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Russian Flight: The Timing of the Assange Charges

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The Department of Justice charged Julian Assange when they did to stave off an attempt to help Assange flee to Russia.

That’s one important takeaway from the date of the complaint, December 21, 2017. Days earlier, Ecuador had submitted diplomatic credentials for Assange to the British government, with the intent that he would move (or, according to the less reliable Guardian, be secretly exfiltrated) to Russia under protection of diplomatic status.

Ecuador last Dec. 19 approved a “special designation in favor of Mr. Julian Assange so that he can carry out functions at the Ecuadorean Embassy in Russia,” according to the letter written to opposition legislator Paola Vintimilla.

“Special designation” refers to the Ecuadorean president’s right to name political allies to a fixed number of diplomatic posts even if they are not career diplomats.

But Britain’s Foreign Office in a Dec. 21 note said it did not accept Assange as a diplomat and that it did not “consider that Mr. Assange enjoys any type of privileges and immunities under the Vienna Convention,” reads the letter, citing a British diplomatic note.

Ecuador abandoned its decision shortly after, according to the letter.

British authorities have said they will arrest Assange if he leaves the embassy, meaning he would have needed to be recognized as a diplomat in order to travel to Moscow.

The US finalized the complaint the same day the UK rejected the Ecuadorian request (though the accompanying 26-page affidavit suggests it been in the works for some time). The next day the US sent a formal extradition warrant to the UK. All this happened under dramatically increased (and visible) surveillance from Ecuador’s security contractor, UC Global; Assange boosters have tried to spin this attempt as a US kidnapping attempt, which is presumably what they would have called a failed exfiltration attempt.

The timing of two of the other sets of charges against Assange can also be fairly readily explained. Assange was formally indicted on March 6, 2018, the day before the 8-year statute of limitations on the CFAA charge would expire. The most recent superseding indictment, obtained on June 24, 2020, expanded the CFAA conspiracy charge through 2015, which seems to be another effort to expand the conspiracy before statutes toll. The next overt acts in WikiLeaks’ efforts to undermine the US came in March and April 2016. Unless Assange is pardoned and released (as I’ve noted, a pardon may not have the effect Assange boosters want it to), I think it highly likely DOJ will supersede again after inauguration to include, at a minimum, the Vault 7 publication, and probably some overt acts tied to the 2016 election interference. Depending on UK willingness to add to the total charges, the US might well add foreign agent charges they’ve alluded to.

Only the timing of the indictment adding the Espionage charges on May 23, 2019 can’t be readily explained (though it came in the wake of the Mueller Report and the larger Russian investigation which is, per the SSCI Report, what led to a better understanding of the degree to which Russia had “co-opted” WikiLeaks).

It is a testament to the power of WikiLeaks’ propaganda efforts that the entire focus on Julian Assange’s prosecution has been on false claims about why DOJ decided to prosecute him while Trump was President and not on the specific timing of the first charge against him, which ties it to Assange’s relationship with Russia.

Quite honestly, the US probably would have been far better off had Assange’s attempt to flee to Russia succeeded. That would have made clear even to the dead-enders that Assange had become little more than a Russian tool, and thereby diminished WikiLeaks’ allure and efficacy as a cover for leaks going forward. Instead, they’ve made of Assange a martyr about whom most journalism organizations in the world are enthusiastically repeating false propaganda.

The Three Types (Thus Far) of Trump Mueller Pardons

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To date, Trump has pardoned five people who were prosecuted by Mueller. I’m seeing a good deal of misunderstanding about what those pardons mean for any legal proceedings going forward, so I’d like to address some of that.

First, a lot of people say that accepting a pardon is tantamount to accepting guilt, under Burdick v.United States. It’s not. It’s narrower, though importantly goes to questions about whether a witness who has been pardoned has to testify or not. It also says that someone who has been pardoned must inform the court of the fact for it to be valid in any legal proceeding before the court.

That said, claims that Trump flunkies who’ve been pardoned have to testify are also too broad. If the people have any remaining legal exposure (as I’ll explain, Roger Stone and Paul Manafort do), they can still invoke the Fifth. That’s also true if they have state exposure for something like fraud or tax evasion. But in cases where the pardoned crime is only federal, such as Papadopoulos’ lies, it would be easy for prosecutors to immunize him in case he invoked his Fifth Amendment privileges, effectively forcing him to testify on penalty of contempt.

Thus far, Trump has issued three kinds of pardons for people prosecuted by Mueller:

  • Pardons for people with no further known (Mueller) legal exposure
  • Pardons for people with potentially grave further legal exposure
  • Fruit of the poison tree pardon for anything Mueller touched

Alex Van der Zwaan and George Papadopoulos:

Both Van Der Zwaan and Papadopoulos were pardoned for the single False Statements charge against them. Neither is known to have committed another crime. In Papadopoulos’ case, however, things could get dicey on several points. Trump forgave his $9,500 fine, which was the amount Papadopoulos accepted from suspected Israeli spooks. If he asks for that back that may raise questions about his exposure on FARA grounds. In addition, Papadopoulos has already testified before Congress that he called Marc Kasowitz after he was first interviewed by the FBI. If there were a larger prosecution about Trump’s obstruction, he might have been able to plead the Fifth for making that call — except he has already testified to it.

Papadopoulos withheld documents from Congress. With a DOJ that can enforce subpoenas, he might be asked to share those documents, which may require him to testify contrary to his 2018 OGR/HJC testimony.

If DOJ decided to reopen the investigation into a suspected Egyptian bribe to Trump because serving a subpoena on Trump Organization would now be less controversial than it was last summer, then Papadopoulos might be a key witness in that investigation, though since that’s unrelated to his charged false statements, he could still invoke the Fifth if questioned about it.

Roger Stone and Paul Manafort:

Like Van der Zwaan and Papadopoulos, Stone and Manafort were just pardoned for the crimes that they were found or pled guilty to, the money laundering, tax evasion, and FARA crimes in Manafort’s case, and the cover-up crimes in Stone’s case. For both, however, that’s not the full extent of what they were investigated or might be witnesses for.

Before I get there, let me note that multiple sources are claiming that, because Trump included Manafort’s criminal forfeiture in the language of his pardon, he’ll get his ill-gotten gains back. I’m not an expert on this, but I do know that Manafort also civilly forfeited these goods in his plea agreement.

So to attempt to reverse this forfeiture, Manafort would have to spend a great deal of money litigating it, and it’s not at all clear it’d work.

Manafort was also referred for suspected FECA violations involving two PACs that, prosecutors suspected, he got paid through via a kickback system. These cases must be closed, because they were unsealed in the Mueller Report back in September. But Manafort may face more scrutiny on them if DOJ investigates Trump’s other corrupt PACs.

Unless he, too, is pardoned, Konstantin Kilimnik remains under investigation. That’s an area where things might get more interesting for Manafort, because during the period when he was purportedly cooperating, he lied about the fact that he had conspired with Kilimnik. In any case, until the Kilimnik and Oleg Deripaska investigations are closed, Manafort has some exposure.

Things are more complicated still for Stone. There were at least two investigations into Stone — probably on conspiracy and foreign agent crimes — still active in April. If the redactions if Mueller 302s are any indication, Barr shut parts of that investigation down since, which will be of interest on its own right (Congress learned of these ongoing investigations when they got unsealed portions of the Mueller Report that have only recently been made public, and I know there is some interest in learning what those investigations were or are, and that was true even before any discussions about Trump’s abuse of pardons).

In any case, the investigation into a pardon for Julian Assange was active at least as recently as October. Stone has already called on Trump to pardon Assange since his own pardon, potentially a new overt act in a conspiracy. And Trump might well pardon Assange; even pardoning him for the crimes currently charged would be a new overt act in that conspiracy, which would implicate Stone. So even if Barr shut that investigation down, there is already reason to reopen it.

So while Barr may have tried to clean up the remaining criminal exposure against Stone, it’s not clear he could succeed at doing so, much less without creating problems for others going forward.

Mike Flynn:

As I have written, Mike Flynn’s pardon was constructed in a way that attempted to eliminate all criminal exposure that might arise from anything associated with the Mueller investigation for him. In addition to pardoning Flynn for the false statements charge he pled guilty to, it pardons him for lying about being an Agent of Turkey, for being an Agent of Turkey, and for lying to Judge Sullivan.

But it also attempts to pardon Flynn for any crime that might arise out of facts known to Mueller. While, generally, I think the pardon power is very broad, this effectively tried to pardon Flynn for an investigation, not for crimes. Plus, the broadness of the pardon may backfire, insofar as it would strip Flynn of the ability to plead the Fifth more broadly. Even just a retrial of Bijan Kian (unless Trump pardons him and Mike Jr) might force Flynn to commit new crimes, because both telling the truth and lying about his secret relationship with Turkey would be a new crime.

Given his seditious behavior, Flynn might have entirely new criminal exposure by the time Joe Biden is sworn in any case. But the attempt to be expansive with Flynn’s pardon might backfire for him.

Of the five Mueller criminals pardoned so far, only Van der Zwaan is clearly free of danger going forward.

And these five don’t even cover some of the most complex pardon recipients. Any Assange pardon may be the most obviously illegal for Trump (save a self-pardon), because it would involve a quid pro quo entered before he was elected. With Steve Bannon, Trump will need to pardon for another crime, fraud associated with Build the Wall, but if it covers Mueller, it may make it easier for Bannon to repeat what truths he already told to the grand jury. With Rudy Giuliani, Trump will need to pardon for unidentified crimes currently under investigation, but also Rudy’s efforts to broker pardons, which may make the pardon itself more dicey. With Trump’s children (including Jared Kushner), I assume he’ll offer a Nixon type pardon for all crimes committed before the day of pardon. But there may be ways to make them admit to these crimes.

Billy Barr is the best cover-up artist in the history of DOJ. But Trump is attempting to pardon himself out of a dicier situation than Poppy Bush was in Iran-Contra. Plus, even assuming Mueller’s team left everything available for Barr’s discovery, Barr may be hamstrung by the fact that he doesn’t believe in most of the crimes Trump committed, something that could become especially problematic as the full extent of Trump’s dalliance with Russia becomes known going forward. Barr didn’t support some of these pardons, like a hypothetical Assange one. And now, in his absence, Trump has grown increasingly paranoid about Pat Cipollone, who will have to shepherd the rest.

The pardon power is awesome and fairly unlimited. But it’s not yet clear the Mueller pardons will do what Trump hopes they will. With virtually all of them, there are loose strings that, if they get pulled, may undo the immunity Trump has tried to offer.

Snowden

Like Glenn Greenwald, Roger Stone Links a Pardon for Edward Snowden to a Corrupt Pardon for Julian Assange

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After being pardoned for his crime of lying to Congress last night, Roger Stone called for a pardon for Julian Assange and Edward Snowden.

Stone welcomed the pardon and complained he’d been subjected to a “Soviet-style show trial on politically-motivated charges.”

The longtime political provocateur also urged the president to extend clemency to a key figure in the release of hacked emails during the 2016 campaign, Julian Assange, and to National Security Agency leaker Edward Snowden.

“Other good Americans have been victims of a corrupt system made to serve venal power-seekers,rewarding deceit and manipulation, rather than reason and justice. President Trump can be the purveyor of justice over the vile machinations of wicked pretenders to the mantle of public service,” Stone wrote.

Unless Bill Barr shut it down in preparation for the pardons to come (a very good possibility), DOJ has an ongoing investigation into the circumstances under which Roger Stone started pursuing a pardon for Assange, one that ties a pardon for Assange to Stone’s successful optimization of the release of the John Podesta files in October 2016. That might even make Stone’s call a new overt act in a conspiracy that started in 2016.

What it also does, though, is tie a hypothetical Snowden pardon — one that otherwise would have nothing to do with Trump’s crimes — to this quid pro quo.

Stone is not the first to do so in a corrupt way, of course. So did Glenn Greenwald, when he pitched such a dual pardon as a way for Trump to get back at The [American] Deep State on Tucker Carlson’s show, back in September.

Glenn: Let’s remember, Tucker, that the criminal investigation into Julian Assange began by the Obama Administration because in 2010 WikiLeaks published a slew of documents — none of which harmed anybody, not even the government claims that. That was very embarrassing to the Obama Administration. It revealed all kinds of abuses and lies that they were telling about these endless wars that the Pentagon and the CIA are determined to fight. They were embarrassing to Hillary Clinton, and so they conducted, they initiated a grand jury investigation to try and prosecute him for reporting to the public. He worked with the New York Times, the Guardian, to publish very embarrassing information about the endless war machine, about the Neocons who were working in the Obama Administration. To understand what’s happening here, we can look at a very similar case which is one that President Trump recently raised is the prosecution by the Obama Administration, as well, of Edward Snowden for the same reason — that he exposed the lies that James Clapper told, he exposed how there’s this massive spying system that the NSA and the CIA control, that they can use against American citizens. Obviously this isn’t coming from President Trump! He praised WikiLeaks in 2016 for informing the public. He knows, firsthand, how these spying systems that Edward Snowden exposed can be abused and were abused in 2016. This is coming from people who work in the CIA, who work in the Pentagon, who insist on endless war, and who believe that they’re a government unto themselves, more powerful than the President. I posted this weekend that there’s a speech from Dwight Eisenhower warning that this military industrial complex — what we now call the Deep State — is becoming more powerful than the President. Chuck Schumer warned right before President Obama — President Trump — took office that President Trump challenging the CIA was foolish because they have many ways to get back at anybody who impedes them. That’s what these cases are about Tucker, they’re punishing Julian Assange and trying to punish Edward Snowden for informing the public about things that they have the right to know about the Obama Administration. They’re basically saying to President Trump, “You don’t run the country even though you were elected. We do!” And they’re daring him to use his pardon power to put an end to these very abusive prosecutions. One which resulted in eight years of punishment for Julian Assange for telling the truth, the other which resulted in seven years of exile for Edward Snowden of being in Russia simply for informing the public and embarrassing political officials who are very powerful.

While there’s abundant evidence (which press organizations and journalists who’ve been personally involved are dutifully ignoring) that Julian Assange has been something other than he has been claiming for years, I have always believed a Snowden pardon is an entirely different thing, something far more justified. But if these people who were running interference for Guccifer 2.0 back in 2016 and have continued to do so to this day keep linking a corruptly negotiated Assange with a Snowden one, it does raise questions about whether there’s some closer tie.

The WaPo Solution to the NYT Problem: Laura Poitras’ Misrepresentation of Assange’s 18th Charge

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If you were the average NYT reader who is unfamiliar with the developments in the prosecution against Julian Assange, reading this excellent Laura Poitras op-ed calling for, “the Justice Department [to] immediately drop these charges and the president [to] pardon Mr. Assange,” might lead you to believe there were 17 charges under the Espionage Act and the original password cracking as the single overt act in a CFAA (hacking) charge, all of them 10 years old.

That was when the Justice Department indicted Julian Assange, the founder and publisher of WikiLeaks, with 17 counts of violating the Espionage Act, on top of one earlier count of conspiring to violate the Computer Fraud and Abuse Act.

The charges against Mr. Assange date back a decade, to when WikiLeaks, in collaboration with The Guardian, The New York Times, Der Spiegel and others, published the Iraq and Afghanistan war logs, and subsequently partnered with The Guardian to publish State Department cables. The indictment describes many activities conducted by news organizations every day, including obtaining and publishing true information of public interest, communication between a publisher and a source, and using encryption tools.

Of course, as emptywheel readers, you know that DOJ superseded the indictment against Assange in June, and with it extended the timeline on the CFAA conspiracy charge through 2015.

Even the original CFAA charge described a relationship between Assange and Manning that goes beyond what journalists do (I think I understand why DOJ charged it and may return to explain that in days ahead). But the current one credibly charges Assange in the same conspiracy to hack Stratfor that five other people have already pled guilty to, meaning the only question at trial would be whether DOJ can prove Assange entered into the conspiracy and took overt acts to further it, something they appear to have compelling proof he did.

The superseding indictment also describes Assange ordering up the hack of a WikiLeaks dissident. That’s not something anyone should be defending, and there’s good reason to believe it was not an isolated incident.

Poitras’ silence about the superseding indictment, however, is all the more striking given that it includes WikiLeaks’ efforts to help Edward Snowden to flee among the overt acts in the CFAA conspiracy. (I emailed Poitras to ask whether she even knows of the superseding indictment, which she may not, given the crappy coverage of it; I will update if she responds.)

84. To encourage leakers and hackers to provide stolen materials to WikiLeaks in the future, ASSANGE and others at WikiLeaks openly displayed their attempts to assist Snowden in evading arrest.

85. In June 2013, a WikiLeaks associate [Sarah Harrison] traveled with Snowden from Hong Kong to Moscow.

[snip]

87. At the same presentation [where Assange and Jake Appelbaum encouraged people to join the CIA to steal files, Appelbaum] said “Edward Snowden did not save himself. … Specifically for source protection, [Harrison] took actions to protect [Snowden]. … [I]f we can succeed in saving Edward Snowden’s life and to keep him free, then the next Edward Snowden will have that to look forward to. And if we look also to what has happened to Chelsea Manning, we see additionally that Snowden has clearly learned….”

[snip]

90. In an interview of May 25, 2015, ASSANGE claimed to have arranged distraction operations to assist Snowden in avoiding arrest by the United States. [listing several operations, including using “presidential jets,” suggesting that the US may have searched Evo Morales’ plane in response to disinformation spread by WikiLeaks] [bolded brackets original, other brackets my own]

With these passages, DOJ wrote the first draft of what I suspect will be expanded in the near future into a dramatically different story than the one we know about Edward Snowden (whether it will be sustainable or not is another thing). And Laura Poitras, who didn’t mention these overt acts in her op-ed, was at least adjacent to many key events in this story. For example, Poitras is likely one of the few people who would know if Snowden was in contact with Jake Appelbaum before he got a job in Hawaii and started scraping files related and unrelated to programs of concern, as Snowden himself hinted in his book. If he was, then several parts of the story that Snowden has always told are probably not true.

Similarly, Poitras’ film Risk briefly hints at tensions between Poitras and Assange over how the Snowden files would be released. That, too, suggests that WikiLeaks may have had a bigger role on the front end in Snowden’s theft of NSA documents than is publicly known.

Most importantly, at least as Bart Gellman tells it in his book, both he and Poitras were quite explicit, in the wake of requests from Snowden to help him prove his identity to obtain asylum in a foreign country, about where journalism ended and sharing classified files with foreign governments might begin.

Snowden had asked Gellman to ensure that the WaPo publish the first PRISM file with his PGP key attached. At first, Gellman hadn’t thought through why Snowden made the request. Then he figured it out.

In the Saturday night email, Snowden spelled it out. He had chosen to risk his freedom, he wrote, but he was not resigned to life in prison or worse. He preferred to set an example for “an entire class of potential whistleblowers” who might follow his lead. Ordinary citizens would not take impossible risks. They had to have some hope for a happy ending.

To effect this, I intend to apply for asylum (preferably somewhere with strong internet and press freedoms, e.g. Iceland, though the strength of the reaction will determine how choosy I can be). Given how tightly the U.S. surveils diplomatic outposts (I should know, I used to work in our U.N. spying shop), I cannot risk this until you have already gone to press, as it would immediately tip our hand. It would also be futile without proof of my claims—they’d have me committed—and I have no desire to provide raw source material to a foreign government. Post publication, the source document and cryptographic signature will allow me to immediately substantiate both the truth of my claim and the danger I am in without having to give anything up. . . . Give me the bottom line: when do you expect to go to print?

Alarm gave way to vertigo. I forced myself to reread the passage slowly. Snowden planned to seek the protection of a foreign government. He would canvass diplomatic posts on an island under Chinese sovereign control. He might not have very good choices. The signature’s purpose, its only purpose, was to help him through the gates.

How could I have missed this? Poitras and I did not need the signature to know who sent us the PRISM file. Snowden wanted to prove his role in the story to someone else. That thought had never occurred to me. Confidential sources, in my experience, did not implicate themselves—irrevocably, mathematically—in a classified leak. As soon as Snowden laid it out, the strategic logic was obvious. If we did as he asked, Snowden could demonstrate that our copy of the NSA document came from him. His plea for asylum would assert a “well-founded fear of being persecuted” for an act of political dissent. The U.S. government would maintain that Snowden’s actions were criminal, not political. Under international law each nation could make that judgment for itself. The fulcrum of Snowden’s entire plan was the signature file, a few hundred characters of cryptographic text, about the length of this paragraph. And I was the one he expected to place it online for his use.

Idiot. Remember “chain of custody”? He came right out and told you he wanted a historical record.

My mind raced. When Snowden walked into a consulate, evidence of his identity in hand, any intelligence officer would surmise that he might have other classified information in reach. Snowden said he did not want to hand over documents, but his language, as I read it that night, seemed equivocal. Even assuming he divulged nothing, I had not signed up for his plan. I had agreed to protect my source’s identity in order to report a story to the public. He wanted me to help him disclose it, in private, as a credential to present to foreign governments. That was something altogether different.

Gellman realized — and Poitras seemed to agree in texts Gellman published in the book — that this request might amount to abetting Snowden’s sharing of secrets with a hostile government.

LP: oh god fuck

BG: He’s in a position to provide that material. He may be under compulsion. We REALLY can’t do anything that could abet or be perceived to abet that.

LP: of course

BG: I just wanna be a goddam journalist

Gellman and Poitras discussed the request with the lawyers WaPo consulted regarding the Snowden publications. In what might be the chilling consultation with a First Amendment lawyer that Poitras describes in her oped, one lawyer seems to have raised concerns about aiding and abetting charges, and had them both write explicit notes to Snowden denying his request to publish his key. In those notes, as published by Gellman, both drew a bright line between what they considered journalistic — protecting his identity and publishing the newsworthy files while balancing risk — and what was not.

Everyone on the call agreed that we would carry on with our story plans and protect the source’s identity as before. No one but Poitras and I knew Snowden’s name anyway. But Kevin Baine, the lead outside counsel, asked me in a no-bullshit tone to level with him. Had I ever promised to publish the full PRISM presentation or its digital signature? I had not, and Poitras said the same. Our source framed both those points as “requests” before he sent the document. Poitras and I had ducked and changed the subject. Why engage him in a hypothetical dispute? Depending on what the document said, publication in full might have been an easy yes. “You have to tell him you never agreed to that,” Baine said. Poitras and I faced a whole new kind of legal exposure now. We could not leave unanswered a “direct attempt to enlist you in assisting him with his plans to approach foreign governments.”

[snip]

We hated the replies we sent to Snowden on May 26. We had lawyered up and it showed. “You were clear with me and I want to be equally clear with you,” I wrote. “There are a number of unwarranted assumptions in your email. My intentions and objectives are purely journalistic, and I will not tie them or time them to any other goal.” I was working hard and intended to publish, but “I cannot give you the bottom line you want.”

Poitras wrote to him separately.

There have been several developments since Monday (e.g., your decision to leave the country, your choice of location, possible intentions re asylum), that have come as a surprise and make [it] necessary to be clear. As B explained, our intentions and objectives are journalistic. I believe you know my interest and commitment to this subject. B’s work on the topic speaks for itself. I cannot travel to interview you in person. However, I do have questions if you are still willing to answer them. [my emphasis]

If Assange (or anyone associated with him) is ever tried on the superseding indictment, I’d be surprised if these passages weren’t introduced at trial. Here you have two of the key journalists who published the Snowden files, laying out precisely where WikiLeaks fails the NYT problem that DOJ, under Obama, could never get past in any prosecution of Julian Assange.

“The problem the department has always had in investigating Julian Assange is there is no way to prosecute him for publishing information without the same theory being applied to journalists,” said former Justice Department spokesman Matthew Miller told the Post. “And if you are not going to prosecute journalists for publishing classified information, which the department is not, then there is no way to prosecute Assange.”

In 2013, before the first Snowden files got published, Gellman and Poitras and the Washington Post solved the New York Times problem. Helping Snowden flee to a foreign country — which, given Snowden’s plan to meet them in Hong Kong, they assumed might include to an adversarial nation like China — was not journalistic and, seemingly even according to the journalists, might be abetting Snowden’s sharing of files with a hostile foreign government.

Which is why Poitras’ silence about these charges in her bid to dismiss the charges against Assange undermines her argument.

Again, I absolutely agree with Poitras that the Espionage charges, as charged, pose a real risk to journalism. But the government is going to use the CFAA charge to explain how Assange’s methods are different from journalists. And Poitras’ own actions may well be part of that proof.

Three Inconvenient Truths about a Hypothetical Trump Pardon for Julian Assange

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For the last several weeks, there have been floated hints that Donald Trump might pardon Julian Assange. Assange’s supporters — from frothy MAGAts to esteemed journalistic outlets — are fooling themselves about a possible Trump pardon on several counts.

Before I lay out what those are, let me reiterate, again, that I believe the Espionage Act charges against Assange pose a serious risk to journalism (though as written, the CFAA charge does not). I agree that the Chelsea Manning disclosures, which make up most but not all of the charges currently pending against Assange, included a large number of important revelations, many I relied on with gratitude. I’d be perfectly fine if Vanessa Baraitser ruled on January 4 that US prisons were too inhumane for Assange. And I agree that EDVA would be a horrible venue for Assange (though unlike other defendants, DOJ is not simply inventing that jurisdiction for the onerous precedents it offers out of thin air; it is the most obvious venue for Assange because of the Pentagon).

So this is neither disagreement on the risks an Assange prosecution poses, nor is it an endorsement of the prosecution of Assange as it exists. But a pardon would necessarily involve other crimes, in addition to the ones for which he has been charged, and those crimes go well beyond journalism. They may even involve crimes that Assange backers want no part in supporting.

A Donald Trump pardon of Julian Assange will be a very good way of making sure Assange comes to symbolize those other crimes, not earlier laudable releases, and it might not even end his imprisonment.

It may not work

If Trump gives Assange a pardon, it’s not actually clear it will end his legal jeopardy. The existing Espionage Act charges, particularly the ones for publishing names of coalition informants (which would include the UK) are actually more obviously illegal in the UK than the US. Two UK defendants have already pled guilty to a CFAA conspiracy that makes up part of the CFAA charge against Assange. And because the Vault 7 damage assessment presented at the Joshua Schulte trial explicitly included damage to foreign partners, that publication may expose Assange to Official Secrets Act charges in the UK as well. Plus, there are other aspects of the Vault 7 publication, including Assange’s efforts — with the help of a lawyer he shared with Oleg Deripaska — to coerce immunity from the US with them, that may pose legal jeopardy in the UK if he is pardoned in the US.

I’ve likened the Assange extradition to that of AQAP graphic designer Minh Quang Pham, and this may be another similarity. In that case, as soon as it became clear that the legal disposition that Theresa May was attempting in the UK might not work, SDNY promptly indicted Pham, ensuring Pham would remain in custody no matter what happened in the UK. I wouldn’t be surprised if the reverse happened in the eventuality of an Assange pardon in the US. That is, DOJ may already have sent the UK the evidence to support prosecution of Assange in the UK for some of the things the US would otherwise like to try him on. Indeed, that is consistent with the way the US charged Assange within a day of when Ecuador applied for diplomatic credentials for Assange; the UK has already proven to be in almost immediate coordination with the US on this.

The UK would surely rather the US do the job, but particularly because of the damage the Vault 7 release caused the Five Eyes, I don’t rule out the UK prosecuting Assange if the US could not.

A Trump pardon would have to pardon everything through current day

Assange’s boosters appear to think a pardon would cover just the existing Espionage charges pertaining to the Chelsea Manning leaks (plus the CFAA charge, which is no longer limited to the password crack attempt, though virtually all his boosters ignore the substance of that charge).

That, of course, wouldn’t work. Unless Assange were immediately whisked away to a country that doesn’t have an extradition treaty with the US, he could quickly be charged in a virtually identical indictment covering Vault 7 (and the US could charge it in any case as a way to pressure whatever country he was in). Only, on every charge, the claims now being made to defend Assange — about newsworthiness, about intentionality of revealing protected identities, about the push to leak entire databases — would be far weaker arguments with respect to Vault 7 than with respect to the Manning leaks. Just as one example, WikiLeaks left the identities of the people Joshua Schulte was angry at unredacted in the Vault 7 release, which would make it easier for prosecutors to show forethought and malice for revealing those identities than is the case in (especially) the Cable leaks. And that, again, ignores how Assange repeatedly used the files in an attempt to coerce immunity from the US.

Several close WikiLeaks associates have told me after the initial indictment they were glad it didn’t include Vault 7, because that’s a lot harder to defend against. The US might prefer it for that reason.

So an Assange pardon would have to include some language like, “all offenses against the United States prior to the pardon” — a pardon akin to what Gerald Ford gave Richard Nixon.

Surely, if Trump is going to pardon Assange anyway, he would be willing to do that. Trump’s gonna make Oprah look stingy in the next few weeks, after all. But legally, for a pardon for Julian Assange to stick, it would have to cover all crimes he committed against the US through the present day.

That of course shouldn’t bother Assange supporters — it accords him even broader protection than Mike Flynn got. But it does mean that the pardon would be assessed on the entirety of Assange’s actions, the record of which remains significantly classified and the public record with which virtually no Assange booster — up to and including extradition hearing “expert” witnesses — exhibit familiarity. In other words, they’re arguing blind, without knowing what they’re asking to pardon.

Because an Assange pardon would need to extend through the present it would be tainted by Trump’s own corruption, possibly including litigation

If a Trump pardon for Assange were written broadly enough to stick, it would almost certainly include a conspiracy involving Trump himself, possibly including Russia’s GRU, granting a pardon for Assange in exchange for the optimization of the Podesta files. The pardon itself would likely be a crime for Trump. And that raises the stakes on it.

When WikiLeaks supporters hear “Assange pardon,” they seem to immediately think, “Dana Rohrbacher.” That’s significantly because Assange’s lawyers, in a deliberate use of Assange’s extradition hearing to sow propaganda (of which this is by no means the only example), had Jen Robinson submit testimony describing how Rohrabacher attempted to broker a pardon for Assange in August 2017, a pardon that was contingent on claiming Russia was not behind the 2016 theft of DNC documents.  The testimony was meant to support Assange’s claim that his prosecution is political, a claim that involved misrepresenting the public record in many ways.

When Assange’s team brought this up in his extradition hearing, the lawyer for the US emphasized that Trump didn’t sanction this offer. That’s credible (and backed by contemporaneous reporting), mostly because at the time John Kelly was assiduously gate-keeping offers like this. So WikiLeaks’ focus on the Rohrabacher pardon dangle, while accurate (Robinson is far too ethical to misrepresent things), also falsely suggests that that pardon dangle was the only, or even the most important, pardon discussion between Trump and Assange. It wasn’t. And WikiLeaks knows that, because key WikiLeaks supporters — Randy Credico and Margaret Kunstler — were involved with the one still under criminal investigation.

It is a fact that the Mueller Report stated that they had referred ongoing investigations into whether Roger Stone took part in Russia’s hacking conspiracy to the DC US Attorney’s Office for further investigation. It is a fact that, when the court unsealed warrants against Stone in April, they revealed an ongoing investigation into Stone for the hacking, for conspiracy, and for serving as a foreign agent of Russia, one that Mueller had hidden from Stone. It is a fact that Randy Credico testified under oath he had put Stone in touch with Margaret Kunstler to discuss a pardon for Assange. Credico is evasive about when this discussion began, including whether the discussion started before the election. Texts submitted at trial show Stone and Credico discussed asylum and Credico’s tie to Kunstler on October 3, 2016, in a period when Stone had multiple phone calls with Credico as well as some presumed to be with Trump. Stone appears to have had lunch with Trump on October 8, the day after the Podesta emails dropped. Mike Flynn testified that after the Podesta files dropped, Trump’s closest advisors discussed reaching out to WikiLeaks. Shortly after that, Stone did reach out to WikiLeaks, and WikiLeaks reached out to Don Jr. WikiLeaks reached out to both after Trump won. And according to affidavits obtained against Stone, he and Kunstler started communicating over Signal starting on November 15, seven days after the election. As of October 1 of this year, significant swaths of Kunstler’s two interview reports with Mueller prosecutors remained sealed with redactions protecting an ongoing investigation.

If Stone is to be believed, he pursued this effort to get Assange a pardon at least through 2018. Two things are clear, however. Days after Stone told Assange he was working with the “highest level of Government” to resolve Assange’s issues, Trump directed Corey Lewandowski to direct Jeff Sessions to shut down the entire retroactive Russian investigation. Trump already took an overt act to respond to Stone’s entreaties to help Assange, one documented in Twitter DMs and notes Trump demanded Lewandowski take down. And after Mueller asked Trump about an Assange pardon, Don Jr’s best buddy Arthur Schwartz told Cassanda Fairbanks, “a pardon isn’t going to fucking happen” (she ultimately flew to London to tell Assange what Schwartz told her in person). Nevertheless, Stone’s buddy Tucker Carlson had Glenn Greenwald on pitching one to Trump — as a great way to get back at The [American] Deep State — in September.

To be clear: If Trump pardons Assange for all crimes against the United States, the pardon will still work for Assange (again, unless the UK decides to file charges against Assange instead). And I expect a great deal of Assange’s most loyal boosters won’t give a shit about what all was included in the pardon. Indeed, WikiLeaks’ most loyal fans believe it was a good thing for Assange to partner with the GRU in 2016 to undermine a democratic election.

But if Trump pardons Assange, these details are virtually guaranteed to come under close scrutiny in the months ahead, all the more so if he tries a self-pardon, because this would be one thing that even the 6 Republican majority on SCOTUS might find unreasonable, and it would be the quickest way to prove that not just Stone, but Trump himself, conspired to optimize the files stolen by Russia.

If all that were to happen after he was safe in Oz, Assange probably wouldn’t care, nor would I if I were in Assange’s position. But those backing an Assange pardon are — because of details that virtually none of them understand — cheering Trump to do one of the most corrupt things he would have done over the course of the last five years.

The Mistaken Presumptions of Virtually All Discussions of a Future Trump Prosecution

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Jack Goldsmith has written a piece arguing against a Trump prosecution under the Biden Administration. He’s wrong on a key point that many other people engaging in this discussion also are. He’s wrong about what crime might be prosecuted and whose DOJ investigated it.

Before I get to that, though, I want to critique two smaller issues in his post.

First, he links to the DOJ IG investigation on Carter Page, apparently suggesting it supports a claim that that report found there were inappropriate parts of the investigation into Donald Trump.

The first in this line was the investigation of the 2016 Trump campaign and presidential transition by the FBI and the Obama Justice Department, which continued with the Mueller investigation. Some elements of this investigation were clearly legitimate and some, clearly not.

Except that’s not what that report shows (even ignoring the report’s own problems). It shows that FBI followed the rules on informants and even on including an investigative agent in Trump’s first security briefing (after which Flynn promptly moved to cover up his secret relationship with Turkey). It shows that there were problems with the Carter Page FISA application. But the single solitary thing in the report that would not survive a Franks review is Kevin Clinesmith’s alteration of an email. Every single other thing would meet the Good Faith standard used in Fourth Amendment review. And all that’s separate from the question of whether Carter Page was a legitimate target for investigation, which the bipartisan SSCI investigation has said he was.

I also disagree with Goldsmith’s concerns about the status of the Durham investigation going forward.

But though Durham started out as a credible figure, the review was damaged from the beginning due to Trump’s and Barr’s ceaseless public prejudging of the case (and, for some, Durham’s response to one of Horowitz’s reports). And all of that was before Barr expanded the investigation into a criminal one and then later appointed Durham as a special counsel to ensure that his criminal investigation could continue into the Biden administration. Once again, the nation is divided on the legitimacy of all of this.

The third challenge, exacerbating the first two, is that these investigations—the FBI investigation of the Trump campaign and transition, the Durham investigation, and the Hunter Biden investigation—extended (or will extend) into an administration of a different party. That means that what began as a cross-party investigation where the worry was bias against political opponents will transform, in the middle of the investigation, into an intraparty investigation, where the worry will shift to one party’s desire for self-protection.

I think the Durham investigation is misunderstood by all sides. Even according to Billy Barr, Durham has debunked some conspiracy theories Republicans have floated and he appears to have moved beyond the question of whether the CIA wrongly concluded that Putin wanted to elect Trump. That means if he were to write a report, it would substantially consist of telling the frothy right that their conspiracy theories were just that, and that George Papadopoulos really did entertain recruitment by at least one Russian agent.

That said, the Durham investigation has, unfortunately, been hopelessly biased by Billy Barr’s work in at least two ways. Durham apparently believes that the treatment of partisan bias at DOJ has been equally applied, which is demonstrably false (which also means he’s relying on witnesses who have themselves committed the sins he has used to predicate his own investigation, using FBI devices to speak for or against a political candidate). More troublingly, every single legal document his prosecutors have filed thus far have betrayed that they don’t understand the most basic things about the counterintelligence investigations they’re focusing on. But because of that ignorance, I’m fairly confident that if Durham tried to prosecute people for the theories that Bill Barr has been pushing while micromanaging this, Durham’s prosecutors would get their ass handed to them. Plus, even without Biden’s AG doing anything, I think there’s a possibility that Durham’s independence can be put to good use to investigate the crimes that Barr’s DOJ may have committed in pushing these theories. And there’s an easy way to solve the political nastiness of Barr’s special counsel appointment: by swapping Durham for Nora Dannehy. In short, freed from the micromanaging and mistaken beliefs of Bill Barr, Durham may evolve into a totally useful entity, one that will debunk a lot of the bullshit that the frothy right has been spewing for years.

In any case, the only reason it would be perceived as a cross-party investigation was the micromanagement of Barr. The FBI is not a member of either party, and if Durham finds real crimes — like that of Clinesmith — by all means he should prosecute. Once he is freed of Barr’s micromanagement, though, he may discover that he was given a very partial view of the evidence he was looking at.

Which brings me to Goldsmith’s treatment of whether or not Trump should be prosecuted. Before giving three reasons why one shouldn’t investigate Trump, he lays out what he sees as the potential crime this way:

Many people have argued that the Biden Justice Department should continue this pattern by examining the criminal acts Trump might have committed while in office—some arguing for a full-blown broad investigation, others (like my co-author, Bob Bauer, in “After Trump”) for a measured, narrowly tailored one. I don’t think this is a good idea. I doubt Trump has committed prosecutable crimes in office (I am confident that obstruction of justice prosecution would fail), I doubt he will ever go to jail if he did commit criminal acts in office (which would make the effort worse than useless), Trump will thrive off the attention of such an investigation, and the Biden administration will be damaged in pursuing other elements of its agenda (including restoration of the appearance of apolitical law enforcement). But the main reason I am skeptical is that such an investigation would, in the prevailing tit-for-tat culture, cement the inchoate norm of one administration as a matter of course criminally investigating the prior one—to the enormous detriment of the nation. (I do not believe that federal investigations for Trump’s pre-presidential actions raise the same risk.

There are two problems inherent with Goldsmith’s logic here, problems that virtually all the other people who engage in this debate also make.

First, he assumes that any prosecution of Trump would have to engage in further investigation. Here’s just one of several places where he makes that assumption clear.

The investigation by one administration of the predecessor president for acts committed in office would be a politically cataclysmic event.

Goldsmith doesn’t consider the possibility that such an investigation was begun under Mueller and continued under Bill Barr, waiting for such time as Trump can be charged under DOJ guidelines. It’s odd that he doesn’t consider that possibility, because Mueller laid that possibility out clearly in the report, describing leaving grand jury evidence banked for such time as Trump could be charged (indeed, it’s fairly clear a January 2019 Steve Bannon grand jury appearance included such evidence). If Bill Barr’s DOJ conducted an investigation that shows Trump committed a crime, it would break out of the tit-for-tat that Goldsmith complains about.

Goldsmith also appears to believe, even in spite of Trump’s transactionalism, that any crime Trump committed in office would have begun and ended during his term of office.

Part of these two errors appear to stem from another one. Goldsmith clearly believes the only crime for which Mueller investigated Trump is obstruction and he dismisses the possibility that an obstruction prosecution would stick. I’m agnostic about whether that view of obstruction is true or not. Even just reviewing how the Mueller Report treated the Roger Stone investigation, though, I’m certain there are places where the Mueller Report protected investigative equities. That may be true of the obstruction case as well. If so, then it would suggest the obstruction case might be far stronger than we know.

But it is false that Mueller only investigated Trump for obstruction. That’s because Trump may have entered into a conspiracy with his rat-fucker. In addition to investigating Roger Stone for covering up who his tie to Wikileaks was, Mueller also investigated Roger Stone for entering the CFAA conspiracy with Russia, a part of the investigation that recently declassified information as well as the warrants in the case make clear continued after the close of the Mueller investigation. Not only did Mueller ask Trump about his contacts with Stone on the specific issue for which the rat-fucker remained under investigation after Mueller closed up shop, but Mueller’s last warrants listed Stone’s written record of his communications with Trump during the campaign among the items to be seized in the search of Stone’s homes. If Stone entered into the CFAA conspiracy with Russia and those contacts show that Trump entered into an agreement with Stone on his part of the conspiracy, then Mueller was investigating Trump himself in the conspiracy. There is no way you target Stone’s records of communications with Trump unless Trump, too, was under investigation for joining that conspiracy.

I know I’m the only one saying this, but that’s in significant part because — as far as I know — I’m the single solitary journalist who has read these documents (plus, the unsealed language showing the investigation into Stone on the CFAA charges got buried in the election). But the record makes this quite clear: by investigating Roger Stone, Mueller also investigated Donald Trump for joining the CFAA conspiracy with Russia that helped him get elected. And because Mueller did not complete the investigation into Roger Stone before he closed up shop, he did not complete the investigation into Donald Trump.

And while I’m less certain, abundant evidence tells us what Stone and Trump’s role in the conspiracy may have been: to enter into a quid pro quo trading advance access to select John Podesta files (and, possibly, optimizing their release to cover up the DHS/ODNI Russian attribution statement) for a pardon for Julian Assange.

Stone did something in August 2016 to obtain advance copies of the Podesta files that the frothy right believed would be particularly beneficial in attacking Podesta and Hillary. Days before the Podesta file release in October 2016, Stone and Credico appear to have started talking about a pardon for Julian Assange. After the release of the Podesta files, Trump discussed reaching out to Assange with more people, including Mike Flynn. And no later than 7 days after the election — and given Credico’s refusal to give a straight answer about this, probably before — Stone set out on an extended effort to deliver on that pardon. And Trump took an overt act, as President, to try to deliver on that quid pro quo when he ordered Corey Lewandowski to tell Jeff Sessions to shut down any investigation into the hack-and-leak (which would have shut down the investigation into Assange’s role in it).

I have no idea whether DOJ obtained enough evidence to charge a former president in conspiring with a hostile foreign power to get elected. The investigation into Stone’s role in the conspiracy may have shut down when Barr’s intervention in Stone’s sentencing led all four prosecutors to drop from the case, so it’s possible that a Biden DOJ would need to resume that investigation (and finish it up before statutes of limitation tolled). Still, as of October 1, when DOJ withheld almost the entirety of two interviews with Margaret Kunstler to protect an ongoing investigation, that part of the investigation was ongoing. So if you want to consider the possible universe of Trump charges, this is the possibility you’d need to consider: that after Mueller shut down but before the end of Barr’s tenure, DOJ acquired enough evidence to prosecute Donald Trump once he becomes available to prosecute under DOJ rules.

I think there are other instances where Trump cheated to win in criminal fashion (even ignoring the hush payments for which he got named in Cohen’s charging documents). For example, Barr very obviously violated DOJ guidelines in his treatment of the whistleblower complaint about the Volodymyr Zelenskyy call, and with the evidence that OMB, State, and DOD withheld from the impeachment inquiry and witnesses subject to subpoena (indeed, at least some of whom will likely have no Fifth Amendment privileges after a pardon), the impeachment case is likely far stronger than Goldsmith imagines. Plus, there is an obvious tie to the SDNY investigation into Lev Parnas (where the whistleblower complaint would have been referred had Barr not violated DOJ guidelines). So on that case, it might be a question of Biden shutting down an ongoing investigation, not one of starting a new investigation.

Perhaps the most difficult and controversial decision for a Biden AG will be whether to reopen the investigation into the Egyptian payment Trump may have gotten in 2016 that kept his campaign afloat, one that SCOTUS reviewed (for the Mystery Appellant challenge) and sustained a subpoena for. Per CNN, DOJ doesn’t yet have enough to prosecute that, but that’s because DOJ chose not to subpoena Trump Organization for documents. And a Biden Administration could sanction the Egyptian bank to require it to cooperate in a way they refused to do under Mueller.

But those two instances can’t be shown via the public evidence. The overt act that Trump took in response to Roger Stone’s request — one Stone documented in a DM to Julian Assange — is public. Importantly, this would be a conspiracy that started before Trump got elected and extended into his presidency.

If you want to imagine whether Biden would prosecute Trump, you have to consider the possibility that he would prosecute Trump for crimes Bill Barr investigated.

Joshua Schulte Undermines the WikiLeaks Claim to Publish “Whistleblowers”

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In this post, I noted that The Intercept — including Micah Lee — had fairly systematically ignored the most recent superseding indictment against Julian Assange, and as such had ignored the overt acts in it tied to helping Edward Snowden flee. I think the outlet has real ethical responsibility to actually report the truth of that detail — which they should do in any case to address the legally suspect aspects of some of the claims made about Snowden.

I’d like to look at an earlier Micah Lee post, not because of anything it (necessarily) says about The Intercept, but as background for a larger post about WikiLeaks I hope to move towards. In an article subtitled, “The Trump Administration Is Using the Full Power of the U.S. Surveillance State Against Whistleblowers,” Micah laid out how (according to his read of what he claimed were the court filings) the government had found a bunch of “whistleblowers.” Before he gets there, though, he describes the subjects of his post to be “government whistleblowers” who, only after they see something wrong, do they reach out to journalists and share information.

GOVERNMENT WHISTLEBLOWERS ARE increasingly being charged under laws such as the Espionage Act, but they aren’t spies.

They’re ordinary Americans and, like most of us, they carry smartphones that automatically get backed up to the cloud. When they want to talk to someone, they send them a text or call them on the phone. They use Gmail and share memes and talk politics on Facebook. Sometimes they even log in to these accounts from their work computers.

Then, during the course of their work, they see something disturbing. Maybe it’s that the government often has no idea if the people it kills in drone strikes are civilians. Or that the NSA witnessed a cyberattack against local election officials in 2016 that U.S. intelligence believes was orchestrated by Russia, even though the president is always on TV saying the opposite. Or that the FBI uses hidden loopholes to bypass its own rules against infiltrating political and religious groups. Or that Donald Trump’s associates are implicated in sketchy financial transactions.

So they search government databases for more information and maybe print some of the documents they find. They search for related information using Google. Maybe they even send a text message to a friend about how insane this is while they consider possible next steps. Should they contact a journalist? They look up the tips pages of news organizations they like and start researching how to use Tor Browser. All of this happens before they’ve reached out to a journalist for the first time.

Having laid out certain assumptions not just that all these people are whistleblowers, but also about what whistleblowing entails (and made certain claims about motive that don’t necessarily match the claimed motive of some of the subjects of the story, though some of that has become public since Micah wrote this), Micah explains that Joshua Schulte is an exception with regards to how he was caught.

Of the four Espionage Act cases based on alleged leaks in the Trump era, the most unusual concerned Joshua Schulte, a former CIA software developer accused of leaking CIA documents and hacking tools known as the Vault 7 disclosures to WikiLeaks. Schulte’s case is different from the others because, after the FBI confiscated his desktop computer, phone, and other devices in a March 2017 raid, the government allegedly discovered over 10,000 images depicting child sexual abuse on his computer, as well as a file and chat server he ran that included logs of him discussing child sexual abuse images and screenshots of him using racist slurs. Prosecutors initially charged Schulte with several counts related to child pornography and later with sexual assault in a separate case, based on evidence from his phone. Only in June 2018, in a superseding indictment, did the government finally charge him under the Espionage Act for leaking the hacking tools. He has pleaded not guilty to all charges.

He doesn’t return to Schulte’s case for the rest of the piece.

About the rest of the subjects of the story, Micah describes how, whether the subject took some measure to protect himself (such as with Terry Albury and James Wolfe) or did not (such as Reality Winner), they all got caught. What they all have in common is that they were among a very limited circle of people who had access to the stuff that got leaked, and therefore could be ultimately identified with more investigation.

I think Micah’s comment was meant to suggest that Schulte wasn’t identified that same way, but was instead identified only after he was busted for child porn. I texted Micah at the time and let him know that’s not what the court records reflect (he had not, in fact, reviewed the affidavits in the court docket). By that point, a slew of the warrants in the case had been revealed, including the first ones, which showed that Schulte was identified as a suspect almost immediately, in part the same way the others were — because he was one of three people who had access to the files believed to have been leaked. (It would later become clear that at least a few more people had access to the server and that the files were copied on a different, more incriminating date than FBI originally suspected.)

Micah never corrected his post.

Of note, however, even that initial warrant raised real questions about any claim that Schulte was a whistleblower — a claim WikiLeaks made it its first Vault 7 post.

In a statement to WikiLeaks the source details policy questions that they say urgently need to be debated in public, including whether the CIA’s hacking capabilities exceed its mandated powers and the problem of public oversight of the agency. The source wishes to initiate a public debate about the security, creation, use, proliferation and democratic control of cyberweapons.

That first warrant revealed that Schulte,

  • Had already restored his access to the exact files in question without authorization once (FBI would later discover he did this at least two more times)
  • Was pissy about something that had nothing to do with the hacking CIA did with the tools that Schulte wrote, basically a juvenile work dispute with a colleague
  • Had laid a paper trail in the weeks before he left CIA, making a claim to be a whistleblower, but the claim was not backed by any prior record of concern (per the FBI agent who admittedly should not be trusted on face value)

That is, even that first affidavit suggested that Schulte had used the claim to be a whistleblower as cover.

Schulte declined to present much of a defense at his first trial, a decision that (given the hung jury) absolutely was the right decision. So we can’t claim to have fully assessed all his claims to be a whistleblower, claims he made in pro se filings and deceitful Tweets he intended to post from jail. He chose not to make that case personally and he didn’t need to make the case to avoid a guilty verdict.

That said, all the evidence presented at trial strongly backs the initial FBI assessment that he was just an angry shithole who thought he was god, aiming to get back at people at the CIA he thought had dissed him. Indeed, two pieces of evidence submitted seriously undermine his claim to be a whistleblower, because they show he acted in ways that would be inconsistent from someone who genuinely had the concerns Schulte claimed to have — both a concern about the role of contractors and about security.

First, at one point when he was pissy because the CIA had contracted with a consultant to finish off a project that had been taking too long under him, Schulte actually considered become a contractor. Yes, he was pissy that a contractor could take away his project. But considering a job as a contractor is inconsistent with his claims about the use of them. It makes the claims translated into the WikiLeaks statement yet another cover for Schulte’s own resentment.

Then, at trial, the government showed that Schulte himself was responsible for setting up a root password that he allegedly used to steal the files. That is, to the extent the files were totally insecure from someone like Schulte, they were insecure because Schulte set them up to be. So not only was he not complaining to anyone else about the insecurity of these files, he was the one making them insecure.

Again, maybe Schulte could make a persuasive case he leaked these files to expose wrong-doing. But thus far, every piece of evidence suggests not only that Schulte was not a whistleblower, that every time he wrote up a claim to be one he otherwise told identifiable lies, and that he’s mostly just a rage-driven dude who decided to burn the CIA to the ground for spite.

Now, if WikiLeaks is a publisher, as it claims, that doesn’t necessarily matter. Journalists get information from sources operating out of a variety of motives, and personal pique is a common one. Except it raises the stakes on the newsworthiness of the files published. And on that front, WikiLeaks (on Twitter especially) vastly oversold the newsworthiness of the CIA files it published. Yes, it was useful for security firms to have CIA’s files identified publicly. But there was never anything published showing that CIA was operating outside of its mandate, and much of what was published showed tools that would be narrowly targeted. Just as importantly, CIA wasn’t actually doing anything particularly exotic with its hacking files. Spies were spying, news at 11.

I’ve written before about how a close associate of Assange’s sternly asked me to downplay Schulte because he hurt the public case for Julian Assange. I think that’s partly the allegations of child porn, racism, and sexual assault against him. People associated with WikiLeaks also knew before it was public that there was evidence involving Schulte implicating Russia (though the record on what the import of various pieces of evidence about Schulte pertaining to Russia mean is very mixed; Sabrina Shroff argued fairly convincingly that some of what is there stems from work Schulte was doing for his cellmate). Still, that may be another reason WikiLeaks boosters don’t want anyone to talk seriously about Schulte, because in the wake of Julian Assange working with Russia to get harm Hillary, their next big source also had some tie, of uncertain nature, to Russia.

But the existing record on Schulte, at least, not only undermines WikiLeaks’ claim to facilitate whistleblowers. On the contrary, WikiLeaks gave a disgruntled spook an easy way to burn the place down. More importantly, somewhere along the way, Schulte decided to cloak his bitter revenge plot inside a false claim to be a whistleblower.

People can certainly still defend WikiLeaks as an outlet permitting disgruntled spooks to burn their agencies to the ground out of spite. Certainly, if you believe the CIA is inherently, uniquely evil, you might still champion this leak. But on the Vault 7 leak, WikiLeaks boosters should be clear that’s what they’re doing.

The Intercept’s Silence about Edward Snowden’s Inclusion in Julian Assange’s Charges

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Back in October, I beat up The Intercept’s Micah Lee for writing a post that purported to cover the “crumbling” hacking case against Julian Assange by working from an outdated indictment rather than the superseding one that added 50-some paragraphs to the overt acts alleged in the single count for conspiracy to hack. Micah made a half-assed and still factually inaccurate “correction” (without crediting me for pointing out the embarrassing error) that utterly misunderstands US conspiracy law, and claimed events since 2011 had tolled whereas the original password hacking attempt had not.

In the 2020 indictment, attempting to portray Assange as a hacker rather than a journalist, the government listed other instances of Assange allegedly directing hacking activity by people other than Manning — but did not add to the charges against him, prompting a discussion of whether the statute of limitations on the alleged new crimes had expired. Assange’s lawyers called the newest evidence “‘make weight’ allegations designed to bring all of this back within the limitation period.” It remains to be seen if the U.S. government will pursue this reaching strategy. At the moment it seems that these supplemental allegations are peripheral to the first, and only clearly chargeable, instance described by the government that could be conceived as a conspiracy to commit a computer crime — providing marginal support for a case which is, at its core, already weak.

In short, having been alerted to the superseding indictment, The Intercept’s resident expert on hacking utterly dodged the allegations made in that expanded charge, not so much as mentioning what they were.

At the time, I promised to return to Micah’s embarrassing piece after I finished some more pressing issues.

It turns out, the problem at The Intercept is broader than just Micah’s piece.

A recent post from Charles Glass suggests that if President Biden were to “remove the Espionage Act charges against Assange,” it would amount to the withdrawal of his extradition application entirely.

WHEN JOE BIDEN becomes president of the United States on January 20, a historic opportunity awaits him to demonstrate America’s commitment to the First Amendment. He can, in a stroke, reverse four years of White House persecution of journalism by withdrawing the application to extradite Julian Assange from Britain to the U.S.

[snip]

By removing the 1917 Espionage Act charges against Assange, Biden would be adhering to the precedent established by the administration in which he served for eight years as vice president. President Barack Obama’s Department of Justice investigated Assange and WikiLeaks for three years until 2013 before deciding, in the words of University of Maryland journalism professor Mark Feldstein, “to follow established precedent and not bring charges against Assange or any of the newspapers that published the documents.” Equal application of the law would have required the DOJ to prosecute media outlets, including the New York Times, that had as large a hand in publicizing war crimes as did Assange himself. If prosecutors put all the editors, publishers, and scholars who disseminated WikiLeaks materials in the dock, there would not be a courtroom anywhere in America big enough to hold the trial. Obama decided against it, knowing it would represent an unprecedented assault on freedoms Americans hold dear.

Glass went on to repeat the grossly erroneous claims about the history of Assange’s prosecution made at the extradition hearing by journalism history professor Mark Feldstein, who literally submitted a filing to the hearing admitting he wasn’t familiar with what the public record actually says about it.

That Glass ignored the hacking charge against Assange is remarkable given that, along with the erroneous piece from Micah, an earlier post from him is one of the few that addressed the (now superseded) CFAA count.

In addition, The Intercept did a Deconstructed show on the hearing in October. It, too, adopted the erroneous fairy tale about why the Trump Administration charged Assange when the Obama Administration did not. And while it introduced the allegation that Assange is a hacker, it then reverted to the so-called New York Times test, suggesting that if the publishing activities of Assange cannot be distinguished from the NYT’s, then it means Assange cannot and should not be prosecuted.

RG: Supporters of the prosecution of Assange make a number of arguments: That Assange is not a “real” journalist. He’s a hacker. He’s a traitor. He recklessly endangered lives and so he deserves no protection as a journalist. All of this is wrong.

The First Amendment isn’t worth the parchment it’s written on if it’s not respected, and defended, in the broader culture of the United States. People have to support it. Once that support erodes, it tends not to come back. That’s why authoritarians, when they want to curtail a particular freedom, usually find the most unsympathetic target they can, hoping nobody will come to his defense. Then once a new precedent is established, all bets are off. With Assange, Trump and Barr think they’ve found just such a man. It’s up to us not to take the bait.

[snip]

Kevin Gosztola: I think the key thing about Trevor Tim[m]’s testimony is destigmatizing the work of WikiLeaks, or even demystifying it. Because what you have through the U.S. government’s targeting of Wikileaks over the past decade is a concerted effort to make it seem like what WikiLeaks does is not journalism. And so the counter to that through the defense’s case is to make it abundantly clear that this is not reasonable; that in fact, everything that WikiLeaks does, from when it accepts the documents, when it tries to authenticate them, to when it makes media partnerships, to also make sure that names are redacted, to make sure that sensitive details are understood fully before the documents are published. And I think you see that this is the way to keep investigative journalism robust in the 21st century.

RG: I thought Trevor’s point was interesting that The New York Times does not get a press badge from the U.S. government. You know, it isn’t, and it shouldn’t be, up to the U.S. government to decide who is and who is not a journalist.

And the idea of who is or is not a responsible journalist is different from what is illegal or legal conduct, which I also thought was important because the prosecution wants to say: Well, he’s an irresponsible person, so therefore, he doesn’t have these protections. And the counter is no, it’s not up to the government to say what’s responsible or irresponsible journalism. You know, the government creates laws, and if the laws are violated, then you can start your prosecution. But if not, you can’t. And it’s never been against the law to publish classified information. It’s against the law to leak it, if you have access to it. But it’s not against the law to publish it.

As I have said over and over, I agree that the Espionage Act charges against Assange, as charged, pose a real threat to journalism (though so do the Trump DOJ’s other prosecutions of Espionage as a conspiracy, including the Henry Kyle Frese case where DOJ used a Title III wiretap to obtain evidence, and the Natalie Sours Edwards case where the Treasury Department attempted to achieve prior restraint on Jason Leopold, prosecutions that have gotten far less attention).

But I also think the sheer amount of shitty propaganda and outright lies people are telling in service of Julian Assange do their own damage to journalism. It is possible to discuss the risk that Assange’s prosecution on the Espionage charges poses without ignoring large swaths of the public record or even, as The Intercept has done in these three pieces and much of their earlier coverage, the actual charges.

The Intercept’s silence on the superseding indictment is all the more notable because of the way its founding act plays a part.

As I laid out here and here, the superseding charge incorporates a number of other overt acts in the CFAA conspiracy, going through 2015 (and seemingly setting up another superseding indictment that covers publications from 2015 through 2017). The new overt acts include a number of things that absolutely distinguish Assange and WikiLeaks from journalists and publishers. Of particular note, they allege that Julian Assange:

  • Entered into an agreement with individuals involved in Gnosis and Lulzsec before those individuals carried out the hack of Stratfor and remained in the agreement during and after the hack. This is a case where five of the people Assange allegedly entered into a conspiracy with have already pled guilty, in both the UK and US (as well as Ireland), making the primary proof required at trial that Assange did enter into agreement with the other co-conspirators, not that the hack occurred.
  • Directed Siggi to hack a WikiLeaks dissident to destroy incriminating evidence implicating Assange. While I’m less certain whether Siggi took steps to advance this conspiracy (and Siggi has credibility problems as a witness), I know of multiple different allegations that dissidents, sources, and competing outlets were similarly targeted for surveillance, with one WikiLeaks dissident claiming to have been hacked and threatened after a political split with the group.
  • Helped Edward Snowden flee, both by sending Sarah Harrison to facilitate his flight and creating distractions, and then using WikiLeaks’ assistance as a means to recruit further hackers and leakers.

The last one seems particularly irresponsible for The Intercept to suppress as they have, particularly given four other details:

  • Snowden’s description of setting up Tor bridges for Iranians with other Tor volunteers in the extended Arab Spring, making it highly likely he had a relationship with Jake Appelbaum before he took his NSA job in Hawaii.
  • Bart Gellman’s description of how Snowden worked to “optimize” his own outcome to encourage others to leak, mirroring Harrison’s stated motive for helping him flee.
  • The government’s suggestion that Daniel Everette Hale — Jeremy Scahill’s alleged source for his drone reporting — was inspired to leak by Snowden.
  • Snowden’s own (recent) treatment of three Intercept sources — along with Hale, Reality Winner and Terry Albury — as a group meriting a Trump pardon, something that will likely make Hale’s defense at trial next year more difficult.

The government’s theory about Snowden as a recruitment tool is really problematic (though I suspect the government plans to make it a lot more specific after inauguration, even before Hale’s trial next year). But it is also the case that publishers don’t usually help their sources flee as a way to ensure they’ll recruit future leakers and hackers (indeed, in his book, Gellman talked at length about how careful he was to avoid crossing that line when Snowden tried to trick him into it).

One can argue that WikiLeaks was heroic for doing so. One can argue that the US empire has what’s coming to it and so WikiLeaks was right to help Snowden flee. But one can’t argue that the overt acts alleged in the CFAA count of the superseding indictment are things that journalists routinely do. And, if proven, that gets the government well beyond the New York Times test.

Importantly, if you’re engaging in a debate about Assange’s fate but ignoring credible allegations that Assange did a bunch of things that journalists do not do, you should not, at the same time, claim you’re serving journalism. You’re serving propaganda (particularly if you’re also telling a fairy tale about what changed in 2016 and 2017).

All the more so if you’re The Intercept. The government has alleged that one thing that distinguishes Julian Assange from journalists — and they’re right — is that he sent someone halfway around the world to save the guy who created the opportunity to create The Intercept in the first place. Unless Assange is pardoned before Trump leaves (and maybe even then, since many of the acts Assange is charged with are more obviously illegal in the UK), this allegation is going to remain out there.

The founding possibility for The Intercept has now been included as an overt act in a hacking indictment. One way or another, it seems The Intercept needs to address that.

On Nappies and Law Enforcement Spying

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One of the most scandalous revelations from the Julian Assange extradition hearing — that the company that handled the security for the Ecuadoran Embassy, UC Global, sought to obtain a diaper from one of Stella Morris’ children — may have a very logical explanation: The FBI would need to know whether they had to treat communications between Assange and Morris with spousal privilege. The FBI did precisely the same thing with Roger Stone when they went to some length to figure out whether Kristin Davis’ son was Stone’s child before they interviewed her in the investigation of Stone.

Indeed, once you read through the muddles and inconsistencies, what the two witnesses who submitted testimony about UC Global’s surveillance of Assange (Witness One, Witness Two) described is utterly consistent with FBI surveillance and inconsistent with CIA surveillance.

Witness Two is more detailed and credible than Witness One. That’s easily shown in two ways. First, Witness Two admits that after David Morales got a contract with Sheldon Adelson in 2016, it led to speculation that he was working with US authorities. UC Global employees discussed how he “could” be cooperating with US authorities (a dumb speculation to begin with).

I remember that after David Morales had returned from the United States, at a meeting with the rest of the staff he affirmed that we were moving into “the premier league”. After this I became aware that David Morales was making regular trips to the United States, the context of which my boss, David Morales, repeated to his having “gone to the dark side”. I also recall Morales’s wife’s social media recording the recurring trips to the United States, specifically to New York and Washington, via her Instagram account (with the profile @moda_koko), which prompted ongoing commentary from staff that Mr Morales could be cooperating with US authorities. [my emphasis]

Witness One presents that as fact (unlike Witness Two, Witness One has none of the records or claims he makes documented, another thing that makes Witness Two far more credible).

After returning from one of his trips to the United States, David Morales gathered all the workers in the office in Jerez and told us that “we have moved up and from now on we will be playing in the big league”. During a private conversation with David, I asked him what he was referring to when he said we had moved up into “the big league”. David replied, without going into further detail, that he had switched over to “the dark side” referring to cooperating with US authorities, and as a result of that collaboration “the Americans will get us contracts all over the world”.

In addition to the new contract, after Morales’s return from Las Vegas and his comments about “the big league” and switching to “the dark side”, I learned through my conversation with Davis Morales that he had entered into illegal agreements with U.S. authorities to supply them with sensitive information about Mr. Assange and Rafael Correa, given that UC Global was responsible for the embassy security where Mr. Assange was located.

He does so, even though he didn’t leave UC Global — because Morales was selling everything to “the enemy, the United States” — until 2017 (or possibly even later, after Assange’s arrest).

Thus, I came to realize that David Morales decided to sell all the information to the enemy, the United States, which is the reason I put an end to my professional relationship with him.

If he were certain Morales was working for the dark side in 2016, by his own claims, he would have left then.

Similarly, Witness Two includes the details that explain why Adelson would give Morales a contract when his yacht already had security: it was to protect his kids when they were in Europe.

I remember that Sheldon Adelson himself – who is on the public record as being very close to President Donald Trump—increased his ties with UC Global because at one point David Morales was personally put in charge of the security of the magnate and his children when they visited Europe, in their Summer trips to Nice and Ibiza.

Witness One doesn’t consider such explanations.

That is to say, the contract was to provide security to the luxury boat during the short period during which it found itself in Mediterranean waters. But the most striking thing about it was that the boat had its own security, which consisted of a sophisticated security detail, and that the contract consisted in adding an additional person, in this case, David Morales, for a very short period of time, through which David Morales would receive an elevated sum.

The difference in credibility is important, because Witness One focuses closely on Adelson, whereas Witness Two barely focuses on it. Witness Two — who unlike Witness One had a direct role in the increased surveillance on Assange — mentions it only in passing.

For good reason. Any claim of a connection between the 2016 Adelson contract and surveillance that ratcheted up much later makes no sense.

And that’s important because, while Witness Two describes UC Global being vetted as early as January 2017, he describes (and Witness One agrees) that the increased surveillance started in June or July of that year, with the most intense surveillance starting in December 2017.

I recall that between June and July 2017, I was summoned by David Morales to form a task force of workers at our headquarters in Jerez. The purpose of this unit was to execute, from a technical perspective, the capture, systematization and processing of information collected at the embassy that David Morales requested. So, I was tasked with executing David Morales’s orders, with the technical means that existed in the embassy and additional measures that were installed by order of Morales, in addition to the information gathered by the UC Global employees who were physically present in the diplomatic mission. This unit also had to travel to London every month to collect information.

There are still inconsistencies with Witness Two’s testimony, mind you, including a request in May that he says was part of the task force that didn’t start until a month later. But effectively he provides compelling evidence that, starting in June 2017, the surveillance that UC Global was doing on Assange went up, and then in December it went up considerably.

That’s consistent with the substance — though not the headline claims — of a presentation that Andrew Müller-Maguhn did on this almost a year ago. Add in the report that Morales shared information with an IP in Alexandria, VA, and the surveillance is completely consistent with being part a criminal investigation conducted out of the EDVA grand jury known to be investigating not just Assange, but also accused Vault 7 source Joshua Schulte at the time. Within months, there would be several more investigations predicated against Assange, investigations that would have nothing to do with journalism (and, if DOJ investigated Assange’s attempt to extort immunity using the Vault 7 files, that too would have nothing to do with journalism).

That almost seems like what this paragraph, from the prosecution closing argument, suggests — that, sure, they did have Assange under surveillance but that’s because he was sitting on CIA’s hacking tools and was planning an exfiltration from the embassy to Russia.

Fifth: allegations which Assange makes about being surveilled in the Embassy are not evidence that this prosecution is politically motived. In short, taking the defence evidence at its highest, even if Assange was surveilled by or on behalf of the United States, which is not admitted, that does not demonstrate that this prosecution is politically motivated. Surveillance may evidence wider concern about a risk an individual poses or concern to know their movements. Surveillance may demonstrate a state’s interest in apprehending an individual but that does not make a prosecution for criminal conduct politically motivated.

As I’ve said before, UC Global had a legal presence in the US and as such would be subject to subpoena by a grand jury. Surveillance records are routinely obtained from grand juries. While I imagine they’d get Ecuador’s consent for this, by fall 2016 — and especially after the Vault 7 releases — Ecuador was pretty sensitive about the way Assange was using their embassy as a base for crimes that were pissing off multiple countries.

You can argue this level of surveillance was really overbearing (and you’d be right). But WikiLeaks’ backers keep telling the story without mentioning that it came during precisely the period when the FBI was investigating Assange for a whole bunch of stuff, almost all of which had nothing to do with journalism. You can argue that the 2010 charges are dangerous (they are!). But to argue that Assange shouldn’t be investigated for extortion, conspiring with those who hacked Americans, illegally participating in an American election, and entering into a quid pro quo to get a pardon is not an argument about journalism.

“Looking Forward” Will Be Harder for President Biden than It Was for President Obama

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NBC has a story that has caused a bit of panic, reporting that “Biden hopes to avoid divisive Trump investigations, preferring unity.”

The panic is overblown, given that the main point of the story is that Biden is hoping that DOJ will resume a more independent stance than that taken, especially, by Billy Barr.

Biden wants his Justice Department to function independently from the White House, aides said, and Biden isn’t going to tell federal law enforcement officials whom or what to investigate or not to investigate.

“His overarching view is that we need to move the country forward,” an adviser said. “But the most important thing on this is that he will not interfere with his Justice Department and not politicize his Justice Department.”

If there were to be investigations of Trump, everyone should want them to be completely insulated from the White House.

The story raises two more specific types of investigations which are both likely moot.

They said he has specifically told advisers that he is wary of federal tax investigations of Trump or of challenging any orders Trump may issue granting immunity to members of his staff before he leaves office. One adviser said Biden has made it clear that he “just wants to move on.”

Another Biden adviser said, “He’s going to be more oriented toward fixing the problems and moving forward than prosecuting them.”

New York state already has a tax investigation into Trump, so a federal one would be duplicative. And the pardon power is absolute; there’s little likelihood DOJ could investigate the pardons that Trump grants, because doing so would be constitutionally suspect.

All that said, attempting to move forward may not be as easy for President Biden as it was for President Obama.

That’s because there are a number of investigations that implicate Trump that are either pending (as of right now, but I don’t rule out Trump trying to kill them in the interim) or were shut down corruptly, to say nothing of the obstruction charges Mueller effectively recommended (which aforementioned pardons would renew, even in spite of DOJ’s declination prior to pardons). At a minimum, those include:

  • The Build the Wall fraud case against Steve Bannon and others that might, eventually, implicate the failson or his close buddies
  • The Igor Fruman and Lev Parnas graft which clearly implicates Rudy Giuliani and by all rights should always have included Trump’s extortion of Volodymyr Zelensky; given the timing of David Correia’s plea, it’s likely there will be grand jury testimony from him banked
  • Other foreign agent charges against Rudy
  • The investigation into Erik Prince for selling his private mercenary services to China
  • False statements charges against Ryan Zinke that Jeffrey Rosen attempted to kill
  • Various campaign finance and grift charges implicating Roger Stone, Paul Manafort, and Brad Parscale, to say nothing of the hush payments involving Trump personally
  • Possible hack-and-leak charges against Roger Stone from 2016, as well as the related pardon quid pro quo for Julian Assange implicating Trump himself
  • The possible aftermath of Judge Sullivan’s decisions in the Mike Flynn case, which could include perjury referrals or an invitation for DOJ to prosecute Flynn on the foreign agent charges he pled out of

All of these investigations still do or were known to exist, and if they no longer exist when Biden’s Attorney General arrives at DOJ, it will be because of improper interference from Barr.

The last of these might get particularly awkward given that multiple people at Billy Barr’s DOJ, possibly in conjunction with Sidney Powell and Trump campaign lawyer Jenna Ellis, altered documents to concoct a smear targeting Joe Biden in a false claim that he invented a rationale to investigate Flynn for undermining sanctions on Russia. You cannot have an independent DOJ if the people who weaponized it in such a way go unpunished. Except investigating such actions would immediately devolve into a partisan fight, particularly if Republicans retain control of the Senate. (This particular issue will most easily be addressed, and I suspect already is being addressed, via a DOJ IG investigation.)

Still, in the other cases, DOJ may need to decide what to do with investigations improperly closed by Barr, or what to do with investigations where just some of the defendants (such as Fruman and Bannon) get pardons.

And all this will undoubtedly play against the background of the confirmation battle for whomever Biden nominates. I would be shocked if Mitch McConnell (especially if he remains Majority Leader) didn’t demand certain promises before an Attorney General nominee got approved.

So none of this will be easy.

A far more interesting question will pertain to what President Biden does about the ICC investigation into US war crimes in Afghanistan, crimes that occurred during both the Bush and Obama Administrations. Mike Pompeo launched an indefensible assault against the ICC in an attempt to block this investigation, sanctioning ICC officials leading the investigation. Biden’s Secretary of State will have to decide whether to reverse those sanctions, effectively making a decision about whether to look forward to ignore crimes committed (in part) under Barack Obama.