Posts

Judge Mehta Observes that Roger Stone’s Role on January 6 “May Prove Significant in Discovery”

/96 Comments/in , , /by

Bennie Thompson filed his original lawsuit against Donald Trump on February 16, 2021. He amended it on April 7, 2021 to account for the legal dissolution of the Proud Boys, to add plaintiffs, and to add more details.

That means the allegations addressed in Judge Amit Mehta’s order rejecting Trump’s motion to dismiss are over ten months old and entirely predate the foundation of the January 6 Select Committee. The amended complaint was filed just days after DOJ arrested Joe Biggs’ co-travelers (providing the first documentary visibility on his second breach of the building) and similarly shortly after the first Oath Keepers superseding indictment to incorporate the Grand Theft Golf Cart chase by those who had been at the Willard the morning of the attack. In other words, the allegations addressed in Friday’s opinion were laid out an eternity ago in our understanding of the insurrection.

As Trump described it in his response to the amendment complaint, the only new things added pertained to Roger Stone and a public report that the FBI had found communications between a Trump associate and the Proud Boys.

The Amended Complaint added little in the way of additional material allegations. In paragraphs 70 and 71, Plaintiffs cryptically claim that someone associated with the White House communicated with the Proud Boys, without specifying who. They also try guilt by association. They claim to show a conspiracy to incite the January 6 riot by suggesting that at the “end of December” President Trump communicated with Roger Stone, who they then allege also communicated with members of the Proud Boys. Am. Compl. ¶ 71. Of course, they do not allege what conspiratorial statements were supposedly exchanged between any of the parties, other than to say that Mr. Stone met with Mr. Trump to ensure he “continues as our president.” Plaintiffs incredibly and without any detail also claim that Mr. Trump “knew” of the planning of the violence at the U.S. Capitol because of statements by supporters found on the dark corners of the Internet, seeking to implausibly impute his awareness of those statements. Id. at ¶¶ 66, 56-62.

Here’s that language from the amended complaint.

70. The White House was also in contact with the Proud Boys. An FBI review of phone records showed that, in the days leading up to the rally, a person associated with the Trump White House communicated with a member of the Proud Boys by phone.

71. At the same time, Defendant Trump was in contact with long-time associate Roger Stone, who was in contact with both the Proud Boys and the Oath Keepers. Mr. Stone posted on the social media website Parler that, at the end of December, he met with Defendant Trump to “ensure that Donald Trump continues as our president.” Proud Boys leader Enrique Tarrio confirmed that he called Roger Stone in early January. Members of the Oath Keepers agreed to serve as Mr. Stone’s security detail during the January 6 protests.

Judge Mehta, of course, has had front row seats as DOJ has continued to supersede the Oath Keeper indictments. That’s why his treatment of this exchange bears close notice.

The President also dismisses two allegations as weak and speculative that purport to tie him to the Proud Boys and the Oath Keepers. The court relies on neither at this juncture but thinks one may prove significant in discovery. The first is an allegation that “a person associated with the Trump White House communicated with a member of the Proud Boys by phone.” Thompson Compl. ¶ 70. The court agrees that this is a speculative allegation and has not considered it. The other concerns the President’s confidant, Roger Stone. Stone posted on Parler in late December that he had met with the President “to ensure that Donald Trump continues as our president.” Shortly thereafter, Stone spoke with Tarrio, and later he used the Oath Keepers as his security detail for the January 6 Rally. The court does not rely on these allegations to establish the President’s knowledge of the Proud Boys or the Oath Keepers. Other alleged facts make that inference plausible. That said, Stone’s connections to both the President and these groups in the days leading up to January 6th is a well-pleaded fact. Discovery might prove that connection to be an important one.

He’s not relying on either of these allegations, and doesn’t think much of the first one.

I have always suspected that was a reference to Rudy Giuliani, who posted then immediately deleted and reposted newly-cropped communications with Proud Boy affiliate James Sullivan a week after the riot. In it, Sullivan proposed blaming the entire riot on his brother John. But Sullivan also spoke of at least five people who had participated in the riot (an “agent,” three Utahns, and Kash Kelly).

Kash Kelly remains charged by complaint over 13 months after his arrest. And other judges (Emmet Sullivan for John Sullivan, and possibly Randolph Moss for the most likely Utahns) are presiding over the cases in which this exchange might have shown up in some manner.

So unless Landon Copeland (also from Utah) is one of Sullivan’s Utahns, then Mehta would have little separate means to understand this reference, if it is even the one that came up in FBI toll records.

But even the public record of the Oath Keeper case has shown how close the ties between Stone and the Oath Keepers are, both in the weeks leading up to the insurrection in Florida and in the repeated calls from the Willard Hotel that morning. Indeed, Mehta may be persuaded of the plausibility of a conspiracy between the Oath Keepers and Proud Boys because of what he has seen of Stone’s role linked to the two, including in Kelly Meggs’ claims to have brokered a Florida-based alliance in December 2020.

And Mehta has almost certainly seen more of Stone’s role than what can be read through the redactions, particularly now that DOJ has spun off the part of the Oath Keeper conspiracy that most closely implicates Stone’s actions that day.

Judge Mehta didn’t rely on what he may know of Stone’s role in this conspiracy. But as the person with more familiarity about what the evidence is than anyone else, he suggested there’s a there there.

Update: Fixed “Utahan,” which is a misspelling I adopted from Sullivan before and which as someone who loved Utah when I lived there I really regret.

Related Posts

How Judge Amit Mehta Argued It Plausible that Trump Conspired with Two Militias

Judge Mehta’s Ruling that Donald Trump May Have Aided and Abetted Assaults on Cops Is More Important Than His Conspiracy Decision

How Judge Amit Mehta Argued It Plausible that Trump Conspired with Two Militias

/99 Comments/in , /by

As I noted and you’ve no doubt heard elsewhere, on Friday, Judge Amit Mehta rejected Trump’s motion to dismiss three lawsuits against him, along with those of the Proud Boys and Oath Keepers. This is just the first step in an effort by police and some members of Congress to hold the former President civilly accountable for conspiring to prevent them from certifying the electoral vote on January 6. All he did was rule that the claims, as alleged, were plausible; this is not a ruling that Trump did conspire with two militias.

Judge Mehta’s decision will undoubtedly be appealed, by plaintiffs, the militias, and Trump.

But the decision matters because it lays out a framework to understand Trump’s actions on January 6 as a conspiracy between himself and two militias that played key roles in the insurrection on January 6.

It matters, too, because Mehta is not just any judge. He is well-respected by all involved (indeed, some Oath Keeper defendants have explicitly suggested that retaining Mehta as the presiding judge might worth more than challenging venue). Mehta’s order will carry a good deal of weight with any of his colleagues who might preside over a Trump criminal case, and with the DC Circuit. Plus, as the judge presiding over the Oath Keeper conspiracy and a number of other high profile January 6 cases, he has a far greater understanding of how the day’s events unfolded than, say, Chief Judge Beryl Howell, who is presiding over a disproportionate number of trespassing cases. As I’ll show in a follow-up, his opinion reflects a far greater understanding of January 6 (including, possibly, non-public information) than most others have.

So while this decision is nowhere near the last word on whether Trump conspired with two militias to attack the Capitol, it is a really important first word.

It is plausible that Donald Trump entered into a conspiracy with two militias

As Judge Mehta laid out, accepting the claims alleged as true (which one must do on motions to dismiss), there were five things Trump did that made the plaintiffs’ claims of a conspiracy plausible, which is the standard required to reject the motion to dismiss:

  • They agreed to pursue the goal of disrupting the vote certification: “The President, the Proud Boys, the Oath Keepers, and others “pursu[ed] the same goal”: to disrupt Congress from completing the Electoral College certification on January 6th.”
  • Trump encouraged means of obstructing the vote count and the militias (and others) carried them out: “He knew the respective roles of the conspirators: his was to encourage the use of force, intimidation, or threats to thwart the Certification from proceeding, and organized groups such as the Proud Boys and the Oath Keepers would carry out the required acts.”
  • Trump incited law-breaking: “Based on these allegations, it is reasonable to infer that before January 6th the President would have known about the power of his words and that, when asked, some of his supporters would do as he wished. On January 6th they did so. When he called on them to march to the Capitol, some responded, “Storm the Capitol.” Thousands marched down Pennsylvania Avenue as directed. And, when some were inside the Capitol, they told officers, “We were invited here by the President of the United States.”
  • Trump called for collective action: “Fourth, the President’s January 6 Rally Speech can reasonably be viewed as a call for collective action. The President’s regular use of the word “we” is notable.”
  • Trump ratified the riot: “And then, around 6:00 p.m., after law enforcement had cleared the building, the President issued the following tweet: ‘These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever!’ A reasonable observer could read that tweet as ratifying the violence and other illegal acts that took place at the Capitol only hours earlier.”

Laying out the conspiracy like this is the easy part.

The hard part is finding that the sitting President could be sued, and could be sued substantially for his speech.

The President has no role in certifying the vote count

Mehta got there in three key moves.

The first was dismissing Trump’s claim that his actions amounted to fulfilling his duty to Take Care that election laws were faithfully executed.

President Trump argues that these acts fall into two presidential “functions”: (1) the constitutional duty to “take Care that the Laws be faithfully executed,” U.S. Const., art. II, § 3,

[snip]

President Trump says that he “had an ever-present duty to ensure that the election laws were followed, including the certification process.” Thompson Trump Reply at 3. Quoting from a law review student note, he says that enforcing election laws is “at the core of the executive branch’s duty to faithfully execute the law.” Id.

As Mehta notes, Trump’s law review student note sees the President’s role in enforcing election law to be litigation, not intervening to prevent the actual vote certification.

What President Trump omits from that quote, however, makes his citation grossly misleading. The full quote reads: “However, enforcing election laws through litigation [strikes] at the core of the executive branch’s duty to faithfully execute the law. It must therefore belong solely to the executive.” Lightsey, supra, at 573 (emphasis added). Including “through litigation” completely changes the meaning of the sentence. The President can enforce election laws through litigation initiated by the Department of Justice or the Federal Election Commission, agencies over which he has appointment authority. The case the Lightsey note cites, Buckley v. Valeo, makes that clear: “A lawsuit is the ultimate remedy for a breach of the law, and it is to the President, and not to the Congress, that the Constitution entrusts the responsibility to ‘take Care that the Laws be faithfully executed.’” 424 U.S. 1, 138 (1976). This case, of course, does not involve litigation to enforce federal election laws, and so the President’s reliance on the Lightsey note is inapt.

This comment has further implications, both because Trump’s campaign personally tried to sue to overturn the election results, but failed in spectacular fashion, and because Trump’s efforts to force DOJ to launch such suits failed. Mehta mentions neither of these details, but they do matter in understanding Trump’s actions.

Outside of such litigation, Mehta notes, the Constitution assigns the President no role in certifying the vote count.

[A] sitting President has no expressly identified duty to faithfully execute the laws surrounding the Certification of the Electoral College. So, perhaps it is not surprising that President Trump does not identify any law relating to the Certification that he was purportedly executing through his tweets and the January 6 Rally Speech.

The other legal duties involved in certifying election results are explicitly assigned to other parties, including a co-equal branch of government.

President Trump cites no constitutional provision or federal statute that grants or vests in the President (or the Executive Branch) any power or duty with respect to the Certification of the Electoral College vote, at least in the manner in which he conceives it. That is because there is none. The Constitution spells out the respective responsibilities of various actors in the election of the President.11 The Constitution provides that States are to select Electors who will cast votes for President and Vice President, and the Electors transmit a tally of those votes to the President of the Senate. U.S. Const. art. II, § 1, cl. 3; id. amend. XII. The President of the Senate “in the presence of the Senate and House of Representatives” shall “open all the certificates and the votes shall then be counted.” Id. amend. XII. A sitting President is prescribed no role.

The Electoral Count Act, Pub. L. No. 49-90, 24 Stat. 373 (1887), fills in procedural details not addressed in the Constitution. It, too, prescribes no role for a sitting President.

This language closely models language that DOJ is using in obstruction cases to establish that the vote certification was an official proceeding.

Then-President Trump was not speaking, as President, about matters of public concern

Mehta then dismisses Trump’s claim that he is immune from suit because his January 6 speech simply amounted to him, in the role of President, commenting on matters of public concern.

He bases his approach on a DC Circuit case that ruled that any claim of immunity must be rooted in the actual duties of the office.

Rather than apply the parties’ proffered categorial rules to the immunity question, the court thinks the better course is to evaluate the defense on the specific facts alleged and, based on those facts, determine whether President Trump’s words were spoken in furtherance of a presidential function. That is the approach that the D.C. Circuit took in Banneker Ventures, LLC v. Graham, a case in which then–Board Member of the Washington Metropolitan Area Transit Authority (“WMATA”) Jim Graham asserted absolute immunity from a suit accusing him of improperly interfering with a developer’s ultimately unsuccessful project negotiations with WMATA.

[snip]

“The appropriate focus,” the court wrote, “is on the relationship between ‘the act complained of’ and the corresponding ‘matters committed by law to [the official’s] control or supervision.’” Id. (quoting Barr, 360 U.S. at 573). The court noted that “[o]ne way that an official acts manifestly beyond his authority is through the use of ‘manifestly excessive means,’ even if he does so in the conduct of duties otherwise within his official purview.” Id. at 1141 (citation omitted). The court emphasized that the burden of establishing immunity rests on the official claiming it. Id. at 1140.

Using that as a framework (and spending a paragraph admitting that consideration of a President’s role is a far more weighty matter), Mehta holds that it is not within the scope of the President’s duties to ensure his own incumbency.

In undertaking this analysis, the court starts from the following premise, as to which there should be no dispute: The Office of the President has no preference for who occupies it. Article II of the Constitution, which defines the powers and duties of the President, is agnostic as to whether a sitting President is elected to a new term. So, too, is federal statutory law. A function of the presidency therefore is not to secure or perpetuate incumbency.

He goes allegation by allegation showing that Trump’s alleged actions served to ensure his own incumbency, including this key paragraph laying out the purpose of the Rally itself.

That, too, was the purpose of the January 6 Rally. President Trump invited people to Washington, D.C., for the event. Id. ¶ 32. In a tweet referencing the January 6 Rally, he encouraged his followers to “Never give up.” Swalwell Compl. ¶ 56. On the eve of the January 6 Rally, the President’s tweets turned to Vice President Pence. Blassingame Compl. ¶ 38. The President expressed the view that the Vice President had the power, as President of the Senate, to reject states’ Electoral College certifications and return them to be recertified. Id. The clear purpose of such recertification would be to allow Electoral College votes to be recast in his favor: “All Mike Pence has to do is send them back to the States, AND WE WIN.” Id. These tweets were not official acts but issued to help him “win.”

Via this approach, then, Mehta arrives precisely where DOJ did — in making a Hatch Act argument that campaigning is not among the duties of any federal employee — via different means. It is not the duty of the President to remain President, but that’s what Trump was doing in all the alleged acts.

Trump incited violence (and also ordered his followers to do something unauthorized)

Mehta ultimately judges that Trump’s speech on January 6 meets the Brandenberg test for incitement.

But before he gets there, he makes another important point. It was Trump’s campaign’s idea — and he was personally involved in — sending people on an unpermitted march to the Capitol.

President Trump also allegedly participated directly in the planning. He was involved in decisionmaking about the speaking lineup and music selection. Thompson Compl. ¶ 69. And, critically, to the surprise of rally organizers, President “Trump and his campaign proposed that the rally include a march to the Capitol,” even though the permit they had obtained did not allow for one. Id. ¶¶ 69, 90 (alleging that the permit expressly provided: “This permit does not authorize a march from the Ellipse”).

[snip]

[T]he President ended his speech by telling the crowd that “we fight like hell and if you don’t fight like hell, you’re not going to have a country anymore.” Almost immediately after these words, he called on rally-goers to march to the Capitol to give “pride and boldness” to reluctant lawmakers “to take back our country.” Importantly, it was the President and his campaign’s idea to send thousands to the Capitol while the Certification was underway. It was not a planned part of the rally. In fact, the permit expressly stated that it did “not authorize a march from the Ellipse.”

After a good deal of legal analysis, Mehta conducts a detailed analysis of Trump’s speech, focusing closely on how his call for non-violence come long before an airing of Trump’s false grievances and attacks on Mike Pence, leading up to calls to fight and to walk down Pennsylvania Avenue.

Having considered the President’s January 6 Rally Speech in its entirety and in context, the court concludes that the President’s statements that, “[W]e fight. We fight like hell and if you don’t fight like hell, you’re not going to have a country anymore,” and “[W]e’re going to try to and give [weak Republicans] the kind of pride and boldness that they need to take back our country,” immediately before exhorting rally-goers to “walk down Pennsylvania Avenue,” are plausibly words of incitement not protected by the First Amendment. It is plausible that those words were implicitly “directed to inciting or producing imminent lawless action and [were] likely to produce such action.” Brandenburg, 395 U.S. at 447.

[snip]

That is why the court determines, as discussed below, that Giuliani’s and Trump Jr.’s words are protected speech. But what is lacking in their words is present in the President’s: an implicit call for imminent violence or lawlessness. He called for thousands “to fight like hell” immediately before directing an unpermitted march to the Capitol, where the targets of their ire were at work, knowing that militia groups and others among the crowd were prone to violence.

It’s not just the call for violence and Trump’s awareness (because of the threats leading up to January 6) that violence was likely to result. It’s also the call for a march that was not permitted.

That is, it’s not even just speech, or just incitement to violence. It’s also the call for a march that the campaign knew was not permitted.

While Mehta obviously returns to the unpermitted march over and over, he doesn’t dwell on the significance of it. That’s not the task before him. Moreover, though he alludes in passing to Alex Jones’ role (which I may return to), that likewise is not a developed part of the complaints before him.

The alleged complaints — the most recent of which was filed in March, an eternity ago in our understanding of January 6 — primarily focus on a theory of incitement.

But Trump did more than that. After riling up his supporters, he told them to do something he could have permitted but did not: march to the Capitol, to confront lawmakers directly.

Related Posts

Judge Mehta’s Ruling that Donald Trump May Have Aided and Abetted Assaults on Cops Is More Important Than His Conspiracy Decision

Judge Mehta Observes that Roger Stone’s Role on January 6 “May Prove Significant in Discovery”

 

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

/178 Comments/in , , , /by

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

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

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

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

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

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

 

Christopher Wray Was Doing Great Until He Accused Chad of Spewing Jihadist Propaganda

/8 Comments/in /by

In his first House Judiciary Committee oversight hearing today, FBI Director Christopher Wray responded to questions about FBI Agent Peter Strzok by explaining there was an ongoing Inspector General investigation into Strzok’s role in the investigation into Hillary’s treatment of classified information more times (at least 16) than he dodged answers in his confirmation hearing (11).

At that level, it was a typical HJC hearing, as each side spent more time pitching their partisan spin (with Democrats asking a string of questions Wray was unable to answer about Russia) rather than — with a few exceptions — conducting much oversight.

That said, I really appreciated two aspects of Wray’s testimony today. First, with the very notable exception of FISA matters (specifically, any FISA applications tied to Trump’s associates, and whether they derived in any way from the Steele dossier), Wray seemed genuinely willing to accept HJC’s mandate to conduct oversight.

As I’ve already noted, I get that HJC can be full of partisan hacks. But it is also the case that the Executive branch, particularly something as powerful as the FBI, must be subject to the oversight requests of Congress. And under both the Bush and Obama Administrations, FBI and DOJ largely treated their oversight committees with (sometimes deserved, but often undeserved) contempt. Even where Wray was bullshitting members of Congress, such as when he pretended that moving Strzok to human resources wasn’t a demotion, he at least appeared to treat their inquiries with respect.

Perhaps, if it is treated with respect it sometimes doesn’t deserve, HJC will come to become the committee FBI and DOJ need as an oversight body.

The other thing I appreciated — particularly in the wake of Jim Comey’s treatment of everything as a fight between “good guys” and “bad guys” — was Wray’s repeated invocation of the humanness of FBI and its officials. For example, in what must have been a rehearsed response to a question about the reputation of the FBI, Wray said, “Do we make mistakes? You bet we make mistakes. Just like everyone who is human makes mistakes,” before describing how the IG (which is currently investigating Strzok) provides the opportunity to “hold our folks accountable, if that’s appropriate.” Somewhat less convincingly, in response to a question from Cedric Richmond, who cleverly noted that the FBI Headquarters is still named after the architect of COINTELPRO, J Edgar Hoover, Wray again stressed the humanity of FBI. “It’s something we’re not proud of but it is also something we’ve learned from … We’re human, we make mistakes. We have things that we’ve done well. We’ve had things we done badly, and when we’ve done badly we try to learn from them.”

Given FBI’s intransigence on back door searches and Wray’s own evolving understanding of the problems caused by the designation Black Identity Extremist (not to mention what appears to be undeserved self-congratulation about how many — or rather few — open investigation into white supremacist terrorists the FBI has) I’m not convinced the FBI really has learned those lessons. It is still too white and too male of an organization to understand how much it polices some of the same things COINTELPRO did, and with even more intrusive tools.

But I am heartened that the FBI Director, perhaps largely because of the focus on Strzok, publicly recognized that FBI is not always the good guy, contrary to what Comey internalized and evangelized over and over. In discussions with Karen Bass about the BIE designation, too, it sounded like he was at least able to listen, even if he refused to withdraw the intelligence report that created the designation.

That said, Wray made several outright errors that need to be corrected.

The first two, both about Section 702, came in response to questions by Ted Poe (who was one of just a few people to raise Section 702, in spite of the fact that I’ve heard from numerous staffers they can’t get answers about key aspects of how 702 works). First, addressing Poe’s claim that back door searches are abusive, Wray claimed that courts that had considered the querying had found it to be consistent with the Fourth Amendment.

Every court, every  court, to have looked at the way in which Section 702 is handled, including the querying, has concluded that it’s being done consistent with the Fourth Amendment.

As the EFF laid out, that’s not actually true. The Ninth Circuit punted on precisely the issue of back door searches.

When Wray mentions the Ninth Circuit, he is likely referencing a 2016 decision by the U.S. Court of Appeals for the Ninth Circuit. In the opinion for USA v. Mohamed Osman Mohamud, the appeals court ruled that, based on the very specific evidence of the lawsuit, data collected under Section 702 did not violate a U.S. person’s Fourth Amendment rights. But the judge explicitly wrote that this lawsuit did not involve some of the more “complex statutory and constitutional issues” potentially raised by Section 702.

Notably, the judge wrote that the Mohamud case did not involve “the retention and querying of incidentally collected communications.” That’s exactly what we mean when we talk about “backdoor searches.”

Wray is mischaracterizing the court’s opinion. He is wrong.

In addition, Wray claimed that,

The individuals that are incidentally collected — the US person information that is incidentally collected — are people that are in communication with foreigners who are the subject of foreign intelligence investigations, so like an ISIS recruiter, there’s a US person picked up, that person would have been in email contact, for example, with an ISIS recruiter.

While I’m not certain precisely what gets dumped into the FBI database that is queried, it is false to claim that every US person who has information collected would necessarily have been in communication with the target. That’s because PRISM providers are cloud storage providers and NSA gets anything a target stores and then some, and because people email very interesting stuff to each other all the time. That means there’s a whole bunch of other things that might implicate US persons swept up in the PRISM collection that gets shared, in raw form, with the FBI.

I wanted to point to an assumption virtually everyone has been making about PRISM collection and its suitability for back door searches that may not be valid. If you think about the hack-and-leak dumps in recent years, for example, often the most damaging, as well as the most ridiculous infringements on privacy, involve email attachments, such as the list of most Democratic members of Congress’ email many passwords for which were easily obtainable online, or phone conversations about routine housekeeping or illness. And that’s just attachments; most of the PRISM providers are actually cloud storage providers, in addition to being electronic communication providers, and from the very first requests to Yahoo there was mission creep of all the types of things the government might demand.

And while NSA and FBI aren’t supposed to keep stuff that doesn’t count as foreign intelligence or criminal information, it’s clear (from the WaPo report) that NSA, at least, does.

So as we talk about how inappropriate the upstream back door searches were and are because they can search on stuff that’s not foreign intelligence information, we should remember that the very same thing is likely true of back door searches of  the fruits of searches on a person’s cloud storage account.

Plus, while the example of an ISIS recruiter makes for good show, the targets will also include people like Chinese scientists and Russian businessmen, among other things. There are completely innocent reasons — like science!!! — to speak to such targets. And yet if FBI does a back door search on Americans who’ve engaged in such innocent discussions it can and almost certainly has led to innocent people being targeted unfairly.

It bothers me that me — a dirty fucking hippie blogger, though admittedly one who has become (as a Congressional staffer introduced me as earlier this year) as expert on FISA as anyone outside of government — knows these details better than the FBI Director (who, after all, was involved in not providing defendants adequate notice of this stuff during its illegal go-around under Stellar Wind).

But Wray’s biggest error, on a different topic, came later. After first dodging Pramila Jayapal’s questions about whether Trump’s tweets have contributed to the spike of hate crimes this year by suggesting the data was untrustworthy (!!!), Director Wray than answered her question about the Muslim ban this way.

An awful lot of our terror investigations do also involve immigration violations, so there is a close nexus between immigration violations and counterterrorism investigations, and an awful lot of the terrorist investigations we have involve global jihadist rhetoric, which is disproportionately concentrated in certain countries.

One reason terror investigations involve immigration violations is because that’s an easy way to punish someone who hasn’t actually committed any crime (and given that most terrorist attacks are not recent immigrants, sort of beside the point).

But the notion that immigration from Muslim majority countries — like the six included in the current Muslim ban: Iran, Libya, Syria, Yemen, Somalia, and Chad — is dangerous because global jihadist rhetoric arises from those countries is the height of nonsense. That’s because the most effective recruiter of Americans for almost a decade was a man, Anwar al-Awlaki, who wrote much of his propaganda here or in the UK; while his rhetoric subsequently did get published from Yemen, he’s been dead for 6 years, with far less jihadist rhetoric in English from there. And while Syria, Somalia, and Libya do export hateful rhetoric, so did Iraq and does Saudi Arabia and Pakistan, two countries we haven’t banned. Iran certainly exports a great deal of anti-American rhetoric, but it is not recruiting terrorists here and most of its anti-American actions are legitimate state-based opposition derived from power relations, not religion. And Awlaki is by no means the only producer of anti-American rhetoric in majority Christian countries, including but not limited to the US and UK.

Ultimately, of course, Jayapal was talking about Trump’s Muslim ban, the one that bans elite Venezuelans and North Koreans along with weaker Muslim ones. And while he didn’t go as far as to say that Kim Jong-Un was spewing jihadist rhetoric, that’s the logic here.

But by implication, he was talking about Chad, which in spite of its cooperation on terrorism, got added to the list because Trump is incompetent. To suggest Chad is a propaganda threat and the US and UK are not is the height of folly.

But that’s what the FBI Director claimed today to avoid criticizing Trump’s bigotry.

Update: For some reason I was writing Cedric Richmond’s last name wrong all day today. I’ve corrected my use of “Johnson” instead of “Richmond” here. My apologies to him for my still uncorrected tweets.