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Kash Patel Knew, and Did Nothing, about the Latest Durham-Related Frenzy

As predicted, the latest Durham filing has jacked up the frothy right. It even led the Former President to claim these actions should be “punishable by death.”

But the oddest statement came from “Former Chief Investigator for Russia Gate [sic]” and current key witness to an attempted coup, Kash Patel, sent out by the fake Think Tank that hosts some of the former Trumpsters most instrumental in covering up for Trump corruption.

Taken literally (which one should not do because it is riddled with false claims), the statement is a confession by Kash that he knew of what others are calling “spying” on Trump and did nothing to protect the President.

Let’s start, though, by cataloguing the false claims made by a man who played a key role in US national security for the entirety of the Trump Administration.

First, he claims that the Hillary Campaign, “ordered … lawyers at Perkins Coie to orchestrate a criminal enterprise to fabricate a connection between President Trump and Russia.” Thus far, Durham has made no claims about any orders coming from the Hillary Campaign (and the claim that there were such orders conflicts with testimony that Kash himself elicited as a Congressional staffer). The filing in question even suggests Perkins Coie may be upset about what Sussmann is alleged to have done.

Latham – through its prior representation of Law Firm-1 – likely possesses confidential knowledge about Law Firm-1’s role in, and views concerning, the defendant’s past activities.

In fact, in one of the first of a series of embarrassing confessions in this prosecution, Durham had to admit that Sussmann wasn’t coordinating directly with the Campaign, as alleged in the indictment.

Kash then claims that “Durham states that Sussmann and Marc Elias (Perkins Coie) … hired .. Rodney Joffe … to establish an ‘inference and narrative’ tying President Trump to Russia.” That’s false. The indictment says the opposite: Joffe was paying Perkins Coie, not the other way around. Indeed, Durham emphasized that Joffe’s company was paying Perkins Coie a lot of money. And in fact, Durham shows that the information-sharing also went the other way. Joffe put it together and brought it to Perkins Coie. Joffe paid Perkins Coie and Joffe brought this information to them.

Kash then claims that “Durham writes that he has evidence showing Joffe and his company were able to infiltrate White House servers.” Kash accuses the Hillary Campaign of “mastermind[ing] the most intricate and coordinated conspiracy against Trump when he was both a candidate and later President.” This betrays either real deceit, or ignorance about the most basic building blocks of the Internet, because nowhere does Durham claim that Joffe “infiltrated” any servers. Durham, who himself made some embarrassing technical errors in his filing, emphasizes that this is about DNS traffic. And while he does reveal that Joffe “maintain[ed] servers for the EOP,” that’s not infiltrating. These claims amount to a former AUSA (albeit one famously berated by a judge for his “ineptitude” and “spying”) accusing a conspiracy where none has been charged, at least not yet. Plus, if Joffe did what Kash claims starting in July 2016, as Kash claims, then Barack Obama would be the one with a complaint, not Trump.

Finally, Kash outright claims as fact that Joffe “exploited proprietary data, to hack Trump Tower and the Eisenhower Executive Office Building.” This claim is not substantiated by anything Durham has said and smacks of the same kind of conspiracy theorizing Louise Mensch once engaged in. Only, in this case, Kash is accusing someone who has not been charged with any crime — indeed, a five year statute of limitation on this stuff would have expired this week — of committing a crime. Again: a former AUSA, however inept, should know the legal risk of doing that.

Curiously, Kash specifies that the White House addresses involved were in the Eisenhower Executive Office Building. That could well be true, but Durham only claims they were associated with EOP, and as someone who worked there, Kash should know that one is a physical structure and the other is a bureaucratic designation. But to the extent Kash (who has flubbed basic Internet details already) believes this amounted to hacking the EOP, it is based off non-public data.

So, like I said, the piece is riddled with false claims, but with two claims that go beyond anything Durham has said.

The statement is all the stranger given that Kash Patel knew about these allegations four years ago, at a time when he was one of the most powerful Congressional staffers on matters pertaining to intelligence.

And he did nothing about them.

Well. He did do something.

He started this line of inquiry — brought it up entirely out of the blue — in an interview of Michael Sussmann largely focused on Sussmann’s response to a hostile attack by Russia.

About a quarter of the way into an interview on December 18, 2017, after Sussmann debunked the frothy right’s conspiracy theory about the DNC being unwilling to share information with the FBI (which was a central focus of the interview), a staffer veered away from that line of questioning and asked about other meetings. Sussmann answered the questions that someone interested in cybersecurity would have wanted to know: how does the government share information with a high-profile victim of a nation-state attack?

Q Thats helpful. Thank you Going over to – moving on from CrowdStrike and the FBI, did you ever have any interactions with any other government agencies in relation to the DNC hack, Russian involvement in the 2016 elections, or anything like that, or any members of any government agencies?

A So.yes. For the intrusion, I believe our contacts initially and for a while were only with the FBI. And there came a time when we got involved with the Department of Homeland Security, and had a variety of ongoing meetings with them for various purposes. We reached out to State officials, to the State — Association of Chief Information Officers from the States.

But that’s not what this staffer was interested in. This staffer was thinking big.

Q Did you meet with anybody else, any members of the Intelligence Community, either officially or unofficially, to discuss these matters?

MS. RUEMMLER: With respect to the DNC?

Q The DNC, the 2016 Russia election, all things that fit under that sort of general big title.

Sussmann, perhaps sensing this staffer was about to deliver a gotcha, noted that he didn’t always know who was in a room.

A So let me provide one general exception. I had meetings and calls with the FBI when there were a lot of people in the room, and I don’t necessarily know —

Q Yeah, I don’t mean that.

A — who was there.

That’s not what this staffer was after either. The staffer wanted to know about a meeting Sussmann had with the CIA.

Q I don’t mean the FBI. I don’t mean those big conference calls or anything like that. I mean, did you have any engagements with any members of the Intelligence Community, not the FBI, one-on-one, or in small groups, or telephone calls, or communications with folks, say, such as the Central Intelligence Agency?

Sussmann responded as to the subject of the interview, the DNC hack: no, all the meetings were with FBI or DHS. That’s when the staffer in question revealed he wanted to know about other topics.

A I think as regards to the I think all of the hacking ~ I think all of the hacking stuff was limited to the FBI and DHS.

Q Okay. So you never had any communications with members of the CIA [redacted] discussing the ~ not only the hack, but also the possible Russian intrusion and Russian involvement in the 2016 election?

That’s when Kathryn Ruemmler, representing Sussmann, referred to the staffer in question by name: Kash. This line of questioning was done by Kash Patel (which isn’t surprising, seeing as how at the time he was the “Chief Investigator for Russia Gate [sic].”

MS. RUEMMLER: Kash, just to clarify, you’re talking about the 2016 timeframe here? [my emphasis]

The staffer now identified as Kash continued, making it clear he already knew the answer to the question he was asking. He already knew about this meeting.

Q Well, that’s when that incident occurred. I’m asking if you ever have from that time until today?

A So I have — I have various contacts with members of law enforcement and the Intelligence Community on behalf of a number of different clients. So I’m not sure how to —

Q Sure. I’ll narrow it down for you. Fair enough. As it relates to what you and I have been talking about here today

A Right

Q –that is, the DNC hack, the Russian involvement in the 2016 election, and any information that was derived therefrom, did you meet or discuss with any members of the Intelligence Community outside of the FBI to provide information, talk to them about these matters? Did they reach out to you? Did anything like that ever happen in 2016 or 2017

With her client having been asked about a topic that wasn’t among the topics he had prepared to discuss or among the clients whose privileged matters he had gotten prior authorization to discuss and apparently worried about ethical issues, Ruemmler asked if she and Sussmann need to take a minute to confer.

MS. RUEMMLER: Do you want to confer for a second?

MR. SUSSMANN: I just want to talk about the range of – I have a lot of different clients, and since we’ve just spoken —

MS. RUEMMLER: As long as you don’t reveal identity of them, which You’re not permitted to do under the rules, or any content.

MR. SUSSMANN: Can we step outside and talk about how to deal with the range of clients?

MS. RUEMMLER: Yes.

[Discussion off the record.]

MR. SUSSMANN: Thank you.

At this point, if Sussmann were really hiding this stuff (as John Durham claims), he could have refused to answer the question, citing that privilege and the off-topic question. But Sussmann didn’t do that. He consulted with Ruemmler (something that Durham is now making a stink about), then came back in the room, noted that Kash had asked an off-topic question, but nevertheless answered honestly.

[The reporter read the record as requested.]

MR. SUSSMANN: So I’m not clear as to the scope of what you’re asking your question, but I’m going to be sort of more expansive in my answer, because there’s nothing — you said in relation to the things that we discussed today, and this is not something we’ve discussed today.

But I did have — I don’t believe I had — s0 two things. I don’t believe I had — I didn’t have direct contact with [NSA] butI can relate to you some indirect contacts with [NSA]. And I had a meeting [at CIA] as well.

That’s what Kash was looking for.

Okay.

Sussmann explained, noting that this was classified.

A The [NSA] contact related to specifically my representation of the DNC, and my contact [with CIA] did not relate to my specific representation of the DNC, or the Clinton campaign, or the Democratic Party. And I also — I’m not — I will do the best that I can with you. I think there are limits to what I can discuss in an unclassified setting.

Kash asked about the CIA meeting.

Q Okay, fair enough. What was your contact [with CIA] about?

A So the contact [with CIA] was about reporting to them information that was reported to me about possible contacts, covert or at least nonpublic, between Russian entities and various entities in the Untied States associated with the — or potentially associated with the Trump Organization.

Q And when did that contact [with CIA] occur, month and year?

A February 2017.

Q Where did you get that information from to relay to [CIA]?

A From a client of mine.

Q Why did you go [to CIA]

After Ruemmler interrupted again to remind Sussmann not to violate privilege, he explained that he reached out on this front because he knew of Obama’s effort to get a review of potential Russian involvement in the election.

Q You did say, right, that you had — you’d received information from a client — I’m not asking who — that may be germane to the 2016 election and associates of the Trump campaign or people affiliated with the Trump campaign.

So my follow-up question was, why did you go to [CIA] with this information?

A Oh, I’m sorry. And I apologize. I remember what I was going to say. It was — it was, in large part, in response to President Obama’s post-election IC review of potential Russian involvement in the election. And in that regard, I had made outreach prior to the change in administration in 2016. And for reasons known and unknown to me, it took a long time to — or it took — you know, it took a while to have a meeting, and so it ended up being after the change in administration.

The line of questioning continued later with someone else, because Kash had to leave. In those questions, Sussmann factually answered the information came from a client he had represented before the DNC, and admitted he had the information prior to the election. He explained his motive for sharing the information with James Baker (which led the FBI to be able to intervene and prevent the NYT from publishing, something Durham didn’t bother to investigate before indicting Sussmann) and CIA. He admitted that Perkins Coie still represented the DNC when he met with the CIA, though he wasn’t doing work for them anymore. And, in a passage that will be a focal point of the trial, he described how he and Joffe decided together to share this information.

Q Okay. I want to ask you, so you mentioned that your client directed you to have these engagements with the FBI and [CIA] and to disseminate the information that client provided you. Is that correct?

A Well I apologize for the double negative. It isn’t not correct, but when you say my client directed me, we had a conversation, as lawyers do with their clients, about client needs and objectives and the best course to take for a client.

And so it may have been a decision that we came t0 together. I mean, I don’t want to imply that I was sort of directed to do something against my better judgment, or that we were in any sort of conflict, but this was — I think its most accurate to say it was done on behalf of my client.

In other words, Kash and his colleagues have known the outlines of this for over four years.

At the time, and in his next job at NSC, Kash would have had ready access to the CIA for more details about the meeting — indeed, he came into this interview knowing about it already.

At the time, and in his next job at NSC, and in his next job as DOD Chief of Staff, Kash would have had knowledge of Rodney Joffe’s contracts with FBI and NSA.

At the time, and in his next job at NSC, and in his next job as DOD Chief of Staff, Kash would have had access to the DARPA contract, which got extended afterwards.

In his comment, the Former President said that “those who knew about this” should be subject to criminal prosecution. And Kash Patel was, at all moments between December 2017 and January 2021, not only aware of the outlines and the players, but he did nothing.

Whatever else this kerfuffle has done, it has made Kash’s exposure as a witness in this case quite dicey. Because not only is Kash a witness that Sussmann was not hiding what he did, but he is someone who for years was in a position to do something about it, and he did nothing.

John Durham, Ask Not for Whom the Statute of Limitation Tolls …

February 12, 2022/109 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

As he did with Igor Danchenko, John Durham has raised a potential conflict as a way to air his conspiracy theories so he can jack up the frothy right. In this case, he describes an uncharged meeting at which Michael Sussmann, who no longer had anything to do with the DNC, shared an updated version of the Alfa Bank allegations with the CIA on February 9, 2017.

The Indictment further details that on February 9, 2017, the defendant provided an updated set of allegations – including the Russian Bank-1 data and additional allegations relating to Trump – to a second agency of the U.S. government (“Agency-2”). The Government’s evidence at trial will establish that these additional allegations relied, in part, on the purported DNS traffic that Tech Executive-1 and others had assembled pertaining to Trump Tower, Donald Trump’s New York City apartment building, the EOP, and the aforementioned healthcare provider. In his meeting with Agency-2, the defendant provided data which he claimed reflected purportedly suspicious DNS lookups by these entities of internet protocol (“IP”) addresses affiliated with a Russian mobile phone provider (“Russian Phone Provider-1”). The defendant further claimed that these lookups demonstrated that Trump and/or his associates were using supposedly rare, Russian-made wireless phones in the vicinity of the White House and other locations. The Special Counsel’s Office has identified no support for these allegations. Indeed, more complete DNS data that the Special Counsel’s Office obtained from a company that assisted Tech Executive-1 in assembling these allegations reflects that such DNS lookups were far from rare in the United States. For example, the more complete data that Tech Executive-1 and his associates gathered – but did not provide to Agency-2 – reflected that between approximately 2014 and 2017, there were a total of more than 3 million lookups of Russian Phone-Provider-1 IP addresses that originated with U.S.-based IP addresses. Fewer than 1,000 of these lookups originated with IP addresses affiliated with Trump Tower. In addition, the more complete data assembled by Tech Executive-1 and his associates reflected that DNS lookups involving the EOP and Russian Phone Provider-1 began at least as early 2014 (i.e., during the Obama administration and years before Trump took office) – another fact which the allegations omitted.

The frothy right is very excited that, among the data that someone heavily involved in cybersecurity like Rodney Joffe would have ready access to, was data that included the White House. They seem less interested that, to disprove the allegations Sussmann presented, Durham effectively (in their frothy minds) conducted the same “spying” on EOP networks of President Obama that Durham insinuates Joffe did of Trump.

Remember: This meeting is not charged. It’s not clear such a meeting with the CIA could be charged. Durham presents zero evidence Sussmann knows anything about the comparative value of this data, either.

That’ll become important in a bit.

The conflicts Durham raises to justify this filing are a bit more interesting than the ones he raised with Danchenko. Latham Watkins used to represent Perkins Coie and Marc Elias in this matter, now they represent just Sussmann, and Elias will be asked to testify about instructions Sussmann got about billing records in his representation of the DNC. Latham represented the DNC. Latham represented Sussmann in December 2017 House Intelligence testimony that significantly undermines Durham’s indictment (and shows that the allegations at the core of this indictment originally came from Kash Patel, who by the time of trial may be charged for his participation in helping Trump attempt a coup). Latham also provided Perkins Coie advice regarding a PR statement that, Durham admits, he’s not been able to pierce the privilege of and he knows those who made the statement had no knowledge that could implicate the statement in a conspiracy. Somebody on Sussmann’s team used to work at the FBI and then worked for the White House. Those are the conflicts — more substantive than the ones Durham raised about Danchenko, but probably nothing that problematic.

Which makes the relative timing of this filing all the more interesting.

With Danchenko, Durham raised the potential conflict, first, at a status hearing less than two weeks after Stuart Sears filed a notice of appearance for Danchenko, and then again, in a filing two weeks after Sears filed, for a less pressing imagined conflict involving different lawyers in Sears’ firm.

With Sussmann, Durham waited for almost five months after indicting Sussmann to raise the conflict, even though all but one element of the imagined conflict would have been immediately apparent to Durham, not least that Latham had previously represented Elias.

That doesn’t seem to reflect any real burning concern about this conflict.

But, as noted, it did give Durham an excuse to float previously unreleased information that may not even come in at trial, given that it’ll have to be presented as 404(b) evidence and it, in fact, as presented, undermines the claim that Sussmann was hiding his ties to Hillary from the Federal government.

If the information doesn’t come in at trial, this may be Durham’s only chance to jack up the frothy right with it.

And that’s interesting because of the date of that CIA meeting: February 9, 2017, five years and two days before Durham filed this belated notice of a conflict.

As I keep noting, Durham is obviously trying to pull his fevered conspiracy theories into an actual charged conspiracy, one tying together the DNC, Fusion GPS, Christopher Steele, and Hillary herself. If he succeeds, these flimsy charges (against both Sussmann and Danchenko) become stronger, but if he doesn’t, he’s going to have a harder time proving motive and materiality at trial.

After charging Sussmann on almost the last possible date before the statute of limitations expired for his claimed lie to the FBI, though, Durham would need something on which to hang a continuing conspiracy to be able to charge the others. One of those events could have been the PR statement issued in 2018, which Durham says is inaccurate.

Privilege logs and redacted emails obtained from Law Firm-1 in this investigation reflect that in the days before the issuance of these statements, Latham attorneys sent, received, and/or were copied on correspondence relating to the drafting and dissemination of the statements. (Much of the substance of those emails was redacted and withheld from the Special Counsel’s Office pursuant to Law Firm-1’s assertion of attorney-client privilege and attorney work product protections). Because the defendant was aware of and/or reviewed these media statements, the Government may seek to offer them as evidence pursuant to Rule 404(b) or other provisions of law to establish that the defendant sought to conceal the Clinton Campaign’s ties to the Russian Bank-1 allegations from the FBI and others.3

3 According to counsel for Law Firm-1, the attorneys at Law Firm-1 and Latham who participated in drafting and/or reviewing these statements were unaware at the time that the defendant had billed work on the Russian Bank-1 allegations to the Clinton Campaign.

Except, as laid out here, none of the Perkins Coie people involved in writing the statement knew how Sussmann had billed his time. And Durham hasn’t found a reason to otherwise pierce the privilege claims that went into the drafting of the statement.

So that’s probably not going to work to establish his continuing conspiracy.

The other event on which Durham might have hung a continuing conspiracy was that February 9 meeting. It involved updated work from Joffe, after all. And Durham claims Sussmann again deliberately hid who his client was rather than (as he now knows Sussmann did for tips from Jofffe that had nothing to do with Donald Trump) just shared a tip anonymously.

But instead of rolling out what Sussmann presented in that February 9 meeting five years and two days ago in a conspiracy indictment, Durham instead packaged it up in a filing pertaining to a potential conflict. This February 9 meeting, it appears, won’t be the hook on which Durham gets to charge a conspiracy.

I’m not saying that Durham won’t be able to pull together his grand conspiracy. He might next point to testimony in Congress (possibly Glenn Simpson’s) to claim that there was some grand cover-up of what he imagines was an attempt to smear Donald Trump. Except, as this filing admits, Sussmann’s sworn testimony to the House Intelligence Committee shows that when asked — by future coup investigative subject Kash Patel — Sussmann testified consistently with sharing this information on behalf of Joffe, which is what Sussmann’s currently operative story remains. Durham did suggest he thinks he can show Sussmannn misled members of Congress because he claims it was, “knowingly and intentionally misleading insofar as it failed to disclose that the defendant billed work on the Russian Bank-1 allegations to the Clinton Campaign,” except (as with the alleged lie more generally) that’s not what he was asked about.

By all means, John Durham, make Kash Patel a witness at your trial. Give Sussmann an opportunity to ask how Kash came to learn of this meeting in the first place, to say nothing about whether Kash has recently been involved in efforts to overthrow the US government.

Whatever Durham hopes to use to sustain the claim of a continuing conspiracy, this filing seems to concede that the lies Durham claims Sussmann told in that meeting that took place five years and a few days ago will not be charged.

Ask not for whom the statute of limitations toll, John Durham. They toll for you.

Mark Meadows Promised the Kind of National Guard Protection that Proud Boy Charles Donohoe Seemed to Expect

December 13, 2021/71 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

I argued last week that any contempt report for Mark Meadows will serve as much as a draft warrant affidavit for the FBI as it would the basis for a criminal contempt indictment.

The committee released their report last night and, as I expected, it describes some of the more damning evidence already obtained regarding Meadows. It includes 12 bullet points (included below), many derived from documents already turned over, describing Meadows’ role in sowing disinformation about the election and his early knowledge of the violence that might result.

As Politico reported, one of those bullets described Meadows emailing someone and saying that the National Guard would “protect pro Trump people.”

Mr. Meadows sent an email to an individual about the events on January 6 and said that the National Guard would be present to ‘‘protect pro Trump people’’ and that many more would be available on standby.

Former Acting Secretary of Defense Christopher Miller told Congress that’s what Trump ordered him to do on January 3. But if Meadows passed on that privileged order the President gave to Miller, either directly or indirectly, to people involved in the riot, it might have helped them to plan.

And that’s interesting, because when Proud Boy Charles Donohoe saw a public report about the Guard being called in at 3:45 PM of on the day of the riot (these texts reflect the Washington State time zone in which Ethan Nordean’s phone was seized), he responded with surprise that the Guard would “attack … Trump supporters.”

If Meadows had a hand in alerting the Proud Boys that they would not face any response from the Guard, it would go a long way to explaining how they planned their operation in the way they did.

It also might explain why, minutes after Donohoe had just reported, minutes earlier, that “we are regrouping with a second force,” that second assault was abandoned.

As some of the bullets make clear, Mark Meadows had advance warning from organizers that things would get violent on January 6. And as the riot developed, he was in constant communication with Kash Patel, the Chief of Staff at the Defense Department that proved unwilling to deploy to protect the Capitol.

And it’s just possible he shared information that was central to the expectations of and plans by the militia that organized the assault.

Mr. Meadows was one of a relatively small group of people who witnessed the events of January 6 in the White House and with then-President Trump. Mr. Meadows was with or in the vicinity of then-President Trump on January 6 as he learned about the attack on the U.S. Capitol and decided whether to issue a statement that could stop the rioters.28 In fact, as the violence at the Capitol unfolded, Mr. Meadows received many messages encouraging him to have Mr. Trump issue a statement that could end the violence, and one former White House employee reportedly contacted Mr. Meadows several times and told him, ‘‘[y]ou guys have to say something. Even if the president’s not willing to put out a statement, you should go to the [cameras] and say, ‘We condemn this. Please stand down.’ If you don’t, people are going to die.’’29

Moreover, Mr. Meadows reportedly spoke with Kashyap Patel, who was then the chief of staff to former Acting Secretary of Defense Christopher Miller, ‘‘nonstop’’ throughout the day of January 6.30 And, among other things, Mr. Meadows apparently knows if and when Mr. Trump was engaged in discussions regarding the National Guard’s response to the Capitol riot, a point that is contested but about which Mr. Meadows provided documents to the Select Committee and spoke publicly on national television after President Trump left office.31

Beyond those matters, the Select Committee seeks information from Mr. Meadows about issues including the following:

Mr. Meadows exchanged text messages with, and provided guidance to, an organizer of the January 6th rally on the Ellipse after the organizer told him that ‘‘[t]hings have gotten crazy and I desperately need some direction. Please.’’32
Mr. Meadows sent an email to an individual about the events on January 6 and said that the National Guard would be present to ‘‘protect pro Trump people’’ and that many more would be available on standby.33
Mr. Meadows received text messages and emails regarding apparent efforts to encourage Republican legislators in certain States to send alternate slates of electors to Congress, a plan which one Member of Congress acknowledged was ‘‘highly controversial’’ and to which Mr. Meadows responded, ‘‘I love it.’’ Mr. Meadows responded to a similar message by saying ‘‘[w]e are’’ and another such message by saying ‘‘Yes. Have a team on it.’’34
Mr. Meadows forwarded claims of election fraud to the Acting leadership of DOJ for further investigation, some of which he may have received using a private email account and at least one of which he had received directly from people associated with Mr. Trump’s re-election campaign.35
He also reportedly introduced Mr. Trump to then-DOJ official Jeffrey Clark.36 Mr. Clark went on to recommend to Mr. Trump that he be installed as Acting Attorney General and that DOJ should send a letter to State officials urging them to take certain actions that could affect the outcome of the November 2020 election by, among other things, appointing alternate slates of electors to cast electoral votes for Mr. Trump rather than now-President Biden.37
Mr. Meadows participated in meetings and calls during which the participants reportedly discussed the need to ‘‘fight’’ back against ‘‘mounting evidence’’ of purported voter fraud after courts had considered and overwhelmingly rejected Trump campaign claims of voter fraud and other election irregularities. He participated in one such meeting in the Oval Office with Mr. Trump and Members of Congress, which he publicly tweeted about from his personal Twitter account shortly after.38 He participated in another such call just days before the January 6 attack with Mr. Trump, Members of Congress, attorneys for the Trump re-election campaign, and ‘‘some 300’’ State and local officials to discuss the goal of overturning certain States’ electoral college results on January 6, 2021.39
Mr. Meadows traveled to Georgia to observe an audit of the votes days after then-President Trump complained that the audit had been moving too slowly and claimed that the signature-match system was rife with fraud.40 That trip precipitated Mr. Trump’s calls to Georgia’s Deputy secretary of state and, later, secretary of state.41 In the call with Georgia’s secretary of state, which Mr. Meadows and an attorney working with the campaign also joined, Mr. Trump pressed his unsupported claims of widespread election fraud, including claims related to deceased people voting, forged signatures, out-of-State voters, shredded ballots, triple-counted ballots, Dominion voting machines, and suitcase ballots, before telling the secretary of state that he wanted to find enough votes to ensure his victory.42 At one point during the call, Mr. Meadows asked ‘‘in the spirit of cooperation and compromise, is there something that we can at least have a discussion to look at some of these allegations to find a path forward that’s less litigious?’’43 At that point, Mr. Trump had filed two lawsuits in his personal capacity and on behalf of the campaign in Georgia, but the United States had not filed—and never did file—any. Mr. Meadows used a personal account in his attempts to reach the secretary of state before.44
Mr. Meadows was chief of staff during the post-election period when other White House staff, including the press secretary, advanced claims of election fraud. In one press conference, the press secretary claimed that there were ‘‘very real claims’’ of fraud that the Trump re-election campaign was pursuing and said that mail-in voting was one that ‘‘we have identified as being particularly prone to fraud.’’45

29Documents on file with the Select Committee (Meadows production); Carol Leonnig and Philip Rucker, I Alone Can Fix It, (New York: Penguin, 2021), p. 476.

30 Adam Ciralsky, ‘‘‘The President Threw Us Under the Bus’: Embedding with Pentagon Leadership in Trump’s Chaotic Last Week,’’ Vanity Fair, (Jan. 22, 2021), available at https:// www.vanityfair.com/news/2021/01/embedding-with-pentagon-leadership-in-trumps-chaotic-lastweek.

31Documents on file with the Select Committee (Meadows production); Transcript, ‘‘The Ingraham Angle,’’ Fox News, (Feb. 11, 2021), available at https://www.foxnews.com/transcript/ biden-warns-china-could-eat-our-lunch-after-phone-call-with-xi; Transcript, ‘‘Hannity,’’ Fox News, (Feb. 12, 2021), available at https://www.foxnews.com/transcript/new-yorker-who-lostmother-in-law-in-nursing-home-blasts-disgrace-cuomo; Testimony of Hon. Christopher C. Miller, U.S. House of Representatives Committee on Oversight and Reform, (May 12, 2021), available at https://oversight.house.gov/sites/democrats.oversight.house.gov/files/Miller%20Testimony.pdf.

32Documents on file with the Select Committee (Meadows production).

33Documents on file with the Select Committee (Meadows production).

34Documents on file with the Select Committee (Meadows production).

35Documents on file with the Select Committee.

36Michael Bender, Frankly, We Did Win This Election: The Inside Story of How Trump Lost, (New York: Grand Central Publishing, 2021), p. 369.

37Documents on file with the Select Committee.

38Marissa Schultz, ‘‘Trump meets with members of Congress plotting Electoral College objections on Jan. 6,’’ Fox News, (Dec. 21, 2021), available at https://www.foxnews.com/politics/members-of-congress-trump-electoral-college-objections-on-jan-6; Tweet, @MarkMeadows, (Dec. 21, 2020 at 6:03 p.m.) (‘‘Several members of Congress just finished a meeting in the Oval Office with President @realDonaldTrump, preparing to fight back against mounting evidence of voter fraud. Stay tuned.’’).

39 Caitlin McFall, ‘‘Trump, House Republicans held call to discuss Electoral College rejection: Brooks,’’ Fox News, (Jan. 2, 2021), available at https://www.foxnews.com/politics/gop-splits-electoral-college-certification; Tweet, @RepMoBrooks, (Jan. 2, 2021 at 7:17 p.m.) (‘‘Our fight for honest & accurate elections gains momentum! @JimlJordan & I co-lead conference call w 50+ Congressmen who join & fight for America’s Republic! . . . President Trump & CoS Mark Meadows speaking. Morale is HIGH! FIGHT!’’); Paul Bedard, ‘‘Exclusive: Trump urges state legislators to reject electoral votes, ‘You are the real power’,’’ Washington Examiner, (Jan. 3, 2021), available at https://www.washingtonexaminer.com/washington-secrets/exclusive-trump-urges-statelegislators-to-reject-electoral-votes-you-are-the-real-power.

40Linda So, ‘‘Trump’s chief of staff could face scrutiny in Georgia criminal probe,’’ Reuters, (March 19, 2021), available at https://www.reuters.com/article/us-usa-trump-georgia-meadows-insight-idUSKBN2BB0XX.

41 Id.

42 ‘‘AP FACT CHECK: Trump’s made-up claims of fake Georgia votes,’’ Associated Press, (Jan. 3, 2021), https://apnews.com/article/ap-fact-check-donald-trump-georgia-elections-atlantac23d10e5299e14daee6109885f7dafa9; ‘‘Here’s the full transcript and audio of the call between Trump and Raffensperger, Washington Post, (Jan. 2, 2021), https://www.washingtonpost.com/politics/trump-raffensperger-call-transcript-georgia-vote/2021/01/03/2768e0cc-4ddd-11eb-83e3- 322644d82356—story.html.

43 ‘‘Here’s the full transcript and audio of the call between Trump and Raffensperger, Washington Post, (Jan. 2, 2021), https://www.washingtonpost.com/politics/trump-raffensperger-calltranscript-georgia-vote/2021/01/03/2768e0cc-4ddd-11eb-83e3-322644d82356—story.html.

44Documents on file with the Select Committee.

45Transcript of November 20, 2020, White House Press Conference, available at https:// www.rev.com/blog/transcripts/press-secretary-kayleigh-mcenany-white-house-press-conferencetranscript-november-20.

Two One-Time Devin Nunes Flunkies Under Investigation for Leaks

April 18, 2021/48 Comments/in emptywheel /by emptywheel

Michael Ellis, the Devin Nunes flunky who had been installed as NSA General Counsel over more qualified people, resigned from NSA after being placed on leave since Inauguration Day. I hadn’t realized until I read Ellen Nakashima’s report on Ellis’ resignation that he was being investigated for leaking classified information, though Catherine Herridge reported that investigation in real time, the very same day that Ellis’ attorney wrote NSA inquiring about the investigation.

Meanwhile, a long David Ignatius profile of another Nunes flunky, Kash Patel, mentions that he, too, is under investigation for leaking classified information.

Patel repeatedly pressed intelligence agencies to release secrets that, in his view, showed that the president was being persecuted unfairly by critics. Ironically, he is now facing Justice Department investigation for possible improper disclosure of classified information, according to two knowledgeable sources who requested anonymity because of the sensitivity of the probe. The sources said the investigation resulted from a complaint made this year by an intelligence agency, but wouldn’t provide additional details.

Both of these men (along with a third Nunes flunky, Derek Harvey) have been a real threat to national security and both have a history of writing crappy reports for Nunes (recent reporting reminds that Ellis was the author of an unnecessarily shitty Edward Snowden report, for example). There’s little doubt they have released the kinds of material that have never before been released, but much of that would either be legal and/or protected by Speech and Debate.

But the fact that both are being investigated for leaking classified information raises questions whether leak investigations are just being used as an easy way to take out intelligence community critics, whether they’re both suspected of leaking the same information, or whether there’s more there.

The Ignatius story, in particular, is of interest, not least because he’s the guy who first reported Mike Flynn’s conversation with Sergey Kislyak in a seemingly sanctioned leak, making this report a kind of book-end to the Trump Administration. All the more so given that Ignatius not only notes the sensitivity of the probe into Patel, but then tells a story that likely relies on classified information of how Patel’s incompetence almost blew up a SEAL rescue mission in Niger.

Anger toward Patel within the national security bureaucracy mounted after an Oct. 31, 2020, hostage rescue mission in Nigeria. The incident, never previously reported in detail, was described by four high-level sources.

It was a rescue mission that was nearly aborted partly because of inadequate coordination by Patel. SEAL Team Six had been assigned to rescue 27-year-old Philip Walton, a missionary’s son who had been kidnapped by gunmen in Niger, near the border with Nigeria. Patel, as a senior counterterrorism adviser, had assured colleagues that the mission had a green light, according to several sources. The SEALs were ready to parachute into the rescue site from high altitude (one source estimated 30,000 feet) when there was a last-minute hitch.

But as the SEALs were about to jump, military commanders and State Department officials realized that one necessary item hadn’t been completed: The Nigerian government hadn’t been informed prior to the operation inside their country, as required.

A frantic last-minute effort to obtain the necessary permission ensued. The SEAL team’s aircraft held over the target, flying in a racetrack pattern, for about 45 minutes while the State Department tried to locate a Nigerian national security official who could receive the official notice. Finally, just 15 minutes before the operational window closed, the Nigerians were given word, the SEALs parachuted down, and the hostage was rescued.

Secretary of State Mike Pompeo and Gen. Mark A. Milley, chairman of the Joint Chiefs of Staff, were angry that, in their view, Patel had prematurely said the operation was fully cleared, according to knowledgeable officials. One senior Pentagon official said he was “incensed” at Patel. A second senior Pentagon official described Patel’s actions as potentially “dangerous” for the SEALs.

The attack on Patel’s role in the hostage rescue may be a signal about what Patel is suspected of leaking.

While Ignatius provides no indication of what Patel is suspected of leaking, the WaPo columnist does link to an interview Patel did with Aaron Maté. The interview is about what you’d expect from a propagandist interviewing a propagandist. Patel makes a slew of false claims that Maté encourages: the purpose of FISA, what normally goes in FISA applications, the intelligence against Carter Page, what servers the FBI obtained as part of its investigation into the hack (Maté still ascribes the single server fallacy!), what Crowdstrike actually had access to, what Bruce Ohr’s FBI interviews actually showed. Perhaps the most hysterical part of the interview is where Patel claimed that the way to conduct an investigation is to follow the money, but Maté never asked him why HPSCI didn’t follow the money on a single Trump associate, to say nothing of Trump’s role in money laundering for Russian oligarchs.

Nevertheless, in their discussion about the Russian investigation, Patel was quite careful to avoid revealing non-public information, not even for a report he authored claiming poor tradecraft on the Intelligence Community Assessment of the Russian attack that both SSCI and John Durham have investigated and dismissed.

Maté similarly let Patel dodge really answering questions about his conduct on January 6, even though some of the biggest questions about that day pertain to why DOD delayed for three hours before reinforcing the Capitol, including why it took over 30 minutes for an order to deploy to get from Acting Secretary of Defense Christopher Miller to Guard Commander General William Walker who had been waiting on stand-by. In response to Maté’s question, Patel first repeated his selective breach of Executive Privilege to claim that Trump had already authorized Guard deployments, then answered a totally different question than the one Maté asked — not why DOD let the attack continue for 3 hours, long after it had gotten repeated requests for help, but how quickly DOD deployed the Guard after they had allowed an attack to happen across town while they watched.

We activated, from a start, the fastest augmentation and mobilization of uniformed military troops in the DC area since World War II, and we put 24,000 boots on the ground in less than 48 hours. I don’t know who’s saying we slow-rolled anything, because these are Guardsmen, they’re not active duty military.

While Patel violated Executive Privilege, there’s nothing classified about the belated Guard deployment.

It’s in-between those two conversations, though, where Patel may have succumbed to Maté’s persistent questioning about the very same topic about which Ignatius’ sources attack Patal: hostage rescues. Maté asked about a report that Patel had tried to negotiate the release of Austin Tice. Patel first responded to Maté by saying that he wouldn’t address whether Tice is alive or not. But then Maté followed up, and Patel told a self-serving story about his role in an attempt to free Tice. In it, Patel provided non-public details about his meeting with Assad representatives in Syria and may have confirmed an intercept on Bashar al-Assad.

Maté: Can you tell us anything about your discussions with Syrian officials, what they were asking from you, their level of openness to having talks with the US government?

Patel: Sure, I mean, look, that didn’t happen overnight. You know, one of President Trump’s priorities was, “go get American hostages home,” and I think we got over 50 — 53ish, hostages, detainees back — from 20-some countries maybe. Maybe a little less. But Austin Tice had been missing for, going on eight years, and we had made no headway, really, on it, so we made it a priority. We started working with our counterparts in the region. That trip was almost 18 months in the making. And we finally were able to land a meeting in Damascus because I told them, I said, “I’ll come see you. You send someone who can represent President Assad directly, because I can represent President Trump directly on this matter. And let’s go sit down.” And they said, “okay, come to Damascus.” And I don’t know if they thought we would show up or not. We did. And we were very clear. We said, “look, I understand I’m not getting Austin home on this trip, but I would like a proof of life. What would you like in return for that?” We had very frank conversations. They said, we want X amount of movement for the United States military. Troops stuff, and this and that. And I said, “look, all of that’s on the table. We can discuss all those things. I need a proof of life.” And they said they would take it back to Assad. Which they did. I know they did that. And then, I think shortly thereafter, I switched over to the Department of Defense, and tried to continue that mission, but, um, that one was one I just, unfortunately, didn’t succeed on. [my emphasis]

The most likely way that Patel would come to learn, with certainty, that whatever go-betweens he met with in Damascus actually did report back to Assad would be via an NSA or CIA intercept. If that is how he learned, then confirming that he knew Assad got a report back might have burned the intercept. Doing so with Maté at the Grayzone, which personally and as an outlet produce a lot of Assad apology, might be particularly sensitive. And the ease with which Maté appealed to Patel’s ego to get him to reveal these details would raise real questions about whether Patel played a role in the earlier WSJ story about the meeting, which was published on October 18, days before Patel almost fucked up the October 31 Niger mission.

That is, this Ignatius story seems like an effort to undermine Patel’s self-interested stories of heroism on hostage rescues, after he disclosed non-public details about one of them.

Which would also suggest that, whatever the merit of the investigation into Ellis (and I think GOP concerns about it have some merit), the investigation into Patel may be substantive.

Chain of Command: The AWOL Descriptions of the Commander in Chief’s Role in the National Guard Non-Response on January 6

March 4, 2021/94 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

The only formal explanation Trump has offered to describe his role in deploying the National Guard in response to the attack on the Capitol on January 6 came in his impeachment defense. As part of that defense, Bruce Castor pointed to things he claimed happened before Trump’s speech ended. In Castor’s inaccurate portrayal of the timeline, he suggested that the first action Acting Secretary of Defense Christopher Miller took was when, at 1:05 (which Castor said was 11:05), Miller “received open source reports of demonstrator movements to the U.S. Capitol.” He continued to claim that,

At 1:09 PM, US Capitol Police Chief’s Steven Sund called the House and Senate Sergeants at Arms, telling them he wanted an emergency declared and he wanted the National Guard called. The point: given the timeline of events, the criminals at the Capitol were not there to even hear the President’s words. They were more than a mile away engaged in a preplanned assault on this very building.

Admittedly, this was probably no more than an incompetent parroting of the existing timeline released by DOD. It’s possible that Trump’s lawyers didn’t ask him what happened inside the White House that day, because if they did, it would not help their case.

Still: Trump’s own defense claimed that the first that Acting Secretary Miller did in the matter was at 1[1]:05 on January 6.

That’s mighty interesting because there have been two claims that Trump proactively offered up National Guard troops for January 6 in the days beforehand. The first came in a Vanity Fair piece written by a journalist that Trump’s DOD flunkies permitted to embed with them (he requested to do so before the insurrection, but didn’t start his embed until January 12, meaning the claims reported in this article were retrospective). That piece claimed that, the night before the attack, Trump told DOD they would need 10,000 people.

The president, Miller recalled, asked how many troops the Pentagon planned to turn out the following day. “We’re like, ‘We’re going to provide any National Guard support that the District requests,’” Miller responded. “And [Trump] goes, ‘You’re going to need 10,000 people.’ No, I’m not talking bullshit. He said that. And we’re like, ‘Maybe. But you know, someone’s going to have to ask for it.’” At that point Miller remembered the president telling him, “‘You do what you need to do. You do what you need to do.’ He said, ‘You’re going to need 10,000.’ That’s what he said. Swear to God.”

[snip]

“We had talked to [the president] in person the day before, on the phone the day before, and two days before that. We were given clear instructions. We had all our authorizations. We didn’t need to talk to the president. I was talking to [Trump’s chief of staff, Mark] Meadows, nonstop that day.”

[snip]

What did Miller think of the criticism that the Pentagon had dragged its feet in sending in the cavalry? He bristled. “Oh, that is complete horseshit. I gotta tell you, I cannot wait to go to the Hill and have those conversations with senators and representatives.”

[snip]

Miller and Patel both insisted, in separate conversations, that they neither tried nor needed to contact the president on January 6; they had already gotten approval to deploy forces. However, another senior defense official remembered things quite differently, “They couldn’t get through. They tried to call him”—meaning the president.

So according to Acting Secretary of Defense Christopher Miller, Trump had given him “clear instructions” to “do what you need to do,” and had warned him to have thousands of Guardsmen available. Miller said he was speaking non-stop to Mark Meadows, though an anonymous source stated that they tried but failed to get the President on the line.

Long after impeachment and even after his CPAC speech, Trump went to Fox to make the same claim that appeared in Vanity Fair.

Former President Trump told Fox News late Sunday that he expressed concern over the crowd size near the Capitol days before last month’s deadly riots and personally requested 10,000 National Guard troops be deployed in response.

Trump told “The Next Revolution With Steve Hilton” that his team alerted the Department of Defense days before the rally that crowds might be larger than anticipated and 10,000 national guardsmen should be ready to deploy. He said that — from what he understands — the warning was passed along to leaders at the Capitol, including House Speaker Nancy Pelosi — and he heard that the request was rejected because these leaders did not like the optics of 10,000 troops at the Capitol.

“So, you know, that was a big mistake,” he said.

Fox and other Trump mouthpieces have suggested that Nancy Pelosi rejected the Guard. That’s false. According to then Capitol Police Chief Steve Sund, House Sergeant at Arms Paul Irving did.

On Monday, January 4, I approached the two Sergeants at Arms to request the assistance of the National Guard, as I had no authority to do so without an Emergency Declaration by the Capitol Police Board (CPB). My regular interactions with the CPB, outside of our monthly meetings regarding law enforcement matters, were conducted with the House and Senate Sergeant at Arms, the two members of the CPB who have law enforcement experience. I first spoke with the House Sergeant at Arms to request the National Guard. Mr. Irving stated that he was concerned about the “optics” of having National Guard present and didn’t feel that the intelligence supported it. He referred me to the Senate Sergeant at Arms (who is currently the Chair of the CPB) to get his thoughts on the request. I then spoke to Mr. Stenger and again requested the National Guard. Instead of approving the use of the National Guard, however, Mr. Stenger suggested I ask them how quickly we could get support if needed and to “lean forward” in case we had to request assistance on January 6.

Notably, Sund’s request and Irving’s response occurred before the conversation between Miller and Trump purportedly took place the night before the attack (which was far too late to deploy 10,000 people in any case). Moreover, Pelosi, Zoe Lofgren, and Mark Warner, among others, raised concerns about staffing for the day, so it’s not like Democrats weren’t raising the alarm.

Still, over a month after making no such claim as part of his Impeachment defense, Trump and his flunkies want to claim that Trump was proactive about deploying 10,000 people to defend the Capitol against his most ardent supporters.

That’s interesting background to the testimony offered by Robert Salesses, the “Senior Official Performing the Duties of the Assistant Secretary for Homeland Defense and Global Security,” in a joint Rules/Homeland Committee hearing on January 6 yesterday. As several people noted during the hearing, for some reason DOD sent Salesses, who wasn’t involved in the key events on January 6, rather than people like General Walter Piatt or General [Mike’s brother] Charles Flynn — who were on a call with MPD Chief Robert Contee and Sund on January 6 and who have made disputed claims about what occurred, including that Piatt recommended against sending the Guard because of optics. Effectively, Salesses was repeating what others told him, offering no better (indeed, more dated) information than Vanity Fair was able to offer. Salesses apparently called General Piatt the day before and dutifully repeated Piatt’s claim that he did not use the word, “optics,” which DC National Guard Commander General William Walker had just testified did occur.

General Piatt told me yesterday, Senator, that he did not use the word, “optics.”

Salesses then gave more excuses, explaining,

Senator, in fairness to the committee, General Piatt is not a decision-maker. The only decision-makers on the Sixth of January were the Secretary of Defense and the Secretary of the Army Ryan McCarthy. It was a chain of command from the Secretary of Defense to Secretary McCarthy to General Walker. That was the chain of command.

General Walker, the Commander of the DC National Guard, responded by reiterating the response he had gotten from Piatt (and the brother of the guy who had incited many of the insurrectionists) implicitly correcting Salesses about chain of command. The Commander in Chief, of course, is in that chain of command.

Yes, Senator. So the chain of command is the President, the Secretary of Defense, the Secretary of the Army, [points to self] William Walker Commanding General District of Columbia National Guard.

After General Walker described more of the restrictions placed on him ahead of time, including the preapproval before moving a traffic control point from one block to another (which restriction, Walker said, he had never experienced in 19 years) and the issuance of riot gear, Salesses made more excuses (repeating his silence about the role of the President’s role in the chain of command). Remarkably, he described how Ryan McCarthy dithered from 3:04 until 4:10 because shots had been fired at the Capitol.

Salesses: Sir, Secretary Miller wanted to make the decisions on how the National Guard was going to be employed on that day. As you recall, Senator, the spring events, there was a number of things that happened during those events, that Secretary Miller as the Acting Secretary –

Rob Portman: Clearly he wanted to. The question is why? And how unusual. Don’t you think that’s unusual based on your experience at DOD?

Salesses: Senator, there was a lot of things that happened in the spring that the Department was criticized for — Sir, if I could. Civil Disturbance Operations? That authority rests with the Secretary of Defense. So if somebody’s gonna make a decision about employing military members against US citizens in a Civil Disturbance Operation —

Salesses: At 3:04, Secretary Miller made the decision to mobilize the entire National Guard. That meant that he was calling in all the National Guard members that were assigned to the DC National Guard. At 3:40–at 3:04 that decision was made. Between that period of time — between 3:04 and 4:10, basically, Secretary McCarthy had asked for — he wanted to understand, because of the dynamics on the Capitol lawn, with the explosives, obviously shots had been fired, he wanted to understand the employment of how the National Guard was going to be sent to the Capitol: what their missions were going to be, were they going to be clearing buildings, be doing perimeter security, how would they be equipped, he wanted to understand how they were going to be armed because, obviously, shots had been fired. He was asking a lot of questions to understand exactly how they were going to be employed here at the Capitol, and how many National Guard members needed to be deployed to the Capitol.

When asked whether restrictions placed on Walker hampered his defense, yes or no, Salesses again invoked the chain of command, again leaving out the Command-in-Chief.

Senator, General Walker, in fairness to him, can’t respond to a civil defense — a Civil Disturbance Operation without the authority of the Secretary of Defense.

Finally, Salesses explained a further 36-minute delay, from 4:32 until 5:08, when Walker was given approval to move, this way:

Salesses: In fairness to General Walker too, that’s when the Secretary of Defense made the decision, at 4:32. As General Walker has pointed out, cause I’ve seen all the timelines, he was not told that til 5:08.

Roy Blunt: How is that possible, Mr. Salazar [sic], do you think that the decision, in the moment we were in, was made at 4:32 and the person that had to be told wasn’t told for more than a half an hour after the decision.

Salesses: Senator, I think that’s an issue.

It’s not just that the people who were actually involved didn’t show up to explain all this to Congress. It’s not just that there were big gaps in the timeline, or gaps explained by dithering even after DOD learned about explosives and shots fired.

It’s that the guy sent to provide improbable answers seems to have removed the Commander-in-Chief, who was watching all this unfold on TV and now wants credit for proactively telling DOD they would need at least 10,000 people, from the chain of command he used to justify the delay.

That’s all the more striking given that — as Dana Milbank noted — the delay until Miller’s authorization (to say nothing of the 36-minute delay in informing Walker) also meant that DOD did not respond until after Trump had instructed his insurrection to go home.

Curiously, the Pentagon claims Miller’s authorization came at 4:32 — 15 minutes after Trump told his “very special” insurrectionists to “go home in peace.” Was Miller waiting for Trump’s blessing before defending the Capitol?

DOD’s selected witness yesterday said that General Walker couldn’t send the Guard to help protect the Capitol because of the chain of command. But the Commander-in-Chief seems to be AWOL from that chain of command.

Update: On Twitter AP observed that there is a discrepancy between Miller’s 10,000 person claim and Trump’s: Trump says it happened days before January 6, which would place it before Miller’s letter imposing new restrictions on the Guard.

Productive Ways to Hold Trump Accountable

January 23, 2021/61 Comments/in 2020 Presidential Election, Impeachment, Mueller Probe /by emptywheel

On Friday, Jonathan Rauch published a god-awful argument for pardoning Trump. Today, Quinta Jurecic published a much better argument that a Truth Commission would be the ideal way to hold Trump accountable, but because that probably won’t work, we need to pursue other alternatives, including prosecution.

I’ve already laid out one reason why I think we need to prosecute Trump for his role in the insurrection: because if we don’t, it’ll hamper the ability to hold dangerous people accountable. Another reason is that so many defendants are excusing their actions because the then-President ordered them to storm the Capitol (indeed, that’s one reason, according to a new WaPo report, why DOJ might not charge some of the insurrectionists), the government must make it clear that order was illegal.

Still, I think there are solutions to the problem that both Rauch and Jurecic want to resolve: how to find accountability without derailing President Biden’s Administration.

Jurecic acknowledges that Republican resistance to accountability measures will exacerbate current political divisions.

[A] post-Trump investigation pursued along partisan lines could be doomed from the start. This is the irony: The exact conditions that led to and sustained the Trump era—white grievance, a polluted media ecosystem, and political polarization—are the same conditions that will likely prevent a truth commission from succeeding.

[snip]

In the short run, any of these measures could risk making the country’s social and political divisions worse.

Rauch argues that prosecutions will derail the Biden Administration.

If we want Biden’s presidency to succeed, accountability to be restored and democracy to be strengthened, then a pardon would likely do more good than harm.

Consider, first, Biden’s presidency.

Biden has made clear in every way he can that he does not want or intend to be President Not Trump. He has his own agenda and has been impressively disciplined about not being defined by opposition to Trump. He knows Trump will try to monopolize the news and public discourse for the next four years, and he needs Trump instead to lose the oxygen of constant public attention.

Legal proceedings against Trump, or even the shadow of legal proceedings, would only keep Trump in the headlines.

Rauch also argues (fancifully, for precisely the reasons Jurecic gives that a Truth Commission would be undermined by polarization) that a non-criminal counterintelligence investigation will succeed in a way criminal investigations won’t.

It is important, then, that Trump’s presidency be subjected to a full-scale, post hoc counterintelligence scrub. There should be a public element, modeled on the 9/11 commission, and also a nonpublic, classified element. Both elements could be complicated and hindered by the criminal investigation of Trump. The criminal and counterterrorism investigations would need to be continually deconflicted; Congress would be asked to back away from inquiries and witnesses that step on prosecutors’ toes; Trump himself could plead the Fifth Amendment—an avenue not open to him were he to accept a pardon.

Ignoring for the moment the necessity of including Trump in an investigation into January 6, I agree that, to the extent possible, there needs to be some kind of accounting of what happened during the Trump Administration without turning it into partisan warfare.

Here are some ways to contribute to doing that.

Drain the swamp

Investigations into Trump for things that either are already (Russia or Ukraine) or can be (the election) turned into a tribal issue will absolutely exacerbate political division.

But there are some topics where former Trump supporters can quickly be shown how he hurt them.

For example, an inquiry into Trump’s trade war, especially into the harm done to farmers, will provide a way to show that Trump really devastated a lot of the rural voters who, for tribal reasons, nevertheless support him.

Or Trump’s grifting. In the wake of the Steve Bannon pardon, a number of Trump supporters were furious that Bannon was pardoned for cheating them, even while rioters or other more favored pardon candidates were not. Bannon’s not the only Trump grifter whose corruption demonstrably hurt Trump voters. There’s Brad Parscale’s grifting. There’s Jared Kushner’s favoritism in COVID contracting, which made the country less safe. There’s PPP abuse by big corporations at the expense of small businesses. None of this has to be explicitly about Trump; it can instead be an effort to crack down on corruption generally which by its very nature will affect Trump’s flunkies.

Have Trump dead-enders approve charges

With the exception of some egregious US Attorneys, Biden has asked the remaining US Attorneys to stay on for the moment. That defers any political blowback in the case of John Durham (who in addition to being CT US Attorney is also investigating the Russian investigation) and David Weiss (who is investigating Hunter Biden).

But it also allows people who are nominally Trump appointees to preside over at least the charging of existing investigations targeting Trump or his flunkies. The one place this is known to be true is in Southern District of New York (where Rudy is being investigated). It might be true in DC US Attorney’s office (though Billy Barr shut a lot of investigations, including into Roger Stone and Erik Prince, down). There’s Texas, where Ken Paxton is under investigation.There were hints of investigations into Jared in Eastern District of New York and, possibly, New Jersey.

If Trump US Attorneys aren’t replaced before they charge Trump or his allies, then the act of prosecution will be one approved by a Trump appointee.

Give Republicans what they think they want

Because they’re gullible, Republicans believe that the record of the Russian investigation shows corruption. What is in fact the case is that a cherry-picked and selectively-redacted set of records from the Russian investigation can be gaslit to claim corruption.

But since they’ve been clambering for Trump to declassify it all (even while both John Ratcliffe and Andrew McCabe have suggested that might not show what Republicans expect), it gives Biden’s Administration a way to declassify more. For example, there’s at least one Flynn-Kislyak transcript (from December 22, 2016) that Trump’s Administration chose not to release, one with closer Trump involvement then the others. There are materials on Alex Jones’ interactions with Guccifer 2.0. There are Peter Strzok notes showing him exhibiting no ill-will to Mike Flynn. There are records regarding Paul Manafort’s interactions with Konstantin Kilimnik on April 2016. That’s just the tip of an iceberg of very damning Russian-related records that Trump chose not to release, but which GOP demands for more can be used to justify.

Fully empower Inspectors General

One particularly absurd part of Rauch’s piece is his claim that we know all of Trump’s criminal exposure.

If he committed crimes that we don’t already know about, they are probably not of a new kind or magnitude.

As for what we do know about, it seems clear that he committed criminal obstruction of justice, for example by ordering his White House counsel to falsify federal records. But his obstruction was a process crime, already aired, of limited concern to the public and hard to get a conviction on as a stand-alone charge. There might be more to the Ukraine scandal than we know, but that matter, too, has been aired extensively, may not have been a legal violation and was appropriately (if disappointingly) handled by impeachment. Trump might have committed some form of sedition when he summoned his supporters to the streets to overturn the election, but he would have a colorable First Amendment defense, and sedition is a complicated and controversial charge that would open a legal can of worms. The real problem with Trump is not that we do not know his misdeeds but that we know so much about them, and yet he remained in office for a full term.

One piece of evidence Rauch is mistaken is his certainty that Trump’s only exposure in the Russian investigation is regarding obstruction, when (just as one example) there’s an ongoing investigation into an Assange pardon that appears to be closer to a quid pro quo; or the closed investigation into a potential bribe from Egypt. Democrats were denied a slew of documents pertaining to the Ukraine scandal, especially from the State Department. Democrats were similarly denied records on Trump’s abuse of clearance and non-official records.

One way to deal with the outstanding questions from the Trump Administration is simply to fully staff and empower the Inspectors General who have been undermined for four years. If, for example, State’s IG were to refer charges against Mike Pompeo or DOD’s IG were to refer charges pertaining to Kash Patel’s tenure, it wouldn’t be Democrats targeting them for investigation, it would be independent Inspectors General.

DOJ must be a key part of this. DOJ’s IG has already said it is investigating BJ Pak’s forced resignation. Democrats should insist this is expanded to review all of Barr’s politicized firings of US Attorneys.

As part of an effort to make sure Inspectors General do the work they should have done in real time, Biden should support the end of the OPR/IG split in DOJ, which means that the decisions of lawyers at DOJ (including those pertaining to the Ukraine scandal) are only reviewed by inspectors directly reporting to the Attorney General.

Respect FOIA

Joe Biden might not want to focus on Trump. But the press will continue to do so.

And if Biden orders agencies to treat FOIA like it is supposed to be treated, rather than forcing the press to sue if they want anything particularly interest, the press will do a lot of the accountability that courts otherwise might (and might provide reason for prosecutions). The press already has FOIAs in that have been undermined by improper exemption claims. For example, Jason Leopold has an existing FOIA into Bill Barr’s interference into the Roger Stone and Mike Flynn prosecutions. American Oversight has a FOIA into why Paul Manafort was sprung from jail when more vulnerable prisoners were not. FOIA into Trump’s separation policies have been key at reuniting families.

If such FOIAs obtained more visibility than they currently do, it would provide the visibility into some of the issues that people would love criminal investigations into.

One of the biggest scandals of the Trump Administration is how he undermined normal institutions of good governance, especially Inspectors General. If those institutions are restored and empowered, it will likely do a surprising amount of the accountability work that is so badly needed.

The DOD Flunkies’ Convenient Lapse of Executive Privilege

January 23, 2021/19 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

The first thing you should take away from this long Vanity Fair profile of the Trump loyalists who led DOD during the Transition period is that Kash Patel has a very selective approach to Executive Privilege. Deep in the story, when caught in a lie about a plot to have him replace CIA Director Gina Haspel, Patel invokes Executive Privilege to refuse to answer.

I asked Patel about an Axios story that broke just before we sat down to talk. It asserted that CIA director Gina Haspel threatened to resign after learning that Trump planned to install Patel as her deputy. “I’m not going to comment on what the president wanted to do or didn’t want to do, but there’s no conversations of that now or this week or this year,” he replied. But he seemed to be playing coy. The CIA gambit took place last year. In fact, when I had spoken with Cohen about the matter, he had told me, “The idea was to put Kash in as the deputy, which doesn’t require Senate approval, and then to fire Gina the next day, leaving Kash in charge…. Robert O’Brien, [Trump’s national security adviser], is the one who deep-sixed it.” When I pressed Patel further about these machinations, which had occurred in December, I saw him turn lawyerly: “That stuff is between me and the boss. That’s the only thing I don’t comment on. Ever. It’s executive privilege.”

But in the first lines of the profile, both he and former Acting Secretary of Defense Christopher Miller happily offer up a tale of how Trump not only claimed to know what an appropriate deployment of National Guard troops would be in preparation for January 6, but ordered DOD to have them deployed.

On the evening of January 5—the night before a white supremacist mob stormed Capitol Hill in a siege that would leave five dead—the acting secretary of defense, Christopher Miller, was at the White House with his chief of staff, Kash Patel. They were meeting with President Trump on “an Iran issue,” Miller told me. But then the conversation switched gears. The president, Miller recalled, asked how many troops the Pentagon planned to turn out the following day. “We’re like, ‘We’re going to provide any National Guard support that the District requests,’” Miller responded. “And [Trump] goes, ‘You’re going to need 10,000 people.’ No, I’m not talking bullshit. He said that. And we’re like, ‘Maybe. But you know, someone’s going to have to ask for it.’” At that point Miller remembered the president telling him, “‘You do what you need to do. You do what you need to do.’ He said, ‘You’re going to need 10,000.’ That’s what he said. Swear to God.”

I could not recall the last time a contingent that large had been called up to supplement law enforcement at all, much less at a demonstration—the Women’s March and the Million Man March sprang to mind—and so I asked the acting SECDEF why Trump threw out such a big number. “The president’s sometimes hyperbolic, as you’ve noticed. There were gonna be a million people in the street, I think was his expectation.” Miller maintained that initial reports on the anticipated crowd size were all over the map—anywhere from 5,000 to 40,000. “Park Police—everybody’s so hesitant to give numbers. So I think that was what was driving the president.”

There’s a lot of reason to believe this is bullshit. Trump wouldn’t ask for the Guard if he wanted a show of force, he’d ask for a helicopter flyover or something else inappropriate. Trump isn’t a detail guy. Miller and Patel offered up a key (and dubious) excuse used elsewhere — that they hadn’t been told the Park Service had expanded the Trump rally to 30,000 attendees.

Most importantly, Patel demonstrated that he believes his actual conversations with Trump should be protected by Executive Privilege. Certainly, he would refuse to say anything bad about Trump.

Ezra Cohen[-Watnick], by contrast, isn’t prompted to. While he is permitted to claim that Trump threw everyone — the entire country — under the bus, he’s not asked about his mentor Mike Flynn’s role in the conspiracy.

Ezra Cohen, another of Miller’s top confidants, believes that his colleagues’ words and deeds may be well and good, but are beside the point: “The president threw us under the bus. And when I say ‘us,’ I don’t mean only us political appointees or only us Republicans. He threw America under the bus. He caused a lot of damage to the fabric of this country. Did he go and storm the Capitol himself? No. But he, I believe, had an opportunity to tamp things down and he chose not to. And that’s really the fatal flaw. I mean, he’s in charge. And when you’re in charge, you’re responsible for what goes wrong.”

[snip]

His promotion was fodder for trolls of every stripe. “To the left I became this horrible person that enabled the president, attacking [Obama officials] and all this other stuff like that,” Cohen contended as we sat in his kitchen and later drove through a Chick-fil-A before tooling around northern Virginia. “And then to the crazy people on the right—that are dangerous people that did the horrible, antidemocratic behavior with the Capitol—these nutjobs are saying that I am QAnon.”

The silence about Flynn’s call for martial law is all the more telling given Cohen’s nod to the way QAnon has worked him into their conspiracies. Flynn played a key role in mobilizing QAnon to serve as Trump’s army.

Also missing from this profile? Any mention of Flynn’s brother, Charles, who participated in a call with local DC officials calling for more help but whose role DOD hid until after Biden was inaugurated.

There are other silences as well, perhaps most notably Miller’s stubborn effort to burrow in a fourth ally, Mike Ellis, at NSA in the last hours of the Trump Administration.

So even before you get into the details, this profile should be regarded as an effort by three very slick dudes to recast their role as Trump flunkies in the wake of an inexcusable event.

With all that said, it appears to differ in key ways from the timeline DOD released days after the coup attempt. The Vanity Fair narrative makes several claims that are probably true: That Miller came to work expecting he might not get home that night (though didn’t stay in DC even as the National Guard did in advance of the inauguratoin), and that DOD was chastened given the gross abuse in response to June protests.

But it also suggests Muriel Bowser called for help 48 minutes after DOD’s timeline shows she did.

On the morning of January 6, as Miller recounted, he was hopeful that the day would prove uneventful. But decades in special operations and intelligence had honed his senses. “It was the first day I brought an overnight bag to work. My wife was like, ‘What are you doing there?’ I’m like, ‘I don’t know when I’m going to be home.’” To hear Patel tell it, they were on autopilot for most of the day: “We had talked to [the president] in person the day before, on the phone the day before, and two days before that. We were given clear instructions. We had all our authorizations. We didn’t need to talk to the president. I was talking to [Trump’s chief of staff, Mark] Meadows, nonstop that day.”

The security posture and response on January 6 did not occur in a vacuum. June 1, 2020, had been a perilous precedent. On that day federal police had expelled peaceful protesters from Lafayette Square to facilitate the president’s saunter over to St. John’s Church for a publicity stunt. But the brute force displayed to clear out the area proved a national embarrassment and allegedly influenced Washington mayor Muriel Bowser’s view, come January, about how the capital should be policed—and by whom. On the day before all hell broke loose on the Hill, she made it clear the D.C. police (MPD) would be running the show on the 6^th, though 340 unarmed National Guard troops had been requested to help with traffic: “The District of Columbia is not requesting other federal law enforcement personnel and discourages any additional deployment without immediate notification to, and consultation with, MPD.”

Miller told me that when Trump made him head of the Pentagon, in November, “the bar was pretty low.” He had three goals. “No military coup, no major war, and no troops in the street,” before observing dryly, “The ‘no troops in the street’ thing changed dramatically about 14:30…. So that one’s off [the list].”

The day began with a lull. “We had meetings upon meetings. We were monitoring it. And we’re just like, Please, God, please, God. Then the damn TV pops up and everybody converges on my office: [Joint Chiefs of Staff] chairman [Mark Milley], Secretary of the Army [Ryan] McCarthy, the crew just converges.” And as intelligence started cycling in, things went from watch and see to “a current op.” Miller recalled, “We had already decided we’re going to need to activate the National Guard, and that’s where the fog and friction comes in.”

“The D.C. mayor finally said, ‘Okay, I need more,’” Kash Patel would tell me. “Then the Capitol police—a federal agency and the Secret Service made the request. We can support them under Title 10, Title 32 authorities for [the] National Guard. So [they] collectively started making requests, and we did it. And then we just went to work.”

With his use of the word “finally,” Patel insinuates there was a delay before Bowser called and asked for help. Meanwhile, Miller suggests that DOD’s response took place at 2:30PM.

The timeline, however, shows that Bowser requested help 29 minutes after DOD says they got “open source reports” of demonstrators moving on the Capitol.

1305: A/SD receives open source reports of demonstrator movements to U.S. Capitol.

1326: USCP orders evacuation of Capitol complex.

1334: SECARMY phone call with Mayor Bowser in which Mayor Bowser communicates request for unspecified number of additional forces.

1349: Commanding General, DCNG, Walker phone call with USCP Chief Sund. Chief Sund communicates request for immediate assistance.

1422: SECARMY phone call with D.C. Mayor, Deputy Mayor, Dr. Rodriguez, and MPD leadership to discuss the current situation and to request additional DCNG support.

1430: A/SD, CJCS, and SECARMY meet to discuss USCP and Mayor Bowser’s requests. 1500: A/SD determines all available forces of the DCNG are required to reinforce MPD and USCP positions to support efforts to reestablish security of the Capitol complex.

1500: SECARMY directs DCNG to prepare available Guardsmen to move from the armory to the Capitol complex, while seeking formal approval from A/SD for deployment. DCNG prepares to move 150 personnel to support USCP, pending A/SD’s approval.

1504: A/SD, with advice from CJCS, DoD GC, the Chief of the National Guard Bureau (CNGB), SECARMY, and the Chief of Staff of the Army, provides verbal approval of the full activation of DCNG (1100 total) in support of the MPD. Immediately upon A/SD approval, Secretary McCarthy directs DCNG to initiate movement and full mobilization. In response, DCNG redeployed all soldiers from positions at Metro stations and all available non-support and non-C2 personnel to support MPD. DCNG begins full mobilization.

The Vanity Fair profile suggests DOD made the decision based off watching TV — presumably those open source reports — that reinforcements would be needed. But they didn’t even begin to “discuss” doing so until 2:30, and didn’t move to make that deployment until 3:04 (so 34 minutes after Miller describes).

Plus, Patel makes no mention of the call from Capitol Police at 1:49.

Ezra Cohen would like you to believe that he got thrown under the bus along with all the people supporting rule of law. Patel would like you to believe the failures of DOD under his watch were not attributable to the Chief of Staff. And Miller would like you to know his family doesn’t much like Donald Trump.

But the whole story reads like a fairy tale.

The Hack or Attack Debate: Answer Old Questions While Waiting to Learn Enough to Answer That One

December 20, 2020/12 Comments/in 2016 Presidential Election, Cybersecurity /by emptywheel

As people in government, particularly members of Congress posturing for the cameras, start responding to the SolarWinds compromise, some have adopted a bellicose language unsupported by the facts, at least those that are public. Dick Durbin, for example, called it, “virtually a declaration of war.” That has led to some necessary pushback noting that as far as we know, this is an act of espionage, not sabotage. It’s the kind of thing we do as well without declaring war.

As usual, I substantially agree with Jack Goldsmith on these issues.

The lack of self-awareness in these and similar reactions to the Russia breach is astounding. The U.S. government has no principled basis to complain about the Russia hack, much less retaliate for it with military means, since the U.S. government hacks foreign government networks on a huge scale every day. Indeed, a military response to the Russian hack would violate international law. The United States does have options, but none are terribly attractive.

[snip]

The larger context here is that for many reasons—the Snowden revelations, the infamous digital attack on Iranian centrifuges (and other warlike uses of digital weapons), the U.S. “internet freedom” program (which subsidizes tools to circumvent constraints in authoritarian networks), Defend Forward, and more—the United States is widely viewed abroad as the most fearsome global cyber bully. From our adversaries’ perspective, the United States uses its prodigious digital tools, short of war, to achieve whatever advantage it can, and so adversaries feel justified in doing whatever they can as well, often with fewer scruples. We can tell ourselves that our digital exploits in foreign governmental systems serve good ends, and that our adversaries’ exploits in our systems do not, and often that is true. But this moral judgment, and the norms we push around it, have had no apparent influence in tamping down our adversaries’ harmful attacks on our networks—especially since the U.S. approach to norms has been to give up nothing that it wants to do in the digital realm, but at the same time to try to cajole, coerce, or shame our adversaries into not engaging in digital practices that harm the United States.

Goldsmith’s point about the Defend Forward approach adopted under Trump deserves particular focus given that, purportedly in the days since the compromise became known, Kash Patel is taking steps to split NSA and CyberCommand, something that would separate the Defend Forward effort from NSA.

Trump administration officials at the Pentagon late this week delivered to the Joint Chiefs of Staff a proposal to split up the leadership of the National Security Agency and U.S. Cyber Command. It is the latest push to dramatically reshape defense policy advanced by a handful of key political officials who were installed in acting roles in the Pentagon after Donald Trump lost his re-election bid.

A U.S. official confirmed on Saturday that Joint Chiefs Chairman Gen. Mark Milley — who along with Acting Defense Secretary Chris Miller must certify that the move meets certain standards laid out by Congress in 2016 — received the proposal in the last few days.

With Miller expected to sign off on the move, the fate of the proposal ultimately falls to Milley, who told Congress in 2019 that the dual-hat leadership structure was working and should be maintained.

As Reuters has reported, General Nakasone was pretty hubristic about NSA’s recent efforts to infiltrate our adversaries (Nakasone has, in unprecedented fashion, also chosen to officially confirm efforts CyberCom has made, which he must think has a deterrent effect that, it’s now clear, did not).

Speaking at a private dinner for tech security executives at the St. Regis Hotel in San Francisco in late February, America’s cyber defense chief boasted how well his organizations protect the country from spies.

U.S. teams were “understanding the adversary better than the adversary understands themselves,” said General Paul Nakasone, boss of the National Security Agency (NSA) and U.S. Cyber Command, according to a Reuters reporter present at the Feb. 26 dinner. His speech has not been previously reported.

Yet even as he spoke, hackers were embedding malicious code into the network of a Texas software company called SolarWinds Corp, according to a timeline published by Microsoft and more than a dozen government and corporate cyber researchers.

A little over three weeks after that dinner, the hackers began a sweeping intelligence operation that has penetrated the heart of America’s government and numerous corporations and other institutions around the world.

The failures of Defend Forward to identify this breach may raise questions about the dual hatting of NSA and CyberCommand, but there’s no good reason for these Trump flunkies to take any substantive steps in the last month of a Lame Duck period while it is serially refusing briefings to President Elect Biden’s team. All the more so because the more pressing issue, it seems, is giving CISA, the government’s defensive agency, more resources and authority.

More importantly, while it is too early to determine whether this goes beyond traditional espionage, there are questions that we can identify. For example, one detail that might suggest this was intended to do more than espionage is that the hackers stole FireEye’s Red Team tools. There are information gathering purposes for doing so, but they’re probably not important enough to risk blowing this entire operation, as happened. So we should at least consider whether the SolarWinds compromise aimed to pair intelligence (including that gathered from FERC, one of the agencies targeted) with the means to launch deniable sabotage on key critical infrastructure using FireEye’s tools.

Measurements of whether this is a hack or attack must also consider that the hackers are in a position where they could alter data. Consider what kind of mayhem Russia could do to our economy or world markets by altering data from Treasury. That is, the hackers are in a position where it’s possible, at least, to engage in sabotage without engaging in any kinetic act.

Finally, adopting the shorthand the industry uses for such things, there’s a bit of sloppiness about attribution. The working assumption this is APT 29, and the working reference is that APT 29 works for SVR, Russia’s foreign intelligence agency (even though when it was implicated in key hacks in 2016, it was assumed to work for FSB). I’ve been told by someone with more local knowledge that the relationship between these hackers and the intelligence agencies they work for may be more transactional. The people who’ve best understood the attack, including FireEye, think this may be a new “group.”

While intelligence officials and security experts generally agree Russia is responsible, and some believe it is the handiwork of Moscow’s foreign intelligence service, FireEye and Microsoft, as well as some government officials, believe the attack was perpetrated by a hacking group never seen before, one whose tools and techniques had been previously unknown.

Which brings me to a question we should be able to answer, one I’ve been harping on since the DNC leak first became public: what was the relationship between the hackers, APT 28 (the ones who stole files and shared the with WikiLeaks) and APT 29 (who then, and still, have been described as “just” spying). From the very first — and even in March 2017, after which discussions of the hack have become irredeemably politicized beyond recovery — there was some complexity surrounding the issue.

I have previously pointed to a conflict between what Crowdstrike claimed in its report on the DNC hack and what the FBI told FireEye. Crowdstrike basically said the two hacking groups didn’t coordinate at all (which Crowdstrike took as proof of sophistication). Whereas FireEye said they did coordinate (which it took as proof of sophistication and uniqueness of this hack). I understand the truth is closer to the latter. APT 28 largely operated on its own, but at times, when it hit a wall of sorts, it got help from APT 29 (though there may have been some back and forth before APT 29 did share).

When I said I understood the truth was closer to the latter — that there was some cooperated between APT 28 and 29, it was based on what a firsthand witness, who had been involved in defending a related target in 2016, told me. He said, in general, there was no cooperation between the two sets of hackers, but on a few occasions APT 29 seemed to assist APT 28. That’s unsurprising. The attack in 2016 was ambitious, years in planning, and Putin was personally involved. He would obviously have the ability to demand coordination for this operation, so intelligence collected by APT 29 may well have dictated choices made in where to throw GRU’s efforts.

The point is important now, especially as people like CrowdStrike’s former CTO Dmitri Alperovitch recommends responses based on the assumption that this is SVR and therefore that dictates what Russia intends.

So we should assume this is espionage and therefore avoid escalating language for the moment. But having had our assess handed to us already, with a sophisticated campaign launched as we were busy looking for election hackers, it would be a big mistake IMO to rely on easy old categories to try to understand this.

Update: Corrected to reflect that Alperovitch is no longer with CrowdStrike.

Rudy the Dripper: The Vicious Cycle of Dead-Ender Propagandists Feeding Bullshit to Tribalist Republicans

November 20, 2020/104 Comments/in 2016 Presidential Election, 2020 Presidential Election, Mueller Probe /by emptywheel

Not long after the former US Attorney of the Southern District of New York headlined a press conference where he and other lawyers presented insane conspiracy theories to claim that Donald Trump had been robbed of his victory, CNN reported that the FBI continues to investigate Rudy Giuliani for his ties to Russian Agents.

Complicating matters is that Giuliani’s post-election swirl of activity comes as federal investigators renewed their investigative interest into his work that is already the subject of a New York-based investigation.

In recent weeks, FBI agents in New York contacted witnesses and asked new questions about Giuliani’s efforts in Ukraine and possible connections to Russian intelligence, according to a person briefed on the matter. The FBI investigators, who have spoken to at least one witness previously months ago, came back to ask new questions recently about possible origins of emails and documents related to Hunter Biden that appear similar to those that the New York Post reported that Giuliani and others helped provide. CNN has previously reported that the ongoing probe is examining whether Giuliani is wittingly or unwittingly part of a Russian influence operation, according to people briefed on the matter.

But questions about that probe have been out of the spotlight as Giuliani stepped into focus as the campaign’s chief post-election lawyer. One source close to the Trump campaign countered that Giuliani is an overzealous defender of the president.

Meanwhile, the same propagandists who’ve helped Trump survive in recent years — on the left and the right — are claiming that because Democrats and others backed the investigation of Russian efforts to get Trump elected in 2016 (an investigation that attempted to understand why Trump fired Jim Comey, the person most Democrats chiefly blame for Hillary’s loss), it is precedent for Trump’s efforts to disclaim Joe Biden’s resounding win.

This exemplifies the vicious cycle we’ve been on since since August 2016, when Donald Trump authorized his rat-fucker to take desperate measures to find bullshit stories to tell to try to win an election.

After WikiLeaks released the first set of files Russia had stolen as part of its plot to help Trump get elected in July 2016 and someone — it’s not clear who — released damning information about Paul Manafort’s corrupt ties with Russian-backed Ukrainian oligarchs, Donald Trump doubled down. Rat-fucker Roger Stone, desperate to save Trump’s campaign and maybe even the job of his lifetime buddy, made a Faustian bargain for advance access to fairly innocuous John Podesta emails that Stone believed would provide the smoking gun for a conspiracy his allies had been chasing since March. The Faustian deal, by itself, exposed Stone as a co-conspirator in a hack-and-leak operation led by a hostile foreign agency. But the deal also brought ongoing exposure: at least as soon as he was elected, Trump’s rat-fucker (and maybe his eldest son!) started pursuing an effort to pay off Julian Assange with a pardon or some other way out of the Ecuadorian Embassy, thereby implicating Trump in a quid pro quo. After Trump assumed the Presidency, his own exposure through Stone gave him reason to want to shut down the investigation, even the investigation into the hack-and-leak itself. As a result, from very early in his presidency, Trump had obstructed justice to hide the quid pro quo and conspiracy his rat-fucker (and possibly he and his son) had joined to help him get there.

Meanwhile, early on in the investigation, acting on advice that Paul Manafort gave after returning from a meeting with one of Oleg Deripaska’s key deputies, the Republicans defended their President by attacking the credibility of the Steele dossier — one that Deripaska himself likely ensured was filled with disinformation — as a stand-in for the larger investigation itself. Deripaska even has apparent sway at one of the outlets that most relentlessly pursued that synecdoche, the dossier as the Russian investigation. Former hawks on Russia, like Trey Gowdy, were lured into fiercely defending Trump even in the face of overwhelming proof of his compromise by the able gate-keeping of Kash Patel and the discovery of how the use of informants can implicate members of your own tribe, as it did with Carter Page. By the time Billy Barr deceived the nation with his roll-out of a very damning Mueller Report, almost every single Republican member of Congress was susceptible to ignoring damning evidence that their President treated both the pursuit of the presidency and his office as a means for self-benefit, no matter what that did to US interests.

Key to the process of co-opting virtually all Republican members of Congress was the process of villainizing the people who had tried to keep the country safe from Russian compromise, starting with Peter Strzok but also including Andy McCabe. That process easily exploited the same apparatus of Congress’ “oversight” powers — and the same susceptibility to heated rants over logic — that had been used to turn a tragic incident in Libya into a multi-year investigation of Hillary Clinton. Also key to that process were certain propagandists on Fox News, including three of the lawyers that stood with Rudy yesterday: DiGenova and Toensing and Sidney Powell.

The day after Mueller closed up shop, those same propagandists joined with Rudy to pursue a revenge plot for the investigation — they started pursuing a way to frame Joe Biden in anticipation of the 2020 election. Most Democrats didn’t believe that Hillary lost because of Russia, but Trump and his conspiratorially-minded advisors believed they did. And so Rudy, relying on advice Manafort offered from prison, used the same networks of influence to try to frame Biden in a Ukrainian plot that, at the same time, might provide an alternative explanation for the Russian crimes Trump was personally implicated in.

Once again, Trump got personally involved, extorting the Ukrainian president over a series of months, “I’d like you to do us a favor, though.”

There’s no doubt that Trump’s abuse of Congress’ power of the purse in an effort to extort a campaign benefit from a foreign country merited impeachment. There’s also no doubt that it served to heighten the tribalism — and ranting illogic — of Republican members of Congress.

Things snowballed further.

That tribalism, by itself, might have gotten Trump re-elected. But it wasn’t enough for Trump. Instead, the President prepared an attack on the integrity of the vote by dissuading his own supporters from using mail-in ballots, setting up the Equal Protection hoaxes that Rudy has pushed in recent days. Georgia Secretary of State Brad Raffensperger claims that, by itself, the effort to discredit mail-in voting cost Trump the state of Georgia. But partisan attacks are what got Trump where he is, and partisan attacks are what he knows.

Trump also doubled down on what had gotten him elected in 2016: overblown attacks sourced to stolen emails, Hunter Biden’s laptop, in this case rolled out by one guy at legal risk for his ties to Fraud Guarantee, and another under indictment for exploiting the tribalism of Trump’s supporters to commit fraud. According to CNN, the FBI believes these emails may have been packaged up by the Russian agents that have been buying access through Rudy and DiGenova and Toensing.

Trump’s DOJ, working with Sidney Powell, even tried to invent an attack on Joe Biden by altering exhibits in a court proceeding. In that case, the overblown attack was sourced to real notes, albeit notes that actual law enforcement officials had packaged in such a way as to tell a false story. Yet again, however, this was a false story that scapegoated those who’ve protected the interests of the country — adding Joe Biden to the targets along with McCabe and Strzok — to try to cover-up unbelievably damning evidence about Trump’s coziness with Russia. The effort to deny that Mike Flynn was secretly working for Turkey while claiming to work for Trump and to deny that Mike Flynn repeatedly called up the country that had just attacked us to try to obtain further benefits turned into an attack on those who tried to keep the country safe from sell-outs like Mike Flynn.

It’s a false story. But Republicans in Congress believe it with all their being. And so it has succeeded in convincing those Republicans they need to redouble their efforts to defend Trump.

So, yesterday, Rudy and the other propagandists gave a press conference that was, for the first time, broadly labeled as a coup attempt and roundly mocked, even by otherwise true believers. Trump, Rudy, Republicans, they’re all victims of an international plot launched by George Soros, Cuba, China, Venezuela, according to Rudy and the lawyers who spun the last several conspiracy theories on Fox News.

And this propaganda, an attempt to set aside the clear will of the voters, derives its strength not from any basis in fact. Rather, it derives its power from the fact that Republicans have gotten so tribally defensive of Trump, they will set aside the clear good of the country to back him.

Donald Trump, if he leaves office, may face legal consequences for what he did in 2016 to get elected. If Trump leaves office, Rudy may face consequences for the things he has done since to keep Trump in office.

To save themselves, they’re pursuing the same strategy they’ve pursued since 2016: telling bullshit stories by waving documents around and lying about what they say, relying on tribalism and raw power rather than reason to persuade their fellow Republicans. It just so happens that several of these stories got told with the help of Russian foreign agents (though some got told with the help of a corrupted law enforcement). It just so happens that Trump and Rudy (and Stone’s) willingness to rely on Russian help to tell these stories has greatly exacerbated their legal risk, and therefore made the spewing of bullshit stories more urgent.

But the Russian role mostly serves to magnify the desperation of this gambit.

Mostly, this is about weaponizing the tribalism of the Republican party that puts party loyalty over loyalty to the country or Constitution. And while there have been a few defectors from this dangerous tribalism in recent days, for the most part, Republicans in Congress don’t care that Trump is exploiting them like this or even — in some cases — don’t understand that this is all a shoddy set of lies.

Gate-Keeper for Propaganda Kash Patel Failed His First Test as DOD Chief of Staff

November 13, 2020/89 Comments/in 2020 Presidential Election, Benghazi Attack /by emptywheel

Yesterday, six US service members died in a helicopter crash in the Sinai Peninsula.

A UH-60 Black Hawk helicopter belonging to a US-led international peacekeeping force crashed in Egypt’s Sinai region on Thursday, killing eight people, including six Americans, officials said. One wounded US service member was airlifted to a hospital in Israel by Israeli Defense Forces (IDF).

“During a routine mission in the vicinity of Sharm el-Sheikh, Egypt, nine members of the Multinational Force and Observers (MFO) were involved in a helicopter crash,” the force said in a statement posted on its website.

As the WaPo pointed out, Joe Biden offered condolences to their families. Trump did not. He was too busy rage-tweeting and harming democracy.

Meantime, national security actions and requests for briefings from the president are drying up, the person said, and the team preparing updates for Biden and Vice President-elect Kamala D. Harris is “very frustrated.”

It was Biden who offered the first public condolences to the families of the service members who died in Egypt. “I join all Americans in honoring their sacrifice, as I keep their loved ones in my prayers,” he wrote on Twitter in the early afternoon Thursday.

By that time, Trump had issued nearly four dozen critical tweets and retweets about the election results and Fox News, including a baseless conspiracy theory from a far-right television network that alleged votes had been improperly tallied in Pennsylvania. He also found time to thank actor Scott Baio for posting a photo of a craft store’s candle display, which had been arranged to spell out, “Trump is still your president.”

But it’s not just President Trump — who focused his first election campaign on Hillary’s purported negligence during the Benghazi attack that killed four Americans — who let six Americans die with little notice.

It’s also newly installed Secretary of Defense Christopher Miller. As Barbara Starr noted on Twitter yesterday, it took over two hours after the deaths were announced before Miller issued condolences, and the Joint Chiefs did not make a statement until after she first tweeted it.

This is the kind of thing that, in a normal era, works like clockwork in the Pentagon.

But yesterday, days after Devin Nunes flunky Kash Patel was installed as Chief of Staff at DOD, that clockwork failed.

Kash Patel has done a spectacular job, throughout the Trump Administration, of ensuring that accurate information doesn’t get to his principals, whether that’s Nunes, Trump himself (Patel was at NSC pretending to be an expert on Ukraine during impeachment), presumably at ODNI when he led a house-cleaning effort there, and now DOD.

But there’s no reason to believe that preventing people from getting accurate information translates into being an effective Chief of Staff for one of the world’s biggest bureaucracies.

I guess it’s up to the Republicans who are enabling this attack on the country by the Lame Duck President to decide how much damage they want Trump’s flunkies to do in the interim.