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20 Months: A Comparison of the Mueller and Durham Investigations

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Because Jonathan Turley and John Cornyn are being stupid on the Internet, I did a Twitter thread comparing the relative output of the Mueller and Durham investigations in their first 18 months. Actually, Durham has been investigating the Russian investigation for 20 months already.

So I did a comparison of the Mueller and Durham investigations over their first 20 months. Here’s what that comparison looks like.

So, in 20 months, Durham went on a boondoggle trip to Italy with Bill Barr to chase conspiracy theories, charged one person, and had his top investigator quit due to political pressure.

In the Mueller investigation’s first 20 months, his prosecutors had charged 33 people and 3 corporations (just Roger Stone was charged after that) and, with Manafort’s forfeiture, paid for much of their investigation.

Update: I’ve corrected the Manafort forfeiture claim. While I haven’t checked precisely how much the US Treasury pocketed by selling Manafort’s properties, I think the declining value of Trump Tower condos means that Manafort’s forfeiture didn’t quite pay for the entire investigation. I’ve also corrected in which month Manafort was found guilty in EDVA.

Update: In response to the Durham appointment, American Oversight reposted the travel records from the Italy boondoggle, which was actually in September, not October (Barr also made a trip to Italy in August 2019 for the same stated purpose, so I wonder if there were two boondoggles). I’ve corrected the timeline accordingly.

John Durham and the First Fight over a Doctored MemCon of Trump’s Meetings with Russia

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A year ago, John Durham was investigating who leaked the fact that Mike Flynn had secretly worked with Russia to undermine sanctions that served, in part, to punish Russia for helping Trump get elected. Mike Flynn and KT McFarland had been claiming that David Ignatius forced them to lie about conversations that they made active efforts to cover-up even when they were secret, an obviously bullshit claim, but one that DOJ adopted as credible nevertheless.

The problem with that prong of the investigation (even beyond the fact that Flynn and McFarland were already covering Flynn’s calls before they had been made public) — as I pointed out when it was reported — that the most likely sources of the news that Flynn had been having secret conversations with the Ambassador were several groups that could leak this information legally: Original Classification Authorities, outgoing or not, or members of Congress. For the record, Peter Strzok and Lisa Page appear to have assumed the leak came from Congress. But if James Clapper or Jim Comey or another OCA leaked it as part of a counterintelligence inquiry into why Flynn did that, it would be entirely legal. All the more so given that Trump was not yet in office.

Given the new details we have on the Durham investigation — including yet more proof he and his investigators grossly misunderstand counterintelligence — I’d like to return to another leak: that Trump shared highly classified Israeli intelligence with Sergey Lavrov in their meeting on May 10, 2017. Given recent events, I think there is a decent chance that Durham investigated and may still be investigating this one, too.

As I noted, among the last Mueller 302s released to BuzzFeed were three or four that dealt with this leak, a coincidence in timing that is among the reasons I suspect Durham may have reviewed these 302s. They first described how after a meeting around the time Jim Comey was fired, an FBI counterintelligence detailee to the White House got called into Acting Homeland Security Advisor John Daly’s office after a meeting and grilled in a way that the detailee seemed to find inappropriate. Among other things, Daly asked the detailee what he thought of Trump’s decision to fire Comey.

A second interview with the detailee conducted on the same day appears to describe the aftermath of the meeting on May 10, 2017, at which Trump shared this intelligence. It appears the detailee read the MemCom of the meeting and realized what Trump had done. He appears to have first alerted his boss of what happened (it’s unclear whether that boss was at the White House or FBI), and then escalated it. He tried to tell Tom Bossert, but instead told Daly, which led to the grilling by Daly laid out in the first interview. After that meeting, the detailee told Bossert what happened. The detailee’s notice to Bossert led him to take measures to minimize the damage, as described by the original report on the meeting.

Senior White House officials appeared to recognize quickly that Trump had overstepped and moved to contain the potential fallout. Thomas P. Bossert, assistant to the president for homeland security and counterterrorism, placed calls to the directors of the CIA and the NSA, the services most directly involved in the intelligence-sharing arrangement with the partner.

One of Bossert’s subordinates also called for the problematic portion of Trump’s discussion to be stricken from internal memos and for the full transcript to be limited to a small circle of recipients, efforts to prevent sensitive details from being disseminated further or leaked.

Over two years before similar events would lead to impeachment, Trump’s aides were trying to doctor the record of his calls with Russia to hide how he had damaged our allies.

According to the 302, Bossert applauded the detailee for alerting him of the problem. “Thank god you came to us.”

But then after the story leaked to the WaPo and NYT, the detailee was summoned to Bossert’s office, only to be grilled by both Bossert and Daly. After the detailee was grilled for 20-30 minutes, someone else was, as well. Almost immediately after his grilling, the detailee saw HR McMaster give a press conference at which, per the detailee, McMaster “gave a misleading account of what happened during TRUMP’s meeting with LAVROV.” Like Flynn had earlier that year, McMaster was lying publicly about something the Russians knew was a lie.

After he was grilled, the detailee appears to have informed FBI chain of command, including Bill Priestap.

Shortly thereafter, it appears that the detailee learned from Bossert that he was not getting a job he expected. The detailee asked when that decision was made, Bossert appears to have lied either about the job offer or about the decision to alter the MemCon in real time.

Not long after, the detailee left the NSC. Before he did, he put copies of emails recording all this as well as the partially redacted MemCon he had seen in a safe. The 302 suggests that the White House fired all the other people who had seen the MemCon.

Among the other 302s released last week include a record of FBI obtaining copies of Bill Priestap’s discussions with Ezra Cohen-Watnick and what appears to be the detailee at the time, which almost certainly includes notes relaying the events surrounding the MemCon. There’s also an almost entirely redacted 302 from Ted Gistaro, which was at least his second interview. Gistaro was Trump’s briefer both at Mar-a-Lago during the Transition period when Flynn was secretly calling Sergey Kislyak and probably still during the May 2017 period. Another 302 might be the FBI picking up the documents that the detailee had left behind.

All that is to say that among the very last documents that Bill Barr’s DOJ cleared for public release deal with a very complex set of problems central to questions of Trump’s relationship with Russia during the days that FBI would expand its counterintelligence investigation to incorporate Trump, as well. There’s the matter of the leak, which has never been charged. The original WaPo, which appears to have relied on more sources, cites both current and former officials, including at least one who remained close to Trump officials.

President Trump revealed highly classified information to the Russian foreign minister and ambassador in a White House meeting last week, according to current and former U.S. officials, who said Trump’s disclosures jeopardized a critical source of intelligence on the Islamic State.

[snip]

“It is all kind of shocking,” said a former senior U.S. official who is close to current administration officials. “Trump seems to be very reckless and doesn’t grasp the gravity of the things he’s dealing with, especially when it comes to intelligence and national security. And it’s all clouded because of this problem he has with Russia.”

[snip]

“Russia could identify our sources or techniques,” the senior U.S. official said.

A former intelligence official who handled high-level intelligence on Russia said that given the clues Trump provided, “I don’t think that it would be that hard [for Russian spy services] to figure this out.”

Given that Bossert called NSA and CIA to alert them, there would be many candidates for this, including the OCAs for the intelligence and the partnership with our ally. Indeed, the journalists on the original story cover CIA and the Pentagon, not FBI. But the grilling of the detailee suggests that the White House suspected him.

Then there’s the matter of what the FBI should do with this information — and it seems fairly clear that the detailee was one if not the primary source of the information for the people overseeing the Crossfire Hurricane investigation. It is absolutely within Trump’s right to give our enemies classified information. It also undoubtedly damages the US (as the Trump-friendly source[s] for the story seem to agree).

If Andrew McCabe included this exchange among the things he considered before opening a counterintelligence investigation into Trump, I can see how Durham — who has exhibited over and over that he doesn’t understand counterintelligence — would deem it inappropriate, particularly if egged on by Bill Barr. If an FBI counterintelligence detailee at the White House had a role in its dissemination, all the more so.

But I can also see how, from a counterintelligence investigation, McMaster’s lies about this (on behalf of Trump) would raise concerns about Trump’s compromise. As with Flynn before him, the Russians would know that Trump was lying about his coziness with Russia.

Barr has set Durham up such that he can issue a report that the Attorney General — whoever it is — will be expected to make public (though if the report violates the rules that got Jim Comey fired, there would be a good excuse not to). If this is part of Durham’s investigation, Barr may be trying to suggest that the counterintelligence investigation into Trump was wholly inappropriate.

There’s a problem with that, of course. Trump had already probably committed a crime in working on a pardon for Julian Assange, well before he was even elected. That is, neither the leak to Ignatius (by whomever) nor the leak about the Russian meeting (by whomever) can be said to have inappropriately kicked off the counterintelligence investigation into Trump. His actions in October 2016 had already done that.

But, even if Durham showed any inkling of understanding of the counterintelligence matters he is investigating,  there’s no reason to believe he would know that there are seemingly ongoing matters that implicate Trump even before he was elected.

And if this is Barr’s play, of course, it may be undercut once Trump leaves office. Already, HR McMaster has, years later, criticized Trump’s efforts to coddle Russia. If asked to do so under oath in the next Congress, he may have far more to say about the damage Trump did to the country because he was so insecure about Russia’s help in the election.

Update: Bill Leonard, the former head of ISOO (and as such the guy who was in charge of the entire US classification system during the W administration), has corrected me on my assertion that Trump could legally share this information. He could under US law, but doing so violated international law. He explains:

Based upon reporting, the information Trump compromised was provided to the U.S. by an intelligence partner pursuant to a bilateral agreement.  Under international law, this bilateral executive agreement obligated the U.S. to protect the information.  Within the U.S., we have elected to utilize the classification system to protect such shared information.
While as President, Trump is free to abrogate the bilateral agreement, there is no indication that this was his intent.  Thus, pursuant to International law, he was obligated to protect it which he clearly failed to do.
Reverse the situation.  Foreign leaders do not have the right to unilaterally disclose U.S. classified information that has been shared with their country pursuant to a bilateral agreement.  The same restrictions pertain to a U.S. president.
Classification is but one of the many authorities this president has abused.  It needs to be called out as such.

The Clinesmith Sentencing Memos: Politically Biased Data In, Politically Biased Data Out

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The government and Kevin Clinesmith — the FBI lawyer who altered a document relating to the Carter Page FISA application — submitted their sentencing memos in his case yesterday. The sentencing guidelines call for 0 to 6 months of prison time (as they did for the now pardoned Mike Flynn). Clinesmith asked for probation. The government asked for a sentence in the middle to top of that range — effectively calling for 3 to 6 months of prison time.

I think the government has the better argument on a key point, for reasons that I expect will be very persuasive to the judge in the case, James Boasberg, who is also the presiding FISA judge. The government argues that Clinesmith’s actions undermined the integrity of the FISA process.

The defendant’s conduct also undermined the integrity of the FISA process and struck at the very core of what the FISC fundamentally relies on in reviewing FISA applications: the government’s duty of candor. The FISC serves as a “check on executive branch decisions to conduct surveillance in order to protect the fourth amendment rights of U.S. persons[,]” but it can “serve those purposes effectively only if the applicant agency fully and accurately provides information in its possession that is material to whether probable cases exists.” Order, In Re Accuracy Concerns Regarding FBI Matters Submitted to the FISC, Docket No. Misc. 19-02, at 2 (FISA Ct. Dec. 17, 2019) (internal quotations and citations omitted). Accordingly, and particularly because FISA applications involve ex parte proceedings with no adverse party on the other side to challenge the facts, the government “has a heightened duty of candor to the [FISC].” Id. (internal quotations and citations omitted). In other words, “[c]andor is fundamental to [the FISC’s] effective operation[.]” Id. (citation omitted).

While I think the government’s case on Clinesmith’s understanding of the term “source” is not persuasive, this language is. It matters that Clinesmith did this within the context of the FISA process. Boasberg has a real incentive to ensure that those preparing FISA applications do think of Clinesmith as an object lesson about the duty of candor. I expect he’ll agree with the government and impose some prison term.

That said, the government sentencing memo goes off the rails on another point, one that badly discredits the John Durham investigation.

Both the government and Clinesmith provide the same explanation for why he did what he did: it was a shortcut to avoid filing a footnote with the FISA court.

Clinesmith explains it this way:

Kevin, however, reviewed the OGA email and realized that it did not specifically address the issue of whether Individual #1 had been a source. In a misguided attempt to save himself time and the embarrassment of having to backtrack on his assurance he had it in writing, Kevin forwarded the OGA’s response to the SSA (including the list of OGA reports) immediately after telling the SSA he would do so, but Kevin added the phrase notated in bold to reflect his understanding of Individual #1’s status:

[The OGA uses] the [digraph] to show that the encrypted individual . . . is a [U.S. person]. We encrypt the [U.S. persons] when they provide reporting to us. My recollection is that [Individual #1] was or is . . . [digraph] and not a “source” but the [documents] will explain the details.

OIG Report at 254-55.

And the government endorses that explanation in its sentencing memo (in language that further reinforces why Clinesmith should be treated sternly to preserve the integrity of the FISA process).

By his own words, however, it appears that the defendant falsified the email in order to conceal Individual #1’s former status as a source and to avoid making an embarrassing disclosure to the FISC. Such a disclosure would have likely drawn a strong and hostile response from the FISC for not disclosing it sooner since the FBI had the information in its possession before the first FISA application was filed. Indeed, in the June 19, 2017 instant message conversation with the SSA, the defendant wrote “at least we don’t have to have a terrible footnote” explaining that Individual #1 was a source. OIG Report at 253. While the defendant told OIG he was referring to how “laborious” it would be to draft a footnote explaining that Individual #1 had been an OGA source, see id., that reading is self-serving and absurd. Moreover, as a practical matter, how laborious would it have been to draft a single footnote to explain to the FISC that Individual #1 had been a source for the OGA. The SSA involved in the application understood the defendant to be referring to the terrible optic of just now, in the fourth application, disclosing to the Court that Individual #1 had been a source for another agency after failing to do so in all of the prior applications. See id. Such a disclosure would have undermined the probable cause in the FISA application and the overall investigation of Individual #1, which the defendant was able to avoid by altering the email.

That’s it. At that point, both sides have explained what happened as the kind of bureaucratic sloppiness that can be particularly dangerous where there’s no transparency. Case closed. Clinesmith may not have meant this maliciously but because it happened as part of the FISA process it was very problematic.

Except the government continues by suggesting, without evidence, that Clinesmith did what he did out of political bias.

The public record also reflects that political or personal bias may have motivated or contributed to his offense conduct. As noted in the OIG Report and PSR, the defendant was previously investigated, and ultimately suspended, for sending improper political messages to other FBI employees. See OIG Report at 256 n.400. For example, on the day after the 2016 presidential election, the defendant wrote “I am so stressed about what I could have done differently.” Id. When another FBI colleague asked the defendant “[i]s it making you rethink your commitment to the Trump administration[,]” the defendant replied, “Hell no,” and then added “Viva le resistance.” Id. The defendant was referred to the Office of Professional Responsibility for investigation for these and other related messages, and in July 2018 he was suspended, without pay, for 14 days. The defendant’s prior disciplinary infraction for expressing his political views in a work setting is a relevant aspect of his background. Indeed, it is plausible that his strong political views and/or personal dislike of the current President made him more willing to engage in the fraudulent and unethical conduct to which he has pled guilty. While it is impossible to know with certainty how those views may have affected his offense conduct, the defendant plainly has shown that he did not discharge his important responsibilities at the FBI with the professionalism, integrity, and objectivity required of such a sensitive job position. [my emphasis]

There are several reasons why this argument is not only problematic, but betrays an unbelievable stupidity about the investigation before Durham.

First, as prosecutors admit, they have no evidence that Clinesmith’s claimed bias influenced his actions. The bias “may have motivated” him, “it is plausible” that it did, “it is impossible to know with certainty how those views may have affected his offense conduct.” This kind of language has no place in a sentencing memo. They’re effectively admitting they have no evidence, but relying on their lack of evidence anyway. It’s the kind of shoddy unethical work they’re trying to send Clinesmith to prison for.

Worse still, as Lawfare has shown, the data the government is relying on here comes from a politically biased application of discipline within DOJ. Since 2011, the only cases of people being disciplined for expressing political views on their government devices involved people opposing Trump.

Five employees, the documents show, have been disciplined for private communications using government devices in which they have criticized President Trump. But none, at least not since 2011, has been disciplined for similar conduct with respect to presidential candidates Hillary Clinton or Mitt Romney, or President Barack Obama—or for praising Trump.

[snip]

The verdict is now in, at least for the past four major-party presidential candidates, one of whom served as president of the United States for eight full years. FBI employees who voiced political sentiments in favor of or opposed to Clinton, Obama and Romney did not face consequences—nor did those who praised Trump. Those who criticize the current president appear to be the only people subject to discipline.

Lawfare raises the example of an FBI agent who — unlike Clinesmith, Lisa Page, or Peter Strzok — was running informants targeting Hillary in the Clinton Foundation investigation during the campaign who expressed clear bias. That person — clearly identified as biased by the same Inspector General who identified Clinesmith’s bias — wasn’t disciplined. And there are reports that a key witness in the Durham probe, Bill Barnett, similarly expressed pro-Trump bias on his devices. No one has done an IG Report into whether Barnett’s self-described role in single-handedly preventing the Mueller team from concluding that Mike Flynn lied to protect President Trump reflected improper political bias, much less sent him home for two weeks without pay. You can’t treat OPR’s treatment of biased FBI employees as valid for sentencing because it has already been demonstrated to be itself biased in the same way it treats as discipline-worthy.

Most importantly, you’d have to be fucking stupid to believe that supporting the FISA application of Carter Page in June 2017 would inherently reflect any anti-Trump bias. Even on the first application, the claim that targeting Page would be a way to hurt Trump was a bit of a stretch. At that point, the Trump campaign had very publicly distanced themselves from him because of his embarrassing ties to Russia. Thus, if the FBI treated Trump’s public statements with any weight, then they would be right to view Trump as victimized by Page, someone pushing his pro-Russian views far beyond what the candidate supported, someone removed from the campaign for precisely that reason. That’s one of the potential problems arising from a suspected foreign agent working on a campaign, that the person will make policy commitments that the candidate doesn’t support on behalf of the foreign country in question. Still, you might argue (and Bill Barr has argued) that the FBI targeted Page as a way to collect campaign emails, so one might make some claim to support the case that by targeting Page the FBI was targeting Trump with the October 2016 application.

But Clinesmith wasn’t in the loop on the non-disclosure of Page’s ties with CIA on that first application.

Kevin was not aware of that information, however. When he assisted the FBI’s efforts to obtain the initial FISA warrant, Kevin knew of no prior relationship between Individual #1 and the OGA. And he was not involved in any discussions—including the one discussed above between the case agent and DOJ attorney—concerning whether or not to include information about that relationship in the FISA application. As was typical, the DOJ attorney worked primarily with the case agent to collect and develop information for the FISA application. The first time Kevin was asked to inquire into whether, and to what extent, Individual #1 had a relationship with the OGA was in connection with the fourth and final application.

To suggest that someone would target Page in June 2017 because of anti-Trump bias, though, takes gigantic flights of fancy. Already in October 2016, it was clear that Page (like every other person originally targeted under Crossfire Hurricane) was using Trump, attempting to monetize his access to Trump to get a plush deal to start a think tank that, in his case, would have been funded by the Russian government. Page boasted to Stefan Halper the Russians had offered him an “open checkbook.”

But even before the first renewal in January 2017, Page had victimized Trump in the way that is dangerous for counterintelligence cases. When he was in Russia in December 2016 — at a time when he was still hoping to get a think tank funded by the Russian government — Page claimed to speak on behalf of Trump with respect to Ukraine policy.

According to Konstantin Kilimnik, Paul Manafort’s associate, Page also gave some individuals in Russia the impression that he had maintained his connections to President-Elect Trump. In a December 8, 2016 email intended for Manafort, Kilimnik wrote, “Carter Page is in Moscow today, sending messages he is authorized to talk to Russia on behalf of DJT on a range of issues of mutual interest including Ukraine.”

There’s no record that Page made those representations with the approval of Trump. As such, Page’s representations risked undermining Trump’s ability to set his own foreign policy, whatever it was.

By June, moreover, Page had been totally marginalized by Trump’s people. The fourth warrant served significantly to obtain encrypted content from a phone Page had destroyed when he came under investigation. Tactically, there’s almost no way that that application would have generated new content involving Trump’s people because they were no longer talking to Page. So there’d be no political advantage to targeting him, neither based on the potential content the FBI might collect nor on any political taint from a guy the campaign had loudly dissociated from nine months earlier. Indeed, if your goal was to paint Trump as a pro-Russian asset, focusing on Page — the guy Trump himself had distanced himself from — is the last thing you’d do in June 2017. It’s just a profoundly stupid attack from Durham’s prosecutors, one with no basis in logic or (as the prosecutors admit) evidence.

In short, not only does the gratuitous, evidence-free insinuation that Clinesmith did what he did out of political bias misrepresent the biased quality of the targeting of those OPR investigations, but it fundamentally misunderstands why the FBI would investigate the infiltration of a campaign by a suspected foreign agent. Someone infiltrating Trump’s campaign on behalf of Russia could and — in Page’s misrepresentations in Moscow in December 2016 — did harm Trump. That’s a harm the FBI is paid to try to prevent. Here, prosecutors are trying to criminalize Clinesmith’s efforts to protect Trump from that kind of damage.

After making it clear in his first official filings that Durham’s team didn’t understand the investigation they were investigating, in this one, his prosecutors make it crystal clear they don’t understand how, if an agent of a foreign power were to hypothetically infiltrate a political campaign (which is what the FBI had good reason to believe in October 2016 and more evidence to believe by December 2016), it could be damaging to the campaign and to the President and to the country. That’s not just dangerous malpractice given their involvement in this case, but it betrays a really basic level of stupidity about how the world works.

The government is right that Clinesmith’s alteration of a document should be treated aggressively given that it occurred as part of the FISA process. But oh my goodness has the government discredited both this sentencing filing and the larger Durham investigation by betraying continued ignorance about the investigation, the politicized nature of the evidence they’re getting, and basic facts about counterintelligence investigations.

John Durham Has Unaltered Copies of the Documents that Got Altered in the Flynn Docket

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Bill Barr could come to regret his neat effort to place a ticking time bomb inside the Joe Biden DOJ, because John Durham has evidence in hand that Bill Barr’s DOJ tampered with documents.

I’ve been thinking … There’s something that doesn’t make sense about Bill Barr’s roll-out of the order making John Durham a Special Counsel. For the better part of a year, Barr has been saying that Durham could roll out actual indictments before the election, since none of the people he would indict were candidates. Yet Barr claimed, in his order, that he decided (not Durham) that, “legitimate investigative and privacy concerns warrant confidentiality” until after the election. And then he waited almost an entire month before he revealed the order. He did so in spite of adopting 28 CFR 600.9, which otherwise requires notice to Congress, to govern this appointment.

Let me interject and say that while Barr’s appointment of a DOJ employee, US Attorney John Durham, violates the Special Counsel statutes, that’s not the authority under which Barr appointed Durham. He did so under 28 USC 509, 510, 515, which is what Mueller was technically appointed under. Thanks to the Mueller investigation and some well-funded Russian troll lawyers, there’s a whole bunch of appellate language authorizing the appointment of someone under 28 USC 515 but governed under 28 CFR 600.9. The unusual nature of the appointment would provide President Biden’s Attorney General an easy way to swap Durham for Nora Dannehy (who as a non-departmental employee would qualify under the Special Counsel guidelines), and given her past involvement in the investigation, it should suffer no loss of institutional credibility or knowledge. But it doesn’t damage Durham’s legal authority in the meantime.

Barr probably lied about the significant reasons to delay notice to Congress. According to the AP, Durham is no longer focused on most of the scope he had been investigating, to include George Papadopoulos’ conspiracy theories and GOP claims that the CIA violated analytic tradecraft in concluding that Vladimir Putin affirmatively wanted Trump elected. He is, according to someone in the immediate vicinity of Barr, focused just on the conduct of FBI Agents before Mueller’s appointment, even though the language of this appointment approves far more.

The current investigation, a criminal probe, had begun very broadly but has since “narrowed considerably” and now “really is focused on the activities of the Crossfire Hurricane investigation within the FBI,” Barr said. He said he expects Durham would detail whether any additional prosecutions will be brought and make public a report of the investigation’s findings.

[snip]

A senior Justice Department official told the AP that although the order details that it is “including but not limited to Crossfire Hurricane and the investigation of Special Counsel Robert S. Mueller III,” the Durham probe has not expanded. The official said that line specifically relates to FBI personnel who worked on the Russia investigation before the May 2017 appointment of Mueller, a critical area of scrutiny for both Durham and for the Justice Department inspector general, which identified a series of errors and omissions in surveillance applications targeting a former Trump campaign associate.

The focus on the FBI, rather than the CIA and the intelligence community, suggests that Durham may have moved past some of the more incendiary claims that Trump supporters had hoped would yield allegations of misconduct, or even crimes — namely, the question of how intelligence agencies reached their conclusion that Russia had interfered in the 2016 election.

We know from the Jeffrey Jensen investigation and documents Barr otherwise released where Barr thought John Durham was heading. There are questions about who knew about credibility problems of Christopher Steele’s primary source Igor Danchenko (though the GOP has vastly overstated what his interview said, ignoring how much of the dossier it actually corroborated, Danchenko’s later interviews, and FBI’s later interviews of one of his own sources). There are some analysts who questioned the viability of the investigation into Flynn; it appears they asked to be removed from the team.

And Jensen, at least, seemed to want to claim that Peter Strzok got NSLs targeting Flynn in February and March 2017 that he had previously refused to approve. Someone seems to have convinced Flynn investigative agent Bill Barnett that those NSLs, which were lawyered by Kevin Clinesmith, were illegal, but given the predication needed for NSLs that seems a wild stretch. Plus, it would be unlikely (though not impossible) for Durham to indict Clinesmith without a Durham-specific cooperation agreement before if he believed Clinesmith had committed other crimes. I mean, it’s possible that Clinesmith, under threat of further prosecution, is claiming that mere NSLs are illegal, but I’d be surprised. Not least because after these NSLs, Strzok worked hard to put a pro-Trump FBI Agent in charge of the Flynn investigation.

Occam’s razor suggests that Durham asked for the special counsel designation because he wants to be permitted to work through these last bits and finish up the investigation, along with the prior authority (which Mueller did not have) to publish his findings.

Occam’s razor also suggests that the reason Barr didn’t reveal this change of status until this week has everything to do with pressure from Trump and nothing to do with investigative equities and everything to do with using this investigation like he has all of his US Attorney led investigations, as a way to placate Trump. Trump has reportedly been complaining that Barr didn’t do more to undermine the election, and so he rolled this out as a way to buy space and time.

Axios reports that it may not work. Trump might fire Barr and replace him with someone who would order that Durham report right away.

Behind the scenes: Within Trump’s orbit, sources told Axios, Tuesday’s revelation was seen as a smokescreen to forestall the release of the so-called Durham report, which senior administration officials believe is already complete — and which Barr had ruled out issuing before the election.

  • Another senior administration official disputed that assessment, saying: “The reason the Attorney General appointed John Durham as Special Counsel is because he’s not finished with his investigation,” and that Barr “wanted to ensure that John Durham would be able to continue his work independently and unimpeded.”
  • Trump has been ranting about the delay behind the scenes and mused privately about replacing Barr with somebody who will expedite the process. But it’s unclear whether he will follow through with that, per sources familiar with the conversations.
  • Barr met with White House chief of staff Mark Meadows and other officials in the West Wing Tuesday afternoon.

Except that doesn’t work. If Trump were to name John Ratcliffe Acting Attorney General (he’d be the perfect flunky for the job), he would be powerless to force Durham to report more quickly. Sure, he could fire Durham, but he’d have to provide notice to Congress, and there’s virtually no remedy Congress would or could offer in the next 48 days. Ratcliffe can’t write a report himself. And the people doing the work for Durham aren’t DOJ employees, so firing them would do nothing to get a report. For better and worse, Barr has ensured that Ratcliffe or whatever other flunky were appointed could not do that, at least not in the 48 days before such person would be fired by President Biden.

Again, Ockham’s Razor suggests that Durham will finish his work and write a public report debunking the Papadopoulos conspiracies, confirming that CIA’s analytic work was not improper, and otherwise concluding that Kevin Clinesmith’s alteration of documents was the only crime that occurred.

More importantly, there’s a problem with Axios’ report, that “Barr had ruled out issuing a report before the election,” and that’s what makes this special counsel appointment more interesting. Barr tried to force Durham to issue a report before the election. That led Durham’s trusted aide Nora Dannehy to quit before September 11, thereby seemingly creating the need for a special counsel designation at that point.

Federal prosecutor Nora Dannehy, a top aide to U.S. Attorney John H. Durham in his Russia investigation, has quietly resigned from the U.S. Justice Department probe – at least partly out of concern that the investigative team is being pressed for political reasons to produce a report before its work is done, colleagues said.

[snip]

Colleagues said Dannehy is not a supporter of President Donald J. Trump and has been concerned in recent weeks by what she believed was pressure from Barr – who appointed Durham to produce results before the election. They said she has been considering resignation for weeks, conflicted by loyalty to Durham and concern about politics.

[snip]

The thinking of the associates, all Durham allies, is that the Russia investigation group will be disbanded and its work lost if Trump loses.

And Barr himself had, for months, been saying that he would shut down Durham if Trump lost. Yet here we are, after the election, learning that Barr has provided Durham additional protections.

That’s all the more interesting given what Barr did after Dannehy quit in the face of pressure to issue some kind of report before the election. First, he gave a screed at Hillsdale College that pretty clearly targeted Dannehy, among others. Then, Barr attempted to let Jeffrey Jensen release an interim Durham report himself.

Less than a week after Dannehy quit, Jensen’s team interviewed Bill Barnett, someone who would be a key witness for any real Durham investigation of early actions by the FBI. The interview was clearly a political hack job, leaving key details (such as the role of Flynn’s public lies about his calls with Sergey Kislyak in the investigation) unasked. Barnett’s answers materially conflict with his own actions on the case. He was invited to make comments about the politicization of lawyers — notably Andrew Weissmann and Jeannie Rhee — he didn’t work with on the Mueller team. And he claimed to be unaware of central pieces of evidence in the case.

It took just a week for the FBI to write up and release the report from that interview, even while DOJ still hasn’t released a Bill Priestap interview 302 that debunked a central claim made in the Flynn motion to dismiss. And the interview was released in a form that hid material information about Brandon Van Grack’s actions from Judge Sullivan and the public.

But that’s not all. A day earlier prosecutor Jocelyn Ballantine sent five documents to Sidney Powell:

  • The altered January 5, 2017 Strzok notes
  • The second set of altered Strzok notes
  • The altered Andrew McCabe notes
  • Texts between FBI analysts
  • A new set of Strzok-Page texts, which included new Privacy Act violations

All were packaged up for public dissemination, with their protective order footers redacted. There were dates added to all the handwritten notes, at least one of which was misleading. The Strzok-Page texts were irrelevant and included new privacy violations; when later asked to validate them, DOJ claimed they weren’t relying on them (which raises more questions about the circumstances of their release). There’s good reason to believe there’s something funky about the FBI analyst texts released (indeed, as politicized as his interview was, Barnett dismissed the mistaken interpretation DOJ adopted of their meaning, that the analysts were getting insurance solely because of the Russian investigation); DOJ made sure that the identities of these analysts was not made public, avoiding any possibility that the analysts might weigh in like Strzok and McCabe did when they realized their notes had been altered.

One of those alterations would come to serve as a scripted Trump attack on Joe Biden in their first debate. In a September 29 hearing, Sidney Powell admitted meeting regularly with Trump campaign lawyer, Jenna Ellis, and asking Trump to hold off on a Flynn pardon, making it clear that this docket gamesmanship was the entire point.

And then, on October 19, Durham got Barr to give him the special counsel designation that would give him independence he had not had during 18 months of Barr micromanagement and also ensure that he could remain on past the time when Barr would be his boss.

Days later, on October 22, DOJ wrote Sidney Powell telling her they were going to stop feeding her with documents she would use to make politicized attacks.

Let’s assume for a minute that Durham was, in good faith, pursuing what the FBI was doing in the spring of 2017, an inquiry for which Barnett was a key — and at that point, credible — witness. That investigation was effectively destroyed with the release of the politicized Barnett interview report. Any defense attorney would make mincemeat of him as a witness.

Which is to say that Barr’s effort to let Jensen release the things that Durham refused to before the election damaged any good faith investigation that Durham might have been pursuing. And that’s before DOJ got caught altering documents, documents for which Durham has original copies. It’s not clear whether Durham is watching this docket that closely, but if he is, he knows precisely what, how, and to what extent these documents have been altered. And he probably has a good sense of why they were released in the way they were.

Again, Ockham’s Razor says that Durham will just muddle along and after a delay release a report saying he found nothing — which itself will be incendiary enough to the frothy right.

But by incorporating 28 CFR 600.4 into the scope of his special counsel appointment clearly allows him to investigate any attempts to interfere with his investigation.

federal crimes committed in the course of, and with intent to interfere with, the Special Counsel’s investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses;

It’s likely those pre-election antics did interfere with the investigation. And even if Durham hasn’t thought that through yet, it’s possible that Michael Horowitz will inform him of the details.

The Investigations into the Russian Investigation Have Lasted 69% Longer than the Russian Investigation Itself

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The AP just broke the news that Bill Barr made John Durham a Special Counsel back in October so Durham can continue to investigate the Russian investigation after Joe Biden becomes President. Given the indications that Billy Barr had closed down the remaining aspects of the Russian investigation by September 18, and that Jeffrey Jensen closed his investigation by October 22, here are the presumed dates of the Russian investigation and some of the known investigations into the Russian investigation.

The investigations into the Russian investigation, combined, have lasted 2557 days. And this is not an inclusive list (for example, it doesn’t include John Bash’s investigation into the unmasking of Trump officials, which found no wrongdoing).

Even without all the investigations included, the investigations into the Russian investigation have, thus far, lasted 69% longer than the investigation itself.

And it’s still going.

 

Ockham’s Cut: How the Andrew McCabe Notes Were Doctored

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Some weeks ago, I asked for help understanding the irregularities of the Andrew McCabe notes. Among other observations, two people showed that the notes had been created in layers, with the redaction of the protective order footnote seemingly added twice. Since then, longtime friend of the site “William Ockham” has done more analysis (he was the tech expert identified in the second post), and determined that the file must have been made as part of a multi-step process. I share his analysis here. The italics, including the bracket, are mine, the bold is his.

Here’s what I can say about the McCabe notes. The easiest way to explain this is to think about the ancestral tree of the images that are embedded in the documents we have. It all starts with the original page from McCabe’s notes (Generation 0).

Someone scanned that page to create an unredacted image file (Gen 1).

That image was printed (Gen 2). {From a technical point of view, this is what happens when a page is copied on a modern copy machine. Based on the evidence I have, I’m fairly sure that a digital image of the original page must exist. If not, it sucks to be the FBI.)

An analog redaction (probably with a black Sharpie or similar instrument) was applied. I strongly suspect that the date was added to the same physical page before it was rescanned. It’s possible, although I consider it very unlikely, that the date was added after the physical page was rescanned. These original redactions aren’t totally black the way they would be if done with the DoJ’s redaction software. In any event, this rescanned image is Gen 3.

That physical page with the date was scanned to an image file (Gen 4).

At this point, a PDF file  that will become 170510-mccabe-notes-jensen-200924.pdf is created by embedding the Gen 4 image and saving the file as a PDF. Then, a separate process adds the words “SUBJECT TO PROTECTIVE ORDER” and “DOJSCO – 700023502” to the metadata inside the file and draws the words in a font called “Arial Black” at the bottom of that page and the file is saved again. ***I am 100% certain that a PDF was created exactly like I describe here***

Update from Ockham to describe how the redaction shows up in the DOJ footnote:

A PDF file is really a software program that has instructions for rendering one or more pages. An image similar to the one above [Gen 4] was turned into a PDF file which contained one set of instructions:

  1. Store about 1 megabyte of compressed data.
  2. Take that data and render an image by interpreting the data as an 8bit per pixel grayscale image 1710 pixels wide by 2196 pixels high (at normal 96 pixels per inch, 17.81 in by 22.87 in, so obviously scanned at a much higher resolution)
  3. Scale that image so it takes up an entire 8 ½ by 11 page
  4. Render the image

Then, an automated process adds the footer. The part of the instructions for rendering the Bates number are still in the document and look like this:

Operation Description Operands
Dictionary E.g.: /Name << … >> /Artifact<</Contents (DOJSCO – 700023502)/Subtype /BatesN /Type /Pagination >>
BDC (PDF 1.2) Begin marked-content sequence with property list
q Save graphics state
cm Concatenate matrix to current transformation matrix 1001458.234985434.7999268
gs (PDF 1.2) Set parameters from graphics state parameter dictionary /GS0
Tr Set text rendering mode 0
Tf Set text font and size /T1_031.5 [This is a pointer to a font name and size, Arial Black – 18PT]
Do Invoke named XObject /Fm0 [This is a pointer to the actual text and location to render it
Q Restore graphics state
EMC (PDF 1.2) End marked-content sequence

Originally, there would have been a similar set of instructions for the “SUBJECT TO PROTECTIVE ORDER” part as well. They would have looked almost the same except for the “Artifact” operands, the actual text, and the positioning instruction.

Now, here’s the really important part. The DoJ redaction software presents the rendered PDF file to the end user. However, it operates on the actual PDF by rewriting the instructions. When the user drew the rectangle around the words “SUBJECT TO PROTECTIVE ORDER”, the redaction software has to find every instruction in the PDF that made changes to the pixels within the coordinates of the rectangle. The redaction software sees two “layers” of instructions that affect the rectangle, the text writing instructions and the image itself. The redaction software removes all the instructions for writing the text and replaces those instructions with instructions to draw a black box in the same place. Then, it also blacks out the pixels in the image itself. It has to do both of those things to ensure that it has removed all of the redacted information, even though in this case it didn’t really need to do both.

Then someone at the DoJ opens the PDF and redacts the words “SUBJECT TO PROTECTIVE ORDER” from the page. The redaction does all of the following things:

  • It removes the metadata entry with the words “SUBJECT TO PROTECTIVE ORDER”,
  • It removes the commands that draw the words.
  • It replaces those commands with commands that draw a black rectangle the same size as the rendered words.
  • It replaces the pixels in the Gen 4 image that correspond to the area of the image that the words were drawn on top of with solid black pixels.

Those last two steps create two very slightly offset redaction boxes. The slight offset is caused by errors caused by using floating point math to draw the same shape in two different coordinate systems. Step 4 creates an image which I’ll call Gen 5 which can be extracted from 170510-mccabe-notes-jensen-200924.pdf.

When someone notices that this file and the Strzok notes have been altered, Judge Sullivan asks for the unaltered versions.  Jocelyn Ballantine has a problem. There’s no redacted version of McCabe’s notes without the added date. She can’t use the DoJ’s redaction software because that would look even worse (a big black rectangle where the date was added).  What’s a stressed out assistant US Attorney to do? Here’s what she did. She took the unredacted PDF file I mentioned above and converted it to an image. Then she used image editing software to remove the date, which made that rectangle of white pixels. She fires up Microsoft Word on her DoJ work computer and starts creating a new document (likely from a template designed creating exhibit files). The first page just says Exhibit A and on the second page (which has all margins set to 0) she pastes in the image she just created, scaled to fit exactly on the page. Without saving the Word file, she prints the document (using the Adobe Distiller print driver) to PDF and submits the printed file as the supposedly unaltered McCabe notes. [Gen 6]

It seems like these steps look like this:

Gen 0: FBI had or has McCabe’s original notes presumably stored with his other documents.

Gen 1:  Someone took the notes from there and scanned them, presumably to share with other investigators.

Gen 2: Someone printed out Gen 1 and made notes and otherwise altered them. This is the stage at which the government claims someone put a sticky note with a date on the notes, but it appears they just wrote the date on the notes themselves. If everything had been operating normally, however, when Judge Sullivan asked for unaltered copies of the documents, they could have used the Gen 1 copy to resubmit. They didn’t do so, which suggests the chain of custody may have already been suspect. Some possible explanations for that are that Jeffrey Jensen’s team received the document from either DOJ IG or John Durham’s investigation, not directly from the FBI files. That wouldn’t be suspect from the standpoint of DOJ internal workings, but it would be proof that DOJ knew the documents they relied on in their motion to dismiss had already been reviewed by Michael Horowitz or Durham’s teams, and found not to sustain the conspiracies that Billy Barr needed them to sustain to throw out Flynn’s prosecution (or that DOJ claimed they sustained in the motion to dismiss).

Gen 3: I think Ockham is viewing the creation of the image file in two steps. First, a scan of the file with the note written on it is made, which is Gen 3.

Gen 4: Then, probably before the file is handed off to Jocelyn Ballantine to “share” with Mike Flynn’s team (I’m scare-quoting because I suspect there may have been a back channel as well), the redaction is created for where the protective order stamp would go. Here’s what Gen 4 would have looked like:

Gen 5: Gen 4 is then prepared as an exhibit would normally be, by putting it into a PDF and adding the Bates number and protective order stamp, then redacted the latter. Reminder: The protective order footer was also redacted from (at least) the two altered Strzok notes, as I show here.

Gen 6: When Peter Strzok and McCabe tell Sullivan that their notes have had dates added, DOJ re-releases the notes such that the notes are no longer added but the redacted footnote is. As Ockham notes (and as I think everyone who looked closely at this agrees) the date is not removed by taking off a post-it. Instead, it is whited out digitally, leaving a clear mark in the exhibit.

One reason this is so interesting — besides providing more proof that DOJ went to some lengths to make sure a version of these notes did not include the protective order, freeing Sidney Powell to share it with Jenna Ellis and whomever else she wanted, so they could prepare campaign attacks from it — is that DOJ refused to say who added the date to McCabe’s notes. As I noted in my own discussion here, one possible explanation why DOJ kept redacting stuff rather than going back to the original (other than having to submit the file for formal declassification and the post-it hiding other parts of the document) is because the chain of custody itself would undermine the claims DOJ has made in the motion to dismiss, by making it clear that someone had already reviewed this document and found no criminal intent in the document.

The other problem with this multi-generation alteration of Andrew McCabe’s notes is, if anyone asks, it is going to be very difficult for anyone involved to disclaim knowledge that these documents were altered. Mind you, Ballantine already has problems on that front: I emailed her to note that the FBI version of Bill Barnett’s “302” she shared redacted information that was material to Judge Sullivan’s analysis, the positive comments that Barnett had for Brandon Van Grack. So if and when Sullivan asks her why DOJ hid that material information from him, she will not be able to claim she didn’t know. Then there’s her false claim — which both Strzok and McCabe’s lawyers have already disproved — that the lawyers affirmed that no other changes had been made to the notes.

But if this file was prepared as Ockham describes, then both DOJ and FBI will have a tough time claiming they didn’t know they were materially altering documents before submitting them to Judge Sullivan’s court.

Updated with some corrections from Ockham.

Who Will Be Forced to Walk the Plank on November 4th?

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Who will Trump force to walk the plank after the election?
(h/t Stacey Harvey for the image, [CC Attribution-NoDerivs 2.0 Generic (CC BY-ND 2.0) ]

Win or lose, Donald Trump will be looking for vengeance once the election is over. Either he will lose, and want to punish those he deems responsible, or he will win and want to punish the folks he’s had to put up with despite their failures to do what he wanted. One way or another, Trump will want to make certain people pay and pay dearly after the voting is over.

It might be to get rid of people who have angered him by not being sufficiently publicly loyal and submissive.

It might be to get rid of people who angered him by not being sufficiently good at making Trump look good before the election.

It might be to get rid of people who angered him by making him look bad, indecisive, or (gasp!) wrong.

It might be to get rid of people who stood up to him in private and made him back down on something, even if that backing down was only done in private.

It might be to get rid of people who stood up to him in public, and he had to simply take it at the time because Trump would have paid a price if he got rid of them when it happened.

Put me down for Trump demanding that the following people be forced to walk the plank:

  • Doctors Tony Fauci at NAIAD, Stephen Hahn at FDA, and Robert Redfield at CDC, along with HHS Secretary Alex Azar for not keeping these disloyal doctors in line;
  • Bill Barr for failing to deliver any indictments and convictions of any Bidens or Clintons, John Durham for dragging his feet on his reports that would have made that happen, Christopher Wray for being the FBI director and generally annoying, whoever approved letting Andrew Weissmann reveal that Manafort was breaking the gag order in his case by communicating with Sean Hannity, and a host of other US Attorneys who didn’t behave according to Trump’s rules;
  • General Mark Milley for publicly apologizing for taking part in the infamous Bible-waving photo op created by driving protesters out of Lafayette Park with chemical agents, various generals and admirals who refused to back Trump’s call to deploy US troops to American cities he didn’t like, and Secretary of Defense Mark Esper for not keeping these military folks in line;
  • Dr. Sean Conley, for not being more deceptive with the press around Trump’s COVID-19 status;
  • Mark Meadows for undermining Conley’s initial “he’s doing great” press remarks, as well as for more generally not keeping the WH functioning smoothly (as if that were possible, given his boss);
  • Mike Pompeo for failing to get Ukraine to do Trump’s bidding, as well as for not keeping folks like Fiona Hill in line.

But I must admit this is an incomplete list. Who else do you think might be on Trump’s Naughty List? Add your own thoughts in the comments.

Note: I also left off the list a bunch of folks like Mitch McConnell, Andrew Cuomo, Savannah Guthrie, and Cy Vance that Trump would demand walk the plank, but who remain outside his ability to make that happen. I also didn’t include Ivanka, Jared, Don Jr, or Eric, as he can’t fire his family. Though of course, he could disinherit them . . . for whatever that’s worth.

The Desperation of the Jeffrey Jensen Investigation Already Made Clear that John Durham Won’t Indict

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Yesterday, a sick man called into Maria Bartiromo’s show and wailed that his opponents had not been indicted.

Bartiromo: Mr. President. We now know from these documents that John Ratcliffe unveiled that it was Hilary Clinton’s idea to tie you to Russia in some way. It was successful. The whole country was talking about it for two and a half years. But what comes next, Mr. President? We can have all of these documents, we can see exactly what happened but unless John [Durham] comes out with a report or indictments unless Bill Barr comes out with a — a — some kind of a ruling here, do you think this is resonating on the American people?

Trump: Unless Bill Barr indicts these people for crimes, the greatest political crime in the history of our country, then we’re going to get little satisfaction unless I win and we’ll just have to go, because I won’t forget it. But these people should be indicted, this was the greatest political crime in the history of our country and that includes Obama and it includes Biden. These are people that spied on my campaign and we have everything. Now they say they have much more, OK? And I say, Bill, we’ve got plenty, you don’t need any more. We’ve got so much, Maria, even — just take a look at the Comey report, 78 pages of kill, done by Horowitz, and I have a lot of respect for Horowitz, and he said prosecute. He recommended prosecute and they didn’t prosecute. I was — I couldn’t believe it, but they didn’t do it, because they said we have much bigger fish to fry. Well, that’s OK, they indicted Flynn for lying and he didn’t lie. They destroyed many lives, Roger Stone, over nothing. They destroyed lives. Look at Manafort, they sent in a black book, it was a phony black book, phony, they made up a black book of cash that he got from Ukraine or someplace and he didn’t get any cash.

In the comment, he described speaking directly to Billy Barr about the urgency of prosecuting his political opponents.

In response to this attack, Billy Barr has started telling Republican members of Congress that John Durham isn’t going to indict before the election.

Attorney General Bill Barr has begun telling top Republicans that the Justice Department’s sweeping review into the origins of the Russia investigation will not be released before the election, a senior White House official and a congressional aide briefed on the conversations tell Axios.

Why it matters: Republicans had long hoped the report, led by U.S. Attorney John Durham, would be a bombshell containing revelations about what they allege were serious abuses by the Obama administration and intelligence community probing for connections between President Trump and Russia.

  • “This is the nightmare scenario. Essentially, the year and a half of arguably the number one issue for the Republican base is virtually meaningless if this doesn’t happen before the election,” a GOP congressional aide told Axios.
  • Barr has made clear that they should not expect any further indictments or a comprehensive report before Nov. 3, our sources say.

Barr is excusing the delay by saying that Durham is only going to prosecute stuff he can win.

What we’re hearing: Barr is communicating that Durham is taking his investigation extremely seriously and is focused on winning prosecutions.

  • According to one of the sources briefed on the conversations Barr said Durham is working in a deliberate and calculated fashion, and they need to be patient.
  • The general sense of the talks, the source says, is that Durham is not preoccupied with completing his probe by a certain deadline for political purposes.

This back and forth represents a fundamental misunderstanding of what must be going on.

The Durham investigation should not, at this point, be considered separately from the Jeffrey Jensen investigation attempting to invent a reason to blow up the Flynn prosecution. That’s been true since Barr appointed Jensen because Durham hadn’t yet discovered anything to dig Sidney Powell out of the hole she had dug Flynn. But it’s especially true now that documents that would be central to the Durham inquiry are being leaked left and right — whether it’s the report that the FBI knew that Igor Danchenko had been investigated (like Carter Page and Mike Flynn) as a possible Russian agent, or specific details about when the FBI obtained NSLs on Mike Flynn.

The investigative integrity of the Durham investigation has been shot beyond recovery.

Plus, the sheer desperation of the Jensen investigation raises real questions about whether a credible investigation could ever find anything that could sustain a prosecution, in any case. That’s because:

  • Jensen has repeatedly provided evidence that proves the opposite of what DOJ claims. For example, the Bill Priestap notes that DOJ claimed were a smoking gun actually show contemporaneous proof for the explanation that every single witness has offered for Mike Flynn’s interview — that they needed to see whether Flynn would tell the truth about his calls with Sergey Kisklyak. Plus, now there’s a Priestap 302, one DOJ is hiding, that further corroborates that point. That evidence blows all the claims about the centrality of the Logan Act to interviewing Flynn out of the water, and it’s already public.
  • Jensen’s investigators submitted altered exhibits to sustain easily disprovable claims. DOJ has claimed that this tampering with evidence was inadvertent — they simply forgot to take sticky notes off their files. That doesn’t explain all the added dates, however, undermining their excuse. Moreover, if they didn’t intentionally tamper with evidence, they’re left claiming either that they haven’t read the exhibits they’ve relied on thus far in this litigation, or that they’re so fucking stupid that they don’t realize they’ve already disproven their own assumptions about dates. Add in the way their “errors” got mainlined to the President via a lawyer meeting with Trump’s campaign lawyer, and the whole explanation gets so wobbly no prosecutor would want to proceed toward prosecution with problems that could so easily be discoverable (or already public).
  • Jensen’s investigators got star witness William Barnett to expose himself as a partisan willing to forget details to help Trump. Along with an analyst that was skeptical of the Flynn case (but who was moved off before the most damning evidence came in), Barnett would need to be the star witness in any case alleging impropriety in the investigation. But rather than hiding Barnett’s testimony and protecting his credibility, Jensen made a desperate bid to get his claims on the record and make it public. And what the 302 actually shows — even without a subpoena of Barnett’s personal ties and texts sent on FBI phones — is that in his interview, Barnett claimed not to understand the case (even though documents he filed show that he did, contemporaneously), and either did not remember or deliberately suppressed key evidence (not least that Flynn told Kislyak that Trump had been informed of his calls).  The 302 further showed Barnett presenting as “truth” of bias claims that instead show his willingness to make accusations about people he didn’t work with, even going so far as to repackage his own dickish behavior as an attempt to discredit Jeannie Rhee. Finally, by hiding how many good things Barnett had to say about Brandon Van Grack, DOJ has made it clear that the only thing Barnett can be used for is to admit that he, too, believes Flynn lied, didn’t have a problem with one of the key investigators in the case, and that his views held sway on the final Mueller Report. Had Durham managed this witness, Barnett might have been dynamite. Now, he would be, at best, an easily discredited partisan.

Jensen is working from the same evidence that Durham is. And what the Jensen investigation has shown is that it takes either willful ignorance or deliberate manipulation to spin this stuff as damning. And in the process, Jensen has destroyed the viability of a witness and possibly other pieces of evidence that any credible prosecution would use.

DOJ might make one last bid in giving Trump what he wants, allegations against his adversaries, by using the initial response in the McCabe and Strzok lawsuits as a platform to make unsubstantiated attacks on them (DOJ got an extension in both cases, but one that is still before the election). But those attacks will crumble just like the Jeffrey Jensen case has, and do so in a way that may make it easier for McCabe and Strzok to get expansive discovery at the underlying actions of people like Barnett.

Billy Barr has largely shot his wad in drumming up accusations against Trump’s critics. And along the way, he has proven how flimsy any such claims were in the first place.

Why a Clinton Foundation/Crossfire Hurricane Comparison Might Backfire

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Billy Barr has suggested a couple of times that if Trump wins, he’ll shut down the Durham inquiry.

A story from NYT may provide some insight as to why (and also might explain why Nora Dannehy resigned). John Durham is comparing the decisions made on the Clinton Foundation investigation with those made on the Crossfire Hurricane investigation.

Mr. Durham, the U.S. attorney in Connecticut assigned by Mr. Barr to review the Russia inquiry, has sought documents and interviews about how federal law enforcement officials handled an investigation around the same time into allegations of political corruption at the Clinton Foundation, according to people familiar with the matter.

As NYT explains it, the basis of comparison is that when FBI agents tried to use the Clinton Cash book to get a subpoena, they were shot down, whereas the FBI did use oppo research — the Steele dossier — to get the Carter Page FISA.

The allegations against Mrs. Clinton were advanced in the book “Clinton Cash,” by Peter Schweizer, a senior editor at large at Breitbart News, the right-wing outlet once controlled by Mr. Trump’s former top aide Stephen K. Bannon. The book contained multiple errors, and the foundation has dismissed its allegations.

But the book caught the attention of F.B.I. agents, who viewed some of its contents as additional justification to obtain a subpoena for foundation records.

Top Justice Department officials denied a request in 2016 from senior F.B.I. managers in Washington to secure a subpoena, determining that the bureau lacked a sufficient basis for it and that the book had a political agenda, former officials said. Some prosecutors at the time felt the book had been discredited.

The decision frustrated some agents who believed they had enough evidence beyond the book, including a discussion that touched on the foundation and was captured on a wiretap in an unrelated investigation. Other F.B.I. officials at the time believed the conversation’s relevance to the foundation case was tenuous at best.

The disagreement erupted anew later in the summer of 2016, when a top Justice Department official suspected that F.B.I. agents in New York were trying to persuade federal prosecutors in Brooklyn to authorize a subpoena after the department’s officials in Washington had declined such a request. By the time the F.B.I. officials revisited the issue, the Justice Department officials were also concerned that serving subpoenas would violate the practice of avoiding such investigative activity so close to an election.

One obvious conclusion from this might be that, had the FBI vetted the Steele dossier the way they did the Clinton Cash book, they would have discovered problems and not obtained the application. (Never mind that the FBI was targeting a guy who might have been and later on did victimize Trump by claiming he represented him on Ukrainian matters, rather than Trump himself.)

It’s a fair point, if you ignore that Christopher Steele was an established informant.

But the comparison could also backfire in spectacular fashion.

After all, after multiple Inspector General reviews, Michael Horowitz never found proof that any political bias from Peter Strzok or others influenced an investigative decision. He did, however, show that the FBI agent running an informant on the Clinton Foundation was biased.

We reviewed the text and instant messages sent and received by the Handling Agent, the co-case Handling Agent, and the SSA for this CHS, which reflect their support for Trump in the 2016 elections. On November 9, the day after the election, the SSA contacted another FBI employee via an instant messaging program to discuss some recent CHS reporting regarding the Clinton Foundation and offered that “if you hear talk of a special prosecutor .. .I will volunteer to work [on] the Clinton Foundation.” The SSA’s November 9, 2016 instant messages also stated that he “was so elated with the election” and compared the election coverage to “watching a Superbowl comeback.” The SSA explained this comment to the OIG by saying that he “fully expected Hillary Clinton to walk away with the election. But as the returns [came] in … it was just energizing to me to see …. [because] I didn’t want a criminal to be in the White House.”

On November 9, 2016, the Handling Agent and co-case Handling Agent for this CHS also discussed the results of the election in an instant message exchange that reads:

Handling Agent: “Trump!”

Co-Case Handling Agent: “Hahaha. Shit just got real.”

Handling Agent: “Yes it did.”

Co-Case Handling Agent: “I saw a lot of scared MFers on … [my way to work] this morning. Start looking for new jobs fellas. Haha.”

Handling Agent: “LOL”

Co-Case Handling Agent: “Come January I’m going to just get a big bowl of popcorn and sit back and watch.”

Handling Agent: “That’s hilarious!” [my emphasis]

And, as Peter Strzok has said repeatedly, had he really wanted to sabotage Trump’s election, he would have leaked details of the investigation, particularly after, in August 2016, he was shot down in his effort to investigate more aggressively by doing things like issue a subpoena.

In precisely the same situation, the Clinton Foundation Agents did leak details of the investigation, and in fact did have an effect on the election.

Hell, if Durham were allowed to continue down this path of comparison, we might finally figure out which New York Field Office were leaking rampantly during the election, leading to promises of indictments on Fox News.

“The Buck Stops at the Top:” In January, Bill Barr’s DOJ Decided the Correct Decision Was to Send Mike Flynn to Prison

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I’d like to make one more point about Billy Barr’s rant last night. Over and over again, Barr suggested that line prosecutors have been making hyper-aggressive decisions that the Department of Justice cannot answer for and that his involvement simply amounts to ensuring that the decisions DOJ makes are ones he’s willing to take responsibility for.

Indeed, aside from the importance of not fully decoupling law enforcement from the constraining and moderating forces of politics, devolving all authority down to the most junior officials does not even make sense as a matter of basic management.  Name one successful organization where the lowest level employees’ decisions are deemed sacrosanct.  There aren’t any.  Letting the most junior members set the agenda might be a good philosophy for a Montessori preschool, but it’s no way to run a federal agency.  Good leaders at the Justice Department—as at any organization—need to trust and support their subordinates.  But that does not mean blindly deferring to whatever those subordinates want to do.

This is what Presidents, the Congress, and the public expect.  When something goes wrong at the Department of Justice, the buck stops at the top.  28 U.S.C. § 509 could not be plainer:  “All functions of other officers of the Department of Justice and all functions of agencies and employees of the Department of Justice are vested in the Attorney General.”

And because I am ultimately accountable for every decision the Department makes, I have an obligation to ensure we make the correct ones.  The Attorney General, the Assistant Attorneys General, and the U.S. Attorneys are not figureheads selected for their good looks and profound eloquence.

They are supervisors.  Their job is to supervise.   Anything less is an abdication.

To the extent Barr is talking about the Mueller investigation, every single prosecutorial decision was reviewed by Acting Attorney General Rod Rosenstein. For those decisions, then, Barr’s not actually talking about decisions made by line prosecutors. He’s talking about decisions overseen by someone vested, like him, with all the authority of DOJ.

For precisely the reason Barr lays out — that DOJ must be able to answer for things DOJ does — it’s highly unusual for DOJ to flip-flop on prosecutorial decisions that past Attorneys General have approved.

But with one action in the Mike Flynn prosecution — possibly one he thought of when he invoked probation sentences in one of his last paragraphs — Barr’s interventions into the cases of Donald Trump’s flunkies is far worse than that.

In short, it is important for prosecutors at the Department of Justice to understand that their mission — above all others — is to do justice.  That means following the letter of the law, and the spirit of fairness.  Sometimes that will mean investing months or years in an investigation and then concluding it without criminal charges.  Other times it will mean aggressively prosecuting a person through trial and then recommending a lenient sentence, perhaps even one with no incarceration.

In moving to dismiss Flynn’s prosecution, Barr was overriding a decision he himself had approved of. In January, DOJ called for prison time for Flynn, citing the materiality of his lies and his abuse of trust.

The defendant’s offense is serious, his characteristics and history present aggravating circumstances, and a sentence reflecting those factors is necessary to deter future criminal conduct. Similarly situated defendants have received terms of imprisonment.

Public office is a public trust. The defendant made multiple, material and false statements and omissions, to several DOJ entities, while serving as the President’s National Security Advisor and a senior member of the Presidential Transition Team. As the government represented to the Court at the initial sentencing hearing, the defendant’s offense was serious. See Gov’t Sent’g Mem. at 2; 12/18/2018 Hearing Tr. at 32 (the Court explaining that “[t]his crime is very serious”).

The integrity of our criminal justice depends on witnesses telling the truth. That is precisely why providing false statements to the government is a crime. As the Supreme Court has noted:

In this constitutional process of securing a witness’ testimony, perjury simply has no place whatsoever. Perjured testimony is an obvious and flagrant affront to the basic concepts of judicial proceedings. Effective restraints against this type of egregious offense are therefore imperative. The power of subpoena, broad as it is, and the power of contempt for refusing to answer, drastic as that is — and even the solemnity of the oath — cannot insure truthful answers. Hence, Congress has made the giving of false answers a criminal act punishable by severe penalties; in no other way can criminal conduct be flushed into the open where the law can deal with it.

United States v. Mandujano, 425 U.S. 564, 576 (1975); see also Nix v. Whiteside, 457 U.S. 157, 185 (1986) (“[t]his Court long ago noted: ‘All perjured relevant testimony is at war with justice, since it may produce a judgment not resting on truth.’”) (quoting In re Michael, 326 U.S. 224, 227 (1945)). All persons carry that solemn obligation to tell the truth, especially to the FBI.

The defendant’s repeated failure to fulfill his obligation to tell the truth merits a sentence within the applicable Guidelines range. As the Court has already found, his false statements to the FBI were material, regardless of the FBI’s knowledge of the substance of any of his conversations with the Russian Ambassador. See Mem. Opinion at 51-52. The topic of sanctions went to the heart of the FBI’s counterintelligence investigation. Any effort to undermine those sanctions could have been evidence of links or coordination between the Trump Campaign and Russia. For similar reasons, the defendant’s false statements in his FARA filings were serious. His false statements and omissions deprived the public and the Trump Administration of the opportunity to learn about the Government of Turkey’s covert efforts to influence policy and opinion, including its efforts to remove a person legally residing in the United States.

The defendant’s conduct was more than just a series of lies; it was an abuse of trust. During the defendant’s pattern of criminal conduct, he was the National Security Advisor to the President of the United States, the former Director of the Defense Intelligence Agency, and a retired U.S. Army Lieutenant General. He held a security clearance with access to the government’s most sensitive information. The only reason the Russian Ambassador contacted the defendant about the sanctions is because the defendant was the incoming National Security Advisor, and thus would soon wield influence and control over the United States’ foreign policy. That is the same reason the defendant’s fledgling company was paid over $500,000 to work on issues for Turkey. The defendant monetized his power and influence over our government, and lied to mask it. When the FBI and DOJ needed information that only the defendant could provide, because of that power and influence, he denied them that information. And so an official tasked with protecting our national security, instead compromised it.

This was no decision made by rogue line prosecutors, Brandon Van Grack and Jocelyn Ballantine. In December, Jessie Liu signed a request for an extension so that the “multiple individuals and entities” that had to approve the new sentencing recommendation could do so.

There are multiple individuals and entities who must review and approve the government’s submission, including any changes from the government’s prior sentencing memorandum and its specific sentencing recommendations.

And then again in January, Jessie Liu got an extension so the “multiple individuals and entities” who had to review the sentencing memo could do so.

As the government represented in its initial motion, there are multiple individuals and entities who must review and approve the government’s submission, including any changes from the government’s prior sentencing memorandum and its specific sentencing recommendations. The government has worked assiduously over the holidays to complete this task, but we find that we require an additional 24 hours to do so.

Bill Barr says he is responsible for making the correct decision, and his DOJ reviewed the decision to imprison Mike Flynn at length. Taking him at his word, that means Bill Barr believed, in January, knowing all the details that were “new” to Timothy Shea when he wrote his motion to dismiss, but not new to Michael Horowitz and John Durham, who had already reviewed them, that the correct decision was to send Mike Flynn to prison.

It’s bad enough that Barr has repeatedly refused to stand by decisions made by others imbued with the authority of the entire DOJ under 28 U.S.C. § 509.

But Bill Barr won’t even stand by his past decisions.