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The Significance of Fiona Hill’s Testimony: “Whatever Drug Deal Sondland and Mulvaney Are Cooking Up”

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A number of people on Twitter have asked me to elaborate on some comments I’ve made about the significance of Fiona Hill’s testimony before the Ukraine impeachment team yesterday.

It’s unclear whether she shared details of her testimony or whether most of the reporting comes from Jamie Raskin (who notably got the import of the State IG’s urgent briefing utterly wrong). But NYT has thus far offered the key description (citing at least two other people beyond Raskin).

Force Bolton to shit or get off the pot

First, the NYT describes Hill citing the abrasive John Bolton saying two fairly stunning things which were bound to make headlines. First, she described Bolton saying Rudy was a “hand grenade” who would blow everyone up (a quote Rudy has already responded to).

Mr. Bolton expressed grave concerns to Ms. Hill about the campaign being run by Mr. Giuliani. “Giuliani’s a hand grenade who’s going to blow everybody up,” Ms. Hill quoted Mr. Bolton as saying during an earlier conversation.

Then, after a July 10 meeting where it became clear Trump was withholding security assistance for campaign propaganda, according to reports of Hill’s testimony, Bolton asked her to tell Deputy White House Counsel John Eisenberg that he was not part of “whatever drug deal” Trump’s flunkies were pursuing.

“I am not part of whatever drug deal Sondland and Mulvaney are cooking up,” Mr. Bolton, a Yale-trained lawyer, told Ms. Hill to tell White House lawyers, according to two people at the deposition.

It was clear even before the July 25 call that kicked off this whole scandal that Bolton was on the outs. Tellingly, Bolton was specifically excluded from the call.

But since then, Bolton has (like James Mattis) been talking about writing a book, telling his story for history, rather than for the present and the sake of the Constitution.

By including these two quotes in her testimony, Hill not only ensured that Bolton will be the target of Trump’s ire (after all, Hill didn’t say these things, Bolton reportedly did). But it will force Bolton to either deny them (if he’s certain Hill didn’t take contemporaneous notes), or take a stand against activities he clearly recognized were wrong.

And if Bolton testifies in the impeachment inquiry about his concerns, it will represent someone about whom there can be no doubts as to Republican partisan loyalty. If Hill’s inclusion of Bolton’s comments leads Trump’s former National Security Advisor to provide damning testimony to the impeachment inquiry, it will change both the profile of the inquiry and the possible response attacks.

Force Sondland to rewrite his ever-evolving testimony

Hill’s testimony about that July 10 meeting also provided damning testimony about Gordon Sondland, who is scheduled to testify on Thursday.

One of the most dramatic moments she described came in the July 10 meeting in Mr. Bolton’s office that included Mr. Sondland; Kurt D. Volker, then the special envoy for Ukraine; Rick Perry, the energy secretary; and two Ukrainian officials.

The purpose of the meeting was to talk about technical assistance to Ukraine’s national security council. The Ukrainians were eager to set up a meeting between Mr. Trump and Mr. Zelensky, who was elected on a promise to clean up corruption and resolve the country’s five-year war with Russian-armed separatists.

Mr. Bolton was trying to not commit to a meeting, according to Ms. Hill’s testimony. Mr. Sondland got agitated, Ms. Hill testified, and let out that there was an agreement with Mr. Mulvaney that there would be a meeting if Ukraine opened up the investigations the White House was seeking.

Mr. Bolton immediately ended the meeting abruptly. As the group moved toward the door, Mr. Sondland said he wanted them to come down to the ward room next to the White House mess to discuss next steps. Mr. Bolton pulled Ms. Hill aside to instruct her to go to the ward room and report to him what they talked about.

When she got downstairs, Mr. Sondland was talking with the Ukrainians and specifically mentioned Burisma, the Ukrainian energy firm that had Hunter Biden, the former vice president’s son, on its board.

Sondland has already test driven two drafts of his intended testimony, much as Michael Cohen did two years ago before he gave false testimony to Congress. Even the most recent of those drafts appears to be rendered inoperative by Hill’s testimony.

I’m sure Adam Schiff would have preferred that Sondland not get another chance to craft his testimony (and I suspect Sondland’s lawyer is trying to convince him that the possibility of being named Secretary of State is not worth perjuring himself for, which is why he’s probably not yet planning on invoking the Fifth).

But thus far, Sondland doesn’t seem to have discovered a story that he can tell that coheres with the other known testimony.

Hill ties Sondland’s actions to Trump

Hill also provided testimony — testimony we know that is backed by other witnesses — that Sondland was playing the role he was playing because the President wanted him to be.

At one point, she confronted Mr. Sondland, who had inserted himself into dealings with Ukraine even though it was not part of his official portfolio, according to the people informed about Ms. Hill’s testimony.

He told her that he was in charge of Ukraine, a moment she compared to Secretary of State Alexander M. Haig Jr.’s declaration that he was in charge after the Ronald Reagan assassination attempt, according to those who heard the testimony.

According to whom, she asked.

The president, he answered.

This will tie Trump directly to this scheme and make Sondland’s later denials about whether he knew Trump to be lying about a quid pro quo even more obviously false than they already are. This is not Rudy freelancing, or State ordering him to, but Trump ordering everyone to.

Hill implicates John Eisenberg

I noted the central role of John Eisenberg in attempts to cover this quid pro quo up weeks ago (and noted that he succeeded in preventing any record of an early quid pro quo from being being made).

Eisenberg is the guy who decided to put the transcript of the July 25 call on the Top Secret server. Eisenberg had a role in framing the crimes, as described to DOJ, such that they could shunt them to Public Integrity and dismiss them, rather than open up another Special Counsel investigation into the President’s extortion.

But Hill’s testimony makes it clear Eisenberg was told of what Bolton analogized to crimes well before the call.

Ms. Hill went back upstairs and reported the encounter to Mr. Bolton, who promptly instructed her to report the issue to John A. Eisenberg, a deputy White House counsel and the chief legal adviser for the National Security Council, along with his line about the drug deal, which he meant metaphorically.

Mr. Eisenberg told Ms. Hill he would report it up his chain of command, which would typically mean Pat Cipollone, the White House counsel.

Eisenberg (whose FBI 302 from the last Trump criminal investigation DOJ is trying to withhold) would have been on the hook anyway for a clear attempt to cover up Trump’s crime. But the revelation that he had advance warning that a crime was in process — and apparently did nothing to prevent it — changes his exposure significantly.

It was the OMB Director, misappropriating funds, in the National Security Advisor’s office

Finally, Hill puts Mick Mulvaney at the scene of the crime.

As I’ve said before, one part of this scandal that has gotten far too little attention is that, to extort Ukraine, Trump withheld funds appropriated by Congress, funds about which there was bipartisan agreement.

Last week, CNN and WSJ reported that to do this, OMB changed the way the funds were distributed, putting a political flunkie in charge, also a detail that has gotten far too little attention.

Not only does that raise the Constitutional stakes of the Executive’s refusal to spend the funds Congress had duly appropriated, but it shows consciousness of guilt.

And per Hill’s testimony Mick Mulvaney, serving in the dual role of OMB chief and Chief of Staff, knew that those funds were being withheld for a quid pro quo or (as John Bolton described it) a drug deal.

Senate Republicans might not ever convict Trump for demanding foreign countries invent propaganda on his political allies. They might feel differently once it becomes clear that the crime involves refusing to do what Congress, with its power of the purse, told him to, without even telling Congress he was doing so (or why). They may not care about Trump pressing for any political advantage for their party, but they may care about Trump neutering their most important authority.

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.

DOJ Suddenly Decides It Can Share the McCabe, Comey 302s with Congress

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After DOJ asserted to DC Chief Judge Beryl Howell that US v. Nixon would be decided differently today, the judge instructed the parties fighting over whether DOJ will share the grand jury materials from the Mueller investigation with Congress to get busy. She set of bunch of short deadlines to determine the validity of DOJ’s claims to secrecy. As part of that, she had DOJ explain which FBI 302s (interview reports) it had shared of those the House Judiciary Committee requested, then had HJC fact check that list.

According to HJC, DOJ’s declaration alerted them, for the first time, that some of the redactions in 302s were made to protect “Executive Branch confidentiality,” a claim they’ll move to challenge.

Although DOJ discussed the bases for redaction in its Supplemental Submission and at the October 8, 2019 hearing, see DOJ Supp. Sub. ¶ 4; Hr’g Tr. 48-49 (Oct. 8, 2019), none of the bases for redactions are listed or otherwise indicated on the FBI-302 reports reviewed by the Committee. Instead, portions of the FBI-302 reports are simply blacked out without any explanation. During the Committee’s on-site reviews of the FBI-302 reports and in calls between Committee and DOJ officials, the Committee has repeatedly requested that DOJ specifically identify the complete set of bases for its redactions. The Committee still has not received this information as to any of the FBI-302 reports it has reviewed. While the Committee is generally aware that there were redactions for personally identifiable information, until the discussion during yesterday’s hearing and in DOJ’s Supplemental Submission, the Committee was unaware, for example, that the bases for redactions included either “Executive Branch confidentiality interests,” DOJ Supp. Sub. ¶ 4, or “presidential communications,” Hr’g Tr. 48:19- 20 (Oct. 8, 2019).

The more interesting revelation from the exchange, however, pertains to whether or not DOJ was going to supply all 302s, and which ones they might suppress. As DOJ explains, it has given HJC 302s for 17  of the 33 people they asked for (though the Rob Porter and Uttam Dhillon 302s were mostly redacted):

The Committee requested FBI-302s for 33 individuals. To date the Department has provided access to the FBI-302s of 17 of those individuals, several of whom had multiple interviews. Those individuals are (in alphabetical order): (1) Chris Christie, (2) Michael Cohen (six separate FBI-302s); (3) Rick Dearborn; (4) Uttam Dhillon; (5) John Kelly; (6) Jared Kushner; (7) Cory Lewandowski; (8) Paul Manafort (seven separate FBI-302s); (9) Mary McCord; (10) K.T. McFarland (five separate FBI-302s); (11) Stephen Miller; (12) Rob Porter (two separate FBI-302s); (13) Rod Rosenstein; (14) Christopher Ruddy; (15) Sarah Sanders; (16) Sean Spicer; (17) Sally Yates.

But it has thus far withheld 302s from a group of others.

The Department currently anticipates making the remaining FBI-302’s available under the agreed upon terms as processing is completed, so long as they do not adversely impact ongoing investigations and cases and subject to redaction and potential withholding in order to protect Executive Branch confidentiality interests. These include, in alphabetical order (1) Stephen Bannon; (2) Dana Boente; (3) James Burnham; (4) James Comey; (5) Annie Donaldson; (6) John Eisenberg; (7) Michael Flynn; (8) Rick Gates; (9) Hope Hicks; (10) Jody Hunt; (11) Andrew McCabe; (12) Don McGahn; (13) Reince Priebus; (14) James Rybicki; (15) Jeff Sessions. In addition, the Committee requested the FBI-302 for the counsel to Michael Flynn, which also has not yet been processed.

It’s an interesting list to withhold.

Hicks, of course, was privy to a great deal (including Trump’s effort to lie about the June 9 meeting), and her testimony about certain communications during the campaign was actually fairly revealing.

At least two of these may be withheld for the pendency of the Roger Stone trial; both Steve Bannon and Rick Gates will be witnesses, and Mike Flynn’s discussions of WikiLeaks may come up as well.

These 302s (and Dhillon’s heavily redacted one) cover virtually all of the White House’s side of discussions not to fire Mike Flynn right away after discovering he lied about his call with Sergey Kislyak: James Burnham, John Eisenberg, Don McGahn, and Reince Priebus, and of course Flynn himself, were all key players in that. Of course, Eisenberg (who’s the lawyer who decided to hide the records on Trump’s call to Volodymyr Zelensky) was involved in other acts that might indicate obstruction, including advising KT McFarland not to create a false record about what Flynn said. And McGahn was involved in much else (and might even have been asked about Stone’s campaign finance issues, which McGahn represented him on, and the awareness of the Trump campaign about will be an issue at Stone’s trial). But I find it acutely interesting that DOJ is withholding a bunch of records that will make it clear how damning Trump’s reluctance to fire Flynn was, even as Flynn attempts a propaganda driven effort to give Trump an excuse to pardon him.

Then there are the 302s pertaining to the recusal of Jeff Sessions and firing of Jim Comey (and immediate pressure on Andrew McCabe). Those include Comey himself, McCabe, Rybicki, Hunt, Sessions, and Dana Boente. The fact that DOJ has been withholding these (and it’s suggestion that there are ongoing investigations) is really sketchy: it suggests that DOJ may have been withholding really damning 302s from Congress so it can decide whether to indict McCabe and — presumably — wait for DOJ IG to finish its investigation of the FISA orders some of these men approved. In other words, DOJ has been releasing one after another damning claim against Comey and McCabe, but withholding evidence about why they might be targeted.

It’s also noteworthy that Boente and McGahn’s memory regarding an effort McGahn made to shut down the Russian investigation is one of the greatest conflicts of testimony in the entire Mueller Report.

The 302s DOJ has been withholding also happens to include 302s of current DOJ officials. Boente is the FBI General Counsel. More alarmingly, Jody Hunt runs the Civil Division and Burnham is his Deputy. These are the men directing the DOJ effort to make breathtaking claims about impeachment, and they’re hiding their own actions in the investigation about which Congress is considering impeachment.

But, having been asked by Howell what the state of affairs is, DOJ has now decided that they’re going to turn over 302s they previously had suggested they might withhold. HJC expressed some surprise about the sudden change of plans.

With respect to the outstanding FBI-302 reports, the Committee was surprised but encouraged by DOJ’s statement in its supplemental filing that it “currently anticipates making the remaining FBI-302s available.” DOJ Supp. Sub. ¶ 5. The Committee had previously understood from its recent communications with DOJ that DOJ’s production was nearing completion and that there were only a limited number of remaining documents that DOJ would disclose.

It will be interesting if and when HJC obtains these records to see how DOJ tried to protect itself.

Update: I’m reminded of two things. First, as I copied out this URL, I recalled that Turkey, along with Russia, would have known that he lied about his calls with Sergey Kislyak.

Also, in the government’s most recently filing in the Mike Flynn case, they revealed that he had not been in possession of the interview reports from between the time he was initially interviewed and the time he pled guilty.

Based on filings and assertions made by the defendant’s new counsel, the government anticipates that the defendant’s cooperation and candor with the government will be contested issues for the Court to consider at sentencing. Accordingly, the government will provide the defendant with the reports of his post-January 24, 2017 interviews. The government notes that the defendant had counsel present at all such interviews.

This suggests that the government was withholding reports that would make it clear that Flynn continued to lie, even after he lawyered up.