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How to Read the DHS Targeted States Information

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Yesterday, DHS informed the states that had their registration databases targeted by Russian hackers last year. There has been an outright panic about the news since states started revealing they got notice, so I thought it worthwhile to describe what we should take away from the notice and subsequent reporting:

  • “Most” of the 21 targeted states were not successfully hacked
  • Some targeted states were successfully hacked
  • Not all swing states were targeted, not all targeted states are swing states
  • These hacks generally do not involve vote tallying
  • These hacks do not involve hacking voting machines
  • These hacks do not involve other voter suppression methods — whether by GOP or Russians
  • Notice needs to improve

The AP has done good work tracking down which states got notice they were targeted, identifying the 21 targeted states. Those targeted states were:

  1. Alabama
  2. Alaska
  3. Arizona
  4. California
  5. Colorado
  6. Connecticut
  7. Delaware
  8. Florida
  9. Illinois
  10. Iowa
  11. Maryland
  12. Minnesota
  13. North Dakota
  14. Ohio
  15. Oklahoma
  16. Oregon
  17. Pennsylvania
  18. Texas
  19. Virginia
  20. Washington
  21. Wisconsin

 

“Most” of the 21 targeted states were not successfully hacked

This list of 21 states does not mean that Russians successfully hacked 21 states. All it means is Russians probed 21 states. And the AP says “most” were not successful. WI, WA, and MN have said the attacks on them were not successful.

Thus, for “most” of these states, the impact is the same as the reports that Russians were attempting, unsuccessfully, to phish engineers in the energy industry: it is cause for concern, but unless new intelligence becomes available, it means that for those “most” states these probes could not affect the election.

Some targeted states were successfully probed

Of course, by saying that “most” attacks were not successful, you’re admitting that “some” were. We only know IL and AZ to have successfully been breached.

This means this story may not be done yet: reporters, especially state based ones, are going to have to get their voting officials to provide details about the attacks and it may take some FOIA work.

Mind you, a successful hack still doesn’t mean that the election was affected (as I believe to be the understanding with respect to AZ, though there is more dispute about IL). It might be that the hackers just succeeded in getting into the database. It may be that they succeeded only in downloading the voter registration database — which in many states, is readily available, and which is nowhere near the most interesting available data for targeting in any case.

In my opinion, the most effective way to affect the outcome of the election via voter registration databases is not to download and use it for targeting, but instead, to alter the database, selectively eliminating or voiding the registration of voters in targeted precincts (which of course means the hackers would need to come in with some notion of targets). Even changing addresses would have the effect of creating lines at the polls.

Altering the database would have the same effect as an existing GOP tactic does. In many states, GOP secretaries of state very aggressively purge infrequent voters. Particularly for transient voters (especially students, but poorer voters are also more likely to move from year to year), a voter may not get notice they’ve been purged. This has the effect of ensuring that the purged voter cannot vote, and also has the effect of slowing the voting process for voters who are registered.  In other words, that’s the big risk here — that hackers will do things to make it impossible for some voters to vote, and harder for others to do so.

Not all swing states were targeted, not all targeted states are swing states

The list of targeted states is very curious. Some targeted states are obvious swing states — WI, PA, FL, and VA were four of the five states where the election was decided. But MI is not on there, and NC, another close state, is not either.

In addition, a lot of these states are solidly red, like AL and OK. A lot of them are equally solidly blue, like CA and CT. So if the Russians had a grand scheme here, it was not (just) to flip swing states.

These hacks generally do not involve vote tallying

DHS has said that these hacks do not involve vote tallying. That means these disclosed probes, even assuming they were successful, are not going to explain what may seem to be abnormalities in particular states’ tallies.

These hacks do not involve hacking voting machines

Nor do these hacks involve hacking voting machines (which is covered, in any case, by the denial that it involves vote tallying).

Yes, voting machines are incredibly vulnerable. Yes, it would be child’s play for a hacker — Russian or American — to hack individual voting machines. With limited exceptions, there been no real assessment of whether individual machines got hacked (though it’d generally be easier to affect a local race that way than the presidential).

These hacks do not involve other voter suppression methods — whether by GOP or Russians

This list of 21 targeted states does not represent the known universe of Russian voting-related hacking.

It does not, for example, include the targeting of voting infrastructure contractors, such as VR Systems (which Reality Winner faces prison for disclosing). There’s good reason to at least suspect that the VR Systems hack may have affected NC’s outcome by causing the most Democratic counties to shift to paper voting books, resulting in confusion and delays in those counties that didn’t exist in more Republican ones.

And they don’t include any Russian social media-related support or suppression, which we’re getting closer to having proof of right now.

Importantly, don’t forget that we know Republicans were engaging in all these techniques as well, with far better funding. Russians didn’t need to hack WI and NC given how much organized suppression of voters of color took place. Republican secretaries of state had the power to purge voters on trumped up excuses without engaging in any hacking.

Do not let the focus on Russian tampering distract from the far more effective Republican suppression.

Notice needs to be improved

Finally, the other big story about this is that some states only got notice they were targeted yesterday, some even after having partnered with DHS to assess their voting infrastructure.

DHS has used classification, in part, to justify this silence, which is an issue the Intelligence Committees are trying to address in next year’s authorization. But that’s particularly hard to justify that many of these same states have run elections since.

Mind you, we’re likely to see this debate move to the next level — to demanding that state officials disclose full details about their state’s infrastructure to citizens.

In any case, if we’re to be able to use democratic pressure to ensure the infrastructure of democracy gets better protected, we’re going to need more notice.

SSCI Plays Hardball with Michael Cohen’s Attempt to Distract from Trump Tower Deal

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Just before it was supposed to start, SSCI canceled Michael Cohen’s private interview with the committee. They did so, per a statement from Richard Burr and Mark Warner, because Cohen broke an agreement not to talk to the press by releasing what has generally been described as “his statement” to the press beforehand.

We were disappointed that Mr. Cohen decided to pre-empt today’s interview by releasing a public statement prior to his engagement with Committee staff, in spite of the Committee’s requests that he refrain from public comment. As a result, we declined to move forward with today’s interview and will reschedule Mr. Cohen’s appearance before the Committee in open session at a date in the near future. The Committee expects witnesses in this investigation to work in good faith with the Senate.

But in point of fact, what got published as his “statement” was not the entirety of it. Close to the end of the “statement” is this paragraph, alluding to a further two page statement on the Trump Tower deal that somehow didn’t get leaked.

I assume we will discuss the rejected proposal to build a Trump property in Moscow that was terminated in January of 2016; which occurred before the Iowa caucus and months before the very first primary. This was solely a real estate deal and nothing more. I was doing my job. I would ask that the two-page statement about the Moscow proposal that I sent to the Committee in August be incorporated into and attached to this transcript.

Other than that paragraph, mind you, Cohen’s statement closely parallels the letter to HPSCI Cohen released last month after spending a week distracting from and pre-empting the Trump Tower story. Both deny the allegations in the Christopher Steele dossier, and try to suggest that if he is found innocent of those allegations, then HPSCI and/or SSCI must issue a statement exonerating him.

In other words, with both committees, Cohen has manipulated the press so as to set a narrative about his testimony, a narrative that treats the Steele dossier as the entirety of his expose, rather than the now far more interesting (and interestingly time) real estate deal.

Four days ago, Michael Cohen (or the Trump Organization) pre-empted revelations that would leak as soon as he turned over a third tranche of documents to the House Intelligence Committee by revealing a seemingly damning detail from it: along with Trump’s associate Felix Sater, Cohen was pursuing a Trump Tower deal in Moscow well after Trump’s campaign was in full swing. Sure enough, more damning information was still to come: Sater somehow imagined the deal — whatever it was — would get Trump elected. Then still more damning information: in January 2016, Cohen reached out to trusted Putin aide Dmitry Peskov to push for help on the deal. That’s when Cohen began to not recall precisely what happened, and also ignore questions about why he hadn’t told Trump about this call, unlike the other actions he took on this deal.

[snip]

All that said, the way in which Cohen has orchestrated this disclosure — up to and including his failures to recall and answer obvious questions — is either great lawyering and/or sign that this earlier deal making is a real problem.

Of course, Burr and Warner were having none of this narrative scene setting and so now will force Cohen to testify publicly.

Cohen is sure spending a lot of time orchestrating distractions from this property deal. A pity for him his second attempt didn’t work as well as the first one.

Can Congress — or Robert Mueller — Order Facebook to Direct Its Machine Learning?

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The other day I pointed out that two articles (WSJ, CNN) — both of which infer that Robert Mueller obtained a probable cause search warrant on Facebook based off an interpretation that under Facebook’s privacy policy a warrant would be required — actually ignored two other possibilities. Without something stronger than inference, then, these articles do not prove Mueller got a search warrant (particularly given that both miss the logical step of proving that the things Facebook shared with Mueller count as content and not business records).

In response to that and to this column arguing that Facebook should provide more information, some of the smartest surveillance lawyers in the country discussed what kind of legal process would be required, but were unable to come to any conclusions.

Last night, WaPo published a story that made it clear Congress wanted far more than WSJ and CNN had suggested (which largely fell under the category of business records and the ads posted to targets, the latter of which Congress had been able to see but not keep). What Congress is really after is details about the machine learning Facebook used to identify the malicious activity identified in April and the ads described in its most recent report, to test whether Facebook’s study was thorough enough.

A 13-page “white paper” that Facebook published in April drew from this fuller internal report but left out critical details about how the Russian operation worked and how Facebook discovered it, according to people briefed on its contents.

Investigators believe the company has not fully examined all potential ways that Russians could have manipulated Facebook’s sprawling social media platform.

[snip]

Congressional investigators are questioning whether the Facebook review that yielded those findings was sufficiently thorough.

They said some of the ad purchases that Facebook has unearthed so far had obvious Russian fingerprints, including Russian addresses and payments made in rubles, the Russian currency.

Investigators are pushing Facebook to use its powerful data-crunching ability to track relationships among accounts and ad purchases that may not be as obvious, with the goal of potentially detecting subtle patterns of behavior and content shared by several Facebook users or advertisers.

Such connections — if they exist and can be discovered — might make clear the nature and reach of the Russian propaganda campaign and whether there was collusion between foreign and domestic political actors. Investigators also are pushing for fuller answers from Google and Twitter, both of which may have been targets of Russian propaganda efforts during the 2016 campaign, according to several independent researchers and Hill investigators.

“The internal analysis Facebook has done [on Russian ads] has been very helpful, but we need to know if it’s complete,” Schiff said. “I don’t think Facebook fully knows the answer yet.”

[snip]

In the white paper, Facebook noted new techniques the company had adopted to trace propaganda and disinformation.

Facebook said it was using a data-mining technique known as machine learning to detect patterns of suspicious behavior. The company said its systems could detect “repeated posting of the same content” or huge spikes in the volume of content created as signals of attempts to manipulate the platform.

The push to do more — led largely by Adam Schiff and Mark Warner (both of whom have gotten ahead of the evidence at times in their respective studies) — is totally understandable. We need to know how malicious foreign actors manipulate the social media headquartered in Schiff’s home state to sway elections. That’s presumably why Facebook voluntarily conducted the study of ads in response to cajoling from Warner.

But the demands they’re making are also fairly breathtaking. They’re demanding that Facebook use its own intelligence resources to respond to the questions posed by Congress. They’re also demanding that Facebook reveal those resources to the public.

Now, I’d be surprised (pleasantly) if either Schiff or Warner made such detailed demands of the NSA. Hell, Congress can’t even get NSA to count how many Americans are swept up under Section 702, and that takes far less bulk analysis than Facebook appears to have conducted. And Schiff and Warner surely would never demand that NSA reveal the extent of machine learning techniques that it uses on bulk data, even though that, too, has implications for privacy and democracy (America’s and other countries’). And yet they’re asking Facebook to do just that.

And consider how two laws might offer guidelines, but (in my opinion) fall far short of authorizing such a request.

There’s Section 702, which permits the government to oblige providers to provide certain data on foreign intelligence targets. Section 702’s minimization procedures even permit Congress to obtain data collected by the NSA for their oversight purposes.

Certainly, the Russian (and now Macedonian and Belarus) troll farms Congress wants investigated fall squarely under the definition of permissible targets under the Foreign Government certificate. But there’s no public record of NSA making a request as breathtaking as this one, that Facebook (or any other provider) use its own intelligence resources to answer questions the government wants answered. While the NSA does draw from far more data than most people understand (including, probably, providers’ own algorithms about individually targeted accounts), the most sweeping request we know of involves Yahoo scanning all its email servers for a signature.

Then there’s CISA, which permits providers to voluntarily share cyber threat indicators with the federal government, using these definitions:

(A) IN GENERAL.—Except as provided in subparagraph (B), the term “cybersecurity threat” means an action, not protected by the First Amendment to the Constitution of the United States, on or through an information system that may result in an unauthorized effort to adversely impact the security, availability, confidentiality, or integrity of an information system or information that is stored on, processed by, or transiting an information system.

(B) EXCLUSION.—The term “cybersecurity threat” does not include any action that solely involves a violation of a consumer term of service or a consumer licensing agreement.

(6) CYBER THREAT INDICATOR.—The term “cyber threat indicator” means information that is necessary to describe or identify—

(A) malicious reconnaissance, including anomalous patterns of communications that appear to be transmitted for the purpose of gathering technical information related to a cybersecurity threat or security vulnerability;

(B) a method of defeating a security control or exploitation of a security vulnerability;

(C) a security vulnerability, including anomalous activity that appears to indicate the existence of a security vulnerability;

(D) a method of causing a user with legitimate access to an information system or information that is stored on, processed by, or transiting an information system to unwittingly enable the defeat of a security control or exploitation of a security vulnerability;

(E) malicious cyber command and control;

(F) the actual or potential harm caused by an incident, including a description of the information exfiltrated as a result of a particular cybersecurity threat;

(G) any other attribute of a cybersecurity threat, if disclosure of such attribute is not otherwise prohibited by law; or

(H) any combination thereof.

Since January, discussions of Russian tampering have certainly collapsed Russia’s efforts on social media with their various hacks. Certainly, Russian abuse of social media has been treated as exploiting a vulnerability. But none of this language defining a cyber threat indicator envisions the malicious use of legitimate ad systems.

Plus, CISA is entirely voluntary. While Facebook thus far has seemed willing to be cajoled into doing these studies, that willingness might change quickly if they had to expose their sources and methods, just as NSA clams up every time you ask about their sources and methods.

Moreover, unlike the sharing provisions in 702 minimization procedures, I’m aware of no language in CISA that permits sharing of this information with Congress.

Mind you, part of the problem may be that we’ve got global companies that have sources and methods that are as sophisticated as those of most nation-states. And, inadequate as they are, Facebook is hypothetically subject to more controls than nation-state intelligence agencies because of Europe’s data privacy laws.

All that said, let’s be aware of what Schiff and Warner are asking for, however justified it may be from a investigative standpoint. They’re asking for things from Facebook that they, NSA’s overseers, have been unable to ask from NSA.

If we’re going to demand transparency on sources and methods, perhaps we should demand it all around?

Are Trump’s Associates Forgoing Lawyers because They Expect Pardons?

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One of the numerous topics over which Attorney General Jeff Sessions invoked non-executive executive privilege when he testified earlier this month was whether the Trump Administration has started discussing pardoning those who might be criminally exposed for their ties with Russia.

WARNER: To your knowledge, have any Department of Justice officials been involved with conversations about any possibility of presidential pardons about any of the individuals involved with the Russia investigation?

SESSIONS: Mr. Chairman, I’m not able to comment on conversations with high officials within the white house. That would be a violation of the communications rule that I have to —

WARNER: Just so I can understand, is the basis of that unwilling to answer based on executive privilege?

SESSIONS: It’s a long standing policy. The department of justice not to comment on conversations that the attorney general had with the president of the united States for confidential reasons that rounded in the coequal branch.

WARNER: Just so I understand, is that mean you claim executive privilege?

SESSIONS: I’m not claiming executive privilege because that’s the president’s power and I have no power there.

WARNER: What about conversations with other Department of Justice or White House officials about potential pardons? Not the president, sir.

SESSIONS: Without in any way suggesting I had any conversations concerning pardons, totally apart from that, there are privileges of communication within the department of justice that we share all of us do. We have a right to have full and robust debate within the Department of Justice and encourage people to speak up and argue cases on different sides. Those arguments are not — historically we have seen they shouldn’t be revealed.

WARNER: I hope you agree since you recused yourself that if the president or others would pardon someone during the midst of this investigation while our investigation or Mr. Mueller’s investigation, that would be problematic.

After I watched this testimony I predicted Trump would pardon someone — probably Mike Flynn — within three months of the day I made the prediction (which was roughly June 14).

I said that, in part, because of Sessions’ sheer arrogance when he was providing obviously false answers (most especially to Kamala Harris). Sessions had the giddy look of someone who knew he’d get away with whatever he was pulling, even beyond the kind of a look you’d expect from a southern white man talking to a woman of color.

But I also say that because some of the people most exposed in this affair have had at least initial conversations with the FBI without a lawyer. That’s true of Mike Flynn in his first interview with the FBI at the White House. (Flynn has since retained Robert Kelner.)

WHITEHOUSE: Do you know where that interview took place or under what circumstances?

YATES: I believe it took place at the White House.

WHITEHOUSE: The Flynn interview?

YATES: Yes.

WHITEHOUSE: OK. Do you know if Flynn was represented by council at the time?

YATES: I don’t believe he was.

And — according to a new WaPo story — that’s true of the 10 hours of questioning that Carter Page underwent in March.

Over a series of five meetings in March, totaling about 10 hours of questioning, Page repeatedly denied wrongdoing when asked about allegations that he may have acted as a kind of go-between for Russia and the Trump campaign, according to a person familiar with Page’s account.

The interviews with the FBI are the most extensive known questioning of a potential suspect in the probe of possible Russian connections to associates of President Trump. The questioning of Page came more than a month before the Russian investigation was put under the direction of Special Counsel Robert S. Mueller III.

Page confirmed Monday that the interviews occurred, calling them “extensive discussions.” He declined to say if he’s spoken to investigators since the March interviews.

[snip]

Because it is against the law for an individual to lie to FBI agents about a material issue under investigation, many lawyers recommend their clients not sit for interviews with the bureau without a lawyer present. Page said he spoke without a lawyer and wasn’t concerned about the risks because he told the truth.

Now, it may be that after getting these men to incriminate themselves, the FBI encouraged them to lawyer up so they could be flipped. Certainly, Sheldon Whitehouse appears to believe Flynn has done just that.

Still, the kind of arrogance that would lead men as exposed as they are to forgo a lawyer makes me wonder whether they’ve already been promised pardons?

Update: Meanwhile, the most likely Trump associate to get a pardon, father of his grandchildren Jared Kushner, just hired Abbe Lowell, while still retaining Jamie Gorelick.

Who Would Have Told Trump to Go Back to Demand a Patronage Relationship with Comey?

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Jim Comey made a comment in his testimony the other day I’ve not seen others mention. Mark Warner asked him to explain this comment on patronage from his written testimony.

The President began by asking me whether I wanted to stay on as FBI Director, which I found strange because he had already told me twice in earlier conversations that he hoped I would stay, and I had assured him that I intended to. He said that lots of people wanted my job and, given the abuse I had taken during the previous year, he would understand if I wanted to walk away.

My instincts told me that the one-on-one setting, and the pretense that this was our first discussion about my position, meant the dinner was, at least in part, an effort to have me ask for my job and create some sort of patronage relationship. That concerned me greatly, given the FBI’s traditionally independent status in the executive branch.

I replied that I loved my work and intended to stay and serve out my ten-year term as Director. And then, because the set-up made me uneasy, I added that I was not “reliable” in the way politicians use that word, but he could always count on me to tell him the truth. I added that I was not on anybody’s side politically and could not be counted on in the traditional political sense, a stance I said was in his best interest as the President. A few moments later, the President said, “I need loyalty, I expect loyalty.”

When Warner asked Comey to explain this comment at Thursday’s hearing, Comey explained he thought that Trump was belatedly trying to get something from Comey in exchange for letting him stay on his job.

WARNER: Let me move to the January 27th dinner, where you said “The president began by asking me whether I wanted to stay on as FBI director.”

He also indicated that “lots of people” again your words, “Wanted the job.” You go on to say the dinner itself was “Seemingly an effort to” to quote have you ask him for your job and create some “patronage” relationship. The president seems from my reading of your memo to be holding your job or your possibility of continuing your job over your head in a fairly direct way. What was your impression, and what did you mean by this notion of a patronage relationship?

COMEY: Well, my impression, and again it’s my impression, I could always be wrong but my common sense told me what was going on is, either he had concluded or someone had told him that you didn’t, you’ve already asked Comey to stay, and you didn’t get anything for it. And that the dinner was an effort to build a relationship, in fact, he asked specifically, of loyalty in the context of asking me to stay. As I said, what was odd about that is we’d already talked twice about it by that point and he said I very much hope you’ll stay. In fact, I just remembered sitting a third, when you’ve seen the. IC tour of me walking across the blue room, and what the president whispered in my ear was “I really look forward to working with you.” So after those encounters —

WARNER: That was a few days before your firing.

COMEY: On the Sunday after the inauguration. The next Friday I have dinner and the president begins by wanting to talk about my job and so I’m sitting there thinking wait a minute three times we’ve already, you’ve already asked me to stay or talked about me staying. My common sense, again I could be wrong but my common sense told me what’s going on here is, he’s looking to get something in exchange for granting my request to stay in the job. [my emphasis]

Comey explained that — after already having been assured three times that he would remain in his position — Trump raised the issue anew in a private dinner. Comey didn’t say this, but this happened the day after Sally Yates first told White House Counsel Don McGahn that Mike Flynn had misrepresented his comments to Sergey Kislyak. And in that dinner, Trump implied that if Comey wanted to stay in the job he’d been offered three times already, he had to give Trump loyalty.

What I’m especially interested in is what Comey believed elicited this: Comey figured that “either [Trump] had concluded or someone [else] had told [Trump] that you didn’t, you’ve already asked Comey to stay, and you didn’t get anything for it” which is what led Trump to invite Trump for dinner.

Given the timing, it would be interesting all by itself if Trump had decided on his own to get some kind of commitment from Comey in order to keep his job, because it would make it far more likely that McGahn told Trump about Yates’ concerns.

But Comey testified that he thought that perhaps someone else went to Trump and suggested he should go back to Comey and try to demand loyalty to keep his job.

Who?

Does Comey think Mike Flynn did this? Don McGahn (which would be downright shocking)? Or did he think that one of the two people who lingered at the next weird meeting alone with Trump — Attorney General Sessions or Son-in-Law-in-Chief Jared Kushner — made the suggestion?

He didn’t say. But I find the suggestion that Comey believes someone may have — at the same time as DOJ was telling the White House that Mike Flynn was in trouble — encouraged Trump to go make demands from Comey.

Sheldon Whitehouse and the Russia Investigation Deconfliction

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Laura Rozen has me worried.

She pointed to this CNN article — posted sometime this afternoon — describing Sheldon Whitehouse’s worries that the scope of the DOJ inquiry into Trump and Russia might conflict with the Congressional inquiries.

Sen. Sheldon Whitehouse, the top Democrat on a Judiciary subcommittee, told CNN Thursday that it’s possible Flynn is cooperating with the Justice Department — and that Capitol Hill has not been kept in the loop. He warned that congressional probes that have subpoenaed Flynn for records could undercut Mueller’s investigation if the former national security adviser is secretly working with the Justice Department as part of its broader investigation into possible collusion between Russian officials and Trump associates during the campaign season.

“There is at least a reasonable hypothesis that Mike Flynn is already cooperating with the DOJ investigation and perhaps even has been for some time,” said Whitehouse, a Rhode Island Democrat.

Whitehouse added he had no direct evidence to suggest that Flynn is cooperating with the Justice Department. But he said there is circumstantial evidence to suggest that it could be the case, saying Mueller must immediately detail the situation to “deconflict” with probes on the Hill to “make sure that congressional investigations aren’t inadvertently competing with DOJ criminal investigations.”

[snip]

The Rhode Island Democrat said there are number of factors that suggest Flynn is working the Justice Department in its probe. He pointed out that “all reporting indicates they’ve got him dead to rights on a false statement felony” in his private interview with the FBI over his conversations last year with Russian Ambassador Sergey Kislyak. He also noted that Flynn has gone silent and retroactively signed on as a foreign agent to Turkey. And he noted that a federal grand jury has been summoned and has issued subpoenas to Flynn associates.

“So none of that proves anything but it’s all consistent with the hypothesis that he’s already cooperating,” Whitehouse told CNN.

“But that’s certainly a hypothetical case of a time when we do need need this de-confliction apparatus in place to make sure that congressional investigations aren’t inadvertently competing DOJ criminal investigations.”

Now, in point of fact, that deconfliction has already happened — or at least started. That’s what a May 11 meeting between Rod Rosenstein, Richard Burr, and Mark Warner was described as at the time.

Rosenstein was tight-lipped as he entered and emerged from a secure facility Thursday on Capitol Hill, where he huddled with Senate Intelligence Committee Chairman Richard Burr (R-N.C.) and Vice Chairman Mark R. Warner (D-Va.). The senators said the meeting had been scheduled before Comey’s ouster to discuss “deconfliction” — keeping the FBI’s and committee’s investigations of alleged ties between the Trump campaign and the Russian government from stepping on each other’s toes.

According to reports, the meeting was scheduled before the Jim Comey ouster, so it should reflect the scope of what he was investigating, and therefore presumably resembles the scope of what Robert Mueller will investigate.

But there are three reasons why Whitehouse might be justified in worrying that Congress might fuck up what DOJ is investigating.

Obviously, the first is Mueller: the Comey firing might have reflected some new investigative approach (including Flynn immunity), or Mueller, because of the firing, might be scoping the investigation differently.

A second is jurisdiction. Whitehouse and Lindsey Graham have assumed jurisdiction over the Russia investigation for their subcommittee — and the Senate Judiciary Committee obviously should oversee the FBI. So it may be that former US Attorney Sheldon Whitehouse wants to have a deconflicting conversation for himself, because he knows how investigations work (and for all we know is getting tips from DOJ).

The other is another announcement from this afternoon: that the Senate Intelligence Committee had voted to give Chair Richard Burr and Vice Chair Mark Warner the ability to issue subpoenas themselves going forward, without consulting the committee.

The leaders of the Senate Intelligence Committee now have broad authority to issue subpoenas in the Russia investigation without a full committee vote, Chairman Richard Burr (R-N.C.) said Thursday.

The panel voted unanimously to give Burr and Vice Chairman Mark Warner (D-Va.) the blanket authority for the duration of the investigation into Russia’s election meddling and possible collusion with President Trump’s campaign.

The two Senate leaders must be in agreement in order to issue an order.

Now, as the article notes, thus far, the committee has asked for documents, not testimony. My suspicion is this might have more to do with ensuring Comey’s testimony — promised after Memorial Day — is “compelled” in such a way that DOJ can’t object.

Nevertheless, the power to subpoena does grant someone (like former Trump National Security Advisor Richard Burr) the ability to fuck with the DOJ investigation by potentially working at cross-purposes. To grant immunity (and therefore to fuck up the investigation as happened in Iran-Contra), I think Burr would still need the support of the committee.

Still, this still gives Burr far more power to thwart the investigation, with only Mark Warner (who unlike Whitehouse has never been a prosecutor) to prevent it.

In theory, I think Whitehouse is just pushing for jurisdiction (and for the ability to demand the same kind of deconfliction conversation Burr and Warner have gotten).

But upon reflection, I don’t think his concerns are entirely unjustified.

In any case, I trust Whitehouse (with whatever leftover ties he has to DOJ) to do this review more than Mark Warner.

Update: Burr told Bloomberg he has had a deconfliction conversation with Mueller.

Senate Intelligence Chairman Richard Burr, a Republican from North Carolina, said he has contacted Mueller to discuss their parallel probes of Russian meddling.

The Flynn and Kushner Interviews with SSCI

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Richard Burr and Mark Warner had a press conference today to — basically — reassure people that at least one intelligence committee is made up of grown-ups who will be able to conduct an investigation of Russia’s attempts to interfere with the election. Among other things, Burr said the committee has a list of about 20 people with whom they’re in the process of setting up interviews, about five of which have been scheduled, to start Monday.

Amid repeated discussions about leaks, Burr confirmed — as the NYT already has — that the Committee wants to meet with Jared Kushner. The NYT story about Kushner was clearly first informed by Senate Intelligence Committee personnel that SSCI wanted to talk to him, and then got Hope Hicks to confirm it publicly. Of particularly interest (because Burr is very strict that committee business remain secret), the NYT SSCI source asked for anonymity to remain candid about Kushner, not because he or she was not permitted to talk with the press.

The Senate panel’s decision to question Mr. Kushner would make him the closest person to the president to be called upon in any of the investigations, and the only one currently serving in the White House. The officials who initially described that Senate inquiry to The New York Times did so on the condition of anonymity in order to speak candidly about Mr. Trump’s son-in-law.

Later the NYT story cotes a statement from Burr and Mark Warner, confirming (as Burr did in the hearing) that they will speak with Kushner.

In today’s hearing, having confirmed again the detail about Kushner, however, Burr took a different approach in response to a question about Mike Flynn.

Q: Have you guys been in contact with Michael Flynn or representatives of Michael Flynn? Also, can you go into a little bit of the thought process between why you would have an interview behind closed doors or do it publicly, like why you would talk to Jared Kushner behind closed doors, why you would do it publicly?

Burr: Well, I think it’s safe to say that we have had conversations with a lot of people. And you would think less of us if General Flynn wasn’t in that list. From a standpoint of the interview process if you feel like you’re being cheated, because they’re not in public, if there’s relevance to em they’ll eventually be part of a public hearing.

[Burr goes on to discuss the committee doing private interviews first.]

Q: Have you already spoken with Flynn? Have you already spoken with Flynn?

Burr: I’m not gonna tell you one way or another.

Effectively, he confirms that Flynn will be asked to talk to the committee. But when asked (I think my transcription of this is correct but welcome corrections on this point) if he — or the committee — had already spoken with Flynn, he refused to provide the same kind of confirmation he did with Kushner, and particularly to say whether he or the committee had already spoken with him.

I raise this for several reasons. Obviously, the double standard — and Burr’s willingness to deviate from his strict committee business secrecy pledge with regards to Kushner — is notable. The possibility that he or the committee may have already spoken with Flynn is particularly interesting.

In my post on the Kushner story, I noted that the Kushner story for the first time got into the quid pro quo the Russians were really interested in — not a change in policy towards Ukraine, but rather, an end to the sanctions targeting Russia for its annexation of Ukraine. I actually missed one of the most important parts of that story, however. On December 29, the FSB-trained head of a sanctioned who met with Kushner at the request of Sergey Kislyak, Sergey Gorkov, stated that he thought Ukrainian-related sanctions might “change for the better.”

And in an interview on the state-owned Rossiya 24 TV channel on Dec. 29, the same month that he met with Mr. Kushner, Mr. Gorkov said he hoped that the situation caused by Ukraine sanctions imposed by the Americans against Russian banks like his “would change for the better.”

As I noted in my post, the possibility that Gorkov had discussed Ukraine sanctions directly with Kushner would change the connotation of the discussions between Flynn and Kislyak.

And those conversations were on December 29.

In other words, on the very same day that Kislyak and Flynn were having multiple phone calls — and discussed sanctions in vague terms — Gorkov was publicly discussing the Ukraine, not the hacking related, sanctions.

Again, Burr is happy to confirm the committee will call Kushner. He’s not going to say whether the committee has already spoken with Flynn, who would know better about the connotation of sanctions as discussed on December 29.

And SSCI likely has already read the conversations between Kislyak and Gorkov surrounding his meetings with the President’s son-in-law.

Democrats Should Propose Susan Collins Serve as Acting Chair for Russian Hack Investigation

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As I’ve been saying, the Intelligence Committees are the sensible place for any investigation into the Russian hack, but the current investigation is hampered because both Chairs — Devin Nunes in the House and Richard Burr in the Senate — have conflicts that prevent them from being independent.

The WaPo has an absolutely masterful article exposing their conflicts.

Better still, it shows that Benghazi truther Mike Pompeo has already abused his position as CIA Director in the pursuit of politics.

The part that has gotten the most notice is WaPo’s report that — after Reince Priebus failed to get FBI to issue a rebuttal to this NYT article — which claims “Phone records and intercepted calls show that members of Donald J. Trump’s 2016 presidential campaign and other Trump associates had repeated contacts with senior Russian intelligence officials in the year before the election” — he then arranged calls with the press and Nunes and Burr, so they could rebut the claims. As the WaPo reports, the calls were not persuasive enough to get WaPo to report on them.

The officials broadly dismissed Trump associates’ contacts with Russia as infrequent and inconsequential. But the officials would not answer substantive questions about the issue, and their comments were not published by The Post and do not appear to have been reported elsewhere.

Nunes’ comments actually were picked up by WSJ (which has discouraged reporters from doing hard reporting on this issue). Burr’s were not. Here’s how Burr — who normally leaks far less than other Gang of Four members, and who was a national security advisor for Trump during the campaign — defended his comments.

Burr acknowledged that he “had conversations about” Russia-related news reports with the White House and engaged with news organizations to dispute articles by the New York Times and CNN that alleged “repeated” or “constant” contact between Trump campaign members and Russian intelligence operatives.

“I’ve had those conversations,” Burr said, adding that he regarded the contacts as appropriate provided that “I felt I had something to share that didn’t breach my responsibilities to the committee in an ongoing investigation.”

More delectably, the WaPo obliquely reveals that an intelligence official was involved in the calls, and then makes it very clear that Pompeo was the guy. As WaPo points out, this not only makes Pompeo a raging hypocrite, given the way he politicized Benghazi, but it also suggests Pompeo inquired into the FBI’s counterintelligence investigation for the purpose of leaking details of it to the press.

CIA Director Mike Pompeo is the senior-most intelligence official in the administration, with former senator Dan Coats (R-Ind.) still awaiting confirmation as director of national intelligence.

As a Republican member of Congress, Pompeo was among the most fiercely partisan figures in the House investigation of Benghazi, which centered on accusations that the Obama administration had twisted intelligence about the attacks for political purposes.

It is not unusual for CIA leaders to have contact with news organizations, particularly about global issues such as terrorism or to contest news accounts of CIA operations. But involving the agency on alleged Trump campaign ties to Russia could be problematic.

The CIA is not in charge of the investigation. Given the history of domestic espionage abuses in the United States, CIA officials are typically averse to being drawn into matters that involve U.S. citizens or might make the agency vulnerable to charges that it is politicizing intelligence.

This is actually fairly breathtaking. It’s one thing to inquire into a past event, because the inquiry can’t change it. But this is an ongoing counterintelligence investigation! Russians are dying left and right, and at least one of them looks like he was a likely source for the Trump dossier. Two Russians have already been charged with treason and a Ukranian may well be as well. There are reasons you keep counterintelligence investigations secret.

But the CIA Director is more interested in helping Trump out politically.

It turns out that Senate Intelligence Vice Chair Mark Warner, who thus far has defended Burr’s role in this investigation, is not all that happy about this. Here’s what he had to say in response to WaPo’s disclosures.

Mark Warner, the ranking Democrat on the Senate Intelligence Committee, said he called CIA Director Mike Pompeo and Burr to express his “grave concerns about what this means for the independence” of the investigation.

“I am consulting with members of the Intelligence Committee to determine an appropriate course of action so we can ensure that the American people get the thorough, impartial investigation that they deserve, free from White House interference,” Warner said in a statement Friday night.

So here’s my suggestion: tell Mitch McConnell and Richard Burr that Susan Collins should serve as acting Chair for this investigation, and if they don’t agree the Democrats will demand an independent inquiry.

Collins is a perfect choice even beyond her comments from the other day, which among other things entertained the possibility of subpoenaing Trump’s tax returns. She has voted against Trump more than any other Senator (which is not much, but still). As Chair of Homeland Security, she conducted a number of credible investigations, working closely with Joe Lieberman.

So she surely could credibly lead this report.

To be clear: I’m suggesting this as a negotiating strategy. This hasn’t been done before and I suspect it wouldn’t be done here. But it is clear that Collins is independent and qualified to lead this investigation. The alternatives all involve more potential exposure for Trump.

Democrats should propose this — so McConnell and Burr can shoot it down, making it clear that Republicans want people who’ve already compromised their independence to lead this investigation.

Update: Here’s Collins’ comment on the new disclosures.

The Senate Intelligence Committee has the expertise, the cleared staff, and the bipartisan determination to follow the evidence wherever it leads in this investigation into malicious Russian activities. For the public to have confidence in our findings, it is important that the Committee work in a completely bipartisan fashion and that we avoid any actions that might be perceived as compromising the integrity of our work. It is also important that the Committee ultimately issue a public report on our findings.

Susan Collins Implies She Could Be a Swing Vote in SSCI’s Investigation of the Russian Hack

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The other day, I explained why we should remain skeptical of the congressional investigations into the Russian hack. Most importantly, I questioned Richard Burr’s seriousness. The investigation should be done by the House and/or Senate Intelligence Committee, and both Chairs of those committees have had Trump appointments in the last year.

That said, this Maine Public Radio interview with Susan Collins may provide reason for hope (see after 10 minutes and 39 minutes).

In it, she reiterated promises — made in the agreement on the inquiry — that the committee would do open hearings and release a public report.

I will encourage that there’ll be some public hearings as well as the closed hearings that we’re doing now and that we issue a report.

She also noted that she and others intend to call Mike Flynn to testify (though she didn’t say whether the interview would be open or not). Note, National Security Advisors cannot be subpoenaed (which is one basis why Devin Nunes said they couldn’t call Flynn).

I am going to request, many members are, that we call Steve Flynn–Mike Flynn, the former National Security Advisor to testify before us.

In addition, after 30 minutes, in response to a caller insisting that the inquiry be public, Collins noted that Republicans have just a one vote majority on the committee (though she didn’t point out that she could be the swing voter).

She was asked if she would subpoena Trump’s tax returns, and on that she said it would depend on Burr and Mark Warner. We shall see whether Warner has the chops to force that issue.

On both torture and drone memos, Collins has been willing to serve as a swing voter on SSCI before. If she does so here, it could make a difference.

 

Why We Should Remain Skeptical of the Five (!!) Congressional Investigations into the Russian Hack

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I was interviewed (on Thursday) about the Flynn resignation and larger investigation into the Russia hack for Saturday’s On the Media. In what made the edit, I made one error (which I’ll explain later), but a key point I made holds. The leaking about Flynn and other Russian events are hypocritical and out of control. But they may create pressure to fix two problems with the current investigations into the Russian hack: the role of Jeff Sessions overseeing the DOJ-led investigations, and the role of Trump advisory officials Devin Nunes and Richard Burr overseeing the most appropriate congressional investigations.

In this post I’ll look at the latter conflicts. In a follow-up I’ll look at what the FBI seems to be doing.

As I noted in the interview, contrary to what you might think from squawking Democrats, there are five congressional investigations pertaining to Russian hacks, though some will likely end up focusing on prospective review of Russian hacking (for comparison, there were seven congressional Benghazi investigations). They are:

  • Senate Intelligence Committee: After months of Richard Burr — who served on Trump’s campaign national security advisory council — saying an inquiry was not necessary and going so far as insisting any inquiry wouldn’t review the dossier leaked on Trump, SSCI finally agreed to do an inquiry on January 13. Jim Comey briefed that inquiry last Friday, February 17.
  • House Intelligence Committee: In December, James Clapper refused to brief the House Intelligence Committee on the latest intelligence concluding Russian hacked the DNC with the goal of electing Trump, noting that HPSCI had been briefed all along (as was clear from some of the leaks, which clearly came from HPSCI insiders). In January, they started their own investigation of the hack, having already started fighting about documents by late January. While Ranking Democratic Member Adam Schiff has long been among the most vocal people complaining about the treatment of the hack, Devin Nunes was not only a Trump transition official, but made some absolutely ridiculous complaints after Mike Flynn’s side of some conversations got legally collected in a counterintelligence wiretap. Nunes has since promised to investigate the leaks that led to Flynn’s forced resignation.
  • Senate Armed Services Committee: In early January, John McCain announced he’d form a new subcommittee on cybersecurity, with the understanding it would include the Russian hack in its focus. Although he originally said Lindsey Graham would lead that committee, within weeks (and after Richard Burr finally capitulated and agreed to do a SSCI inquiry), McCain instead announced Mike Rounds would lead it.
  • Senate Foreign Relations Committee: In December, Bob Corker announced the SFRC would conduct an inquiry, scheduled to start in January. At a hearing in February, the topic came up multiple times, and both Corker and Ben Cardin reiterated their plans to conduct such an inquiry.
  • Senate Judiciary Subcommittee on Crime and Terrorism: After Graham was denied control of the SASC panel, he and Sheldon Whitehouse announced they’d conduct their own inquiry, including a prospective review of “the American intelligence community’s assessment that Russia did take an active interest and play a role in the recent American elections.”

All the while, some Senators — McCain, Graham, Chuck Schumer, and Jack Reed — have called for a Select Committee to conduct the investigation, though in true McCainesque fashion, the maverick has at times flip-flopped on his support of such an inquiry.

Also, while not an investigation, on February 9, Jerry Nadler issued what I consider (strictly as it relates to the Russian hack, not the other conflicts) an ill-advised resolution of inquiry calling for the Administration to release materials relating to the hack, among other materials. Democrats in both the House and Senate have introduced legislation calling for an independent commission, but have gotten no support even from the mavericky Republicans.

As you can see from these descriptions, it took pressure from other committees, especially Lindsey Graham getting control of one of the inquiries, before Richard Burr let himself be convinced by SSCI Vice Chair Mark Warner to conduct an inquiry. Thus far, Mitch McConnell has staved off any Select Committee. As soon as SSCI did claim to be launching an investigation, a bunch of Republicans tried to shut down the others, claiming it was all simply too confusing.

Let me be clear: as I noted in the OTM interview, the intelligence committees are the appropriate place to conduct this investigation, as it concerns really sensitive counterintelligence matters — people who could be witnesses to it are getting killed! — and an ongoing investigation. The only way to conduct a responsible inquiry is to do so in secret, and unless a select committee with clearance is formed, that means doing so in the dysfunctional intelligence committees.

That’s made worse by Nunes and Burr’s obvious conflicts, having served on Trump’s pre-inauguration advisory teams (at a time when Mike Flynn was chatting about ongoing sanctions with Russia), and their equally obvious disinterest in conducting the investigation. Remember that the intelligence committees successfully bolloxed up the independent investigation into Iran-Contra. While neither Nunes nor Burr is as smart as Dick Cheney, who had a key role in that intentional bolloxing, Democrats should be cognizant of the ways that such bolloxing has happened in the past.

And now that SSCI has finally started its inquiry, Ali Watkins published an uncharacteristically credulous report on Burr’s role in the investigation, slathering on the colorful vocabulary — “brutally yanked;” “underground cohort;” “dark shadow of Langley;” “Wearily, they’re trudging forward on a probe littered with potential political landmines;” — before portraying the allegedly difficult position Burr is in:

That he’s now in charge of the sweeping Russia inquiry puts the North Carolina Republican in between a rock and a hard place. Since taking over the helm of the intelligence committee, Burr has pressed for more active and aggressive oversight, and has kept a rigorous travel schedule to match. But his decisive reelection victory in November came at a cost — throughout the contentious race, Burr towed Trump’s line, and hasn’t yet directly criticized the White House publicly.

But Burr has shown no indication that he’s ever angled for a Trump administration job, and says he’s not running for re-election. How seriously he takes his obligation to carry his president’s water remains to be seen.

Burr has been slammed by colleagues in recent days, who fear he’s slow-rolling an investigation into a fast-moving story. But much of the inquiry’s slow start was due to bureaucratic wrangling — some intelligence agencies insisted products be viewed on site rather than sent to the Hill, and some of the intelligence was so tightly controlled that it was unclear if staffers could even view it.

This is just spin. There is abundant public record that Burr has thwarted oversight generally (he has said things supporting that stance throughout his history on both the Senate and House Intelligence Committee, even ignoring his role in covering up torture, and Watkins’ earlier incorrect claims about Burr’s open hearings remain only partly corrected). There is no mention in this article that Burr was on Trump’s national security advisory committee. Nor that SSCI had reason to do hearings about this hack well before January 2017, back when it might have made a difference — at precisely the time when Burr apparently had time to advise Trump about national security issues as a candidate. Plus, it ignores all the things laid out here, Burr’s continued equivocation about whether there should even be a hearing.

There is no reason to believe Burr or Nunes intend to have a truly rigorous investigation (bizarrely, Warner seems to have had more success pushing the issue than Schiff — or Dianne Feinstein when she was Vice Chair — though that may be because the Ranking position is stronger in the Senate than in the House). And history tells us we should be wary that their investigations will be counterproductive.

As I noted, on Friday — the Friday before a recess — Jim Comey briefed the SSCI on the Russian hack. That briefing was unusual for the date (regular SSCI meetings happen on Tuesday and Thursday, and little business of any kinds happens right before a recess). Reporters have interpreted that, along with the presumed silence about the content of the briefing, as a sign that things are serious. That may be true — or it may be that that was the only time a 3-hour briefing could be scheduled. In the wake of the briefing, it was reported that the SSCI sent broad preservation requests tied to the inquiry (that is, they sent the request long after the inquiry was started). And while the press has assumed no one is talking, the day after the briefing, Reuters reported outlines of at least three parts of the FBI investigation into the Russian hack, attributed to former and current government officials.