly, thought was a little heavy handed.”

It lays out how Nixon asked the top DOJ official whether he, personally, was under investigation.

Similarly, the Watergate Task Force report referenced above states that on April 27, 1973, “the President asked Petersen if he had any information implicating the President himself. Petersen said he did not.” The president, in other words, was asking the head of the Criminal Division whether he was personally under investigation.

And then it shows how HJC included such abuses in its articles of impeachment.

How was all of this presidential contact with the Justice Department understood in the context of Watergate? Pretty harshly. For example, Article II, paragraph 5, of the House Judiciary Committee’s July 27, 1974, Articles of Impeachment states in part that President Nixon:

In disregard of the rule of law, . . . knowingly misused the executive power by interfering with agencies of the executive branch, including the Federal Bureau of Investigation, the Criminal Division, and the Office of Watergate Special Prosecution Force, of the Department of Justice, and the Central Intelligence Agency, in violation of his duty to take care that the laws be faithfully executed.

President Nixon resigned on Aug. 9, 1974, and was pardoned by President Gerald Ford on Sept. 8, 1974.

As I noted in the post where I drew these parallels, we’re not in 1974 anymore, and there are a lot of reasons to doubt Trump will be impeached for acting in a similar manner as Nixon did.

But James Baker definitely seems to think the parallels are there.