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John Kelly’s Legally Fraught Role in the Sessions Ouster

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Much attention is now being focused on the suitability of Matt Whitaker to server as Acting AG without having been Senate approved. I think there’s one more issue with it that I’ll return to.

But there’s another legally problematic part of the process of forcing Jeff Sessions to resign and appointing Whitaker as his replacement: John Kelly’s role in it.

That’s because Mueller asked John Kelly for an interview sometime around June. It was one of the first things the legally competent Emmet Flood did to assert a newly combative stance on the part of the White House.

Mr. Trump’s lawyers are quietly more combative, too, contesting a request from the special counsel to interview John F. Kelly, the White House chief of staff. Emmet T. Flood, the lead White House lawyer in dealing with the investigation, has demanded to know what investigators want to ask Mr. Kelly and has tried to narrow the scope of their questions. A month after the request was made, Mr. Kelly has not been questioned, though a White House official said he was willing to be.

Significantly, this was not an Executive Privilege claim, but rather a demand that Mueller tell Flood what questions he would ask Kelly. It’s entirely unclear what basis Flood invoked legally: the bullshit Executive Privilege without claiming it claims Trump has relied on thus far, an argument that he needed to know if the President would invoke Executive Privilege in response to a range of questions, or a stance that the White House can have some kind of visibility into the workings of the grand jury investigating the President.

As I have said, I think John Kelly is a likely candidate to be the Mystery Appellant, challenging some kind of Mueller demand in the DC Circuit (significantly, before some of the same judges who yesterday heard Andrew Miller’s subpoena challenge).

One way or another, Kelly is among the people about whom there is the most active dispute legal between the Special Counsel and the White House, a fight picked by the legally competent Emmet Flood.

And Kelly was the person who forced Jeff Sessions to resign on Wednesday. As far as is public (and there’s surely a great deal that we have yet to learn about who was in the decision to force Sessions to resign and when that happened and who dictated the form it would take).

But Kelly had the key role of conveying the President’s intent, in whatever form that intent was documented, to Sessions. If Trump’s past firings are any precedent, Kelly had a very big role in deciding how it would happen.

So the guy whose testimony Mueller may be most actively pursuing (indeed, one who might even be in a legal dispute with), effectuated a plan to undercut Mueller’s plans going forward.

That seems to create a whole slew of other potential legal problems no one has yet considered.

No, Mueller Probably Didn’t Subpoena Trump, Yet

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Nelson Cunningham, who has far better legal qualifications than I do but who, as far as I’ve seen, has written very little on the Mueller investigation has taken Politico’s very good reporting on a second appeal involving the Mueller inquiry and started a parlor game among people convinced this means Trump got a subpoena. Jay Sekulow has already denied the report.

Cunningham bases his argument on the following observations, along with the observation that the initial court filings came the day after Rudy Giuliani announced he had completed writing a challenge to an as yet unserved subpoena:

  • The parties and the judges have moved with unusual alacrity. Parties normally have 30 days to appeal a lower court action. The witness here appealed just five days after losing in the district court – and three days later filed a motion before the appellate court to stay the district court’s order. That’s fast.
  • The appeals court itself responded with remarkable speed, too. One day after getting the witness’s motion, the court gave the special counsel just three days to respond – blindingly short as appellate proceedings go. The special counsel’s papers were filed October 1.
  • At this point an unspecified procedural flaw seems to have emerged, and on October 3, the appeals court dismissed the appeal. Just two days later, the lower court judge cured the flaw, the witness re-appealed, and by October 10 the witness was once again before appellate court. Thanks to very quick action of all the judges, less than one week was lost due to a flaw that, in other cases, could have taken weeks or months to resolve.
  • Back before the D.C. Circuit, this case’s very special handling continued. On October 10, the day the case returned to the court, the parties filed a motion for expedited handling, and within two days, the judges had granted their motion and set an accelerated briefing schedule. The witness was given just 11 days to file briefs; the special counsel (presumably) just two weeks to respond; and reply papers one week later, on November 14 (for those paying attention, that’s 8 days after the midterm elections). Oral arguments are set for December 14.

I suspect the subpoena — if that’s what this is — is either for a White House figure (John Kelly or Don McGahn might be possibilities), a lawyer (Trump Organization lawyers Alan Garten and Alan Futerfas both had non-privileged conversations about the pushback on the June 9 meeting, as did Agalarov lawyer Scott Balber), or a journalist (Chuck Johnson and Lee Stranahan have denied having been contacted by Mueller; Hannity would be another possibility).

I’ve laid out the underlying timeline, below. There are three dockets involved in the mystery challenge: 18-gj-41-BAH, which is sealed, and 18-3068 and 18-3071 before the DC Circuit. For point of comparison, I’ve included Andrew Miller’s appeal of a grand jury subpoena in the timeline (which Cunningham doesn’t mention at all), in italics, as well; those docket numbers are 18-gj-34-BAH and 18-3052. I’ve also included some key public reports that Cunningham doesn’t mention that provide key context.

Miller’s docket easily disproves one of Cunningham’s arguments: that the appeal itself was very quick. Miller, like the mystery challenger, both filed their appeal within days (suggesting that timing came from Beryl Howell, not the appellants). With Miller, there was a pause to litigate the issue of Concord Management’s status, but that pause was litigated on the same accelerated schedule as the jurisdictional issue for the mystery appellant. With the mystery appellant, there appeared to be some slam dunk procedural issue for why the Circuit did not yet have jurisdiction. It was suggested to me that the mystery person may not have taken the legal step of being held in contempt before appealing, as Miller did, which would explain the quick jurisdictional response for the mystery challenger.

Miller’s docket also shows that the results of motion to expedite aren’t that dramatic. With no expedited schedule, Miller’s initial schedule (including the Concord litigation) provided him 24 days for his opening brief, gave Mueller 16 days to respond, and Miller 5 days to reply, with 41 days for the Circuit to consider the appeal or a total of 85 days after the filing. As Cunningham notes, the mystery appellant got just 11 days to file the initial brief, Mueller got two weeks to respond, and the mystery appellant got 7 days to reply. The Circuit gave themselves a month to consider the appeal, or a total of 65 days from second appeal. But that works out to be 81 days from the initial September 24 appeal, about the same amount of time as Miller’s appeal. The expedited time here mostly came out of the appellant’s time for the initial brief and the Circuit consideration (which might be a fair outcome given the appeal without jurisdiction); Mueller’s schedule remains roughly similar. It has been suggested that the mystery appellant’s decision to appeal in spite of that procedural flaw may have provided more urgency for the appeal (for example, if Howell had not stayed contempt for the mystery appellant, then the risk of jailing would be greater than it would be for Miller, for whom she stayed the contempt).

Finally, Cunningham doesn’t consider something else in the public record. On October 11, right in the middle of this litigation, CNN revealed that Mueller had given Trump — and Trump was working on — a set of questions pertaining to conspiracy. The other day, Bloomberg reported that Trump had finished answers to that question, but was withholding them pending the outcome of the election. It’s possible that the White House would voluntarily answer questions on conspiracy while litigating a subpoena for testimony on obstruction. Perhaps they would adopt that approach if their subpoena challenge pertains exclusively to actions Trump took as President, and if that were the case, that might explain the real reason Rudy was stalling on returning the answers, to see if the subpoena challenge worked. If that were the case, though, he would have to invent new reasons to explain the delay from November 6 past December 14, when the case will be heard (and he has promised to appeal any subpoena to SCOTUS). Alternately, Rudy could be stalling on the answers to await the appeal and using the election as his excuse just to avoid making this appeal public before the election.

One other thing that might support Cunningham’s argument that he doesn’t raise is Brett Kavanaugh’s confirmation on October 6. Having confirmed Kavanaugh might explain the decision to ask for en banc consideration of what is probably a slam dunk procedural issue, in hopes of short circuiting the route to SCOTUS. But everyone in this investigation, including Yevgeniy Prigozhin’s team, have tailored their actions to Kavanaugh’s presence on SCOTUS since even before he was confirmed.

Still, I think all that less likely than other explanations, not least because this White House has never kept things like this secret, nor would they if they could use it to argue that Trump needs a good electoral turnout to keep him safe, legally.

I’m at least as intrigued by the way the timeline overlaps with Don McGahn’s last big press push, around the same time as the initial filing before Beryl Howell. A lawyer like McGahn would also have reason to want to avoid the jurisdictional step of being held in contempt (indeed, if he had been held in contempt, it might explain one reason for the urgency of the appeal). It’s also one possible explanation for why someone would skip that step — another being that whoever is making this challenge is even less well-lawyered than Miller. Finally, if it were McGahn appealing a grand jury subpoena, Katsas’ recusal would be a no-brainer (though he has said he would recuse more generally).

There are, still, plenty of other possibilities, though. And Cunningham’s case is nowhere near as strong as suggested once you compare it with what happened with the relatively anonymous, powerless Andrew Miller challenge in the very same matter.

Timeline

6/13/2018: Date filed (18-gj-34-BAH) [For more on Miller’s stalling, since May 10, on this subpoena, see this post]

7/6/2018: Report that Emmet Flood had been contesting Mueller request for John Kelly testimony for a month

8/10/2018: Date of judgment (18-gj-34-BAH)

8/14/2018: Notice of appeal (18-3052)

8/15/2018: Clerks order to file initial submissions on 8/30/2018 (18-3052)

8/16/2018: Per curium order setting briefing Appellant 9/7/2018, Appellee 9/23/2018, Reply 9/28/2018  (18-3052)

8/15/2018: Rudy Giuliani states, “we’re pretty much finished with our memorandum opposing a subpoena”

8/16/2018: Date filed (18-gj-41-BAH)

8/18/2018: NYT story describing third Don McGahn interview claiming unprecedented cooperation for a White House Counsel

8/30/2018 : Statement of issues (18-3052)

8/30/2018: Motion to extend time to file to 9/10/2018  (18-3052)

9/10/2018: Motion to extend time to file to 9/11/2018  (18-3052)

9/12/2018: Appellant brief submitted; Length of Brief: 10,869 Words (18-3052)

9/19/2018: Date of judgment (18-gj-41-BAH)

9/24/2018: Notice  of appeal  (18-3068)

9/27/2018: Motion to stay underlying appeal  (18-3068)

9/28/2018: Per curium order directing response from Mueller (18-3068)

9/28/2018: Appellee brief submitted  (18-3052)

10/01/2018: Mueller response in opposition (18-3068)

10/01/2018: Appellant response  (18-3068)

10/03/2018: Per curium order dismissing case for lack of jurisdiction  (18-3068)

10/05/2018: Date of order  (18-gj-41-BAH)

10/05/2018: Petition for re-hearing en banc  (18-3068)

10/6/2018: Brett Kavanaugh confirmed

10/09/2018: Appellant brief submitted (18-3052)

10/09/2018: Notice of appeal (18-3071)

10/10/2018: Appeal docketed (18-3071)

10/10/2018: Joint motion to expedite  (18-3071)

10/11/2018: Report that Trump preparing answers to Mueller’s questions about conspiracy with Russia

10/12/2018: Per curium order granting motion to expedite Appellant 10/23/2018, Appellee 11/07/2018, Reply 11/14/2018:  (18-3071)

10/22/2018: Hearing scheduled for 12/14/201 (18-3071)

10/22/2018: Appellant brief submitted; Length of Brief: 12904 words (18-3071)

10/24/2018: Per curium order denying re-hearing en banc (with Greg Katsas recused) (18-3068)

10/29/2018: Rudy Giuliani states legal team has prepared written responses to several dozen questions from Special Counsel Robert Mueller but say they won’t submit them until after next week’s elections and only if they reach a broader agreement with Mueller on terms for the questioning

11/8/2018: Hearing scheduled (85 days after filing)

12/14/2018: Hearing scheduled (65 days after filing) (18-3071)

Paul Manafort Is One of 37 People in an Omertà with the President

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Apparently, Bob Woodward committed some journalism along with canonizing racist John Kelly and wife-beater Rob Porter in his book: he got a number for how many people are included the Joint Defense Agreement that gives Rudy Giuliani such confidence the President is not at risk: 37.

And Politico committed still more journalism and answered the question we’ve all been asking: yes, Paul Manafort is among those 37.

Giuliani also confirmed that Trump’s lawyers and Manafort’s have been in regular contact and that they are part of a joint defense agreement that allows confidential information sharing.

“All during the investigation we have an open communication with them,” he said. “Defense lawyers talk to each other all the time where as long as our clients authorize it therefore we have a better idea of what’s going to happen. That’s very common.”

Giuliani confirmed he spoke with Manafort’s lead defense lawyer Kevin Downing shortly before and after the verdicts were returned in the Virginia trial, but the former mayor wouldn’t say what he discusses with the Manafort team. “It’d all be attorney-client privilege not just from our point of view but from theirs,” he said.

That means when John Dowd complained that the raid of Manafort’s condo (where his eight iPods were seized), that was based on privileged conversations between lawyers. And when, in January, Trump confidently said he was sure Manafort would protect him, that was based on privileged conversations between lawyers.  And when, just before the EDVA trial, Kevin Downing was ostentatiously saying there was no way Manafort was flipping, and when he was balking on a plea with Mueller immediately after the trial, he was also talking to Rudy Giuliani.

Mind you, Rudy G will learn right away if Manafort starts considering cooperating, rather than just pleading, because Manafort will have to (finally!) drop out of the JDA before those discussions start.

And while I suspect Mueller has slowly been peeling away people like Sam Patten, that the JDA is so big likely means some or most of the following people are part of the omertà (and Michael Cohen, Rick Gates, and Mike Flynn were part of it):

  • Paul Manafort and Konstantin Kilimnik
  • Jared Kushner
  • The Trump Org defendants: Don Jr, Rhonna Graff
  • Bill Burck’s clients: Steve Bannon, Reince Priebus, Don McGahn (and up to three more)
  • Victoria Toensing’s clients: Mark Corallo, Erik Prince, Sam Clovis
  • The hush payment recipients: Hope Hicks, Brad Parscale, Keith Schiller
  • Roger Stone and his buddies: Stone, Michael Caputo, Sam Nunberg, Andrew Miller, plus some (probably)

That’s 20. Some other likely (and enticing) JDA members are: Devin Nunes, Jeff Sessions, Tom Barrack, Keith Kellogg, John Mashburn, KT McFarland, JD Gordon, Walid Phares, Stephen Miller, Sean Spicer, Rob Porter, Corey Lewandowski, John Kelly. Heck, it’s not even clear that George Papadopoulos is not part of the JDA.

But that still leaves space in the JDA for people who were already comparing notes with known members of the JDA, including Rinat Akhmetshin, Rob Goldstone, and Ike Kaveladze (along with Emin and Aras Agalarov, who are all represented by Scott Balber).

No wonder Rudy thinks he knows everything that Mueller has.

That’s why the collective panic on the discovery that Stone’s phone was likely among the ~10 or so that Mueller got warrants for in the wake of Rick Gates’ cooperation agreement is so interesting, and also why Manafort, playing his part as point, tried so hard to find out who the other four AT&T users whose phones were obtained with his own.

These guys may be good at omertà. But every single one we’ve seen so far has shitty OpSec; they’ve been saying their co-conspiracy communications on their phones and on iCloud. Plus there are people like Omarosa wandering among them, dismissed as irrelevant even while they record everything they hear. And meanwhile, Mueller is chipping away at the edges, people they haven’t considered (like Patten). And all the while he’s been building his case against Stone and Don Jr.

Who Taught Trump about Weaponized Migration?

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Amid the ongoing family separation crisis, I want to look back at something that raised a few eyebrows among the more generalized nausea at Trump’s behavior at the G-7. The WSJ reported this comment Trump made to Shinzo Abe in the context of the horror it elicited from European leaders and along with a related comment he made to Emmanuel Macron.

At one point, Mr. Trump brought up migration as a big problem for Europe and then told Mr. Abe, “Shinzo, you don’t have this problem, but I can send you 25 million Mexicans and you’ll be out of office very soon,” according to the senior EU official who was in the room. A sense of irritation with Mr. Trump could be felt, “but everyone tried to be rational and calm,” the person said.

The EU official said at another point, in a discussion over Iran and terrorism, Mr. Trump verbally jabbed at Mr. Macron, “You must know about this, Emmanuel, because all the terrorists are in Paris,’” the senior official said.

What Trump is talking about when he suggests he could send 25 million Mexicans to Japan is weaponized migration, as envisioned here, the deliberate creation of migration influxes to take out a political leader. In spite of the salience of racism in our politics, it’s not a common concept here. But in Europe, where migration from a destabilized Northern Africa and Middle East poses (as I heard a few MEPs say just before the election in 2016) the single biggest threat to the EU project, it’s a very real concern. For some time, the political cost of her human rights approach to migration has been the key weakness Angela Merkel’s opponents exploit. And in the days since the G-7, the topic of migration has threatened, for the second time this year, to collapse Merkel’s governing coalition.

For some time, there have been signs that the migration from (especially) Syria had been weaponized in two ways: first, by the seeming release of waves of migration that in their intensity would overwhelm Europe’s ability to respond. And more importantly, by the inclusion of terrorists, including returning European Arabs, among the waves of migrations. Most notably, four of the men who attacked the Stade de France on November 13, 2015 came in with a wave of other migrants. While Europeans respond more rationally to terrorist attacks than Americans do, by tying this one to migration, it made the waves of migrants in Europe far more politically toxic than they would otherwise be.

And while it was clear that the migration from Libya and Syria was being orchestrated for maximum damage, at the time (and still) it wasn’t clear who was behind it. Turkey (as the host of many of the Syrian refugees), Saudi Arabia (which maximized the instability of Syria to support ousting Assad), and Syria itself were all possibilities. On February 25, 2016 testimony viewed as particularly inflammatory, then NATO Commander Phillip Breedlove placed the blame squarely on Russia and Syria.

To the South from the Levant through North Africa, Europe faces a complicated mix of mass migration spurred by state instability and state collapse.

And masking the movement of criminals, terrorists and foreign fighters. Within this mix, Daesh — ISIL or Daesh, as I called them, is spreading like a cancer, taking advantage of paths of least resistance, threatening European nations and our own with terrorist attacks. Its brutality is driving millions to flee from Syria and Iraq, creating an almost unprecedented humanitarian challenge.

Russia’s enter into the fight in Syria has wildly exacerbated the problem, changing the dynamic in the air and on the ground. Despite public pronounces (sic) to the contrary, Russia (inaudible) has done little to counter Daesh but a great deal to bolster the Assad regime and its allies. Together, Russia and the Assad regime are deliberately weaponizing migration from Syria. In an attempt to overwhelm European structures and break European resolve.

Around the time Breedlove gave this testimony, GRU hackers would hack Breedlove as a key focus of the DC Leaks campaign that paralleled — but should in my opinion be considered a separate campaign from — the hack and leak of the DNC.

So Trump’s comment, while addressed to Abe, was instead intended for the benefit of Macron and, even more specifically, Merkel, and subsequent events have only borne out the salience of the comment.

I want to know who prepped the fantastically unprepared Trump to deliver this line. Trump knows virtually no policy well enough to deliver a zinger like this, and yet he knew how best to deliver a line to exploit the real vulnerabilities of all the European members of the G-7. And while, from the comments kicking off his campaign by inventing rapist immigrations from Mexico, Trump is perhaps at his best when he’s mobilizing racism, this comment had a more sophisticated vector than his usual bombast. Further, Trump public comments are, so often, just a regurgitation of the last person he engaged closely with. Which makes me acutely interested in who has both the access and the ability to direct his interests such that he managed this line.

There are certainly candidates in his orbit. Obviously, Stephen Miller is all too happy to politicize immigration. But in truth, it’s not clear (though the jury may still be out) that he’s any good at it. The Muslim ban has serially backfired (though we’ll see what SCOTUS says in a few hours), and unified centrists and even conservative supporters of America’s wonderful diversity against Trump in early days of his regime. The family separation policy, thus far, has provided Democrats an effective way to humanize Trump’s vicious policies, and the White House’s failure to manage the messaging of Miller’s hostage-taking has only made things worse. The other key policy effort to politicize immigration, Jeff Sessions’ focus on MS-13, has largely been a laughable dud, both because those who actually comment on the policy recognize that MS-13 is an American phenomenon, and because MS-13 has never done anything as spectacular as ISIS and Al Qaeda with which to generate visceral fear or even much press attention on the policy.

Steve Bannon, who has hob-nobbed with the European far right and is far more sophisticated than Miller, is another likely source for Trump’s remarkably sophisticated understanding of weaponized migration.

I think neither John Bolton nor John Kelly would be the culprit, the former because he’s a different kind of asshole than the racists Miller and Bannon, the latter because his racism has always lagged Trump’s and he seems to have lost much of the control he has over Trump in recent days. Mike Pompeo is also a racist, and a savvy one at that, but I’m not sure even he is cynical enough to prep this line from Trump.

Whoever it was, that line is not just horrifying on its face, but horrifying because whoever explained how weaponized migration works when wielded by competent actors seems to have privileged access to Trump right now.

Update: I first posted this at 8:27. At , Trump tweeted this:

Kushner Floats! Was Trump’s Witch Hunt Outburst about Jared Losing Clearance?

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President Trump had one of his regular tweetbursts this morning about the Mueller investigation, culminating in an all caps tweet WITCH HUNT!

These outbursts are admittedly routine. But there was something unusual about this one. As MMFA’s Lis Starr noted, the three tweets leading up to this, citing Judge Napolitano, Johnathan Turley, and Ken Starr, were all reruns of Fox coverage from the last several days.

In other words, Trump resorted to the DVR to be able to justify his rant this morning. Clearly, he’s even more obsessed today than normal.

That, plus one more detail, makes me wonder whether Trump was reacting to new approaches put in place after Jared (and probably Ivanka) had his clearance downgraded to Secret on Friday.

A memo sent Friday downgraded the presidential son-in-law and adviser and other White House aides who had been working on interim clearances.

Presidential son-in-law and adviser Jared Kushner has had his security clearance downgraded — a move that will prevent him from viewing many of the sensitive documents to which he once had unfettered access.

Kushner is not alone. All White House aides working on the highest-level interim clearances — at the Top Secret/SCI-level — were informed in a memo sent Friday that their clearances would be downgraded to the Secret level, according to three people with knowledge of the situation.

The SCI acronym stands for sensitive compartmentalized information, a category of information that comes from sensitive intelligence sources and must be walled off.

The memo was not signed by chief of staff John Kelly, but it comes as the retired Marine general and other top White House aides are grappling with the fallout of a scandal involving former White House staff secretary Rob Porter, which revealed that dozens of White House aides had yet to receive permanent clearances but nonetheless had access to some of the country’s deepest secrets.

There are several interesting tidbits about the Politico story reporting that Jared has finally been stripped of his TS/SCI interim clearance. First, John Kelly didn’t sign the memo, even though that’s who Trump put in charge of over-riding typical clearance process to protect his spawn. If Don McGahn signed it, it might mean Friday’s memo came after a follow-up to Robert Mueller’s boss, Rod Rosenstein, informing him, back on February 9, of significant new information that required review before he could be cleared.

Also, Politico cites a statement from Abbe Lowell, Jared’s defense attorney.

Kushner’s attorney Abbe Lowell said in a statement that Kushner “has done more than what is expected of him in this process.”

Lowell added that the changes would “not affect Mr. Kushner’s ability to continue to do the very important work he has been assigned by the president.”

But the statement is just the same one he used back on February 16, when news of Jared’s impending clearance problems first came out. Lowell still has yet to issue any new bravado since he went silent in the face of last week’s more serious reports.

Meanwhile, Jared is not staying out of trouble. The Trump 2020 campaign announced that Brad Parscale — one of the people most suspect for coordinating data analysis with the Russians — would run his 2020 re-election campaign. The announcement included this quote from Kushner.

Jared Kushner, Senior Advisor and Assistant to the President, and President Trump’s son-in-law, said, “Brady was essential in bringing a disciplined technology and data-driven approach to how the 2016 campaign was run. His leadership and expertise will be help [sic] build a best-in-class campaign.”

Even aside from the typo, this is a no-no, as it ties Kushner’s official White House role to a campaign document.

I almost wonder whether all their fundraising is about paying lawyers at this point. On Friday, CNBC reported that when RNC stopped paying the legal defense of people like Don Jr, it started paying rent at Trump Tower. And the legal defense to pay Trump aides’ legal fees also just went active. Increasingly, it seems, the Trump “campaign” is all about staying out of prison.

Meanwhile, the Kushner family’s partner on the underwater 666 Fifth Avenue is negotiating to get out.

Kushner Cos. says it’s negotiating to buy the 49.5 percent of a debt-laden office tower on Manhattan’s Fifth Avenue that it doesn’t already own from partner Vornado Realty Trust.

Christine Taylor, a spokeswoman for Kushner Cos., declined to elaborate on terms for either the purchase or a restructuring of the building’s debt. A Vornado representative didn’t immediately respond to a request for comment. The talks were first reported Tuesday by the Wall Street Journal.

Earlier this month, Vornado recategorized how it accounts for the property, 666 Fifth Ave., because “we do not intend to hold this asset on a long-term basis,” it said in an annual report. That language typically means the company plans to unload an asset within a year, a person familiar with Vornado’s thinking said at the time.

That’s going to shine a lot more light on Kushner’s finances, and his efforts to abuse his position as his father-in-law’s “peace” negotiator to get bailed out by any number of slimy foreign oligarchs.

Jared’s in real trouble. It’s a wonder he can stay afloat amid this witch hunt.

Update: Bingo.

Officials in at least four countries have privately discussed ways they can manipulate Jared Kushner, the president’s son-in-law and senior adviser, by taking advantage of his complex business arrangements, financial difficulties and lack of foreign policy experience, according to current and former U.S. officials familiar with intelligence reports on the matter.

Among those nations discussing ways to influence Kushner to their advantage were the United Arab Emirates, China, Israel and Mexico, the current and former officials said.

It is unclear if any of those countries acted on the discussions, but Kushner’s contacts with certain foreign government officials have raised concerns inside the White House and are a reason he has been unable to obtain a permanent security clearance, the officials said.

[snip]

White House officials said [National Security Advisor HR] McMaster was taken aback by some of Kushner’s foreign contacts.

“When he learned about it, it surprised him,” one official said. “He thought that was weird…It was an unusual thing. I don’t know that any White House has done it this way before.”

Meanwhile, the normally loquacious Abbe Lowell is outsourcing the no-commenting to a spokesperson.

“We will not respond substantively to unnamed sources peddling second-hand hearsay with rank speculation that continue to leak inaccurate information,” said Peter Mirijanian, a spokesman for Kushner’s lawyer.

Update: Let’s look more closely at something loquacious Abbe Lowell had to say the last time he wanted to go on the record about his client, on February 16.

Lowell said Kushner’s job is “to talk with foreign officials, which he has done and continues to do properly.”

He was denying, 11 days ago, something only now being aired: that Kushner wasn’t properly alerting the NSC of his contacts with foreign leaders. But now we know, he wasn’t properly alerting the National Security Advisor — the one that replaced the one who lied to the FBI about his contacts with foreigners, I mean.

No wonder Lowell has gone silent.

Abbe Lowell’s Unusual Silence in the Face of Jared Kushner’s Clearance Woes

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Abbe Lowell’s a very good defense attorney. He’s also of the ilk that works the press.

As one example, note Lowell’s false bravado quotes from one of the first stories to contemplate how John Kelly’s new rules about long term clearance problems would (not) affect Jared’s work.

Abbe Lowell, an attorney for Kushner, said Kelly’s directive “will not affect Mr. Kushner’s ability to continue to do the very important work he has been assigned by the president.” White House officials declined to comment on how the new policies would specifically affect Kushner.

[snip]

Lowell, Kushner’s attorney, said Kushner had disclosed more information on his security forms than was required out of an abundance of caution.

“My inquiries to those involved again have confirmed that there are a dozen or more people at Mr. Kushner’s level whose process is delayed, that it is not uncommon for this process to take this long in a new administration, that the current backlogs are being addressed, and no concerns were raised about Mr. Kushner’s application,” he said in a statement.

[snip]

Lowell said Kushner’s job is “to talk with foreign officials, which he has done and continues to do properly.”

Which is, in my opinion, why the following detail, in three different stories about the “important new information” DOJ obtained that would delay Jared’s clearance, is so significant. Lowell declined to comment to the original story in WaPo.

Kushner’s lawyer, Abbe Lowell, declined to comment.

Then there was this NYT story which seems to reflect White House officials and Jared’s lawyers realizing (for the first time?!?!?!) that he’s not just a witness in this investigation.

The White House was not told what the issues were involving Mr. Kushner, President Trump’s son-in-law and senior adviser. But the notification led White House lawyers and aides to believe that they were more problematic than the complexity of his finances and his initial failure to disclose contacts with foreign leaders.

[snip]

The interview led Mr. Kushner’s lawyers to believe that he was considered a witness, not a target, in the special counsel investigation.

For that story, too, Lowell went silent.

[A] lawyer for Mr. Kushner, Abbe D. Lowell, declined to comment.

With Axios, Lowell appears to have just blown off the request for comment.

Kushner’s lawer, Abbe Lowell, did not immediately respond to Axios’ request for comment.

I don’t mean to make light of this. It’s no laughing matter. But Lowell’s silence appears to indicate either that he is sussing out second-hand — or he has since the February 16 story learned directly — that his client is in deeper shit than he realized.

The Silent Cast of Characters in the Very Noisy Recent Mueller Moves

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A fuck-ton has happened in the Mueller investigation already this month. Amid the noisy pleas and indictments, we’ve seen indications of hidden cooperation from a range of people, cooperation that may point to where Mueller’s next steps are.

Here, arranged by the date of the development, are hints at who either was or soon is likely to be talking to Mueller’s team.

February 1: In a proffer to Mueller’s team, Rick Gates lied about a March 19, 2013 meeting with Paul Manafort, Vin Weber, and Dana Rohrabacher.

Rohrabacher’s statement in response to the guilty plea is inconsistent with the version laid out in the plea, suggesting he’s not the means by which Mueller’s team learned it was a lie.

After the guilty plea on Friday, a spokesman for Rohrabacher, who has sought better relations with Russia, said: “As the congressman has acknowledged before, the meeting was a dinner with two longtime acquaintances –- Manafort and Weber –- from back in his White House and early congressional days.”

“The three reminisced and talked mostly about politics,” the spokesman said. “The subject of Ukraine came up in passing. It is no secret that Manafort represented Viktor Yanukovych’s interests, but as chairman of the relevant European subcommittee, the congressman has listened to all points of view on Ukraine.”

This suggests someone else provided the version of the meeting the government included in the plea. While it’s possible the other version came from Gates’ former lawyers, it’s more likely the version came from someone else. Vin Weber is the most likely source of that information.

Back in August 2016, as news of the secret ledger was breaking,Weber suggested he may have been misled by Manafort, both as to the purpose of his lobbying and regarding the need to register as a foreign agent for Ukraine. If he felt that way in August 2016, I imagine he came to feel that even more strongly as Manafort’s legal woes intensified.

February 9: Returning a call from John Kelly but speaking to Don McGahn, Rod Rosenstein spoke of “important new information” about Jared Kushner that will delay his clearance.

Given all the evidence that suggests Jared faces very significant exposure in this investigation, this new information could be any number of things. But two possibilities are likely. First, it might reflect Jared’s January 3 disclosure of additional business interests in yet another update to his SF-86, or his family’s increasing debt over the last year.

More likely, it reflects things the government has learned from Mike Flynn (who has an incentive to burn Jared, given that the President’s son-in-law was asked for and didn’t provide exonerating information tied to Flynn’s own lies to the FBI). Indeed, that seems to be one theory of those who reported on this phone call.

Kushner’s actions during the transition have been referenced in the guilty plea of former Trump national security adviser Michael Flynn, who admitted he lied to the FBI about contacts with then-Russian Ambassador Sergey Kislyak. Prosecutors said Flynn was acting in consultation with a senior Trump transition official, whom people familiar with the matter have identified as Kushner.

All that said, there are two more possibilities. Given that she appears to have lied to the Senate Foreign Relations Committee in her confirmation process, KT McFarland would be an obvious follow-up interview after the Mike Flynn plea; she asked Trump to withdraw her nomination to be Ambassador to Singapore on February 3. And February 9 might be (though probably isn’t, quite) late enough to catch the first sessions of Steve Bannon’s 20 hours of interviews with Mueller, and Bannon has long had it in for Jared.

February 14: Alex Van der Zwaan got caught and pled guilty to lying about communications he had with Rick Gates, Konstantin Kilimnik, and Greg Craig in September 2016. On top of whatever he had to say to prosecutors between his second interview on December 1 and his plea on February 14, both Craig and Skadden Arps have surely provided a great deal of cooperation before and since September 2016. (As I was finishing this, NYT posted this story that details some, but not all, of that cooperation.)

February 16: As I noted in my post on the Internet Research Agency indictment, Rod Rosenstein was quite clear: “There is no allegation in the indictment that any American was a knowing participant in the alleged unlawful activity.” That said, there are three (presumed) Americans who, both the indictment and subsequent reporting make clear, are treated differently in the indictment than all the other Americans cited as innocent people duped by Russians: Campaign Official 1, Campaign Official 2, and Campaign Official 3. We know, from CNN’s coverage of Harry Miller’s role in building a cage to be used in a fake “jailed Hillary” stunt, that at least some other people described in the indictment were interviewed — in his case, for six hours! — by the FBI. But no one else is named using the convention to indicate those not indicted but perhaps more involved in the operation. Furthermore, the indictment doesn’t actually describe what action (if any) these three Trump campaign officials took after being contacted by trolls emailing under false names.

On approximately the same day, Defendants and their co-conspirators used the email address of a false U.S. persona, [email protected], to send an email to Campaign Official 1 at that donaldtrump.com email account, which read in part:

Hello [Campaign Official 1], [w]e are organizing a state-wide event in Florida on August, 20 to support Mr. Trump. Let us introduce ourselves first. “Being Patriotic” is a grassroots conservative online movement trying to unite people offline. . . . [W]e gained a huge lot of followers and decided to somehow help Mr. Trump get elected. You know, simple yelling on the Internet is not enough. There should be real action. We organized rallies in New York before. Now we’re focusing on purple states such as Florida.

The email also identified thirteen “confirmed locations” in Florida for the rallies and requested the campaign provide “assistance in each location.”

[snip]

Defendants and their co-conspirators used the false U.S. persona [email protected] account to send an email to Campaign Official 2 at that donaldtrump.com email account.

[snip]

On or about August 20, 2016, Defendants and their co-conspirators used the “Matt Skiber” Facebook account to contact Campaign Official 3.

Again, the DOJ convention of naming makes it clear these people have not been charged with anything. But we know from other Mueller indictments that those specifically named (which include the slew of Trump campaign officials named in the George Papadopoulos plea, KT McFarland and Jared Kushner in the Flynn plea, Kilimnik in the Van der Zwaan plea, and the various companies and foreign leaders that did Manafort’s bidding, including the Podesta Group and Mercury Public Affairs in his indictment) may be the next step in the investigation. As a reminder: Florida Republicans are those who most tangibly can be shown to have benefitted from Russia’s hack-and-leak, given that Guccifer 2.0 leaked a slew of Democratic targeting data for the state. (In perhaps related news, this week Tom Rooney became the third Florida Republican member of Congress to announce his retirement this cycle, which is all the more interesting given that he’s been involved in the HPSCI investigation into Russian tampering.)

February 23: Manafort’s superseding indictment (a version of which was originally filed February 16) added the description of the Hapsburg Group for former European officials who lobbied at the direction (to some degree via cut-outs) of Manafort.

MANAFORT explained in an “EYES ONLY” memorandum created in or about June 2012 that the purpose of the “SUPER VIP” effort would be to “assemble a small group of high-level European highly influencial [sic] champions and politically credible friends who can act informally and without any visible relationship with the Government of Ukraine.” The group was managed by a former European Chancellor, Foreign Politician A, in coordination with MANAFORT.

It may be that the government only recently obtained this document (meaning it was not among the 590,000 pages of documents obtained and turned over to Manafort in discovery thus far). But it’s likely this also reflects further testimony. Former Austrian Chancellor Alfred Gusenbauer denied he is Foreign Politician A to BBC, though that may be a non-denial denial tied to his claim he wasn’t directed by Manafort and only met him a few times (this Austrian story suggests only he doesn’t remember what American or English firm paid him). NYT reported that Gusenbauer’s lobbying during the relevant time period was registered under Mercury Public Affairs. This is another piece of evidence suggesting the group — and Vin Weber personally — has been cooperating since the original indictment.

Note, I assume that Mercury/Weber’s cooperation has been mirrored by Tony Podesta’s.

Jared’s Clearance and the Foreign Policy Version of Conspiracy to Defraud America

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I confess there is no multi-day Trump story I’ve looked forward to more than the problem with Jared Kushner’s clearance. And it is officially here. Last night, the NYT described how Jared is butting heads with John Kelly over whether he’ll lose clearance under Kelly’s post-Rob Porter mandate that people who can’t be cleared won’t be kept around anymore.

Kushner, frustrated about the security clearance issue and concerned that Mr. Kelly has targeted him personally with the directive, has told colleagues at the White House that he is reluctant to give up his high-level access, the officials said. In the talks, the officials say, Mr. Kushner has insisted that he maintain his current level of access, including the ability to review the daily intelligence briefing when he sees fit.

Today CNN and WaPo weigh in, with CNN nodding towards the conflict this will present Trump.

Though a source familiar with the situation said Kushner has not yet appealed to the President directly about his access to highly classified information, those close to Trump believe he would be inclined to grant his son-in-law access if asked. This source pointed to the fact that Kushner is part of the President’s family and has outlasted all of his rivals in Trump’s inner circle, including former chief of staff Reince Priebus, former chief strategist Steve Bannon, former campaign manager Corey Lewandowski and former deputy campaign manager David Bossie.

Trump, however, has given Kelly his full support in efforts to reform the White House’s system of security clearances, and has told his chief of staff that changes need to be made to bring the system into order, according to a person who has spoken to him about the matter. Kelly has interpreted that as a wide-ranging mandate that would include Kushner, a person familiar with the matter said. The person said Trump and Kelly would likely discuss the matter this week, if they haven’t already, before Kelly’s self-imposed Friday deadline.

WaPo brings the appropriate level of skepticism over whether Kushner can really do his Fake Peace Plan job without clearance.

It is not clear how Kushner could perform his job without a high-level security clearance.

He holds a broad range of responsibilities, from overseeing peace efforts in the Middle East to improving the efficiency of the federal government. And he is the administration’s interlocutor with key allies, including China and Saudi Arabia, where he has developed a personal relationship with the young crown prince, Mohammed bin Salman.

[snip]

And apart from staff on the National Security Council, he issues more requests for information to the intelligence community than any White House employee, according to a person with knowledge of the situation, who spoke on the condition of anonymity to describe private discussions.

More importantly, WaPo includes a series of false bravado quotes from Jared’s defense attorney, Abbe Lowell, who bizarrely offered up his judgement that Jared is speaking with foreign officials “properly.”

“My inquiries to those involved again have confirmed that there are a dozen or more people at Mr. Kushner’s level whose process is delayed, that it is not uncommon for this process to take this long in a new administration, that the current backlogs are being addressed, and no concerns were raised about Mr. Kushner’s application,” he said in a statement.

[snip]

Lowell said Kushner’s job is “to talk with foreign officials, which he has done and continues to do properly.”

I’ve come to think of Kushner’s clearance process in similar terms to the way I’ve thought of the bail process Mueller has used with Paul Manafort and Rick Gates: While Gates ultimately did make bail, Manafort is still (!) almost four months after his arrest, struggling to show enough liquidity free of taint from his money laundering to alter his release conditions. The process of making bail (and having to serially beg to attend his kids’ soccer events) seems to have been one of the factors that brought Gates to the point of flipping, but along the way, he probably gave Mueller’s team far more leverage in plea negotiations, because they know how little Gates actually has to pay a defense attorney to oversee the flip (indeed, that may lie behind the confusion over Gates’ current legal representation).

Kushner’s liquidity problems are literally an order of magnitude greater than these men. But unlike them, he made the idiotic decision to work in the White House, and thereby to undergo the scrutiny of sworn statements laying out all the financial vulnerabilities and foreign entanglements that might make him susceptible to blackmail.

Which brings me back to my description of how Mueller is leveraging “conspiracy to defraud the United States” (what I will henceforward refer to as ConFraudUS*) charges to prosecute political influence peddling for which our regulatory system has completely collapsed. With the Internet Research Agency indictment, Mueller charged ConFraudUS because the trolls bypassed a campaign finance system that no longer works. With Manafort and Gates, Mueller charged ConFraudUS because they bypassed Foreign Agents Registration Act requirements that have never been enforced.

In the old days, to pursue the kind of quid pro quo we see outlines of, in which Trump officials (from George Papadopoulos’ proposed business with Sergei Millian to the possibility Kushner might get bailed out by the Russian Direct Investment Fund, which is itself a cut-out for the sanctioned Vnesheconombank, whose head, Sergey Gorkov, Kushner met in December 2016), you’d pursue bribery. But post-Bob McDonnell, bribery is a far tougher charge to make stick, as Mueller prosecutor Andrew Goldstein, who worked on the Sheldon Silver prosecution team, knows well.

What if, however, you could charge people whose meetings seamlessly tie the foreign policy decisions of the United States with discussions of their own financial interests, with ConFraudUS? That might make it easier to charge someone whose foreign policy decisions don’t serve the US interest but might enrich them for the quid pro quo entailed.

Which is why I’m interested in the report that Mueller has shown increased interest (almost certainly tied to Steven Bannon’s public pronouncements that, “It goes through Deutsche Bank and all the Kushner shit”) in Jared’s foreign financial dealings, how he has mixed his business interests and US foreign policy.

One line of questioning from Mueller’s team involves discussions Kushner had with Chinese investors during the transition, according to the sources familiar with the inquiry.
A week after Trump’s election, Kushner met with the chairman and other executives of Anbang Insurance, the Chinese conglomerate that also owns the Waldorf Astoria hotel in New York, according to The New York Times.

At the time, Kushner and Anbang’s chairman, Wu Xiaohui, were close to finishing a deal for the Chinese insurer to invest in the flagship Kushner Companies property, 666 Fifth Avenue. Talks between the two companies collapsed in March, according to the Times.

Mueller’s team has also asked about Kushner’s dealings with a Qatari investor regarding the same property, according to one of the sources. Kushner and his company were negotiating for financing from a prominent Qatari investor, former prime minister Hamad bin Jassim Al Thani, according to The Intercept. But as with Anbang, these efforts stalled.

Lowell’s false bravado in this report is even more ridiculous than that in the clearance stories.

A representative for Kushner declined to comment prior to the publication of this story. After publication, Kushner attorney Abbe Lowell told CNN in a statement, “Another anonymous source with questionable motives now contradicts the facts — in all of Mr. Kushner’s extensive cooperation with all inquiries, there has not been a single question asked nor document sought on the 666 building or Kushner Co. deals. Nor would there be any reason to question these regular business transactions.”

Lowell may not have turned over any documents relating to 666 Fifth Avenue. But Deutsche Bank got subpoenas even before Bannon started running his mouth (albeit in a separate EDNY probe). Moreover, the key detail under my imagined ConFraudUS charge would be whether Kushner did things — like try to get Chinese investors visas — that didn’t serve or indeed violated the interests of the United States. Admittedly, the President gets largely unfettered control over the foreign policy of the United States (though Trump has defied Congress in areas where they do have some control). But to the extent Jared pursued his own business interests during the transition, he wouldn’t be able to claim to rely on presidential prerogative.

Which brings me back to Jared’s long struggle to get a security clearance.

Abbe Lowell may not have turned over the financial documents on 666 Fifth Avenue that would show how susceptible Jared’s debt woes make him to foreign influence. But he has serially provided that evidence in support of Jared’s almost certainly futile attempt to convince the FBI he should get a permanent TS/SCI security clearance.

I laid this out yesterday at the very end of my Democracy Now appearance:

I think—the reason why Kushner’s business deals are important, we’ve talked—and in the intro, this wasn’t the only example of—there’s the Don Jr. We’ve talked about how poorly Trump’s people have separated his business interests from the interests of the country. The same is even more true for Jared Kushner, whose family business is basically bankrupt. And over and over again, he’s been shown to be in negotiations with entities, including Russians, but also Chinese and Middle Eastern. So, you know, he’ll go in and say, “OK, we’ll talk about this grand peace plan,” which is not about peace at all, “but, oh, by the way, can you bail out our 666 Park Avenue building, which is badly underwater?” And I think Mueller could make the same argument he’s made with the IRA indictment and the Manafort indictment, and say that Jared Kushner is pretending to be serving America’s foreign policy interests, but in fact he is just doing his own bidding. He’s just trying to bail out his own company. So I wouldn’t be surprised if he’s moving towards a very similar indictment on conspiracy to defraud the United States, having to do with his conflicts of interest.

AMY GOODMAN: And, of course, interesting that Kushner also hasn’t managed to get top security clearance, when he’s a senior adviser to President Trump, as Porter didn’t because he beat his wives, etc. And then you’ve got Donald Jr. now in India promoting Trump businesses, as, of course, Donald Trump is the president of the United States. And he’s standing with the prime minister of India as he does this, promoting the Trump brand, Marcy.

MARCY WHEELER: Exactly. I mean, if Trump and his son and his son-in-law are pretending to be doing the business of the United States but are instead just trying to enrich themselves, again, I don’t think it’s a—you know, we’ve talked about the Emoluments Clause and how you go after the Trump campaign—the Trump officials for their egregious conflicts of interest. And, frankly, it extends into his Cabinet. But what Mueller seems to be doing, with some very good appellate lawyers, by the way, is to be laying out this framework that if you are pretending to be doing something in the interest of the United States but are actually doing something else, serving somebody else’s bidding, whether it’s Russia, pro-Russian Ukrainian political party, or whether it’s your own family business, then they’re going to go after you for a conspiracy charge. And I wouldn’t be surprised if these conspiracy charges all kind of link up at the end, in this kind of grand moment of—I think that’s where he’s headed.

Remember, Trump and his spawn never really thought they’d win the election. Instead, they seemed interested in, among other things, a Trump Tower in Moscow and refinancing 666 Fifth Avenue. But if they made deals with Russians in hopes such personal financial benefits would result, a ConFraudUS charge might be a way to prosecute them for it.

*I originally shortened this “CTDTUS,” but following Peter Crowley’s suggestion, I’m instead using “ConFraudUS.”

 

[Note: At the top of this post there is an embedded video of Marcy’s interview with Democracy Now. It isn’t rendering properly on all browsers and operating systems and may appear as a blank space. You can watch the video or listen to audio at this link. /~R]

The Timing of Mark Warner’s PseudoScandal Texts

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By now, you’ve heard about Fox News’ scoop that Mark Warner made efforts last year to obtain testimony from two key figures in the Senate Intelligence Committee investigation into Russia’s involvement in the 2016 election via DC fixer Adam Waldman: Christopher Steele and Oleg Deripaska. (In my opinion, the news buried at the bottom of the story that Deripaska agreed to provide testimony if he could get immunity, but did not get it, is far more interesting than the rest of this, but I’m not a Fox News editor.)

“We have so much to discuss u need to be careful but we can help our country,” Warner texted the lobbyist, Adam Waldman, on March 22, 2017.

“I’m in,” Waldman, whose firm has ties to Hillary Clinton, texted back to Warner.

The story also includes this paragraph, which also has gotten less attention.

Warner began texting with Waldman in February 2017 about the possibility of helping to broker a deal with the Justice Department to get the WikiLeaks founder Julian Assange to the United States to potentially face criminal charges. That went nowhere, though a Warner aide told Fox News that the senator shared his previously undisclosed private conversations about WikiLeaks with the FBI.

Interestingly, the Fox story relies on texts that Warner and Richard Burr jointly requested in June (targeting Waldman’s phone, not Warner’s, apparently), and then turned over to the committee in October. I look forward to seeing how the notoriously anti-leak Burr deals with the apparent leak of committee sensitive materials to the right wing press.

Even while the story links to texts from SSCI, it comes a week after a woman duped the famously paranoid Julian Assange into exchanging texts with her fake Sean Hannity account promising news on Mark Warner.

[Dell] Gilliam, a technical writer from Texas, was bored with the flu when she created @SeanHannity__ early Saturday morning. The Fox News host’s real account was temporarily deleted after cryptically tweeting the phrase “Form Submission 1649 | #Hannity” on Friday night. Twitter said the account had been “briefly compromised,” according to a statement provided to The Daily Beast, and was back up on Sunday morning.

[snip]

Just minutes after @SeanHannity disappeared, several accounts quickly sprung up posing as the real Hannity, shouting from Twitter exile. None were as successful as Gilliam’s @SeanHannity__ account, which has since amassed over 24,000 followers.

Gilliam then used her newfound prominence to direct message Assange as Hannity within hours.

“I can’t believe this is happening. I mean… I can. It’s crazy. Nothing can be put past people,” Gilliam, posing as Hannity, wrote to Assange. “I’m exhausted from the whole night. What about you, though? You doing ok?”

“I’m happy as long as there is a fight!” Assange responded.

Gilliam reassured Assange that she, or Hannity, was also “definitely up for a fight” and set up a call for 9:30 a.m. Eastern, about six hours later.

“You can send me messages on other channels,” said Assange, the second reference to “other channels” he made since their conversation began.

“Have some news about Warner.”

With that in mind, I want to look at the timing of some security issues last year.

While the texts turned over to Congress date to February 14, the conversation pertaining to Steele started around March 22. That puts it not long after news of a massive hack involving T-Mobile, first reported March 16.

An unusual amount of highly suspicious cellphone activity in the Washington, D.C., region is fueling concerns that a rogue entity is surveying the communications of numerous individuals, likely including U.S. government officials and foreign diplomats, according to documents viewed by the Washington Free Beacon and conversations with security insiders.

A large spike in suspicious activity on a major U.S. cellular carrier has raised red flags in the Department of Homeland Security and prompted concerns that cellphones in the region are being tracked. Such activity could allow pernicious actors to clone devices and other mobile equipment used by civilians and government insiders, according to information obtained by the Free Beacon.

It remains unclear who is behind the attacks, but the sophistication and amount of time indicates it could be a foreign nation, sources said.

I would hope to hell that former cell company mogul and current Ranking Member on the Senate Intelligence Committee running an important counterintelligence investigation Mark Warner would be aware of the security problems with mobile phones. But what do I know? [Update: Not much. Looking more closely it looks like he was using Signal.] In the last several months we’ve learned that FBI’s investigators discuss the even more sensitive aspects of the more important side of counterintelligence investigation on SMS texts on their Samsung cell phones.

¯\_(ツ)_/¯

But who knows what Waldman (who apparently chats a lot with spies, mobbed up Russian oligarchs, and — as Mike Pompeo deemed Wikileaks — non-state hostile intelligence services) knows about cell phone security?

In any case, the day before that was reported publicly, Ron Wyden and Ted Lieu sent a letter to John Kelly (who, as a reminder, in spite of or because he ran DHS for a while, had his own cell phone compromised), stating in part,

We are also concerned that the government has not adequately considered the counterintelligence threat posed by SS7-enabled surveillance.

[snip]

What resources has DHS allocated to identifying and addressing SS7-related threats? Are these resources sufficient to protect U.S. government officials and the private sector.

If the government started considering such issues in March, they might have gotten around to discovering what kinds of problems were created by the T-Mobile hack in June, when Warner and Burr moved to get the texts for SSCI.

In any case, at around that point in time, APT 28 (one of the entities blamed for hacking the DNC the previous year) started a phishing campaign targeting the Senate’s email server.

Beginning in June 2017, phishing sites were set up mimicking the ADFS (Active Directory Federation Services) of the U.S. Senate. By looking at the digital fingerprints of these phishing sites and comparing them with a large data set that spans almost five years, we can uniquely relate them to a couple of Pawn Storm incidents in 2016 and 2017. The real ADFS server of the U.S. Senate is not reachable on the open internet, however phishing of users’ credentials on an ADFS server that is behind a firewall still makes sense. In case an actor already has a foothold in an organization after compromising one user account, credential phishing could help him get closer to high profile users of interest.

Reporting at the time suggested this was an effort in advance of the 2018 election (which aside from minimizing the damage Russia might do in the interim, ignores the fact that staffers are ostensibly prohibited from using Senate resources for election related activities). But it always seemed to me it would more profitably target policy.

Or, maybe the only reasonable work Congress is doing to investigate the Russians?

Whether there’s a connection between these two compromises last year or not, and Julian Assange, and this Mark Warner story, it’s clear that DC remains ill-prepared to address the counterintelligence problems they’re faced with.

How the White House’s Tolerance for Wife-Beaters Exposed That It Was Harboring Counterintelligence Threats

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There are a lot of important lessons about the White House’s protection and promotion of Rob Porter even after the FBI informed the White House about his serial wife beating: about White House’s tolerance for conflicts, about John Kelly’s overblown competence. If you haven’t read Dahlia Lithwick’s piece on what it says about society’s response to domestic abuse more generally, absolutely do.

There are also multiple theories about how this all came to light, whether the recent girlfriend who learned of the abuse after talking to the ex-wives about Porter’s philandering made it happen, or whether the FBI did so in the wake of White House involvement in the Devin Nunes saga.

Whatever the answers to those issues, it’s now clear what just or is about to happen.

Last night, the WaPo answered a question that should have been answered at yesterday’s presser. There are dozens of people working in the White House who, like Porter, have not yet received clearance. Starting with the son-in-law that has been remapping the world while under active counterintelligence investigation for shaping policy in a way that may stave off familial bankruptcy.

Dozens of White House employees are awaiting permanent security clearances and have been working for months with temporary approvals to handle sensitive information while the FBI continues to probe their backgrounds, according to U.S. officials.

People familiar with the security-clearance process said one of those White House officials with an interim approval is Jared Kushner — the president’s son-in-law and one of his most influential advisers.

Then Politico provided the other, even more critical piece of this puzzle: FBI already told the White House that Porter and others would not get security clearance. And there are witnesses that Kelly knew about these multiple White House aides and thought they should be fired.

White House chief of staff John Kelly was told several weeks ago that the FBI would deny full security clearances to multiple White House aides who had been working in the West Wing on interim security clearances.

Those aides, according to a senior administration official, included former White House staff secretary Rob Porter, who left the White House on Thursday after reports that he physically and verbally abused his two ex-wives.

The White House chief-of-staff told confidants in recent weeks that he had decided to fire anyone who had been denied a clearance — but had yet to act on that plan before the Porter allegations were first reported this week.

I figure around about noon we’ll learn Jared was one of the others.

Remember: according to Supreme Court precedent, the President has final authority on matters of clearance. So if Trump wants to override the FBI’s determination, he can. Which he might get away with so long as it remained secret, so long as the press didn’t know that a bunch of people were working with the country’s most sensitive information even though the FBI had told the White House it was a very bad idea to let them. And know which ones they were.

But whether through the coincidental timing of a bunch of women refusing to let a serial abuser go on with his life or through orchestration by the Bureau or both, any effort to keep secret that the White House was delaying the obvious counterintelligence choice or even perhaps planning to defy the FBI about it is in the process of being exposed.

Trump is reportedly consulting now with two of the most likely counterintelligence problems, Jared and (on her own right, because of her own dodgy business deals) Ivanka, on a staff shake-up to try to make this problem go away.