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Questions for Robert Mueller (and His Prosecutors) that Go Beyond the Show

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I generally loathe the questions that people are drafting for Robert Mueller’s July 17 testimony before the House Judiciary and Intelligence Committees, largely because those questions are designed for a circus and not to learn information that’s useful for understanding the Mueller investigation. Here are the questions I’d ask instead (I’ll update these before Mueller testifies).

  1. Can you describe how you chose which “links between the Russian government and individuals associated with the campaign of President Donald Trump” to focus your investigation on?
  2. The warrants released in Michael Cohen’s case and other public materials show that your grand jury conducted investigations of people before Rod Rosenstein formally expanded the scope to include them in October 2017. Can you explain the relationship between investigative steps and the Rosenstein scope memos?
  3. Lisa Page has explained that in its initial phase, the investigation into Trump’s aides was separate from the larger investigation(s) into Russian interference. But ultimately, your office indicted Russians in both the trolling and the hack-and-leak conspiracies. How and when did those parts of DOJ’s investigation get integrated under SCO?
  4. An FD-302 memorializing a July 19, 2017 interview with Peter Strzok was released as part of Mike Flynn’s sentencing. Can you describe what the purpose of this interview was? How did the disclosure of Strzok’s texts with Lisa Page affect the recording (or perceived credibility) of this interview? Strzok was interviewed before that disclosure, but the 302 was not finalized until he had been removed from your team. Did his removal cause any delay in finalizing this 302?
  5. At the beginning of the investigation, your team investigated the criminal conduct of subjects unrelated to ties with Russia (for example, Paul Manafort’s ties with Ukraine, Mike Flynn’s ties to Turkey). Did the approach of the investigation change later in the process to immediately refer such issues to other offices (for example, Michael Cohen’s hush payments and graft)? If the approach changed, did your team or Rod Rosenstein drive this change? Is the Mystery Appellant related to a country other than Russia?
  6. Did your integration of other prosecutors (generally from DC USAO) into your prosecution teams stem from a resourcing issue or a desire to ensure continuity? What was the role of the three prosecutors who were just detailees to your team?
  7. Your report describes how FBI personnel shared foreign intelligence and counterintelligence information with the rest of FBI. For more than a year, FBI agents were embedded with your team for this purpose. Were these agents focused just on Russian activities, or did their focus include the actions of other countries and Americans? If their focus included Americans, did it include Trump associates? Did it include Trump himself?
  8. Can you describe the relationship between your GRU indictment and the WDPA one focused on the WADA hacks, and the relationship between your IRA indictment and the complaint against a Yevgeniy Prigozhin employee in EDVA? Can you describe the relationship between the Maria Butina prosecution and your investigation?
  9. Do you regret charging Concord Management in the IRA indictment? Do you have any insight on how indictments against Russian and other state targets should best be used?
  10. In discussions of Paul Manafort’s plea deal that took place as part of his breach hearing, Andrew Weissmann revealed that prosecutors didn’t vet his testimony as they would other cooperators. What led to this lack of vetting? Did the timing of the election and the potential impact Manafort’s DC trial might have play into the decision?
  11. What communication did you receive from whom in response to the BuzzFeed story on Trump’s role in Michael Cohen’s false testimony? How big an impact did that communication have on the decision to issue a correction?
  12. Did Matt Whitaker prevent you from describing Donald Trump specifically in Roger Stone’s indictment? Did you receive any feedback — from Whitaker or anyone else — for including a description of Trump in the Michael Cohen plea?
  13. Did Whitaker, Bill Barr, or Rosenstein weigh in on whether Trump should or could be subpoenaed? If so what did they say? Did any of the three impose time constraints that would have prevented you from subpoenaing the President?
  14. Multiple public reports describe Trump allies (possibly including Mike Flynn or his son) expressing certainty that Barr would shut down your investigation once he was confirmed. Did this happen? Can you describe what happened at the March 5, 2019 meeting where Barr was first briefed? Was that meeting really the first time you informed Rosenstein you would not make a determination on obstruction?
  15. You “ended” your investigation on March 22, at a time when at least two subpoena fights (Andrew Miller and Mystery Appellant) were ongoing. You finally resigned just minutes before Andrew Miller agreed to cooperate on May 29. Were these subpoenas for information critical to your investigation?
  16. If Don Jr told you he would invoke the Fifth if subpoenaed by the grand jury, would that fact be protected by grand jury secrecy? Are you aware of evidence you received involving the President’s son that would lead him to be less willing to testify to your prosecutors than to congressional committees? Can congressional committees obtain that information?
  17. Emin Agalarov canceled a concert tour to avoid subpoena in your investigation. Can you explain efforts to obtain testimony from this key player in the June 9 meeting? What other people did you try to obtain testimony from regarding the June 9 meeting?
  18. Did your investigation consider policy actions taken while Trump was President, such as Trump’s efforts to overturn Russian sanctions or his half-hearted efforts to comply with Congressional mandates to impose new ones?
  19. Can you describe how you treated actions authorized by Article II authority — such as the conduct of foreign policy, including sanctions, and the awarding of pardons — in your considerations of any criminal actions by the President?
  20. The President did not answer any questions about sanctions, even the one regarding discussions during the period of the election. Do you have unanswered questions about the role of sanctions relief and the Russian interference effort?
  21. Your report doesn’t include several of the most alarming interactions between Trump and Russia. It mentions how he told Sergey Lavrov and Sergey Kislyak he had fired Comey because of the Russian investigation, but did not mention that he shared classified Israeli intelligence at the meeting. Your report doesn’t mention the conversations Trump had with Vladimir Putin at the G-20 in Hamburg, including one pertaining to “adoptions,” while he was working on the June 9 meeting. The report doesn’t mention the Helsinki meeting. Did your investigation consider these interactions with Russia? If not, are you aware of another part of the government that did scrutinize these events?
  22. Why did you include Trump’s efforts to mislead the public about the June 9 meeting when it didn’t fit your team’s own terms for obstructive acts?
  23. You generally do not name the Trump lawyers who had discussions, including about pardons, with subjects of the investigation. How many different lawyers are described in your report to have had such discussions?
  24. You asked — but the President provided only a partial answer — whether he had considered issuing a pardon for Julian Assange prior to the inauguration. Did you investigate the public efforts — including by Roger Stone — to pardon Assange during Trump’s Administration?
  25. The cooperation addendum in Mike Flynn’s case reveals that he participated in discussions about reaching out to WikiLeaks in the wake of the October 7 Podesta releases. But that does not appear in the unredacted parts of your report. Is the entire scope of the campaign’s interactions with WikiLeaks covered in the Roger Stone indictment?
  26. Hope Hicks has claimed to be unaware of a strategy to coordinate the WikiLeaks releases, yet even the unredacted parts of the report make it clear there was a concerted effort to optimize the releases. Is this a difference in vocabulary? Does it reflect unreliability on the part of Hicks’ testimony? Or did discussions of WikiLeaks remain partially segregated from the communications staff of the campaign?
  27. How many witnesses confirmed knowing of conversations between Roger Stone and Donald Trump about WikiLeaks’ upcoming releases?
  28. The President’s answers regarding the Trump Tower Moscow match the false story for which Michael Cohen pled guilty, meaning the President, in his sworn answers, provided responses you have determined was a false story. After Cohen pled guilty, the President and his lawyer made public claims that are wholly inconsistent with his sworn written answer to you. You offered him an opportunity to clean up his sworn answer, but he did not. Do you consider the President’s current answer on this topic to be a lie?
  29. Did Trump Organization provide all the emails pertaining to the Trump Tower Moscow deal before you subpoenaed the organization in early 2018? Did they provide those emails in response to that subpoena?
  30. In his answers to your questions, President Trump claimed that you received “an email from a Sergei Prikhodko, who identified himself as Deputy Prime Minister of the Russian Federation … inviting me to participate in the St. Petersburg International Economic Forum.” But the footnotes to your discussion of that exchange describe no email. Did your team receive any email? Does the public record — showing that Trump never signed the declination letter to that investigation — show that Trump did not decline that invitation?

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

Roger Stone Describes 67% of the Content of Sealed Warrant Affidavits for His Co-Conspirators

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One of the reasons I believe Roger Stone knows he’s getting a pardon is because, in spite of the fact that he’s got six named attorneys on his team, his filings are unbelievably sloppy, as if the lawyers are letting their children submit them.

I’m just now reading a second one he submitted last Friday (it’s bolloxed in PACER but that may not be Stone’s fault), a reply on his request to have all his search warrants suppressed based on Bill Binney’s bogus claim that a document that is entirely unrelated to the charges against Stone was copied onto a thumb drive, and even if it were would be irrelevant to the question of whether Russia hacked the DNC.

The filing couldn’t have been reviewed before submission, because it gets key dates wrong:

This is especially so since Stone did not possess any of the stolen information, all of which these communications occurred well after June 22nd, 2016 – the first dissemination of the DNC emails on Wikileaks. [this should be July]

And includes sentence fragments:

Congress did not subpoena any documents regardless of form from Stone. But left it to Stone to determine which documents he should turn over that were not “widely available” or that “reasonably could lead to the discovery of any facts within the investigations publicly-announced parameters.”

[snip]

Comments about “friends at the embassy” by Corsi were made up. Speculation about an anticipated upcoming data dump was wrong.

And includes grammatical mishmash:

Even with knowledge of its early dissemination, is not a crime.

[snip]

The FBI has stated that they has conducted no direct research, nor collected any evidence of the DNC breach directly, which was confirmed by thenFBI director James Comey.

And a reference to paragraphs in exhibits that don’t list the paragraphs:

(Doc. 100 Ex. 17),

(Doc. 100 Ex. 18).

In short, the filing — like a number submitted beforehand in this case — shows utter contempt for the process.

But along the way, Stone describes at least 67% of the paragraphs of one of the affidavits (Exhibit 1) laying out probable cause for a CFAA change.

  • ¶¶1-7: Gap
  • ¶8: Jerome Corsi, Ted Malloch, Julian Assange, and Roger Stone “speak to each other about politics WikiLeaks, and ‘about phishing with John Podesta,'”
  • ¶¶9-19: Description of WikiLeaks receiving DNC data from Russian state.
  • ¶¶20-25: Gap
  • ¶26: Stone and he are friends, Manafort resigned as Chairman of the Trump Campaign, Manafort worked in for Washington, D.C. lobbying firms to influence U.S. policy toward Ukraine.
  • ¶¶27-37: Gap
  • ¶38: Stone and Assange were not really communicating about anything of relevance or consequence.
  • ¶¶39-40: Gap
  • ¶¶41-57: Corsi, Malloch, and Stone discussion what WikiLeaks is going to publish.
    • ¶47: Claim to Sam Nunberg that Stone had dinner with Assange.
    • ¶¶54-56: Description of Corsi’s “friends at the embassy” comment.
  • ¶¶58-65: References the infamous outtake footage from “Access Hollywood.” … Corsi and Stone spoke.
    • ¶65: Charles Ortel sent an email written to Stone and Stone sent it to Corsi after WikiLeaks disseminated Podesta’s emails. The email was titled “WikiLeaks – The Podesta Emails.”
  • ¶¶66-79: Stone is accused of having advanced knowledge of Podesta’s emails.
  • ¶¶80-81: Post-Podesta’s July 2016 [sic] release by WikiLeaks, Malloch said he would connect Corsi with Assange.
  • ¶¶82-83: Gap
  • ¶¶84-85: Corsi took credit for predicting the release of Podesta’s emails.
  • Unknown: Stone had Facebook accounts that he used to perpetuate his political writings including the writings about Podesta.

Included in that virtual recitation of what a document that remains under seal and covered by a protective order says, Stone makes it clear that the government obtained evidence of Stone talking with someone (it’s not clear who!) about John Podesta being phished, which Stone excuses this way:

They speak to each other about politics WikiLeaks, and “about phishing with John Podesta,” which may imply Podesta was phishing, or that Assange or Malloch were phishing Podesta, but clearly neither seem to be the point of the allegation. Doc. 100-1, ¶8.

In short, this is not a filing intended to win the argument in court (which is lucky for Stone, because legally the filing is crap). Rather, it is a disguised attempt to communicate with some potentially unidentified co-conspirator what the government actually knows about Stone’s knowledge of the phishing of John Podesta.

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

Detaining Chelsea Manning: Other People, Times, and Patterns

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Friday, the government responded to Chelsea Manning’s request to be freed in light of Julian Assange’s superseding indictment, in which she argued the grand jury couldn’t use any of her testimony to shore up the existing indictment against Assange.

The government has now indicted Mr. Assange on 18 very serious counts, without the benefit of or apparent need for Ms. Manning’s testimony. The government’s extradition packet must be submitted in finalized form very soon. Any investigation of him after that point will be nugatory. United States v. Moss, 756 F.2d 329, 331-32 (4th Cir. 1985), see also United States v. Kirschner, 823 F. Supp. 2d 665, 667 (E.D. Mich. 2010)(finding that posti-ndictment questioning about the same conduct but different charges than those in the indictment was permissible, but questioning leading only to further information about the same charges would be impermissible). Any further investigation of unindicted targets will likewise be futile, as charges would be time-barred, and in any case, it is perfectly understood that Ms. Manning has no useful information about any parties other than the person behind the online handle “pressassociation.” She is not possessed of any that is not equally available to them, and in any case, her absence has posed no obstacle to indictment and superseding indictment.

The government response suggests this assertion — that there are no charges that they need Manning’s testimony for — is incorrect.

As the government’s ex parte submissions reflect, Manning’s testimony remains relevant and essential to an ongoing investigation into charges or targets that are not included in the superseding indictment. See Gov’t’s Ex Parte Mem. (May 23, 2019). The offenses that remain under investigation are not time barred, see id., and the submission of the government’s extradition request in the Assange case does not preclude future charges based on those offenses, see Gov’t’s Supplement to Ex Parte Mem. (June 14, 2019). Manning’s speculations about the direction of the grand-jury investigation, the purpose of her testimony, and the need for it are insufficient to show otherwise. [My emphasis]

The formulation here is curious, for the reasons laid out below.

Not time barred: Assange was first indicted on March 6, 2018, two days short of the 8-year anniversary of the alleged attempt to crack a password that was the basis for the conspiracy to violate CFAA charge. That suggests they were relying on the claim that the international character of the alleged CFAA charge extended the SOL to eight years, though they could also claim the conspiracy was ongoing if both Manning and Assange were believed to continue to engage in a conspiracy (though given that the conspiracy was defined as hacking, it would seem to be limited to the time until Manning’s arrest on May 27, 2010). I think — but am not sure — that if further charges are not time-barred, the government is either relying on a continued conspiracy, perhaps based off the conspiracy to receive national defense information in the superseding indictment, which because it was charged under espionage has a ten year statute of limitations, or arguing that the conspiracy to violate CFAA extended to other people.

Possibility of additional charges “based on those offenses”: To continue to coerce Manning for charges pertaining to Assange, the government has to argue (and claims it has, in two ex parte filings) that it is seeking additional charges. If I understand how the UK’s extradition process works, unless it gets a waiver, the US government can’t add additional crimes against Assange on top of what it already charged in the extradition packet, but some people say it’s possible to add on instances of the same charges until such time as he’s extradited. That may mean it wants to lard on espionage charges.

Targets not included in the superseding indictment: Manning claims she only has information about “pressassociation” — that is, Assange. But the government may believe there are other people involved in this. It would be unsurprising if the government were homing on other key WikiLeaks figures (I’ve had people wonder whether the government would go after Jake Appelbaum, for example, and there’s another figure people have been chatting about). Recall, too, that the government interviewed David House during this process, extending the time frame and the actions to publicity to supporting Manning that would extend into the period when she was jailed and prosecuted.

Charges not included in the superseding indictment: If there are other people the government is targeting for crimes the statutes of limitation for which haven’t expired (or as part of the conspiracy including Assange and Manning in any kind of continuation), then the government could just charge them.

All that said, there’s something funny with the timing. Manning’s request suggested that Assange was charged sometime between May 14 and 16 — which would put it after she got the subpoena from the new grand jury but before a court hearing on May 16.

Some time between May 14 and May 16, 2019, Julian Assange was charged in a superseding indictment with 17 Counts relating to offenses under the Espionage Act. This indictment was also obtained without the benefit of or apparent need for Ms. Manning’s testimony.

The government corrected that in their response.

Manning claims that Assange was charged in the superseding indictment at some point “between May 14 and May 16, 2019.” Mot. to Reconsider Sanctions 2. That representation is inaccurate. The face of the indictment reflects that it was returned in open court on May 23, 2019, and the signature page bears the same date. See Superseding Indictment, United States v. Julian Paul Assange, No. 1:18-cr-111-CMH (E.D. Va. May 23, 2019) (Dkt. No. 31) (Exhibit B).

Meanwhile — perhaps to show that it had briefed Judge Anthony Trenga about the ongoing investigation before he approved the current contempt finding — the government also unsealed a bench memo submitted back on May 15. That memo also argued they still needed Manning’s testimony — but it was based on the 1-count indictment against Assange.

This indictment against Assange does not affect Manning’s obligation to appear and testify before the grand jury. Under the law, the government cannot use grand jury proceedings for the ‘sole or dominant purpose’ of preparing for trial on an already pending indictment.” United States v. Alvarado,840 F.3d I E4, lE9 (4th Cn. 2016) (quoting United States v. Moss,756 F.2d329,332 (4th Cir. l9E5)). Yet it is equally well settled that, even after returning an indictment, the grand jury may continue investigating new charges or targets that are related to the pending indictment, See id at I89-90; United States v. Bros. Co$t/. Co. of Ohio,2l9 F.3d 300, 314 (4th Cir. 20OO); Moss,7 56 F .2d at 332. At the same time it files this memorandum, the government is filing an ex parte pleading that describes the nature of the grand jury’s ongoing investigation in this matter. See Gov’t’s Ex Parte Submission Regarding Nature of Grand-Jury Investigation (May 14, 2019). As that filing reflects, Manning has testimony that is directly relevant and important to an ongoing investigation into charges or targets that arc not included in the pending indictment. See id. Thus, the recently unsealed indictment against Assange does not provide Manning with just cause for refusing to comply with the Court’s order to testify in front of the grand jury.

That said, they’ve updated that argument in sealed form. As bolded above, though, the government has briefed the court three times on why it still needs Manning’s testimony:

  • May 14, 2019 (not noted in the docket, but possibly docket 3)
  • May 23, 2019 (docket #10)
  • June 14, 2019 (docket #22)

On the day of Assange’s superseding indictment, the government explained to Judge Trenga that the “charges or targets” they were still investigating were “not included in the superseding indictment” and also said they weren’t time-barred. On the day of Friday’s extradition hearing, the government told Trenga that “the government’s extradition request in the Assange case does not preclude future charges based on those offenses.”

All of which might conflict with the public reports that the government will not charge Assange with any further charges. Or it might mean that there are other people that the government wants to weave into these conspiracy charges.

One final point. In the May 15 bench memo, the government discounts Manning’s objections to grand juries (appealing to how they’re supposed to work rather than how they do), and then insinuates she’s refusing to testify out of self-interest.

In addition to their description of what happened when she went before the grand jury, their description of what they deem her self-interested motive not to testify is the only other part of the narrative that remains redacted.

Which is to say the government has some notion of Manning’s motives that — aside from being placed amid a discussion that demonstrably fails to understand her claims about grand juries — they imagine she’s doing all this to benefit herself. That may be true. It may be, for example, that testifying about what she now understands to have happened nine years ago would change the public understanding of what she did. But the government is not willing to share what that is.

The Congressional Research Service’s (Dated) Take on Julian Assange’s Indictment: DOJ May Argue He Aided Russian Spying

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Project on Government Secrecy just released a Congressional Research Service report, which was originally written on April 22, on Julian Assange’s arrest.

It’s a fairly balanced and thorough document, including quotes from The Intercept. But it’s dated, with the body of the report integrating neither his superseding indictment (though an update does note it happened) nor Sweden’s stance — reopening but not asking for extradition on — the rape investigation.

There’s one big thing that the report misses, which is relevant for its analysis, even dated as it is. It describes, correctly, that Assange was originally indicted in March 2018. But it doesn’t note that the complaint was obtained on December 21, 2017. That seems particularly pertinent given that it happened on the same day as (and therefore may be the legal reason why) the UK denied Ecuador’s attempt to make Assange a diplomat.

Ecuador previously had been unsuccessful in its attempts secure arrangements for Assange to leave the embassy through legal channels. In 2017, the country made Assange an Ecuadorian citizen. Later that year, Ecuador’s foreign minister designated Assange as a diplomat in what observers interpreted to be an effort to confer the VCDR’s personal diplomatic protections on Assange, allowing him to leave the embassy and take up a diplomatic post in Russia without fear of arrest during his travel. But U.K. officials denied Assange diplomatic accreditation, and Ecuador withdrew its diplomatic designation shortly thereafter. Ecuador also suspended Assange’s citizenship as part of its decision to allow his arrest.

For a document meant to provide Congress a balanced report on his arrest, it seems pertinent to suggest that Ecuador may have failed in its efforts to secure this diplomatic solution because the US intervened quickly.

And that, in turn, seems relevant to the one point that I haven’t seen discussed in other coverage of Assange’s arrest: whether DOJ got around cautions against indicting journalists in its media policy by relying on the language that such cautions do not apply when there are reasonable grounds to believe that the media person in question is aiding, abetting, or conspiring in illegal activities with a foreign power.

The news media policy also provides that it does not apply when there are reasonable grounds to believe that a person is a foreign power, agent of a foreign power, or is aiding, abetting, or conspiring in illegal activities with a foreign power or its agent. The U.S. Intelligence Community’s assessment that Russian state-controlled actors coordinated with Wikileaks in 2016 may have implicated this exclusion and other portions of the news media policy, although that conduct occurred years after the events for which Assange was indicted. The fact that Ecuador conferred diplomatic status on Assange, and that this diplomatic status was in place at the time DOJ filed its criminal complaint, may also have been relevant. Finally, even if the Attorney General concluded that the news media policy applied to Assange, the Attorney General may have decided that intervening events since the end of the Obama Administration shifted the balance of interests to favor prosecution. Whether the Attorney General or DOJ will publicly describe the impact of the news media policy is unclear.

That is, CRS suspects that DOJ may have gotten around cautions against arresting members of the media by using the exception in AG Guidelines,

(ii) The protections of the policy do not extend to any individual or entity where there are reasonable grounds to believe that the individual or entity is –

(A) A foreign power or agent of a foreign power, as those terms are defined in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801);

Which would in effect mean they were arguing that Assange fulfills this language from FISA.

(B) acts for or on behalf of a foreign power which engages in clandestine intelligence activities in the United States contrary to the interests of the United States, when the circumstances indicate that such person may engage in such activities, or when such person knowingly aids or abets any person in the conduct of such activities or knowingly conspires with any person to engage in such activities;

It would be unsurprising to see DOJ argue that for Assange’s activities in 2016. After all, they’ve described him in terms often used with co-conspirators in the GRU indictment (though didn’t obtain that indictment until long after Assange was charged and indicted). They similarly describe WikiLeaks as the recipient of Vault 7 documents in the Joshua Schulte superseding indictments; but while that gets perilously close to alleging Schulte was leaking documents on behalf of a foreign power, they don’t charge that (and, again, that superseding indictment was obtained months after the Assange one).

None of that means Assange was acting as — or abetting — the actions of a foreign power in 2010. That may ultimately be what they want to argue, that he was conspiring with Russia way back in 2010. But they haven’t charged or alleged that yet. Indeed, even Mike Pompeo’s accusations from 2017 — that WikiLeaks was a non-state intelligence service — don’t seem to reach the language in these exceptions.

And none of that makes this language any less dangerous for journalists. A lot of journalists published documents stolen from the DNC in 2016 long after it was broadly accepted that Russia had stolen them. That would mean any of those journalists might be accused of knowingly abetting Russia’s election year efforts.

In other words, prosecuting Assange because he knowingly abetted Russian efforts (especially if DOJ can only prove that for 2016, not the 2010 actions they’ve charged him with) still doesn’t pass the “New York Times” test.

On Joshua Schulte and Julian Assange’s 10 Year Old Charges

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The WaPo has confirmed what Natasha Bertrand earlier reported: the extradition package for Julian Assange will only include the 10 year old charges related to the publication of Chelsea Manning’s leaks, not any of WikiLeaks more controversially handled charges. I’ve been meaning to write a post on how this is the stupidest available approach, which will satisfy neither those who regard him as a villain, will expose other journalists to similarly dangerous charges, and possibly even fuck up the security establishment’s entire effort to exact some revenge against Assange. I hope to return to that when I get some deadlines and travel done, but suffice it to say this is a big hot mess.

To be clear, I actually think it’s not eleven-dimensional chess on the part of Bill Barr to save Trump some embarrassment once Roger Stone’s trial reveals the extent to which Trump’s campaign tried to “collude” with WikiLeaks (though it will not only have that effect, but make it harder for DNC to sustain its lawsuit against the GOP and WikiLeaks for their actions in the 2016 election). Rather, I think this is an attempt to prosecute Assange with the least cost on the security establishment, being run by people who are utterly tone deaf to the costs it will incur elsewhere.

But I do want to say several things about why and how DOJ is not charging Assange in the Vault 7 leak.

Bertrand noted that I thought that the EDVA charges would be related to Vault 7.

Still, just several months ago, numerous experts felt confident that prosecutors would also hit Assange with charges over Vault 7. Prominent national security journalist Marcy Wheeler predicted in Februarythat DOJ would “very clearly go after Assange” for the Vault 7 disclosure, and that a sealed indictment against him in the Eastern District of Virginia was likely related to that leak — the CIA is, after all, headquartered in Virginia, as ABC noted. Assange himselfreportedly expressed concern that prosecutors would charge him with crimes related to Vault 7.

She didn’t provide even the full context of my tweet, much less my post, arguing that Assange’s efforts to extort a pardon using the Vault 7 files would be something obviously unconnected to journalism. The superseding indictment does mention Assange’s use of “insurance files” to ensure his ability to publish documents in his possession, but no charges were attached to that, which later uses of the tactic and the Vault 7 pardon effort would have supported.

Which is to say the government could have charged Assange for something specifically excluded from Bartnicki’s protection of the publication of stolen materials, but did not. Again, the government has chosen to go about this in the stupidest way possible.

That said, I’m not surprised they’re not going after Assange for the Vault 7 leak itself.

As it is, the CIA has been inexcusably uncooperative with Joshua Schulte’s discovery efforts. At times. some pretty aggressive prosecutors have seemed almost apologetic about it. Schulte has staked a lot on trying to expose details of his initial warrants, and while his later behavior seems to suggest there was something to their targeting of him (or, at the very least, his post-indictment behavior has been self-destructive), at the very least the CIA may have participated in some epically bad parallel construction. They may be trying to hide that as much as the actual details of CIA’s hacking program.

Meanwhile, the government and Schulte have been discussing severing his charges from last year — which include one charge of contempt and a charge of attempted leak of classified information — from everything else.

As the Court is aware, trial in this matter is currently set for April 8, 2019. (See Minute Entry for August 8, 2018 Conference). To afford the parties sufficient time to prepare the necessary pretrial motions, including suppression motions and motions pursuant to the Classified Information Procedures Act (“CIPA”), the parties respectfully request that the Court adjourn the trial until November 4, 2019. The parties are also discussing a potential agreement concerning severance, as well as the order of the potentially severed trials. The parties will update the Court on severance and a pretrial motion schedule at or before the conference scheduled for April 10, 2019.

That might be something they tried to base a plea off of: they’d have video evidence to back their case, so it might avoid the CIPA process CIA is unwilling to engage in.

Back in May, Schulte’s team submitted a motion to vacate his SAMs (Special Administrative Measures limit a prisoner’s communication with others). It was based off the case the government made prior to his superseding indictment and left out all the allegations the government made about the 13 email and social media accounts Schulte was allegedly running from his jail cell, and as such deliberately understated why the government wanted the SAMs. The government asked for and got an extension to respond until Monday — notably, after all decisions about Assange would have had to have been made. Any response (unless it’s sealed) will have to provide more details about what happened last fall, so if they’re trying to get a plea deal, it might come this week in lieu of that SAMs response.

But the question would be what that plea agreement would look like.

Finally, the government is going to have to provide some explanation for why Chelsea Manning remains in jail for contempt. Unless they can claim they’re going after other people related to WikiLeaks, they should not be able to keep her jailed.

Two Factors that May Change the Impeachment Calculus, Part Two: Criminalizing a Roger Stone Pardon

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In this post, I described how recent developments in Michael Cohen’s case give Congress a number of reasons to use it as a basis for impeachment. The neat fit of so many details might affect the calculus on whether Democrats carry out an impeachment inquiry on Trump.

In this post, I’ll point to a cynical electoral reason to begin impeachment: to prevent Trump from preempting Stone’s pre-election trial which, if it takes place in November 2019 as scheduled, will be utterly damning to the President. Don’t get me wrong — Democrats should move to stop Trump from using pardons to suborn perjury as a basic rule of law thing. But the timing of Stone’s trial and the extent to which it will implicate the President makes that imperative electorally beneficial for Democrats as well.

Even as currently charged, Stone’s case implicates the President directly

As I’ve noted, because everything in the Mueller Report pertaining to Roger Stone got redacted to (appropriately) preserve Stone’s right to a fair trial, lots of details on how Trump himself was involved in pushing Stone to optimize the WikiLeaks releases is redacted.

[I]t seems highly likely that some of the information in these redacted passages is stuff that would only prejudice Stone’s case by raising the import of it to Trump.

Consider, for starters, that (unless I’m mistaken) not a word from Stone’s indictment appears in this Report. [For example,] the indictment makes it clear that Stone was talking to the campaign about WikiLeaks releases.

ROGER JASON STONE, JR. was a political consultant who worked for decades in U.S. politics and on U.S. political campaigns. STONE was an official on the U.S. presidential campaign of Donald J. Trump (“Trump Campaign”) until in or around August 2015, and maintained regular contact with and publicly supported the Trump Campaign through the 2016 election.

During the summer of 2016, STONE spoke to senior Trump Campaign officials about Organization 1 and information it might have had that would be damaging to the Clinton Campaign. STONE was contacted by senior Trump Campaign officials to inquire about future releases by Organization 1.

[snip]

By in or around June and July 2016, STONE informed senior Trump Campaign officials that he had information indicating Organization 1 had documents whose release would be damaging to the Clinton Campaign. The head of Organization 1 was located at all relevant times at the Ecuadorian Embassy in London, United Kingdom.

After the July 22, 2016 release of stolen DNC emails by Organization 1, a senior Trump Campaign official was directed to contact STONE about any additional releases and what other damaging information Organization 1 had regarding the Clinton Campaign. STONE thereafter told the Trump Campaign about potential future releases of damaging material by Organization 1.

We see outlines of precisely who those references are to in the report.

Most notably, after describing Trump’s enthusiasm after Stone told Trump while Michael Cohen was listening on the speaker phone that the DNC emails would drop in a few days just before they did (which Cohen described in his testimony to Oversight), these two paragraphs, appear to to describe Manafort and Trump’s enthusiasm after the DNC release, with Manafort telling both Stone directly and Gates that he wanted to be kept informed via Stone of what was coming. And having gotten some indication of what was coming, the campaign started making plans to optimize those releases. It appears that Gates, like Cohen before him, witnessed a Stone-Trump call where the rat-fucker told the candidate what was coming.

These pages also have more background about how important all this was to Trump, who was frustrated that Hillary’s deleted emails hadn’t been found (something also told, in Flynn’s voice, in the Peter Smith section).

The references to Stone in these passages may well be appropriately redacted. But the descriptions of conversations between Trump and Manafort or Gates should not impact Stone’s defense — unless you want to argue that Trump’s personal involvement in Stone’s rat-fucking might change the deliberations for a jury. They don’t serve to hide Stone’s actions. They hide Trump’s enthusiasm for using materials stolen by Russia to win.

So the part of the 2016 operation that clearly amounted to coordination but was not charged because of First Amendment considerations, and the part of the 2016 operation for which (perhaps because witnesses learned it would not be charged as a conspiracy) there’s the most evidence of Trump’s direct involvement, remains hidden from view out of concerns for Stone’s due process rights.

Right now, Stone’s trial is scheduled to start on November 5. A recent status report on Rick Gates’ cooperation makes it clear he is likely to be a witness at Stone’s trial. While Gates’ testimony is probably not necessary to prove that Stone lied to HPSCI, it would be useful to explain Stone’s motive: significantly, protecting Trump.

If Andrew Miller’s testimony leads to new charges, the tie to Trump may be still more damning

Tuesday, the DC Circuit Court issued its final order in Stone associate Andrew Miller’s challenge to a grand jury subpoena.

Yesterday — technically minutes after Mueller’s press conference announcing the investigation was completed and he’s going home — Judge Beryl Howell rejected another attempt by Miller to challenge the subpoena. Multiple outlets report that he has agreed to testify Friday at 9:30.

Miller’s testimony Friday is premised on potential new charges against Stone and before Howell rejected Miller’s challenge, Aaron “Zelinsky and Jonathan Kravis from the US Attorney’s Office in DC told the judge privately why they still needed Miller.”

Last night, Howell released some of the details behind Miller’s most recent challenge. Along with a useful timeline from Miller’s lawyers on their challenge, it makes it pretty clear that prosecutors are still looking for information on (as Miller lawyer Paul Kamenar describes it) “Roger Stone’s actions during the 2016 election and his involvement in WikiLeaks, Julian Assange, and the hacking of Hillary Clinton’s and the DNC’s emails and any collusion with Russia” or (as Aaron Zelinsky has described it), “Roger Stone’s connection to WikiLeaks, Julian Assange, Guccifer 2.0, Russia.”

In other words, it appears that prosecutors might still indict Stone with new crimes pertaining to the core issues that were under investigation.

That’s one reason I find the timing of Mueller’s announcement so interesting. The Howell hearing yesterday was technically after Mueller’s statement finished. I don’t know when yesterday’s announcement will become official, but it would seem to be final before Friday’s Miller grand jury appearance.

That would mean any charges that former Mueller prosecutor Aaron Zelinsky (as well as DC AUSA Jonathan Kravis, who has picked up the bulk of the ongoing matters from Mueller’s team) might decide to pursue after Friday would be subject neither to the logic of the Mueller investigation — which decided not to charge Stone for some WikiLeaks-related crimes in part based on First Amendment considerations, nor to the direct supervision of Attorney General Barr.

As I’ve noted, the logic EDVA used in its superseding indictment of Assange is in direct conflict with the logic Mueller used in deciding that WikiLeaks’ and Trump’s “wish lists” for Hillary emails do not establish a basis for a conspiracy charge in the same way WikiLeaks’ wish list for classified materials was used. That might mean that decisions made after Miller’s testimony Friday would work out differently than decisions on Stone’s charges in January. Mueller’s off the case. It’s DC US Attorney Jesse Liu’s decision now.

All of which is to say, even assuming Friday’s testimony doesn’t lead to new charges, unless Trump finds a way to pre-empt Stone’s trial, it will mean some of the most damning information about Trump’s involvement in what Mueller didn’t charge as conspiracy but which by most definitions would count as “collusion” will get aired less than a year before the 2020 election.

Given how rock solid that Stone indictment is, there are just two ways to avoid that: for Stone to flip on Trump or others (though prosecutors are unlikely to give Stone a deal without vetting his claims after the way Paul Manafort abused the process, and it would be too late to flip on Assange). Or for Trump to pardon Stone.

Some of the clearest evidence of obstruction of justice in the Mueller Report pertains to Trump floating pardons, including a 2.5 page redacted passage (Volume II pages 128-130) pertaining to Stone himself. Even Bill Barr says it would be a crime to float pardons to prevent someone from testifying truthfully. Note, too, that Mueller asked Trump whether he considered pardoning Assange before he was inaugurated (to which Trump gave a typically contemptuous non-answer), and Stone was involved in an attempt to pardon Assange as recently as January 2018, which has been the subject of Mueller’s questioning.

The political hit from a Stone trial — and the kind of pardon-related obstruction that Barr himself conducted to kill the Iran-Contra investigation — might well be enough for Trump to prefer the political hit of pardoning Stone. Democrats have one way of altering that calculus to ensure the Stone trial — with all the damning details of Trump’s actions it’ll reveal — happens as scheduled.

While I’m not, at all, a fan of gaming trials for political effect, the fact of the matter is that if Stone’s trial goes forward, it would present as damning a case against Trump’s cheating as any impeachment trial could do. But to ensure that happens, Democrats need to make it clear that pardoning his way out of this will incur even greater costs for the President.

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

The Logic of Assange’s EDVA Indictment Is Inconsistent with Mueller’s Apparent Logic on Assange’s Declination

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As Emma Best has noted, shortly before GRU targeted John Podesta in a spear-phishing attack, WikiLeaks offered a reward for Hillary’s speech transcripts like the excerpts that were released as part of the John Podesta release.

Hours before Russian hacking operations targeted Hillary Clinton’s campaign in the spring of 2016, WikiLeaks discussed offering a monetary reward for transcripts of her speeches at Goldman Sachs. Soon after, Russian hackers launched a spear phishing campaign that resulted in John Podesta’s email account being compromised. Emails containing excerpts from the speeches were included in the first day of the Podesta email releases. A week later, emails containing the transcripts themselves were released. WikiLeaks heralded these transcripts as their “holy grail.”

The story began on March 9, 2016, when WikiLeaks sent a tweet with a poll asking if they should add Hillary Clinton’s Goldman Sachs speeches to their ”Most Wanted” page for six figure rewards for materials. When the poll completed twenty four hours later, 93% of respondents said that WikiLeaks should offer a reward for the speeches. The Russian hackers at Fancy Bear may have been listening and been inspired by WikiLeaks’ comment. Unpublished targeting data collected by Secureworks shows the hacking campaign began earlier than the Mueller indictment reveals. A week and a half later, after dozens of attempts to penetrate the accounts of Podesta and other Clinton staffers and associates, Fancy Bear sent the phishing email that successfully tricked Podesta into compromising his account and the Goldman Sachs speeches along with it.

Secureworks’ unpublished breakdown of the Russian spear phishing and hacking effort, which AP described last year, shows that the campaign to penetrate the account began hours after WikiLeaks teased the possibility of offering a reward for the information. The tweet first mentioning the potential of a reward for the Goldman Sachs transcripts was sent at 8:16 P.M. Moscow time. At 11:56 AM the next day, less than sixteen hours later, Russian hackers began a campaign that would target “over 300 individuals affiliated with the Clinton Campaign, DCCC, and DNC.“ Podesta’s emails accounts were targeted in the days that followed and successfully compromised a week later, resulting in the exfiltration of nearly 60,000 emails.

Under what I’ve called Theory One of the superseding Julian Assange indictment, WikiLeaks’ publication of a wish list that was subsequently fulfilled would qualify it (or Julian Assange) for a conspiracy charge. Given what we’ve seen of Roger Stone’s actions, it might qualify him for a conspiracy charge as well (though we still don’t know via what means he contacted WikiLeaks).

But this 2.5 page redaction in the Mueller Report appears to explain why they didn’t charge WikiLeaks (and so by association, Stone) in that conspiracy.

We don’t know what that redaction says, though the unredacted footnote makes it clear that in the case of emails stolen from Hillary, DOJ determined that sharing of stolen property does not constitute a crime.

We do, however, have a sense of how the Attorney General understands this declination, because he used it to exonerate Trump, even in spite of Trump’s active role in pushing Roger Stone to optimize the WikiLeaks releases for the campaign. In one of his explanations for the WikiLeaks declination — one that may more directly allude to Stone’s involvement — Bill Barr said that publication of stolen emails would not be criminal “unless the publisher also participated in the underlying hacking conspiracy.”

The Special Counsel also investigated whether any member or affiliate of the Trump campaign encouraged or otherwise played a role in these dissemination efforts.  Under applicable law, publication of these types of materials would not be criminal unless the publisher also participated in the underlying hacking conspiracy.  Here too, the Special Counsel’s report did not find that any person associated with the Trump campaign illegally participated in the dissemination of the materials.

In the case of election interference, then, Barr does not consider the publication of documents identified on a wish list that hackers subsequently steal to amount to joining a conspiracy.

But in the case of Chelsea Manning’s leak, his DOJ does.

There’s obviously a distinction: John Podesta’s risotto recipes are not classified, whereas much of the stuff (but not all) Manning leaked was. But the role of a wish list is not functionally different, and Russian officers were charged both for hacking and dissemination.

I’m still working on a post describing how unbelievably stupid the EDVA case is, both for the press and for DOJ’s hopes to lay a precedent.

But at least at a structural level, the prosecution is also inconsistent with the decisions DOJ made about WikiLeaks on the election year operation.

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

Trump Claims He Was Joking When He Gave Russian Hackers a Wish List to Hack Hillary, But His Senior Aides Disagree

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Like a child whose mother catches him saying something improper, Trump claimed — in his responses to Robert Mueller — that he was joking when he asked Russia to find Hillary’s missing 30,000 emails (a claim he repeated on March 2).

d. On July 27, 2016, you stated at a press conference: “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing. I think you will probably be rewarded mightily by our press.”

i. Why did you make that request of Russia, as opposed to any other country, entity, or individual?

ii. In advance of making that statement, what discussions, if any, did you have with anyone else about the substance of the statement?

iii. Were you told at any time before or after you made that statement that Russia was attempting to infiltrate or hack computer systems or email accounts of Hillary Clinton or her campaign? If yes, describe who provided this information, when, and what you were told.

Response to Question II, Part (d)

I made the statement quoted in Question II (d) in jest and sarcastically, as was apparent to any objective observer. The context of the statement is evident in the full reading or viewing of the July 27, 2016 press conference, and I refer you to the publicly available transcript and video of that press conference. I do not recall having any discussion about the substance of the statement in advance of the press conference. I do not recall being told during the campaign of any efforts by Russia to infiltrate or hack the computer systems or email accounts of Hillary Clinton or her campaign prior to them becoming the subject of media repo11ing and I have no recollection of any particular conversation in that regard.

Since Trump directed Mueller to a transcript of the press conference, I’ve put excerpts below. They’re a good reminder that at the same press conference where Trump asked Russia to find Hillary’s emails (and in seeming response to which, GRU officers targeted Hillary’s personal office just five hours later), Trump suggested any efforts to build a Trump Tower in Moscow were years in the past, not ongoing. After the press conference, Michael Cohen asked about that false denial, and Trump “told Cohen that Trump Tower Moscow was not a deal yet and said, ‘Why mention it if it is not a deal?'” He also said they’d consider recognizing Russia’s seizure of Crimea, which makes Konstantin Kilimnik’s travel — to Moscow the next day, then to New York for the August 2 meeting at which he and Paul Manafort discussed carving up Ukraine at the same meeting where they discussed how to win Michigan — all the more striking. Trump’s odd answer to whether his campaign “had any conversations with foreign leaders” to “hit the ground running” may reflect Mike Flynn’s meetings with Sergei Kislyak to do just that. In other words, even on top of that request of the Russians for more hacking, that press conference seems to tie to all the other things Trump was trying to hide when he obstructed Mueller’s investigation.

But it’s also worth looking at the abundant evidence that Trump wasn’t joking about his request that Russians find Hillary’s emails, particularly now that, with the superseding Julian Assange indictment, Trump’s DOJ considers the theft of documents in response to someone wishing they’ll be stolen tantamount to complicity in that theft.

Immediately after Trump asked Russia to find Hillary’s emails, the Mueller Report describes, he started asking Mike Flynn to go find them.

After candidate Trump stated on July 27, 2016, that he hoped Russia would “find the 30,000 emails that are missing,” Trump asked individuals affiliated with his Campaign to find the deleted Clinton emails.264 Michael Flynn-who would later serve as National Security Advisor in the Trump Administration- recalled that Trump made this request repeatedly, and Flynn subsequently contacted multiple people in an effort to obtain the emails.265

Heavily redacted passages also tie the request to Roger Stone to find out what WikiLeaks started around the same time.

Earlier the report quotes Gates describing how “frustrated” Trump was that the emails had not been found.

Gates recalled candidate Trump being generally frustrated that the Clinton emails had not been found. 196

A passage describing Trump’s motive for obstructing justice from Volume II refers back to these passages, describing Trump’s awareness of something about the hack-and-leak even while public reports tied the hacks to Russia, and in turn tying that to Roger Stone’s efforts to reach out to WikiLeaks.

Stone’s indictment describes how, days before that press conference, “a senior Trump Campaign official was directed” (probably a reference to Manafort’s request to Gates) to ask him to find out about upcoming releases, which is what led Stone to start pushing Jerome Corsi to find out what was coming.

12. After the July 22, 2016 release of stolen DNC emails by Organization 1, a senior Trump Campaign official was directed to contact STONE about any additional releases and what other damaging information Organization 1 had regarding the Clinton Campaign. STONE thereafter told the Trump Campaign about potential future releases of damaging material by Organization 1.

13. STONE also corresponded with associates about contacting Organization 1 in order to obtain additional emails damaging to the Clinton Campaign.

a. On or about July 25, 2016, STONE sent an email to Person 1 with the subject line, “Get to [the head of Organization 1].” The body of the message read, “Get to [the head of Organization 1] [a]t Ecuadorian Embassy in London and get the pending [Organization 1] emails . . . they deal with Foundation, allegedly.” On or about the same day, Person 1 forwarded STONE’s email to an associate who lived in the United Kingdom and was a supporter of the Trump Campaign.

b. On or about July 31, 2016, STONE emailed Person 1 with the subject line, “Call me MON.” The body of the email read in part that Person 1’s associate in the United Kingdom “should see [the head of Organization 1].”

c. On or about August 2, 2016, Person 1 emailed STONE. Person 1 wrote that he was currently in Europe and planned to return in or around mid-August. Person 1 stated in part, “Word is friend in embassy plans 2 more dumps. One shortly after I’m back. 2nd in Oct. Impact planned to be very damaging.” The phrase “friend in embassy” referred to the head of Organization 1. Person 1 added in the same email, “Time to let more than [the Clinton Campaign chairman] to be exposed as in bed w enemy if they are not ready to drop HRC. That appears to be the game hackers are now about. Would not hurt to start suggesting HRC old, memory bad, has stroke – neither he nor she well. I expect that much of next dump focus, setting stage for Foundation debacle.”

Mike Flynn, Rick Gates, and Paul Manafort all testified how serious Trump was about finding these emails. And while Stone would probably lie about the content of his calls with the candidate, there are two witnesses (Michael Cohen and Gates) to Stone’s calls with him on the topic.

This was Trump’s wish list, just the same as WikiLeaks had a wish list that DOJ is now using to charge Julian Assange with Espionage.

If a wish list is enough to get Assange charged with conspiring to steal the documents on the wish list, then DOJ should treat Trump’s wish list for stolen documents with equal gravity.

Update: Harpie makes a good point in comments. The end of Trump’s “Russia, if you’re listening” comment is “That’ll be next.” That likely means he has already heard from Roger Stone, who had been told by James Rosen on July 25 that the Clinton Foundation emails would be next.

TRUMP: It’s just a total deflection, this whole thing with Russia. In fact, I saw her campaign manager I don’t know his title, Mook. I saw him on television and they asked him about Russia and the hacking.

By the way, they hacked — they probably have her 33,000 e-mails. I hope they do. They probably have her 33,000 e-mails that she lost and deleted because you’d see some beauties there. So let’s see.

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

[snip]

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

[snip]

TRUMP: Why do I have to (ph) get involved with Putin? I have nothing to do with Putin. I’ve never spoken to him. I don’t know anything about him other than he will respect me. He doesn’t respect our president. And if it is Russia — which it’s probably not, nobody knows who it is — but if it is Russia, it’s really bad for a different reason, because it shows how little respect they have for our country, when they would hack into a major party and get everything. But it would be interesting to see — I will tell you this — Russia, if you’re listening, I hope you’re able to find the 30,000 e-mails that are missing. I think you will probably be rewarded mightily by our press. Let’s see if that happens. That’ll be next. Yes, sir…

[snip]

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

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

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

QUESTION: (OFF-MIKE)

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

[snip]

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

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

[snip]

QUESTION: Do you have any pause (ph) about asking a foreign government — Russia, China, anybody — to interfere, to hack into the system of anybody’s in this country…

TRUMP: That’s up to the President. Let the President talk to them. Look, here’s the problem. Here’s the problem, Katy (ph). Katy, here’s the problem, very simple. He has no respect…

QUESTION: (inaudible) 30,000 e-mails…

TRUMP: Well, they probably have them. I’d like to have them released.

QUESTION: Does that not give you pause?

TRUMP: No, it gives me no pause. If they have them, they have them. We might as well — hey, you know what gives me more pause? That a person in our government, crooked Hillary Clinton — here’s what gives me pause. Be quiet. I know you want to save her. That a person in our government, Katy, would delete or get rid of 33,000 e- mails. That gives me a big problem. After she gets a subpoena! She gets subpoenaed, and she gets rid of 33,000 e-mails? That gives me a problem (ph). Now, if Russia or China or any other country has those e-mails, I mean, to be honest with you, I’d love to see them.

[snip]

QUESTION: Did Don Jr. say back in 2008 that there was Russian money pouring into the top organizations…

TRUMP: We wanted to, yeah, I don’t know what he said. But we wanted…

(CROSSTALK)

TRUMP: Excuse me, listen. We wanted to; we were doing Miss Universe 4 or 5 years ago in Russia. It was a tremendous success. Very, very successful. And there were developers in Russia that wanted to put a lot of money into developments in Russia. And they wanted us to do it. But it never worked out.

Frankly I didn’t want to do it for a couple of different reasons. But we had a major developer, particular, but numerous developers that wanted to develop property in Moscow and other places. But we decided not to do it.

[snip]

QUESTION: (inaudible) you are the nominee. Has you or your campaign had any conversations with foreign leaders trying to build up a relationship should you win in November, that you don’t have to hit the ground running (inaudible)?

TRUMP: No, I think we — it’s possible we have. But I’m not — I’m only interested in winning. Once I win, I’ll get along great with foreign leaders, but they won’t be taking advantage. I mean, the problem we have with foreign leaders, whether it’s China, Russia, or anybody, they don’t respect our leadership. And certainly in the case of China, they take tremendous economic advantage of us — tremendous, to a point that is hard to believe.

I’ll get along great with the leadership. And we’ll do well.

Yes, ma’am, in the back?

QUESTION: Mr. Trump, (inaudible)

(CROSSTALK)

TRUMP: No, no. Excuse me. In the back?

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

TRUMP: We’ll be looking at that. Yeah, we’ll be looking. [my emphasis]

The Three Theories of Prosecution for Julian Assange

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In this post, I laid out what the 17 new charges against Julian Assange are. In this, I’ll look more closely at three theories of criminalization here:

  • Theory One: Charging Assange for causing Chelsea Manning to leak classified information by soliciting it generally or specifically (and/or discussing its value before she obtained it)
  • Theory Two: Charging Assange for offering to help crack a password and attempting to obtain the documents that would have been available using it
  • Theory Three: Charging Assange for leaking the identities of US government informants in three different databases

Theory One: Obtaining and disclosing documents that were solicited (Counts 2-4 and 6-14)

Effectively, for three sets of documents, they’ve charged Assange for causing Chelsea Manning to obtain (Charges 2 through 4), Assange obtaining himself (Charges 6 through 8), causing Manning to disclose documents she did not have authorized possession of (Charges 9 through 11), and  causing Manning to disclose legally obtained documents (Charges 12 through 13) for three sets of documents: The Gitmo Detainee Assessment Briefs, the State Department Cables, and the Iraq Rules of Engagement.

Assange is not being charged for publishing anything under this theory (that’s not true under Theory Three). He’s being charged with causing Manning to obtain and disclose them to him.

To accuse Assange of causing Manning to do these things, they show how a Most Wanted Leaks list posted on WikiLeaks until September 2010 resembles what Manning looked for on DOD’s networks and what she sent to Assange.

In addition, they show that Manning and Assange discussed some of these leaks before she obtained them.

For example, on March 7, 2010, Manning asked ASSANGE how valuable the Guantanamo Bay detainee assessment briefs would be. After confirming that ASSANGE thought they had value, on March 8, 2010, Manning told ASSANGE that she was “throwing everything [she had] on JTF GTMO [Joint Task Force, Guantanamo] at [Assange] now.” ASSANGE responded, “ok, great!”

[snip]

Manning later told ASSANGE in reference to the Guantanamo Bay detainee assessment briefs that “after this upload, thats all i really have got left.” I

It argued that Manning downloaded the State Department cables in response to the request for bulk databases on the Wish List.

Further, following ASSANGE’s “curious eyes never run dry” comment, and consistent with WikiLeaks’s solicitation of bulk databases and classified materials of diplomatic significance, as described in paragraphs 2,4-5, between on or about March 28, 2010, and April 9, 2010, Manning used a United States Department of Defense computer to download over 250,000 U.S. Department of State cables, which were classified up to the SECRET level. Manning subsequently uploaded these cables to ASSANGE and WikiLeaks through an SFTP connection to a cloud drop box operated by WikiLeaks, with an X directory that WikiLeaks had designated for Marining’s use. ASSANGE and WikiLeaks later disclosed them to the public.

And it showed that the Iraq Rules of Engagement were on the Wish List.

As of November 2009, WikiLeaks’s “Most Wanted Leaks” for the United States included the following:

[snip]

b. “Military and Intelligence” documents, including documents that the list described as classified up to the SECRET level, for example, “Iraq and Afghanistan Rules of Engagement 2007-2009 (SECRET);”

[snip]

Following ASSANGE’s “curious eyes never run dry” comment, on or about March 22,2010, consistent with WikiLeaks’s “Most Wanted Leaks” solicitation of “Iraq and Afghanistan US Army Rules of Engagement 2007-2009 (SECRET),” as described in paragraphs 4-5, Manning downloaded multiple Iraq rules of engagement files from her Secret Internet Protocol Network computer and burned these files to a CD, and provided them to ASSANGE and WikiLeaks.

Thus, for each of these, the government is saying that soliciting specific classified (or protected) materials amounts to Espionage. This is the theory of prosecution I argued would criminalize people like Jason Leopold, who was clearly engaged in journalism when he specifically asked about a specific Suspicious Activity Report from a source.

Theory Two: Attempted hacking to attempt to obtain the documents available via the hack (Counts 5 and 18)

For one vaguely defined set of documents, DOJ has charged Assange for attempting to help Manning crack a password (which was the single previous charge, which is now Charge 18) in order to attempt to obtain unidentified documents on SIPRNet.

15. In furtherance of this scheme, ASSANGE agreed to assist Manning in cracking a password hash stored on United States Department of Defense computers connected to the Secret Internet Protocol Network, a United States government network used for classified documents and communications, as designated according to Executive Order No. 13526 or its predecessor orders.

I believe (though am not certain) that that’s what the documents charged in Count 5 are about.

Between in or about November 2009 and in or about May 2010, in an offense begun and committed outside of the jurisdiction of any particular state or district of the United States, the defendant, JULIAN PAUL ASSANGE, who will be first brought to the Eastern District of Virginia, and others unknown to the Grand Jury, knowingly and unlawfully attempted to receive and obtain documents, writings, and notes connected with the national defense—^namely, information stored on the Secret Internet Protocol Network classified up to the SECRET level— for the purpose of obtaining information respecting the national defense, knowing and having reason to believe, at the time that he attempted to receive and obtain them, that such materials would be obtained, taken, made, and disposed of by a person contrary to the provisions of Chapter 37 of Title 18 of the United States Code.

This theory also doesn’t charge Assange with publishing information. Rather than charging him for soliciting leaks (Theory One), it charges him with helping to obtain documents Manning was not authorized to obtain by attempting to crack a password to get Administrators privileges.

Releasing the names of informants (Counts 15-17)

For each of three sets of US government informants, there’s also a charge tied to the informants’ identities disclosed in bulk databases.

35. Also following Manning’s arrest, during 2010 and 2011, ASSANGE published via the WikiLeaks website the documents classified up to the SECRET level that he had obtained from Manning, as described in paragraphs 12, 21, and 27, including approximately 75,000 Afghanistan war-related significant activity reports, 400,000 Iraq war-related significant activities reports, 800 Guantanamo Bay detainee assessment briefs, £ind 250,000 U.S. Department of State cables.

36. The significant activity reports from the Afghanistan and Iraq wars that ASSANGE published included names of local Afghans and Iraqis who had provided information to U.S. and coalition forces. The State Department cables that WikiLeaks published included names of persons throughout the world who provided information to the U.S. government in circumstances in which they could reasonably expect that their identities would be kept confidential. These sources included journalists, religious leaders, human rights advocates, and political dissidents who were living in repressive regimes and reported to the United States the abuses of their own government, and the political conditions within their countries, at great risk to their own safety. By publishing these documents without redacting the human sources’ names or other identifying information, ASSANGE created a grave and imminent risk that the innocent people he named would suffer serious physical harm and/or arbitrary detention.

For each database, the indictment looks at several instances of the individuals whose identities were released. It then lays out evidence that Assange knew and did not care that by publishing these identities he would be endangering people.

This is the theory of prosecution that does criminalize the publication of true information. And it criminalizes something that journalists do, at times, do.

The government often tries to classify identities that should not be (as they did with Gina Haspel, to hide her role in torture, for example). When journalists learn these identities they sometimes do choose to ignore admonitions against publication, for good reason. That’s what Assange is accused of doing here, but only on a mass scale. But if this is successful, there’s nothing that will prevent the government from charging people for disclosing classified identities at a smaller scale.

I’m also not sure how, as a foreign citizen, this doesn’t invite retaliation against the US for identifying classified identities of other countries.

The Charges Against Julian Assange

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As expected, EDVA rolled out a bunch more charges, under the Espionage Act, against Julian Assange. I’m going to do a follow-up post on how stupid the way they’ve done this is, but first wanted to lay out the charges.

The indictment charges Assange with 17 new counts (in addition to the single CFAA charge they’ve already charged him with, which is now Count 18).

  • Count 1: Conspiracy to Obtain, Receive, and Disclose National Defense Information (18 USC §793(g)
  • Count 15: Unauthorized Disclosure of National Defense Information — informants in Afghan Significant Activity Reports (18 USC §793(e))
  • Count 16: Unauthorized Disclosure of National Defense Information — informants in Iraq Significant Activity Reports (18 USC §793(e))
  • Count 17: Unauthorized Disclosure of National Defense Information –informants in State Department Cables (18 USC §793(e))
  • Count 18: Conspiracy to Commit Computer Intrusion (18 USC §641, 793(c) and 793(e)

Then there are a set of throw-everything-at-the-wall charges that charges Manning giving three sets of files — the Detainee Assessment Briefs, the State Department Cables, and the Iraq Rules of Engagement — to Assange in four different ways.

The attempt, Count 5, is related to the files Chelsea Manning would have gotten had the password crack been successful.

So effectively, there are three main sets of documents, the Gitmo Detainee Assessment Briefs, the State Department Cables, and the Iraq Rules of engagement, for which EDVA has charged Assange for causing Manning to obtain them, Assange obtaining them himself, causing Manning to disclose documents she had legal access to to Assange, and causing Manning to disclose documents she had unauthorized possession of to Assange. (It’s worth noting that three of these four steps are replicated in the existing Joshua Schulte indictment.)

Then there are three sets of informants that Assange disclosed — those not redacted in the Afghan Significant Activity Reports, those not redacted in the Iraq Significant Activity Reports, and those not redacted in the State Department cables.

Then there are the two charges associated with what Manning would have gotten had Assange succeeded in cracking that password — the CFAA charge and the attempt to obtain charge.

Finally, there’s an overriding conspiracy.