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It’s Not the Four Year Old Counterintelligence Investigation intro Trump We Need to Be Most Worried About — It’s the Ones Bill Barr May Have Killed

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The other day, Mike Schmidt advertised a book by claiming that FBI never did any kind of counterintelligence investigation of Trump in parallel with the Mueller investigation. On Twitter, Andrew Weissmann debunked a key part (though not all) of that claim.

The aftermath has led to ongoing debates about what really happened. My guess is that Schmidt’s sources did not have visibility on the full scope of the Mueller investigation, and he didn’t read the Mueller Report, which would have helped him realize that. And while credible reports say Mueller didn’t investigate Trump’s historical financial ties to Russia (while I’ve read neither book yet, the excerpts of Jeff Toobin’s book adhere more closely to the public record than Schmidt’s), the public record also suggests Mueller obtained Trump-related records that most people don’t realize he obtained.

I reiterate that it is far more troubling that a co-equal branch of government — the one with impeachment power — chose not to pursue the same questions about Trump’s financial vulnerabilities to Russia. If you want to express outrage that no one has investigated whether Trump is beholden to Russia, focus some of it on Richard Burr, who suggested Trump’s financial vulnerability to Russia was irrelevant to a report specifically focused on counterintelligence threats.

Still, there’s something still more urgent, one that is getting lost in the debate about what happened three or four years ago.

There were, as of at least April, at least one and probably several investigations implicating counterintelligence tied to Trump, through his top associates. But they tie to the same cases that Billy Barr has undermined in systematic and unprecedented fashion in recent months. It is a far more pressing question whether Barr has undermined counterintelligence investigations implicating Trump’s ties to Russia by ensuring those who lied to protect him during the Mueller investigation face no consequences than what Rod Rosenstein did forty months ago.

Consider Mike Flynn. The most newsworthy thing Robert Mueller said — under oath — over the course of two congressional hearings is that “many elements of the FBI” were looking into the counterintelligence risks created by Mike Flynn’s lies about his communications with Russia.

KRISHNAMOORTHI: Since it was outside the purview of your investigation your report did not address how Flynn’s false statements could pose a national security risk because the Russians knew the falsity of those statements, right?

MUELLER: I cannot get in to that, mainly because there are many elements of the FBI that are looking at different aspects of that issue.

KRISHNAMOORTHI: Currently?

MUELLER: Currently.

As part of Mueller’s analysis about whether Trump fired Jim Comey to stop the investigation into Flynn, he weighed whether the Flynn investigation implicated Trump personally. But he found — largely because Flynn and KT McFarland, after first telling similar lies to investigators, later professed no memory that Trump was in the loop regarding Flynn’s efforts to undercut sanctions with Sergey Kislyak, and Steve Bannon repeated a White House script saying he wasn’t — that the evidence was inconclusive.

As part of our investigation, we examined whether the President had a personal stake in the outcome of an investigation into Flynn-for example, whether the President was aware of Flynn’s communications with Kislyak close in time to when they occurred, such that the President knew that Flynn had lied to senior White House officials and that those lies had been passed on to the public. Some evidence suggests that the President knew about the existence and content of Flynn’s calls when they occurred, but the evidence is inconclusive and could not be relied upon to establish the President’s knowledge.

[snip]

But McFarland did not recall providing the President-Elect with Flynn’s read-out of his calls with Kislyak, and Flynn does not have a specific recollection of telling the President-Elect directly about the calls. Bannon also said he did not recall hearing about the calls from Flynn. And in February 2017, the President asked Flynn what was discussed on the calls and whether he had lied to the Vice President, suggesting that he did not already know. Our investigation accordingly did not produce evidence that established that the President knew about Flynn’s discussions of sanctions before the Department of Justice notified the White House of those discussions in late January 2017.

We’ve since seen transcripts that show Mike Flynn telling Sergey Kislyak in real time that Trump was aware of the communications between the two (and John Ratcliffe is withholding at least one transcript of a call between the men).

FLYNN: and, you know, we are not going to agree on everything, you know that, but, but I think that we have a lot of things in common. A lot. And we have to figure out how, how to achieve those things, you know and, and be smart about it and, uh, uh, keep the temperature down globally, as well as not just, you know, here, here in the United States and also over in, in Russia.

KISLYAK: yeah.

FLYNN: But globally l want to keep the temperature down and we can do this ifwe are smart about it.

KISLYAK: You’re absolutely right.

FLYNN: I haven’t gotten, I haven’t gotten a, uh, confirmation on the, on the, uh, secure VTC yet, but the, but the boss is aware and so please convey that. [my emphasis]

Certainly, Russia would have reason to believe that Flynn’s efforts to undermine sanctions were directed by Trump.

In January, a sentencing memo that was delayed so it could be approved by the entire chain of command at DOJ, explained why all this was significant.

Any effort to undermine the recently imposed sanctions, which were enacted to punish the Russian government for interfering in the 2016 election, could have been evidence of links or coordination between the Trump Campaign and Russia. Accordingly, determining the extent of the defendant’s actions, why the defendant took such actions, and at whose direction he took those actions, were critical to the FBI’s counterintelligence investigation.

[snip]

It was material to the FBI’s counterintelligence investigation to know the full extent of the defendant’s communications with the Russian Ambassador, and why he lied to the FBI about those communications.

Flynn’s forgetfulness about whether Trump ordered him to undermine sanctions went to the core question of whether Trump worked with Russia in their efforts to throw him the election.

And that sentencing memo was the moment when Billy Barr threw two different lawyers — one a lifetime associate of his — into the project of creating a false excuse to undermine the prosecution of Flynn. More recently, Acting Solicitor General Jeffrey Wall told the DC Circuit that Barr had secret reasons for overturning the prosecution.

The Attorney General of course sees this in a context of non-public information from other investigations.

[snip]

I just want to make clear that it may be possible that the Attorney General had before him information that he was not able to share with the court and so what we put in front of the court were the reasons that we could, but it may not be the whole picture available to the Executive Branch.

[snip]

It’s just we gave three reasons; one of them was that the interests of justice were not longer served, in the Attorney General’s judgment, by the prosecution. The Attorney General made that decision, or that judgment, on the basis of lots of information, some of it is public and fleshed out in the motion, some of it is not.

This secret reason is why, Wall suggested, it would cause irreparable harm for DOJ to have to show up before Judge Emmet Sullivan and explain why DOJ blew up the prosecution.

Then there’s Roger Stone. Stone very loudly claimed (improbably) that he could have avoided prison had he not lied to protect Donald Trump. And Trump rewarded him for it, commuting his sentence to ensure he didn’t spend a day in prison.

But at least as of April, an investigation into whether Stone was part of a conspiracy with Russia and/or was a Russian agent — implicating 18 USC 951, not just FARA — was ongoing. Among the things Stone was involved in that Trump refused to answer Mueller questions about was a pardon for Julian Assange, one Stone started pursuing at least as early as November 15. While no sentencing memo has explained this (as it did with Mike Flynn), whether Trump and Stone used promises of a pardon to get Assange to optimize the WikiLeaks releases goes to the core question of whether there was a quid pro quo as part of 2016.

Finally, there’s Paul Manafort, whose close associates, the SSCI Report makes clear, were part of GRU and appear to have had a role in the hack-and-leak. After securing a cooperation deal, Manafort changed his story, and then shared details of what Mueller’s team knew with the President.

Yet, even with Manafort’s ties to the effort to steal our election, the Attorney General used COVID relief to ensure that Manafort would escape prison.

While it’s not clear whether John Ratcliffe, Barr, or the IC made the decision, the redaction process of the SSCI report denied voters the ability to know how closely tied Trump’s campaign manager is with the people who helped steal the election. What we do know is the effort Manafort started continues in Trump’s efforts to extort Ukraine and spew Russian disinformation.

For all three of the Trump associates where we know Barr intervened (there’s good reason to suspect he intervened in an Erik Prince prosecution, too), those people implicate Trump directly in counterintelligence investigations that were, fairly recently, ongoing.

Whether or not there was a counterintelligence investigation implicating Trump on May 20, 2017, after Rod Rosenstein scoped the Mueller investigation, we know counterintelligence investigations have implicated him since. What we don’t know is whether, in an effort to help Trump get reelected, his fixer Billy Barr squelched those, too.

Update: In an appearance for his book, Schmidt said he considered writing it (in 2020) about just the first 26 days of his presidency. It’s a telling comment given that his description of what happened with counterintelligence doesn’t accord with what the Mueller Report itself said happened around 500 days into Trump’s presidency.

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Billy Barr Signs a Memo That Wouldn’t Have Helped Carter Page

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For eight months, FBI and DOJ have been diligently making changes to the way they do FISA applications, with regular reports into the FISA Court. Whether or not those changes are adequate to fix the problems that beset the Carter Page application, they represent significant effort.

Curiously, a memo Billy Barr just released purporting to enhance compliance in FISA applications appears unaware of the filings at FISC, and instead cites only changes implemented in Christopher Wray’s response to the December 9, 2019 DOJ IG Report (see PDF 466 for his letter).

Therefore, in order to address concerns identified in the report by the Inspector General of the Department of Justice entitled, “Review of Four FISA Applications and Other Aspects of the FBI ‘s Crossfire Hurricane Investigation” (December 2019), and to build on the important reforms described by the Director of the Federal Bureau of Investigation (“FBI”) in his December 6, 2019, response to the Inspector General’s report, I hereby direct that the following additional steps be taken:

Arguably (as I’ll show), at least one of the provisions in the memo is weaker than a change FISC mandated itself.

And while the memo claims to want to protect the rights of people like Carter Page, Barr’s memo would in no way apply to Page. That’s because the special protections tied to political campaigns only apply to those currently associated with campaigns.

With respect to applications for authorization to conduct electronic surveillance or physical searches pursuant to FISA targeting (i) a federal elected official or staff members of the elected official, or (ii) an individual who is a declared candidate for federal elected office or staff members or advisors of such candidate’s campaign (including any person who has been publicly announced by a campaign as a staff member or member of an official campaign advisory committee or group, or any person who is an informal advisor to the campaign),

By the time FBI applied for a FISA application targeting Page, several prominent members of the campaign had dissociated the campaign from him — for his controversial ties to Russia! — in no uncertain terms; those disavowals were included in the FISA application. Yes, Page had been announced as an informal advisor, but then the campaign made very clear he was no longer an informal advisor (and even claimed he never had been).

To be sure, some of the changes proposed — both those limited to those connected with a campaign and the more general ones — are improvements. For example:

  • ¶3(b) requires non-delegable sign-off by the Director of the FBI and the Attorney General) of any application targeting someone associated with a campaign; while requiring non-delegable sign-off may introduce some problems, this is the kind of certification recommended by the DOJ IG Report (though arguably is already incorporated in the December 6, 2019 letter Barr cited).
  • ¶3(d) and ¶3(e) institutes a shorter renewal deadline for these political FISAs, 60 days instead of 90, and requires monthly reports to FISC describing the results and affirming the continued need for such surveillance. These are arbitrary but perhaps useful improvements, not least because by increasing the paperwork required to surveil a political target, they make it more likely that such surveillance will actually be worth it (as the third and fourth applications targeting Page were not).
  • ¶3(f) requires that any political application describe whether less intrusive investigative procedures have been considered — something already required in all FISA applications — and an explanation why those procedures weren’t used. Such a requirement would have been useful in Page’s case (as I noted last year), because it would have emphasized the efforts FBI was making not to take public actions, but in practice this response would almost always point to DOJ guidelines on avoiding taking public actions that might affect an election and might actually encourage the increased reliance on informants, something Trump’s people claim equates to FISA surveillance. A requirement like this might be useful if it took place in the scope of a debate about what techniques were intrusive or not, but there’s zero evidence such a debate has happened.

The memo has two parts on defensive briefings, probably designed to placate Republicans, but which likely don’t do much in practice:

  • For political targets, ¶3(a) requires the FBI Director to consider a defensive briefing before targeting someone, and if no briefing is given, then the Director must document it in writing. FBI did consider defensive briefings for Trump’s people, but for various reasons decided not to do it, but in the case of Carter Page, he had long been wittingly sharing non-public information with known Russian intelligence officers and when FBI tried to explain why such dalliances were problematic in March 2017, he simply disagreed. A defensive briefing for Page would have been as useless as President Obama’s warnings to Trump that Mike Flynn was a problem.
  • For all counterintelligence concerns pertaining to election interference, ¶4 requires the FBI Director to “promulgate procedures, in consultation with the Deputy Attorney General, concerning defensive briefings.” Not only is this requirement utterly silent about what such procedures should do, not only did Wray commit to a similar recommendation in his December 2019 letter, but defensive briefings are precisely what Acting Director of National Intelligence John Ratcliffe is currently politicizing.

As for key review processes mandated by the memo, some are just redundant at best or stupid at worst. For example:

  • ¶1 requires FBI personnel to review the accuracy sub-file before submitting a FISA application. That process is already in place. It’s called the Woods Procedure and it’s the procedure that failed to find errors in the Page application.
  • ¶2 requires someone — it doesn’t say whether FBI or NSD bears responsibility — to report any misstatement or omission to FISC. That’s already required. Plus, this requirement twice gives NSD the authority to determine whether something amounts to a reportable incident. The ongoing DOJ IG investigation into all the errors in FISA applications suggest NSD has deemed some omissions and errors not to be worthwhile of reporting (indeed, there were multiple instances in the Page applications where NSD did not include information they knew of, in at least one case information that FBI did not have). In short, this paragraph seems more focused on ensuring NSD — and not an outside entity, like DOJ IG or the FISC — retains the ability to determine what is and is not a reportable error.
  • ¶3(c) requires an FBI Assistant Special Agent in Charge who is not involved in an investigation to review the FISA application of any defined political targets. The DOJ IG Report found that even NSD lawyers involved in an investigation don’t have enough insight into a case to identify omissions. While an ASAC might have access to case files that NSD lawyers do not, there’s zero reason to believe someone with even less insight into an investigation would better be able to spot omissions than an NSD lawyer with an ongoing role in the application. So this review is likely useless busywork.
  • ¶3(g) requires the Assistant Attorney General to review the case file of a political target within 60 days of its initial grant to make sure everything is kosher, including that the investigation was properly predicated. In conjunction with the shorter renewal timeframe of such applications (which would require DAG sign-off in any case), all this amounts to is a heightened review on first renewal (the memo does not say this is not delegable, so such a review will and probably should not be done by the AAG). But in Page’s case, it would have done nothing (indeed, at the time this would have been done for Page, he was in Russia meeting high level officials, falsely claiming to represent Trump’s interests).

In short, while some of these changes are salutary, a number are just show, and some are worthless busy work.

But my real concern about them — particularly given how Barr only invokes the first Christopher Wray letter to DOJ IG — is how they interact with other details of the FISA reform events that have transpired since last December.

For example, in the last month, the FBI and DOJ engaged in a big dog-and-pony show to claim that none of the errors DOJ IG had identified in 29 FISA applications they reviewed affected probable cause and just two were material. Effectively, that big press push amounted to having NSD pre-empt DOJ IG’s findings in an ongoing investigation, and the public details of NSD’s own review raise abundant reason to doubt the rigor of it. So Barr’s emphasis (in ¶2) on NSD’s role in deciding what is an error seems to be a reassertion of the status quo ante in the midst of an ongoing investigation that is still assessing whether NSD’s reviews are adequate. That makes this feel like another attempt to pre-empt an ongoing investigation.

Even more troubling, Barr’s memo seems unaware of — and in key respects, conflicts with — an order presiding FISA Judge James Boasberg issued in March. As I noted at the time, that order recognized something that was apparent from the DOJ IG Report but which the IG either missed, ignored, or was bureaucratically unable to address: it wasn’t just FBI that dropped the ball on the Page FISA application, NSD did so too.

According to the OIG Report, the DOJ attorney responsible for preparing the Page applications was aware that Page claimed to have had some type of reporting relationship with another government agency. See OIG Rpt. at 157. The DOJ attorney did not, however, follow up to confirm the nature of that relationship after the FBI case agent declared it “outside scope.” Id. at 157, 159. The DOJ attorney also received documents that contained materially adverse information, which DOJ advises should have been included in the application. Id. at 169-170. Greater diligence by the DOJ attorney in reviewing and probing the information provided by the FBI would likely have avoided those material omissions.

Because of that, Boasberg required that DOJ attorneys, too, sign off on all FISA applications, and suggested they get more involved earlier in the process.

As a result, reminders of DOJ’s obligation to meet the heightened duty of candor to the FISC appear warranted. The Court is therefore directing that any attorney submitting a FISA application make the following representation: “To the best of my knowledge, this application fairly reflects all information that might reasonably call into question the accuracy of the information or the reasonableness of any FBI assessments in the application, or otherwise raise doubts about the requested probable cause findings.”

DOJ should also consider whether its attorneys need more formalized guidance – e.g. , their own due-diligence checklists. Consideration should also be given to the potential benefits of DOJ attorney visits to field offices to meet with case agents and review investigative files themselves, at least in select cases – e.g. , initial applications for U.S.-person targets. Increased interaction between DOJ attorneys and FBI case agents during the preparatory process should not only improve accuracy in individual cases but also likely foster a common understanding of how to satisfy the government’s heightened duty of candor to the FISC.

There’s no mention of Boasberg’s order and suggestions in Barr’s memo, and it’s unclear whether that’s because he has no idea what has transpired with the FISC, whether he thinks he can ignore Boasberg’s order, or whether his memo is just for show. In any case, it’s notable that Barr’s memo doesn’t incorporate the key insight Boasberg made, that FISA requires increased diligence from NSD, too.

Similarly, because Boasberg deemed the role of FBI’s lawyers to be “perfunctory,” he asked for more details about their role.

But the role described in the revised Woods Form appears largely 10 perfunctory. To assess whether additional modifications to the Woods Form or related procedures may be warranted, the Court is directing the FBI to describe the current responsibilities FBI OGC lawyers have throughout the FISA process.

Here, Barr has added one more FBI person (an ASAC uninvolved in the case) to the process, whose review can only be perfunctory, rather than ensuring that those with more visibility on the process have a substantive role. Barr also doesn’t incorporate into his memo a change that came from Amicus David Kris after the Wray letter cited in Barr’s memo that case agents attest to the accuracy of FISA reviews, a recommendation FBI adopted, which might accomplish more than any review by an outside ASAC.

There’s one more reason this memo is concerning. ABC reported the other day that long-time Deputy Assistant Attorney General for Legal Policy Brad Wiegmann was reassigned two weeks ago and replaced by a far less experienced political appointee, Kellen Dwyer (though I’ve seen people vouch for his integrity — he’s not a hack). Wiegmann would likely be part of discussions about how to meet FISC’s demands for further accountability.

Though a relatively small unit of fewer than two dozen attorneys, the Office of Law and Policy participates in almost every National Security Council meeting, works with congressional staff to draft new legislation, and conducts oversight of the FBI’s intelligence-gathering activities.

“[It] has been sort of the center of gravity for the Department of Justice on national security policy, and it’s a central role,” said Olsen, who at one point ran the department’s National Security Division and later advised Hillary Clinton’s 2016 presidential campaign.

Wiegmann has led the office since the Obama administration and for almost all of the Trump administration.

In particular, Wiegmann has long been involved in efforts to meet FISC’s demands regarding surveillance it authorizes. Here, just days after Wiegmann’s removal, Barr is issuing a memo that seems unaware of and in at least a few respects, potentially inconsistent with, explicit orders from the presiding FISA Judge.

There’s nothing obviously offensive about this memo. But it would do little to prevent a repeat of the Carter Page problems. And it’s not clear that it adds anything to the very real efforts to improve the FISA process at DOJ. Indeed, it may well be an effort to pre-empt more substantive concerns about the role of NSD (as opposed to FBI) in this process.

Barr released a second memo creating an audit mechanism for national security functions that feels like an effort to get ahead of ongoing DOJ IG investigation. I welcome additional oversight of FBI’s national security functions, though the timing of this and the timing of its implementation — with a report on its creation due just days before the election but all review of its functionality years down the road — feels like an attempt to stave off real legal oversight.

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Joe Pientka Warned Trump to Be Worried about People on His Periphery While Flynn Was Signing a Deal with Turkey

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Donald Trump continues to use the Office of Director of National Intelligence role to declassify information to feed to frothy journalists so they can misrepresent the investigation into his campaign. Yesterday, John Ratcliffe released the FBI part of the classified briefing given to Trump, Chris Christie, and Mike Flynn on August 17, 2016. Among the things Ratcliffe disclosed is the FBI case files for both Crossfire Hurricane and the Flynn investigation, the paltry content of defensive briefings for a Presidential candidate, and that the FBI believed there were more Russian spies working under official cover in 2016 than Chinese spies.

They just don’t give a fuck anymore. They will compromise whatever they need to to try to spin the investigation into Trump, even if most of what they release doesn’t back their story.

The briefing also demonstrates that Trump had no concept of how spies work. He asked a childish question about whether — because they have more spies under official cover — whether they are bad.

Trump asked the following question,”Joe, are the Russians bad because they have more numbers are they worse than the Chinese?” Writer responded by saying both countries are bad. The numbers of IOs present in the U.S. is not an indicator of the severity of the threat. Writer reminded Trump the Chinese asymmetrical presence in the U.S. [redacted]. In addition, the OCONUS cyber threat posed by []PLA would have to be considered when making comparisons.

Having just been briefed that the Russians use official cover while the Chinese use non-official cover, Trump then collapsed that very basic concept to address just diplomatic cover.

The only interesting comment from Trump or Flynn, from an investigative standpoint, was that Trump seemed to suggest that Russia could match the US counterterrorism resources, an inaccurate belief the genesis of which is actually really interesting.

Meanwhile, Flynn asked Joe Pientka something totally off topic — how many FBI Agents they had as compared to counterterrorism cases. Flynn also, later, bragged about having done SIGINT (he seems to have wanted to prove his expertise).

Nothing in this briefing — not even the role of Kevin Clinesmith and Peter Strzok in approving an anodyne report — supports the frenzied response to it, and most commentators are totally misrepresenting what the briefing as a whole was (the first intelligence briefing, as reflected by redacted references to who gave those briefings), and what the nature of the defensive briefing that Pientka gave.

The far more interesting details is that Pientka warned Trump (accurately, as it turned out) about Russia and others trying to get to Trump through peripheral people and businessmen,

In the classical sense, an IO will attempt to recruit an individual to tell him or her the things he or she wants to know. This is known as HUMINT. It is highly unlikely a Foreign Intelligence Service will attempt to recruit you, however you need to be mindful of the people on your periphery: your staff , domestic help, business associates, friends, etc. Those individuals may present more vulnerabilities or be more susceptible to an approach. Those individuals will also be targeted for recruitment due to their access to you. That does not mean IOs will not make a run at you . They will send their IOs in diplomatic cover, businessperson NOCs, as well as sources they have developed around you to elicit information and gain assessment on you.

At the time Pientka gave this briefing, Flynn was finalizing the details of a deal with Turkey, using a businessman the government has credibly accused of being an agent of Turkey to cover up the Turkish government’s direct role in the deal. In his grand jury testimony, Flynn described knowing almost nothing of Ekim Alptekin when he pursued this deal.

So even as the FBI was trying to explain to Trump that people like his coffee boy and his rat-fucker would be used to assess his intentions, the guy sitting in the room was pursuing a big payday with a frenemy government seeking to do just that.

Pientka’s briefing lasted 13 minutes out of a total of at least 1 hour 55 minutes, though it looks like Trump left the briefing before they had presented everything, to catch a plane.

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Photo: Pavan Trikutam via Unsplash

Three Things: Bounties, Bounties, Bounce [UPDATE-1]

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[NB: Update at bottom of post. /~Rayne]

There won’t be a quiz but there’s an action item at the end.

It’ll be more effort than Trump put into protecting our troops in Afghanistan.

You’ll want to brush up on the NYT report from Friday, Russia Secretly Offered Afghan Militants Bounties to Kill U.S. Troops, Intelligence Says.

Washington Post confirmed the story: Russian operation targeted coalition troops in Afghanistan, intelligence finds

As did the Wall Street Journal: Russian Spy Unit Paid Taliban to Attack Americans, U.S. Intelligence Says

~ 3 ~

Remember last year when Rep. Adam Schiff said he believed acting Director of National Intelligence Joseph Maguire was withholding from Congress an urgent whistleblower complaint in order to protect Trump?

We build a crowdsourced timeline to guess what the whistleblower’s subject matter might be. We didn’t see the Ukraine quid pro quo but we still compiled a bodacious chronology of foreign policy events.

I’m betting the bit about John Bolton’s exit in that timeline may be revisited in the near future.

But there was one topic we didn’t give a lot of attention which might be worth looking at again, like right now — the peace agreement negotiations in Afghanistan.

(Commenters added more material in comments not added to the original timeline — I think we were learning it was Ukraine and not Afghanistan or Iran which was the subject of the whistleblower’s complaint.)

Now that NYT’s report that Russia offered secret bounties on U.S. service members has been validated by the Washington Post and the Wall Street Journal, we need to look at the Afghanistan timeline — this time with more content from 2019 and up-to-date 2020 material.

28-AUG-2019 — Russia offered to oversee an agreement between the U.S. and Afghanistan; negotiations were in their ninth round when the Russian Foreign Ministry suggested it could be “a guarantor in the agreement” if the two sides wished.

01/02-SEP-2019 — US Special Rep. for Afghanistan Zalmay Khalizad met with Afghan president Ashraf Ghani in Kabul where the Taliban, Afghan government and the U.S. had “reached an agreement in principle” toward an eventual “total and permanent cease-fire.”

03-SEP-2019 — Russian media outlet Tass reported that Russian Deputy Foreign Minister said the U.S. and Taliban “insist that Russia must be present in one capacity or another at the possible signing of the agreements that the parties are working on now.”

05-SEP-2019 — Suicide blast in Kabul killed Army Sgt. 1st Class Elis A. Barreto Ortiz, 34, from Morovis, Puerto Rico.

06-SEP-2019 — Afghan President Ashraf Ghani postponed a trip to the U.S.

07-SEP-2019 — Over several tweets Saturday evening, Trump canceled the meeting with Ghani at Camp David.

Unclear whether Trump realized he might have been meeting over the anniversary of 9/11 on a peace agreement with both Afghanistan’s government and the Taliban.

07-SEP-2019 — Via Julia Davis (commenter Eureka):

Prof. Michael McFaul tweeted, “What? TASS has these details but USG has not released them? This is very strange. And why does Russia need to be present at signing? We’re they fighting Taliban and Al Qaeda in Afghanistan and I just missed that?”

09-SEP-2019 — CNN broke story of a CIA asset extracted from Russia in 2017; followed by NYT on the 9th (and then NBC’s Ken Dilanian appears at the asset’s house…)

09-SEP-2019 — Trump asked for Bolton’s resignation and tweeted about it the next morning.

10-SEP-2019 — “They’re dead. They’re dead. As far as I’m concerned, they’re dead,” Trump told the media about the peace talks with Afghanistan.

13-SEP-2019 — Taliban showed up in Moscow almost immediately after the Camp David meeting fell apart (commenter OldTulsaDude).

15-SEP-2019 — Small arms fire in central Warduk province killed Army Sgt. 1st Class Jeremy W. Griffin, 40.

20-NOV-2019 — Army Chief Warrant Officer 2 Kirk Fuchigami Jr., 25, and Army Chief Warrant Officer 2 David C. Knadle, 33, died in a helicopter crash in eastern Logar province. The Taliban claimed responsibility for the crash; Trump visited Dover AFB on Nov. 21 when the soldiers’ bodies were returned.

11-DEC-2019 — Unknown number of U.S. personnel were injured during a large bombing of Bagram Airfield.

23-DEC-2019 — Sgt. 1st Class Michael J. Goble, 33, was killed in a roadside bombing in northern Kunduz province.

31-DEC-2019 — A total of 22 service members were killed in Afghanistan in 2019. It’s not clear how many U.S. contractors may have been killed because the military doesn’t track them.

11-JAN-2020 — Two U.S. service members were killed by a roadside bomb in Afghanistan’s southern Kandahar province. Taliban claimed responsibility.

17-JAN-2020 — The Taliban offered a proposal to reduce violence and restart peace negotiations.

27-JAN-2020 — Two U.S. Air Force crew members were killed when an E-11A Battlefield Airborne Communications Node aircraft crashed. Taliban claimed responsibility for shooting the plane down.

08-FEB-2020 — Sgt. Javier Jaguar Gutierrez, 28; and Sgt. Antonio Rey Rodriguez, 28 were killed and six other service members were injured in an insider attack in Nangarhar province.

09-FEB-2020 — WaPo reported:

On Sunday, Suhail Shaheen, the Taliban spokesman in Qatar, where talks have been held, said Khalilzad met with Taliban representatives and Qatar’s foreign minister to discuss “some important issues on the results of the negotiations and the next moves,” according to a statement posted to Twitter.

20-FEB-2020 — Trump replaced Joseph Maguire as Acting Director of National Intelligence; Richard Grenell was named Maguire’s replacment.

21-FEB-2020 — U.S.-led coalition, Afghan forces, and the Taliban militia began a seven-day “reduction in violence” ahead of anticipated agreement.

28-FEB-2020 — Trump nominated John Ratcliffe as Director of National Intelligence.

29-FEB-2020 — U.S. and Taliban sign agreement addressing counterterrorism and the withdrawal of U.S. and international troops from Afghanistan.

03-MAR-2020 — Trump spoke by phone with Mullah Abdul Ghani Baradar, a Taliban leader and co-founder stationed in the Taliban’s Qatar offices.

23-MAR-2020 — After meeting Afghan President Ashraf Ghani and his main rival, Abdullah Abdullah in Afghanistan, Secretary of State Mike Pompeo said the U.S. would cut $1 billion in aid in 2020 and threatened to cut another $1 billion in 2021 because Ghani and Abdullah had not formed a unity government. Pompeo then met with the Taliban’s chief negotiator at Al Udeid Air Base, Doha, Qatar where he asked the Taliban to continue to adhere with the February agreement.

??-MAR-2020 — Administration learned that Russia offered secret bounties on U.S. troops.

The officials said administration leaders learned of reported bounties in recent months from U.S. intelligence agencies, prompting a series of internal discussions, including a large interagency meeting in late March. According to one person familiar with the matter, the responses discussed at that meeting included sending a diplomatic communication to relay disapproval and authorizing new sanctions.

30-MAR-2020 — Trump phone call with Putin.

03-APR-2020 — Trump fired Inspector General of the Intelligence Community Michael Atkinson, claiming he “no longer” had confidence in Atkinson. Atkinson was then on leave until the effective date of his termination 03-MAY-2020. As IG he notified Congress of the whistleblower’s report regarding the Ukraine quid pro quo, going around Joseph Maguire to do so.

07-APR-2020 — The Taliban pulled out of talks with the Afghan government after discussions over the unrealized prisoner exchange cratered. Under the February agreement, prisoners were to be exchanged at the end of March; the exchange was called off on March 30.

07-APR-2020 — Trump fired Acting Inspector General of the Department of Defense Glenn Fine; Fine had also been named Chair of the Pandemic Response Accountability Committee on 30-MAR. Fine’s termination made him ineligible to continue as chair of that committee.

09-APR-2020 — Trump phone call with Putin.

10-APR-2020 — Trump phone call with Putin (unclear if call was before/after Gen. Miller’s meeting).

10-APR-2020 — Gen. Austin Miller met with Taliban leaders in Qatar:

… The meeting between Gen. Austin “Scott” Miller and Taliban leaders came as both sides accuse each other of ramping up violence since signing a peace deal on Feb. 29, which could see all international troops withdraw from Afghanistan in 14 months.

…

The meeting, which focused on curbing violence, was part of a military channel established in the U.S.-Taliban deal, the U.S. military’s press office in Kabul told Stars and Stripes.

Taliban spokesman Suhail Shaheen said night raids and other operations in noncombat areas were discussed at the meeting, and Taliban officials “called for a halt to such attacks.” …

12-APR-2020 — Trump phone call with Putin.

25-APR-2020 — Trump made a joint statement with Putin observing the 75th anniversary of Elbe Day.

07-MAY-2020 — US Special Representative for Afghanistan Zalmay Khalilzad met members of the Taliban in Qatar along with the Special Envoy of Qatari Foreign Ministry for Counterterrorism and Mediation in Conflict Resolution, Mutlaq Al-Qahtani. They discussed the prisoner exchange and intra-Afghan talks.

07-MAY-2020 — Trump phone call with Putin; topics were COVID-19, arms control including Russia and China,  and the oil market.

26-MAY-2020 — John Ratcliffe approved by the Senate and sworn in as DNI.

30-MAY-2020 — Trump delays G7 meeting and invites Russia:

01-JUN-2020 — Trump phone call with Putin; delayed G7 meeting and oil market stabilization discussed.

08-JUN-2020 — Trump orders permanent draw down of 25% of U.S. troops stationed in Germany; he did not consult with NATO before this order.

Is there a pattern here (or more)? Was the violence juiced up to pressure the U.S. — specifically public opinion? What the heck did Russia’s Foreign Minister mean by a “guarantor” based on what we know today? How did Qatar become a player in the negotiations?

Did Trump really do nothing at all to protect our troops except talk with Putin and do some butt-kissing with a joint statement and an invitation to the G7 while undercutting Germany and NATO?

The Congressional Research Service policy brief on Afghanistan is worth a read to fill in some gaps. This paragraph is particularly important:

Afghan government representatives were not participants in U.S.-Taliban talks, leading some observers to conclude that the United States would prioritize a military withdrawal over a complex political settlement that preserves some of the social, political, and humanitarian gains made since 2001. The U.S.-Taliban agreement envisioned intra-Afghan talks beginning on March 10, 2020, but talks were held up for months by a number of complications. The most significant obstacles were an extended political crisis among Afghan political leaders over the contested 2019 Afghan presidential election and a disputed prisoner exchange between the Taliban and Afghan government. President Ghani and his 2019 election opponent Abdullah Abdullah signed an agreement ending their dispute in May 2020, and as of June 2020, the number of prisoners released by both sides appears to be reaching the level at which talks might begin, though the Afghan government may resist releasing high-profile prisoners that the Taliban demand as a condition of beginning negotiations.

~ 2 ~

It wasn’t just U.S. intelligence that learned U.S. troops who were the target of Russia’s secret bounties.

EU intelligence confirmed it had learned that Russia targeted both U.S. and UK troops, offering cash on British targets, too.

UK security officials also validate the report, attributing the work in Afghanistan to Russia’s GRU.

Why hasn’t Britain’s PM Boris Johnson or the Foreign Minister Dominic Raab said anything publicly about this?

Has the Johnson government done anything at all to communicate its displeasure with Russia? Has it taken any punitive action like sanctions?

Because there’s nothing obvious in UK or other international media to this effect as of 3:00 a.m. ET.

~ 1 ~

You’re going to read and hear a lot of folks talking about treason. We don’t encourage that word’s use because it has a specific legal meaning related to traditional warfare; a formal declaration of war establishing a defined enemy is necessary to accuse someone of providing aid and comfort to that enemy.

18 U.S. Code § 2381.Treason

Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.

(June 25, 1948, ch. 645, 62 Stat. 807; Pub. L. 103–322, title XXXIII, § 330016(2)(J), Sept. 13, 1994, 108 Stat. 2148.)

We’re not in a formally declared state of war with Russia; they are not a defined enemy.

But this Russian secret bounties business may fall under another umbrella. U.S. troops are deployed to Afghanistan under Authorization for Use of Military Force of 2001:

Section 2 – Authorization For Use of United States Armed Forces

(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
(b) War Powers Resolution Requirements-
(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.
(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supersedes any requirement of the War Powers Resolution.

The brushstroke with regard to future acts of international terrorism against the United States is and has been interpreted broadly.

Bounce this around a bit: does the definition of terrorism include repeated attacks on U.S. service members and contractors deployed under the AUMF 2001?

Does failing to take reasonable affirmative effort to protect these targets constitute aiding those who attack U.S. service members and contractors deployed under the AUMF 2001?

Is there, if not 18 USC 2381 – Treason, another section of 18 U.S. Code Chapter 115 — Treason, Sedition, and Subversive Activities which may more accurately describe the dereliction of duty by members of this administration by failing to protect U.S. troops?

~ 0 ~

And now for the action item…

Guess who else hasn’t uttered a peep about the Russian secret bounties on our troops?

Senate Majority Leader Mitch McConnell.

House Ranking Member Kevin McCarthy.

None of the +20 GOP senators up for re-election  have uttered a peep, nor have the couple who are retiring.

Here’s your action item:

— If you have a GOP senator(s), call their office and ask for a statement from the senator about the Russian bounties. Where do they stand? What action will the senator take?

— Share the results of your call here in the comments.

Congressional switchboard number is (202) 224-3121. Or you can look up their local office number at https://www.senate.gov/senators/contact.

For everybody else, calling your representative and senators to demand hearings with testimony from the former acting Director of National Intelligence Rick Grenell and the current Director of National Intelligence John Ratcliffe about the presidential briefing that did/did not happen with regard to these Russian bounties.

 

Let’s stay on topic in this thread — this is plenty to chew on.

UPDATE — 29-JUN-2020 10:00 A.M. ET —

Several new line items have been added to this timeline. If you pulled a copy since publication you’ll want to get a new one.

The Washington Post published an article last evening, Russian bounties to Taliban-linked militants resulted in deaths of U.S. troops, according to intelligence assessments.

It’s clear from reading it that many people knew about this intelligence, that there was a concerted effort to address it though the action ultimately taken was none.

Rather like the pandemic response, about which Trump had been warned in adequate time and then did nothing for six or more weeks, followed by a lot of bullshit and bluster.

Congress had better get to the bottom of this because this is a gross dereliction of duty on the part of the executive branch.

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A Tale of Two National Security Advisors

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As you no doubt heard, in addition to suing John Bolton for breach of contract over his Trump book, the Trump Administration has also asked for a Temporary Restraining Order against Bolton, purportedly with the goal of getting him to do things that are no longer in his control. At one level, the legal actions seem designed to make Bolton’s book even more popular than it would otherwise be — while starving him of any royalties for the book. Judge Royce Lamberth, who has a history of pushing back against Executive abuse (including claims involving classification) has been assigned the case; he scheduled a hearing for tomorrow.

I agree with the bulk of the analysis that these legal efforts will fail, to the extent they’re really trying to prevent Bolton from releasing the book. I also agree with analysis about the uphill climb Bolton faces to avoid having his profits seized.

That said, I can’t help but notice the way the filings set Bolton up — possibly, even for prosecution (which LAT reports remains under consideration), but also for a remarkable comparison with Trump’s first National Security Advisor, Mike Flynn.

Legally, the filings do what they need to do to seize Bolton’s profits, and will probably succeed (meaning you can buy the book and your money will go to the US Treasury). But, as noted, they’re not written to actually win an injunction, most especially against Bolton’s publisher, Simon & Schuster.

The filings do something else, though. They tell how Bolton apparently shared drafts of his manuscript before it had been cleared, which in turn got shared with the press.

35. On January 26, 2020, the New York Times published an article describing information purportedly “included in drafts of a manuscript” that Defendant, apparently without any protections for classified national security information, had “circulated in recent weeks to close associates.” The article set forth information allegedly contained in “dozens of pages” of the manuscript. A true and correct copy of this article is attached hereto as Exhibit F.

36. On information and belief, the January 26, 2020 article led to a tremendous surge in publicity for the pre-sales of the book, including hundreds of news articles, discussion on major television networks, statements by members of Congress, and widespread circulation of the article’s content on social media.

37. On January 27, 2020, the Washington Post published a separate article describing content contained in The Room Where it Happened, relying on the statements of “two people familiar with the book,” indicating, on information and belief, that Defendant had disclosed a draft of the manuscript to others without receiving prior written authorization from the U.S. Government. A true and correct copy of this article is attached hereto as Exhibit G.

38. Thus, notwithstanding this admonition, in late January 2020, prominent news outlets reported that drafts of Defendant’s manuscript had been circulated to associates of Defendant. These articles included reports from individuals supposedly familiar with the book, which indicates, on information and belief, that Defendant had already violated his non-disclosure agreements while purporting to comply with the prepublication review process. See supra ¶¶ 27, 29; see also Exhs. E & F

They lay out evidence that Bolton specifically knew the dangers of disclosing classified information, most ironically with a citation of his complaints about Edward Snowden (who also had his profits seized).

Defendant knows well the threat posed by disclosing classified information that might benefit the Nation’s adversaries. See John Bolton, “Edward Snowden’s leaks are a grave threat to US national security,” The Guardian, https://www.theguardian.com/commentisfree/2013/jun/18/edwardsnowden-leaks-grave-threat (June 18, 2013). Congress does as well, as reflected in its decision to criminalize the unauthorized disclosure of classified information. See, e.g., 18 U.S.C. §§ 641, 793, 794, 798, 952, 1924.

They provide multiple declarations — from Mike Ellis, the Trump hack who has politicized classified information in the past, from National Counterintelligence Director Bill Evanina claiming this is the kind of information our adversaries look for, from Director of NSA Paul Nakasone talking about the specific vulnerability of SIGINT, and from Director of National Intelligence John Ratcliffe, whose name the TRO misspells and whose experience looks exceedingly thin compared to the others, along with classified declaration from Ellis. Even though the declarations were obviously carefully curated by Ellis, these are nevertheless the kinds of things courts usually bow to, when the government makes claims about classification. While neither we nor Bolton or his lawyer will get to review the actual claims being made, such declarations are usually sufficient to get the desired recourse.

Perhaps notably, the filings include a letter from John Eisenberg (whose shenanigans regarding the Ukraine call Bolton made more significant), written on June 11, at a time when the White House already knew Bolton was moving to publish, accusing Bolton of publishing this information for financial gain.

Fourth, your self-serving insinuations that the NSC review process has been directed at anything other than a good faith effort to protect national security information is offensive. Your client has taken classified information, including some that he himself classified, and sold it to the highest bidder in an attempt to make a personal profit from information that he held in trust as a public servant–and has done so without regard for the harm it would do to the national security of the United States.

Effectively, this package of filings does nothing to prevent the book from coming out. But it very carefully lays a record to meet the elements of an Espionage charge. Given this notice, the government would be in a position to point to the publication of the book (that Bolton couldn’t stop now if he wanted) and prove that Bolton had an obligation to keep these things secret, he knew the damage that not doing so could cause, and yet nevetheless published the information.

Whether they will prosecute or not is unclear. But these filings make it far easier to do so.

The White House is preparing to claim that John Bolton is akin to Edward Snowden, solely because he aired Trump’s dirt in a book.

This all comes at the same time as the government is making extraordinary efforts to prevent Mike Flynn from being punished for secretly working for a frenemy country while getting classified briefings, and calling up the country that just attacked us in 2016 and discussing how Russia and the Trump Administration had mutual interests in undermining Obama’s policies.

The same DOJ that is magnifying Bolton’s risk for an Espionage prosecution found nothing inappropriate in Flynn calling up the country that had just attacked the US and teaming with that hostile country against the current government of the United States.

Nor was anything said on the calls themselves to indicate an inappropriate relationship between Mr. Flynn and a foreign power. Indeed, Mr. Flynn’s request that Russia avoid “escalating” tensions in response to U.S. sanctions in an effort to mollify geopolitical tensions was consistent with him advocating for, not against, the interests of the United States. At bottom, the arms-length communications gave no indication that Mr. Flynn was being “directed and controlled by … the Russian federation,” much less in a manner that “threat[ened] … national security.” Ex. 1 at 2, Ex. 2 at 2.

Indeed, the Attorney General even claimed the call was “laudable,” even while lying that it didn’t conflict with Obama’s policies.

But it’s not just in the courts where DOJ is working hard to protect the guy who really did harm the US. In an effort to sow the propaganda case for Mike Flynn, the Trump Administration has been on a declassification spree, including — by Ratcliffe — the transcripts of some (but not all) of Flynn’s calls with Sergey Kislyak, something that has never been done before. Significantly, the claims that Nakasone and Ratcliffe make in their declarations in the Bolton case, especially with regards to disclosing SIGINT burns the collection going forward, were clearly violated when Ratcliffe declassified the transcripts.

To be honest, I won’t weep if Bolton is prosecuted. He would have had more legal protection had he testified during the impeachment inquiry, which would have done more good for the country. It would be an abuse, but such abuse has been directed against far more vulnerable and admirable people.

But the comparison of the claims Mike Ellis is making about Trump’s third National Security Advisor with the treatment given his first — the guy who actively sold out his country rather than did so with his inaction — only serves to emphasize how Trump subjects what traditionally gets called national security to loyalty.

The greatest “national security” sin a Trump Administration official can commit, this comparison shows, is disloyalty to Donald Trump.

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“The Boss is Aware:” Trump Learned about Mike Flynn’s Conversations with Sergey Kislyak in Real Time

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As I noted, John Ratcliffe has released the transcripts of at least some of the Flynn-Kislyak calls (Ric Grenell said that he didn’t have all transcripts, and there are certainly other transcripts, at least setting up the meeting at which Jared Kushner asked for a back channel). As I also noted, from the very beginning, Kislyak set up the calls with Flynn such that Russian and Trump were unified against the Democrats (though the common enemy referenced in the calls was ISIS).

But that’s not the most damning part of the transcripts.

As I have repeatedly noted, the Mueller Report is very coy about whether Mueller obtained evidence that Flynn spoke directly with Trump about his calls with Kislyak, going so far as to withhold details of the timeline of events on December 29 (Mueller cites Flynn’s call records, but we know from the Stone trial that he also got Trump’s call records, at least for the campaign period). According to the narrative Mueller laid out, the first time that Flynn claimed to remember discussing the conversation with Trump was on January 3, 2017.

On January 3, 2017, Flynn saw the President-Elect in person and thought they discussed the Russian reaction to the sanctions, but Flynn did not have a specific recollection of telling the President-Elect about the substance of his calls with Kislyak. 102

Flynn even claimed that he and Trump didn’t speak about the substance of the calls until February 6.

The week of February 6, Flynn had a one-on-one conversation with the President in the Oval Office about the negative media coverage of his contacts with Kislyak. I93 Flynn recalled that the President was upset and asked him for information on the conversations. 194 Flynn listed the specific dates on which he remembered speaking with Kislyak, but the President corrected one of the dates he listed. I95 The President asked Flynn what he and Kislyak discussed and Flynn responded that he might have talked about sanctions.I96

Flynn’s claimed uncertainty about whether he had discussed the sanctions call with Trump was a key part of Mueller’s analysis of whether Trump fired Jim Comey because Flynn had derogatory information on him.

As part of our investigation, we examined whether the President had a personal stake in the outcome of an investigation into Flynn-for example, whether the President was aware of Flynn’s communications with Kislyak close in time to when they occurred, such that the President knew that Flynn had lied to senior White House officials and that those lies had been passed on to the public. Some evidence suggests that the President knew about the existence and content of Flynn’s calls when they occurred, but the evidence is inconclusive and could not be relied upon to establish the President’s knowledge. In advance of Flynn’s initial call with Kislyak, the President attended a meeting where the sanctions were discussed and an advisor may have mentioned that Flynn was scheduled to talk to Kislyak. Flynn told McFarland about the substance of his calls with Kislyak and said they may have made a difference in Russia’s response, and Flynn recalled talking to Bannon in early January 2017 about how they had successfully “stopped the train on Russia’s response” to the sanctions. It would have been reasonable for Flynn to have wanted the President to know of his communications with Kislyak because Kislyak told Flynn his request had been received at the highest levels in Russia and that Russia had chosen not to retaliate in response to the request, and the President was pleased by the Russian response, calling it a ” [g]reat move.” And the President never said publicly or internally that Flynn had lied to him about the calls with Kislyak.

But McFarland did not recall providing the President-Elect with Flynn’s read-out of his calls with Kislyak, and Flynn does not have a specific recollection of telling the President-Elect directly about the calls. Bannon also said he did not recall hearing about the calls from Flynn. And in February 2017, the President asked Flynn what was discussed on the calls and whether he had lied to the Vice President, suggesting that he did not already know. Our investigation accordingly did not produce evidence that established that the President knew about Flynn’s discussions of sanctions before the Department of Justice notified the White House of those discussions in late January 2017.

But the transcript of Flynn’s December 31, 2016 call makes it clear that Mueller had proof that Flynn had talked with Trump about the Kislyak call, because Flynn told Kislyak that the “boss is aware” of the secure video conference that Kislyak wanted to set up immediately after Trump was inaugurated.

FLYNN: and, you know, we are not going to agree on everything, you know that, but, but I think that we have a lot of things in common. A lot. And we have to figure out how, how to achieve those things, you know and, and be smart about it and, uh, uh, keep the temperature down globally, as well as not just, you know, here, here in the United States and also over in, in Russia.

KISLYAK: yeah.

FLYNN: But globally l want to keep the temperature down and we can do this ifwe are smart about it.

KISLYAK: You’re absolutely right.

FLYNN: I haven’t gotten, I haven’t gotten a, uh, confirmation on the, on the, uh, secure VTC yet, but the, but the boss is aware and so please convey that. [my emphasis]

Flynn might claim that he only told Trump about the video conference and not sanctions (which wouldn’t be remotely credible, given that Flynn was the one who raised the sanctions, not Kislyak). He might claim that any conveyance of the details of the call went to Trump second-hand, perhaps through KT McFarland.

But whatever excuse Flynn would offer (remember, he has been asking for these transcripts since August, so it’s unclear how much of their content John Eisenberg, Reince Priebus, and Mike Pence shared with him in real time), his assurances to Kislyak, offered on December 31, that Trump knew of the request Kislyak had made on the December 29 call makes it quite clear that Flynn knew Trump had learned of the substance of the call via some means within 48 hours of that call.

And then told Mueller he had no idea whether he had shared that information.

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As Richard Burr Rushes to Release Volume Five of SSCI’s Russian Investigation, the FBI Closes In

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Update: As I was posting this, reports that Burr is stepping down as Chair of SSCI came out.

The LAT has a big scoop revealing that the FBI seized Richard Burr’s cell phone yesterday, having gotten a probable cause warrant incorporating information they obtained via a search of his iCloud.

Federal agents seized a cellphone belonging to a prominent Republican senator on Wednesday night as part of the Justice Department’s investigation into controversial stock trades he made as the novel coronavirus first struck the U.S., a law enforcement official said.

[snip]

Such a warrant being served on a sitting U.S. senator would require approval from the highest ranks of the Justice Department and is a step that would not be taken lightly. Kerri Kupec, a Justice Department spokeswoman, declined to comment.

A second law enforcement official said FBI agents served a warrant in recent days on Apple to obtain information from Burr’s iCloud account and said agents used data obtained from the California-based company as part of the evidence used to obtain the warrant for the senator’s phone.

[snip]

The same day Burr sold his stocks, Burr’s brother-in-law, Gerald Fauth, sold between $97,000 and $280,000 worth of six stocks, according to documents filed with the Office of Government Ethics. Fauth serves on the National Mediation Board, which provides mediation for labor disputes in the aviation and rail industries.

Burr has denied coordinating trading with his brother-in-law.

Given the progression from an iCloud warrant to the warrant for the cell phone, it’s likely the FBI is seeking out texts between Burr and his brother-in-law around the time of the stock sales. (The FBI often access iCloud to find out what apps someone has accessed, obtains a pen register to identify communications of interest using that app, then seizes the phone to get those encrypted communications.)

The public evidence again Burr is quite damning, so there’s no question that this is a properly predicated investigation.

Still, coming from a DOJ that has gone to great lengths to protect other looting (and has not taken similar public steps against Kelly Loeffler), the move does raise questions.

Particularly given the focus that Richard Burr gave, during the John Ratcliffe confirmation hearing, to getting the final volume of the SSCI Report on 2016 declassified and released by August.

Richard Burr: Congressman, over the course of the last three years this committee has issued four reports about Russia’s meddling in our elections covering Russia’s intrusions into state election systems, their use of social media to attempt to influence the election, and. most recently confirming the findings of the 2017 Intelligence Community Assessment. While being mindful of the fact that we’re, um, in an unclassified setting, what are your views on Russia’s meddling in our elections?

John Ratcliffe: Chairman, my views are that Russia meddled or interfered with Active Measures in 2016, they interfered in 2018, they will attempt to do so in 2018 [sic]. They have a goal of sowing discord, and they have been successful in sowing discord. Fortunately, based on the work–the good work of this committee, we know that they may have been successful in that regard but they have not been successful in changing votes or the outcome of any election. The Intelligence Community, as you know, plays a vital role on insuring we have safe, secure, and credible elections and that every vote cast by every American is done so properly and counted properly.

Burr: Will you commit to bringing information about threats to the election infrastructure and about foreign governments’ efforts to influence to Congress so we’re fully and currently informed?

Ratcliffe: I will.

Burr; Will you commit to testify at this committee’s annual worldwide threats hearing?

Ratcliffe: I will.

Burr: And last question, over the last three years we have issued four reports. Number five is finished. Number five will go for declassification. Do we have your commitment as DNI that you would expeditiously go through the declassification process?

Ratcliffe: You do.

Burr: Senator Warner.

Mark Warner: Thank you Mr. Chairman. You actually took some of my questions.

Burr: My eyesight is good.

Warner: Mr. Ratcliffe, good to see you again and I appreciated our time, um, um, last Friday. I want to follow-up on a couple of the Chairman’s questions first. As we discussed, we’re … Volume Five, and so far our first four volumes have all been unanimous. Or maybe with the exception of one dissenting vote. If we get this document to the ODNI we need your commitment not only that we do it expeditiously, but as much as possible to get that Volume Five reviewed, redacted, and released, ideally before the August, the August recess. Now, I know you’ve not seen the report yet. All I would ask is, aspirationally that you commit to that goal, because I think as we discussed, to have a document that could be [big pause] potentially significant come out in the midst of a presidential campaign isn’t good or fair on either side. So if I could clarify a bit, recognizing that you’ve not seen the document is a thousand pages, that you’d try to get this cleared prior to August.

Ratcliffe: Vice Chairman, I would again, commit that I would work with you to get that as expeditiously as possible.

During the 2018 election, Burr had — at a time when the committee assuredly did not have the ability to rule it out — twice said there was no evidence of “collusion.” Burr has made no such claims recently.

Even just the Roger Stone disclosures from his trial make it clear “collusion” happened, and that’s ignoring the ongoing Foreign Agent investigation involving Stone. And the Intelligence Committees have been briefed on the existence of — and possibly some details about — either that or other ongoing investigations.

If Richard Burr is prepping to reverse his prior public comments about “collusion,” it might explain why the Bill Barr DOJ, which has stopped hiding that it is an instrument used to enforce political loyalty to Trump, would more aggressively investigate Burr than others.

Again, there’s no question that this is a properly predicated investigation. But in the Barr DOJ, properly predicated investigations about political allies of Trump all get quashed. This one has, instead, been aggressively and overtly pursued.

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After Years of Squealing about “FISA Abuse,” Trump’s DNI Nominee Won’t Rule Out Warrantless Wiretapping

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As I noted earlier, in his confirmation hearing to be Director of National Intelligence, John Ratcliffe made it crystal clear he will lie to protect Trump by stating that he believed Trump has always accurately conveyed the threat of COVID-19.

Ratcliffe made some other alarming comments. For example:

  • He repeatedly said that Russia had not changed any votes in 2016. The Intelligence Community did not review that issue and Ratcliffe has no basis to make that claim.
  • Ratcliffe also repeatedly refused to back SSCI’s unanimous conclusion that Russia intervened to help Trump.
  • He dodged when Warner asked him to promise to brief the committee even if Russia were trying to help Trump.
  • When asked whether he supported Inspectors General, Ratcliffe said that he supported Michael Horowitz when others attacked him but then suggested he disagreed with Horowitz’ “opinion,” making it clear he does not accept Horowitz’ conclusions that he found no evidence that bias affected the investigation into Trump’s flunkies.
  • Ratcliffe claimed he didn’t have enough information to address Michael Atkinson’s firing.
  • When Dianne Feinstein read his quotes about the Ukraine whistleblower to him, Ratcliffe pretended those quotes were about something they weren’t.
  • He might not provide intelligence on COVID-19 that showed how Trump blew it off.
  • He suggested that if only the IC had reviewed open source data, they might have warned of the dangers of COVID-19, which they did warn of using both OSINT and classified intelligence.
  • He refused to answer whether he thought there was a Deep State in the IC, and later suggested a few members of the IC were Deep State.
  • Ratcliffe refused to agree to release a report showing that Mohammed bin Salman had Jamal Khashoggi executed and chopped into bits, as required by last year’s Defense Authorization. He suggested that it might have been properly classified; as DNI, he would be the Original Classification Authority to make that decision.
  • He refused to answer clearly on whether Trump’s policies on North Korea and Iran have worked.
  • He later suggested he might not share intelligence if it were too sensitive, again ignoring that as OCA he gets to decide whether it’s really classified.
  • After saying he would appear for a Global Threats hearing, he then dodged when later asked whether he would appear before the committee generally.

Ratcliffe made several comments to make it clear he would side with expansive Unitary Executive interpretations holding that:

  • There are limits to whistleblower protection.
  • If torture were deemed legal it would okay to do it.
  • The executive can use warrantless wiretapping.

There were a few additional hints about stuff going on right now:

  • Mark Warner said that intelligence professionals have been pressured to limit information they share with Congress.
  • Warner also said that Ric Grenell was undermining the IC’s election security group.
  • Both Warner and Richard Burr seemed concerned that the DNI would not declassify their 1000-page Volume V of their Report on Russia’s 2016 election interference (I’m not sure whether this assess the Steele dossier or lays out whether and how Trump “colluded” during 2016).
  • Martin Heinrich made it clear that Grenell is reorganizing the IC, without any consultation or approval from Congress.

It’s not just unqualified, he’s a sycophant. But it seems like there’s so much that Grenell is already screwing up, Republicans on the committee, at least, prefer Ratcliffe.

Update: Here are Ratcliffe’s Questions for the Record. They’re particularly troubling on sharing with Congress.

He twice refused to say that he wouldn’t impose loyalty tests.

QUESTION 39: Personnel decisions can affect analytic integrity and objectivity. A. Would you consider an individual’s personal political preferences, to include “loyalty” to the President, in making a decision to hire, fire, or promote an individual?

Answer: Personnel decisions should be based on qualifications, skills, merit, and other standards which demonstrate the ability, dedication and integrity required to support the central IC mission of providing unvarnished intelligence to policymakers.

B. Do you commit to exclusively consider professional qualifications in IC personnel decisions, without consideration of partisan or political factors?

Answer: Personnel decisions should be based on qualifications, skills, merit, and other standards that demonstrate the ability, dedication and integrity required to support the central IC mission of providing unvarnished intelligence to policymakers.

He refused to promise to keep the Election Threats Executive Office open.

QUESTION 45: Would you commit to keep the Election Threats Executive Office in place to ensure continuity of efforts, and build on the successes of the 2018 midterms?

Answer: If confirmed, I will work with IC leaders and ODNI officials to ensure the IC is well-positioned to address the election security threats facing our Nation.

He refused to promise to notify Congress if Russia starts helping Trump again.

QUESTION 53: Do you commit to immediately notifying policymakers and the public of Russian attempts to meddle in U.S. democratic processes, to include our elections?

Answer: If confirmed, I would work with the Committee to accommodate its legitimate oversight needs while safeguarding the confidentiality interests of the Executive Branch, including the protection from unauthorized disclosure of classified intelligence sources and methods

He suggested he had no problem with Section 215 being used to access someone’s browsing records.

QUESTION 7: Do you believe that Section 215 of the USA PATRIOT Act should be used to collect Americans’ web browsing and internet search history? If yes, do you believe there are or should be any limitations to “digital tracking” of Americans without a warrant, in terms of length of time, the amount of information collected, or the nature of the information collected (e.g., whether particular kinds of websites raise special privacy concerns)?

Answer: I believe it is important for the Intelligence Community to use its authorities appropriately against valid intelligence targets. The amendments to Title V of FISA made by Section 215 of the USA PATRIOT Act expired on March 15, 2020 and, to date, have not been reauthorized.

Ratcliffe dodged several questions about whether FISA was exclusive means to collect

Extra-Statutory Collection

QUESTION 9: Title 50, section 1812 provides for exclusive means by which electronic surveillance and interception of certain communications may be conducted. Do you agree that this provision of law is binding on the President?

Answer: If confirmed, I would work with the Attorney General to ensure that IC activities are carried out in accordance with the Constitution and applicable federal law.

QUESTION 10: Do you believe that the intelligence surveillance and collection activities covered by FISA can be conducted outside the FISA framework? If yes, please specify which intelligence surveillance and collection activities, the limits (if any) on extra-statutory collection activities, and the legal authorities you believe would authorize those activities.

Answer: If confirmed, I would work with the Attorney General and the heads of IC elements, as well as the General Counsels throughout the IC, to ensure that intelligence activities are conducted in accordance with the Constitution and applicable federal law. As set forth in Section 112 of FISA, with limited exceptions, FISA constitutes the exclusive statutory means by which electronic surveillance, as defined in FISA, and the interception of domestic wire, oral, or electric communications for foreign intelligence purposes may be conducted.

QUESTION 11: What would you do if the IC was requested or directed to conduct such collection activities outside the FISA framework? Would you notify the full congressional intelligence activities?

Answer: Consistent with the requirements of the National Security Act, I would keep the congressional intelligence committees informed of the intelligence activities of the United States, including any illegal intelligence activities. As you know, not all intelligence activities are governed by FISA.

If confirmed, I would work with the Attorney General and the heads of IC elements, as well as the General Counsels throughout the IC, to ensure that intelligence activities are conducted in accordance with the Constitution and applicable federal law.

Senator Wyden asked a question about the IC purchasing stuff they otherwise would need a warrant for.

QUESTION 12: Do you believe the IC can purchase information related to U.S. persons if the compelled production of that information would be covered by FISA? If yes, what rules and guidelines would apply to the type and quantity of the information purchased and to the use, retention and dissemination of that information? Should the congressional intelligence committees be briefed on any such collection activities?

Answer: Elements of the IC are authorized to collect, retain, or disseminate information concerning U.S. persons only in accordance with procedures approved by the Attorney General. As you know, not all intelligence activities are governed by FISA, and it is my understanding that in appropriate circumstances elements of the IC may lawfully purchase information from the private sector in furtherance of their authorized missions. Nonetheless, any intelligence activity not governed by FISA would be regulated by the Attorney General-approved procedures that govern the intelligence activities of that IC element. Consistent with the requirements of the National Security Act, if confirmed, I would keep the congressional intelligence committees informed of the intelligence activities of the United States.

 

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John Ratcliffe Demonstrates How He’ll Politicize Intelligence by Claiming Trump Has Been Honest about COVID-19

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John Ratcliffe just had his confirmation hearing to be Director of National Intelligence.

I’ll have more to say about what we learned about the Intelligence Committee after I walk June Bug the Terrorist FosteX Dog. But the main takeaway from the hearing is entirely encapsulated in this exchange (my transcription):

Kamala Harris: Do you believe President Trump has accurately conveyed the threat of COVID-19 to the American people?

Ratcliffe: Are you saying, presently?

Harris: We are in the midst of the pandemic, presently correct.

Ratcliffe: Can you repeat the question? I guess I’m misunderstanding the question. I’m sorry. Has he accurately represented the status of the pandemic?

Harris: Conveyed the severity of the pandemic, yes, Has he accurately conveyed the severity of COVID-19 to the American people.

Ratcliffe: I believe so.

Harris asked a question which has just one true answer. The only objective answer to this question is that no, Trump has not accurately conveyed the seriousness of COVID-19.

Ratcliffe answered yes.

Ratcliffe was asked over and over again whether he’ll politicize intelligence and each time he dutifully delivered his rehearsed answer, no, he won’t. Both Politico and NBC reported those rehearsed answers as the “news” of the hearing. Neither mentioned the Harris exchange, where Ratcliffe answered far more clearly than in any yes or no questions that he will, in fact, lie to the American people to serve Trump (and there were other instances where he made it clear he will politicize intelligence, just not so clear cut).

It is a matter of life or death during a pandemic to separate false information from truth. Everyone should be doing that, and such truthful reporting is supposed to be the job of journalists. For political accountability on the pandemic to happen, it must be clear that Trump appointed a sycophant as Director of National Intelligence, someone who is unwilling to tell the truth about it. It must be clearly reported that Ratcliffe lied in this hearing about a clear factual issue. Hiding that fact by treating Ratcliffe’s false assurances as truthful contributes to the danger of the pandemic.

Ratcliffe will be confirmed DNI. He might even get some Democratic votes, from people who view him as a less awful alternative than the Twitter troll turned German Ambassador turned part time DNI he would replace. But it matters that it be accurately reported that it was clear going into it that Ratcliffe would lie to and for Trump.

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A Diverse America Votes to Uphold the Constitution; A Largely Male White America Votes to Abrogate It

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The House Judiciary Committee just voted to send two articles of impeachment against Donald Trump to the full House.

The entire vote took just minutes. But it said so much about the state of America today.

It will forever be portrayed as a party line vote, with 23 Democrats in favor, and 17 Republicans against. But it was also a tribute to the degree to which polarization in America today pivots on issues of diversity.

The Democrats who voted in favor included 11 women, and 13 Latinx and people of color (Ted Lieu missed the vote recovering from a heart procedure). Three (plus Lieu) are immigrants. One is gay. These Democrats voted to uphold the Constitution a bunch of white men, several of them owners of African-American slaves, wrote hundreds of years ago.

The Republicans who voted against were all white. Just two were women.  These Republicans voted to permit a racist white male President to cheat to get reelected in violation of the rule of law.

This is about a clash between the rising America and the past. And it’s unclear who will win this battle for America. But the stakes are clear.

 

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