Michael Horowitz Archives

Posts

In Advance of the KashTastrophe, DOJ IG Raises the Stakes on Investigations of Congress

Yesterday, DOJ’s Inspector General released its long-awaited report on some subpoenas DOJ used in 2017, 2018, and 2020 to target, first, people in Congress, and then in the later round, journalists, including WaPo’s Ellen Nakashima, Greg Miller, Adam Entous, NYT’s Matt Apuzzo, Adam Goldman, Eric Lichtblau, Michael Schmidt, and CNN’s Barbara Starr. The purported goal was to solve some leak investigations; with the exception of convicting James Wolfe for false statements to the FBI (the investigation into him arose out of the first congressional subpoenas discussed here), none were solved via these subpoenas.

Little of the narrative on the subpoenas targeting journalists is entirely new. It was covered in these stories in real time:

May 7, 2021: Trump Justice Department secretly obtained Post reporters’ phone records

May 7, 2021: Justice Dept. Seized Washington Post’s Phone Records

May 20, 2021: Trump Justice Dept. Seized CNN Reporter’s Email and Phone Records

June 2, 2021: Trump Administration Secretly Seized Phone Records of Times Reporters

June 4, 2021: U.S. Waged Secret Legal Battle to Obtain Emails of 4 Times Reporters

June 10, 2021: Hunting Leaks, Trump Officials Focused on Democrats in Congress

June 11, 2021: Justice Dept. Watchdog to Investigate Seizure of Democrats’ Data

June 11, 2021: In Leak Investigation, Tech Giants Are Caught Between Courts and Customers

The findings on the journalist side of the report were that Bill Barr properly approved the subpoenas, but didn’t do a mandated review from a committee on media first (though Kerri Kupec bought off on the subpoenas), and didn’t fully comply with a DNI statement saying the spooks still wanted to solve the leak for a few. The biggest controversy was how DOJ approved Non-Disclosure Orders to prevent journalists from learning of the investigation, but with the exception of the leak to Barbara Starr, those too followed the approach at the time, which was to issue knee-jerk NDOs.

One of the few new details is that Barr brought an AUSA from some field office into Main DOJ for a six month temporary assignment to renew focus on the leak, but the IG concluded that person wasn’t brought in for partisan purposes.

The findings on the Congressional side of the report are somewhat more interesting, not least because the policy on third party subpoenas to phone companies, Google, and Apple implicating people (including staffers and Members, throughout this discussion) in Congress were nowhere as formalized as the media guidelines were.

Particularly given that House Intelligence Chair, Republican Mike Turner, issued the loudest response to this report, it could have interesting repercussions in a second Trump term.

The report actually describes that the congressional subpoenas were an interim step between investigating the Executive Branch people who had access to the classified information (in 2017) and the journalists (in 2020, for the WaPo and NYT). The reason it appeared that there were more Democrats targeted — including Adam Schiff and Eric Swalwell — was because a Democratic HPSCI staffer had suggested they had leaked (and also implicated a senior staffers whose actual emails were collected).

The IG Report found that, aside from Schiff and Swalwell and a top Dem staffer, there was a fairly even balance of Democrats and Republicans targeted (including Kash Patel, though it doesn’t name him); it does say that FBI was preparing to serve legal process on a Republican Member of Congress until the James Wolfe investigation proceeded to the point where they had one and only one perpetrator for the Carter Page FISA leak, so that person was not subpoenaed.

It’s the recommendations where this report, issued after Patel already sued and lost over being subpoenaed, and in advance of Patel’s likely confirmation as FBI Director whose activities will be overseen by whatever trash heap Trump makes of DOJ IG by then, that are of interest.

The Report reasons that since Congress is a co-equal branch of government protected by Speech and Debate privileges enshrined in the Constitution, it should have a similar kind of protocol that journalists benefit from (a protocol which has since been strengthened, but which Patel and Pam Bondi are sure to torch).

It made three recommendations to that effect.

Currently, DOJ’s policy requires that a US Attorney and Public Integrity approve a third party subpoena implicating someone from Congress, with an Urgent notice (the kind of warning they have to give before indicting someone prominent) provided to top DOJ leadership. The current practice would allow a US Attorney’s Office to rely primarily on the advice of career officials before investigating someone (whether a staffer or a Member) in Congress.

DOJ IG recommends instead more formal notice from the AG.

First, in order for senior leadership to be able to consider and decide matters potentially raising constitutional separation of powers issues, we recommend that the Department evaluate when advance notification to a senior Department official, such as the Deputy Attorney General or Attorney General, should be required before compulsory process is issued, and any corresponding NDOs are sought, for records of a Member of Congress or congressional staffer and establish, as necessary, implementing policies and guidance.

In a Pam Bondi DOJ, this would virtually guarantee that no Republicans would be investigated, because she would have advance veto.

DOJ IG also recommended that when DOJ requests Non-Disclosure Orders implicating people from Congress, they tell the judge approving the NDO that it is someone from Congress.

Second, we recommend that the Department consider the circumstances in which NDO applications and renewals should identify for the reviewing judge that the records covered by a proposed NDO are records of Members of Congress or congressional staffers.

This is uncontroversial and would stop the kind of knee-jerk NDO requests that hid these subpoenas for five years.

The last entirely justified recommendation that nevertheless could have the most intriguing implications is that DOJ adopt the same kind of exhaustion requirement that the media policy has. That is, you can only start getting legal process on people in Congress after you’ve exhausted other investigative approaches.

Third, we recommend that the Department consider whether there are circumstances in which an exhaustion requirement should be a prerequisite for issuing compulsory process to obtain records of Members of Congress and congressional staffers.

That is, in principle, what happened here: DOJ first checked Executive branch personnel and only then started investigating in Congress after stories started closely following Congressional briefings on the topics. But taken to its logical outcome, it would get interesting.

On the one hand, it would make it much harder to get even subpoenas on people in Congress than it already is (the one Democratic staffer and Wolfe were the only Congressional staffers whose content was collected).

This would make it easier for whistleblowers to leak to members of Congress and for them to leak to the press.

Such leaks might be one of the last failsafes going forward.

Except by rooting the notion of exhaustion in the constitutional protections afforded Congress, it might actually flip the current structure on its head. The reason why you would investigate a member of Congress before a journalist is because under the current approach, the congressional staffer with clearance is the only one who would be prosecuted (the of Wolfe example notwithstanding, that is exceedingly rare in any case; in the Jeffrey Sterling case the Senate protected a key Republican staffer who was suspected).

But if you decide Congress should have more protection, then an FBI Director who has already threatened to go after journalists might first choose to exhaust investigative remedies against journalists before turning to Congress.

That is, there’s a chance these policy recommendations would be used as an excuse to prosecute journalists but not their sources.

None of this may matter anyway, because there’s a high likelihood that Kash and Bondi will simply torch all the guidelines discussed as it is. They’re not statutorily mandated. And if Trump does start firing Inspectors General as he has promised to do, then it’s not clear we’d ever find out about all this. It took over three years to get this report.

Mike Turner says he wants to codify some of this. That might protect leaks about Republican adversaries as much as anything (the leaks investigated here mostly pertained to Carter Page and other Trump associates). But it might be one of the few means of transparency left.

How Trump Rolled Out this Kash Patel Pick Is Part of Spinning False Claims about Rule of Law

December 1, 2024/41 Comments/in emptywheel /by emptywheel

I was busy serving Thanksgiving Dinner and watching Irish election returns yesterday when Trump announced Kash Patel as his pick to be FBI Director. I’ve long been assuming that, wherever Patel ended up, he would have access to any files at FBI (look to John Solomon and Catherine Herridge to have a lot of inside tracks on propaganda). So the question was just a matter of how Trump gave Patel access to politicize FBI. By picking Patel as the Director rather than Deputy Director (only the former of which requires confirmation), Trump did so in the maximally confrontational way.

Here are four thoughts on how that confrontation plays out.

First, by picking Kash and including false claims about the Deep State in his announcement, Trump forces journalists to address his false claims. Here’s how Devlin Barrett and Maggie Haberman chose to replicate Trump’s false claims with no correction, for example.

Mr. Patel has been closely aligned with Mr. Trump’s belief that much of the nation’s law enforcement and national security establishment needs to be purged of bias and held accountable for what they see as unjustified investigations and prosecutions of Mr. Trump and his allies.

Mr. Patel “played a pivotal role in uncovering the Russia, Russia, Russia Hoax, standing as an advocate for truth, accountability and the Constitution,” Mr. Trump said in announcing his choice in a social media post.

He called Mr. Patel “a brilliant lawyer, investigator and ‘America First’ fighter who has spent his career exposing corruption, defending Justice, and protecting the American people.”

Mr. Patel, a favorite of Mr. Trump’s political base, has worked as a federal prosecutor and a public defender, but has little of the law enforcement and management experience typical of F.B.I. directors.

It is provably false that the investigations into Trump were partisan. There were three investigations of Hillary during the 2016 election (the server investigation, the Clinton Foundation investigation predicated off of right wing oppo research, and a third that was probably the Emirates’ effort to cozy up to her campaign). Joe Biden was investigated for retaining classified documents, just like Trump was. Thousands of other people were investigated for January 6.

Your choice to describe Trump’s false claim (and describing it as a belief, which you cannot know) without correction is simply participation in propaganda. (Politico at least called out Patel for “perpetuating conspiracy theories about the 2020 election.”)

And what Trump calls a hoax resulted in judgments that Trump’s Coffee Boy, National Security Adviser, campaign manager, personal lawyer, and rat-fucker all lied to cover up what really happened with Russia in the 2016 election. Journalists could choose to state that every time Trump calls it a hoax. NYT has almost never chosen to do that, which is how Trump’s propaganda works so well.

But longtime FBI journalists like Barrett will offer some other reason why Patel is a terrible pick — here, insinuating he doesn’t have the experience to do the job. I don’t know: After babysitting Ric Grenell at ODNI, Kash babysat Christopher Miller at DOD. That’s high level — if brief — experience.

Others — like CNN — look to the 10-year term set by statute to suggest Patel’s appointment is problematic.

FBI directors serve 10-year terms in part to shield the bureau’s leader from political pressure. FBI directors serve decadelong terms as the result of a post-Watergate law passed in response to J. Edgar Hoover’s controversial 48-year leadership of the agency.

The breaking of this norm is not new for Trump, who fired Comey shortly after taking office in 2017. Comey, who helmed the FBI during the investigation into Russian interference in the 2016 presidential election as well as the Hillary Clinton email controversy, was fired by Trump in May 2017 after serving in the position for over three years.

It’s true there’s a 10-year term. But I looked: Only William Webster served 10 and only 10 years. Robert Mueller was kept overtime, in part because he had authorized surveillance programs that were under fire. Louis Freeh resigned in the midst of scandals, leaving the seat open in advance of 9/11. Comey, of course, was fired because he wouldn’t kill the investigation into Mike Flynn before Mike Flynn confessed to lying to cover up his calls with Russia’s ambassador.

I raise that point because the question of whether Kash’s politicization of the Bureau would be so detrimental that it would lead to threats against the US going undisturbed should be the key issue in this confirmation fight. Undoubtedly, corruption (including in the form of Jared’s father being appointed to be Ambassador to France, which Trump also announced yesterday) will start to erode US remaining integrity, up and down government and the economy. It’s certainly possible that counterintelligence and hacking threats will go ignored; already in the first Trump Administration, people with expertise on Russia were driven out, and that would presumably continue. Mis- and disinformation would be protected.

Are those who oppose a Kash appointment able to explain those risks, which is what has really driven Director’s terms?

The Kash appointment heightens my interest in what DOJ Inspector General Michael Horowitz will do going forward. Trump has threatened to fire the Inspectors General and Horowitz is the most prominent — but Chuck Grassley has pushed back. That said, Horowitz has survived where he is by catering to Republican demands. So I’m wondering not just whether Horowitz could survive in the job, which would serve as a strong check on Patel. But also whether we’ll get two reports that will expose Trump’s past politicization in ways important to a potential Patel pick.

The report on January 6, for example, will lay out how Jeffrey Clark tried to take over DOJ to make it into an object of Trump’s reelection. It will also describe how FBI’s treatment of right wing extremists as informants undermined DOJ’s ability to anticipate January 6. Horowitz has committed to try to release this report by inauguration, but if he does, it could precipitate his firing.

There’s also a report on the investigation of journalists and Members of Congress to find sources for anti-Trump coverage in the first Trump term. This is precisely the kind of politicized investigation that Kash has promised (he has specifically promised to go after people who accurately report on things like the Hunter Biden laptop). The report is badly overdue, but it also threatens to trigger a backlash.

Finally, consider two aspects of the timing of this pick. First, by announcing it now, Trump has made Chris Wray a lame duck. Anyone investigating something that might implicate Trump — such as those investigating Polymarket CEO Shane Coplan — will know that they will have no top cover in a matter of weeks. That was already true, mind you: Pam Bondi would see to that. Plus, it was already clear that Trump was going to replace Wray. Still, this could have a chilling effect on ongoing investigations — or it could create very interesting martyrs at the beginning of Trump’s term.

Then there’s another aspect to the timing. Trump announced this pick — as he did the decision implanting all his defense attorneys at DOJ — while Jack Smith’s prosecutors are working on their report. And Kash should show up in that report, at least to lay out his false public claims that Trump had declassified all the documents he took with him (and possibly even his demand that he got immunity before giving that testimony). I’m not sure how central that will be to a report. But Trump had a choice about how confrontational to be with how he installed Kash in a place to dismantle the so-called Deep State, and his choice to be maximally confrontational may have a tie to this report.

People are currently thinking of all the other ways Kash has helped serve Trump’s false claims in the past — the false claim that the Russian investigation was predicated on the Steele dossier, efforts to override Ukraine experts during that impeachment, attempts to misrepresent the Russian investigation. But the Smith report may well explain that Trump’s FBI Director nominee played a more central role in Trump’s effort to spin Trump’s efforts to take hundreds of classified documents home. So when Kash gets a confirmation hearing, it will put the veracity of the Smith report centrally at issue. If Senators find the report convincing, they should have renewed cause to reject Patel’s nomination, but Trump has almost without exception forced GOP Senators to believe his false claims to avoid scary confrontations with him, so I wouldn’t bet against Trump and Kash.

Trump has spent eight years sowing propaganda about his own corruption and crimes. Not just Patel’s nomination to a position in which he could thoroughly politicize rule of law, but also the means by which Trump made that nomination, is part of that same project.

We have a brief two months to try to reverse eight years of propaganda, propaganda often assisted by journalists playing data mule for Trump’s Truth Social propaganda or exhibiting laziness about correcting his false claims. If Trump succeeds, it will grow far more difficult to sort out truth from crime anymore.

That was always going to be true. But the means by which Trump is conducting his effort is all part of the propaganda campaign.

Update: Roger Parloff linked the 302 interview with someone who is likely Eric Herschmann describing someone who is almost certainly Kash Patel lying about having a standing declassification order.

Also, LOLGOP re-released our Ball of Thread episode that focuses closely on Patel’s propaganda about Crossfire Hurricane.

On the Legacy of Bill Barr’s Luzerne County Intervention

October 30, 2024/14 Comments/in 2020 Presidential Election, 2024 Presidential Election /by emptywheel

Somewhere, I have a half-finished post about the way that Bill Barr refused to cooperate with three different Inspector General Reports reviewing his actions — his actions during May and June 2020 protests in DC, his intervention in the Roger Stone sentencing, and his decision to seek out a voter fraud cause he could publicize. (There’s at least one more investigation, probably the one into subpoenas targeting journalists and Congress, that is ongoing.)

I hope to return to that if we still have a democracy next week.

But I want to review the third of these, because it hangs over DOJ’s ongoing investigation of a number of suspect election crimes, including the arson targeting ballot drop boxes in Oregon and Washington earlier this week.

As you may recall, someone — who turned out to be a mentally disabled man — threw away nine mail-in ballots in Luzerne County, PA in September 2020. The US Attorney for Middle District of Pennsylvania in Scranton, David Freed, big-footed into the investigation, in part (the IG Report discovered) because Bill Barr was looking for some case to talk about. Barr told Trump about the case and Trump made public comment.

…These ballots are a horror show. They found six ballots in an office yesterday in a garbage can. They were Trump ballots—eight ballots in an office yesterday in—but in a certain state and they were—they had Trump written on it, and they were thrown in a garbage can. This is what’s going to happen. This is what’s going to happen, and we’re investigating that. It’s a terrible thing that’s going on with these ballots. Who’s sending them, where are they sending them, where are they going, what areas are they going to, what areas are they not going to?… When they get there, who’s going to take care of them? So, when we find eight ballots, that’s emblematic of thousands of locations perhaps.

After which, Barr and Freed decided to release a public comment about the investigation, including that all nine of the discarded ballots had been cast for Trump (that turned out to be inaccurate; Freed issued a corrected statement days later). By the time Freed made that statement, it was pretty clear they weren’t going to charge the man involved; nevertheless, it wasn’t until the following January before the US Attorney’s Office revealed there would be no charges. Nevertheless, Freed also sent a letter to the county providing still more details from the investigation.

Barr refused to be interviewed for the Inspector General investigation, though his attorney kept providing new statements that didn’t answer all the questions about his behavior (one of my favorite Barr comments is that of course he didn’t advertise this case for political reasons because that would be inconsistent with his public statement on December 1 that there had been no decisive voter fraud). Barr spun the entire thing as an effort to reassure people.

Barr told the OIG in his letter to the Inspector General that he “favored and authorized putting out information along the lines of [MDPA’s] September 24 statement,” and Freed told the OIG that Barr specifically approved inclusion of investigative details in the statement, including the fact that “all nine ballots were cast for presidential candidate Donald Trump.” Barr stated in his letter that he favored including “the basic facts that prompted the investigation” in the MDPA statement as a way to quell public concerns about election integrity. Specifically, Barr stated: “Due to the involvement of local officials and county witnesses, I thought that further revelations of information about the incident were likely, potentially could come at any time, and could be mistaken.” Barr further wrote:

…I was concerned that the vagueness of the local officials’ statement, coupled with the Department’s silence, was contributing to undue speculation and potentially unsettling the public more than necessary about the election’s integrity. I considered this was a matter in which the public interest could likely be best served by getting out in front of the story by recounting the basic facts that prompted the investigation. Among other things, doing so would help dispel needless mystery and speculation by delimiting the nature and scope of the issue being investigated.

Barr’s letter went on to assert that a public statement would “have a salutary deterrent effect” and serve as “a reminder to election administrators” of their responsibility to safeguard election integrity. Barr ultimately stated that he had determined, in his judgment, that “a strategy of remaining silent” about details of the Luzerne County ballot investigation “would have ended up doing more harm to the public interest than getting out in front with a more forthcoming statement in the first place.”76 Freed, for his part, told us that he believed releasing details about the investigation was important because it was the “best way” to keep the public officials running these elections “honest,” and because it would alert military voters that their ballots may have been discarded.77

In comments submitted to the OIG after reviewing a draft of this report, Barr stated that it was important at the outset to reassure the public “that there was a legitimate basis for the federal government to take over the investigation.” Barr continued: “The key fact that justified the federal government taking over the investigation was that only Trump ballots—no Biden ballots—had been found discarded.” Barr added that this fact was a “red flag” for investigators and “suggested that the discarding of ballots was not random or accidental, but potentially intentional.” In comments submitted after reviewing a draft of this report, Freed’s counsel echoed this sentiment, stating: “Had the statement not included [that the discarded ballots were all for President Trump], it would have omitted the operative fact that provided the predicate for federal involvement and would have left the public completely confused.” We found that this concern expressed by both Barr and Freed about federal involvement could just as easily have been satisfied by stating that all of the ballots were for the same presidential candidate, rather than identifying a particular candidate, which would have avoided injecting partisan considerations into a public statement by the Department. Moreover, the MDPA statement includes no information about the choices of the voters in the district’s congressional race, which would have been equally relevant to establish federal jurisdiction in the matter.

76 We were struck by the similarity between the justifications presented here and the explanation former FBI Director James Comey gave during our review of his conduct in advance of the 2016 election. In explaining why he announced to Congress that the FBI had resumed its investigation of then presidential candidate Hillary Clinton less than 2 weeks before the 2016 election, Comey told the OIG that he had determined, in his own judgment, that “there was a powerful public interest” in commenting on the Clinton email investigation, and that it would have been “catastrophic” to the Department and the FBI to not do so. DOJ OIG, A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election, Oversight and Review Division Report 18-04 (June 2018), https://oig.justice.gov/reports/review-various-actions-federal-bureau-investigation-and-department-justiceadvance-2016, 365.

77 Neither Barr nor Freed, nor any witness we spoke to, suggested that § 1-7.400(C)’s second exception—permitting comment on investigations when “release of information is necessary to protect the public safety”—applied here.

Ultimately, DOJ IG found the whole thing to be wildly inappropriate, but because of the discretion afford the Attorney General to share information with the President and make public comment, it said that it could not find that Barr had engaged in misconduct; it did find that Freed had engaged in misconduct, both by blabbing about an ongoing investigation and doing so without consulting with Public Integrity before doing so.

DOJ referred both Barr and Freed to the Office of Special Counsel for a review of whether this was a Hatch Act violation.

We concluded that the MDPA statement did not comply with the DOJ policy generally prohibiting comment about ongoing criminal investigations before charges are filed; however, we did not find that either Barr or Freed committed misconduct because of ambiguity as to the applicability of Barr’s authority to approve the release of the statement pursuant to 28 C.F.R. § 50.2(b)(9). We found that Freed violated the DOJ policy prohibiting comment about ongoing criminal investigations before charges are filed when he publicly released his letter to Luzerne County officials. We found that Freed also violated DOJ policies requiring employees to consult with PIN before issuing a public statement in an election-related matter and requiring U.S. Attorneys to coordinate comments on pending investigations with any affected Department component—in this case, the FBI. Finally, while we were troubled that Barr relayed to President Trump investigative facts about the Luzerne County matter, we concluded that Barr’s decision to provide that information to President Trump did not violate DOJ’s White House communications policy because the policy appears to leave it to the Attorney General’s discretion to determine precisely what information can be shared with the President when a communication is permissible under the policy, as we found was the case here.

We make a number of recommendations in this report. First, as DOJ policy does not address what information Department personnel may include in a statement that is determined to be necessary to reassure the public that the appropriate law enforcement agency is investigating a matter or to protect public safety, we recommend that the Department revise this policy to require that the information contained in a statement released pursuant to JM 1-7.400(C) be reasonably necessary either to reassure the public that the appropriate law enforcement agency is investigating a matter or to protect public safety. Second, we recommend that the Department make clear whether the Justice Manual’s Confidentiality and Media Contacts Policy, Justice Manual § 1-7.000, applies to the Attorney General. Third, we recommend that the Department clarify its policies to address whether any of the provisions of 28 C.F.R. § 50.2 remain Department policy in light of the existence of the Confidentiality and Media Contacts Policy contained in the Justice Manual. Fourth, if 28 C.F.R. § 50.2(b)(9) remains valid Department policy, we recommend that the Department require that requests to the Attorney General or Deputy Attorney General for approval to release information otherwise prohibited from disclosure and any approval to release such information pursuant to § 50.2(b)(9) be documented. Lastly, we recommend that the Department consider revising its White House communications policy to clarify what information can be disclosed to the White House in situations where the policy permits communication about a contemplated or pending civil or criminal investigation.

As noted above, the federal Hatch Act prohibits executive branch employees from using their “official authority or influence for the purpose of interfering with or affecting the results of an election.”89 The U.S. Office of Special Counsel has sole jurisdiction to investigate Hatch Act violations.90 Because the circumstances described in this report raise a question as to whether these former Department officials’ actions violated the Hatch Act, we are referring our findings to the Office of Special Counsel for its review and determination of that issue.

It’s not entirely clear how many of DOJ IG’s recommendations DOJ has implemented since this report was released in July.

But one way or another, the conduct described in this report would look indistinguishable from the investigations currently ongoing. That is, weighing in to talk about whether specific election crimes were being committed by Trump or Harris supporters (or none of the above, as was the case in Luzerne and may be the case if the Northwest arsonist really is motivated by Gaza, as the incendiary devices imply) would be deemed a violation of DOJ guidelines.

DOJ is only supposed to make comments to reassure people that something is under investigation. DOJ has done so, formally, in Washington.

“The US Attorney’s Office and the FBI want to assure our communities that we are working closely and expeditiously together to investigate the two incendiary fires at the ballot boxes in Vancouver, Washington, and the one in Portland, Oregon, and will work to hold whoever is responsible fully accountable,” US Attorney Tessa M. Gorman and Greg Austin, acting special agent in charge of the FBI’s Seattle office said in a statement Tuesday.

But you are not going to hear more than that unless and until DOJ charges someone.

On September 4, at the very press conference where he rolled out the indictment against the useful idiots being secretly paid by RT, on the very last day before the election blackout would go into place, Merrick Garland discussed the Election Threats Task Force that Lisa Monaco put into place back in June 2021.

DOJ has made statements about specific crimes — including the one Elon Musk is suspected of committing, as well as more general efforts to prosecute Election Fraud.

I promise you, that’s all you’re going to get unless charges are filed.

The DOJ IG Backlog on Bill Barr’s Behavior

May 2, 2024/69 Comments/in 2020 Presidential Election, Mueller Probe /by emptywheel

When Bill Barr lied to Kaitlan Collins about being pressured on specific investigations like the Hunter Biden one last week, he offered up the Roger Stone sentencing as a purported counterexample.

BARR: No. He did not directly pressure me. Yes, as I say, he was out there tweeting and doing things that were embarrassing, and made it hard for me to run the department.

COLLINS: That sounds like pressure.

BARR: It wasn’t pressure. It was just, I mean, for example, I had decided that we were going to not agree to a sentence on Stone that was three times longer than normal. And I’d already decided that. And then, he was tweeting about Stone. So, it just made it harder to make the decision.

COLLINS: Because it looked like you were acting at his behest.

BARR: Right. Right.

COLLINS: On Roger Stone’s sentence.

This is the same tired excuse that Barr offered to Congress years ago; the same tired excuse Barr offered to Lester Holt when he was giving Barr platform to rehabilitate his reputation.

Barr was always going to intervene to override Stone prosecutors’ guidelines sentencing recommendation, Barr claims, but Trump’s tweeted complaints about the proposed sentence only made it look bad. And also, Barr has claimed, Judge Amy Berman Jackson agreed with him, even though he treated threats to her — threats from the Proud Boys and Roger Stone that anticipated the toxic combination that led to January 6 — as just a technicality.

Barr continues to make bullshit claims about the Roger Stone sentencing almost four years after reports that DOJ’s Inspector General was investigating the intervention.

DOJ IG has been reviewing the abuses of the Trump Administration for the entirety of the Biden Administration, well into Trump’s campaign to regain the authority to use DOJ to abuse his enemies.

And that’s not the only such investigation.

Tucked at the end of DOJ IG’s list of ongoing investigations are at least three that implicate Bill Barr’s DOJ (and Trump’s DOJ more broadly).

There’s the overpolicing during the summer 2020 protests.

Review Examining DOJ’s and its Law Enforcement Components’ Roles and Responsibilities in Responding to Protest Activity and Civil Unrest in Washington, DC and Portland, Oregon

In response to requests from Members of Congress and members of the public, the DOJ OIG is initiating a review to examine the DOJ’s and its law enforcement components’ roles and responsibilities in responding to protest activity and civil unrest in Washington, DC, and in Portland, Oregon in June and July 2020. The review will include examining the training and instruction that was provided to the DOJ law enforcement personnel; compliance with applicable identification requirements, rules of engagement, and legal authorities; and adherence to DOJ policies regarding the use of less-lethal munitions, chemical agents, and other uses of force. With regard to events in Lafayette Square on June 1, 2020, the DOJ OIG will coordinate our review with the Department of Interior OIG. If circumstances warrant, the OIG will consider including other issues that may arise during the course of the review.

There’s the pursuit of journalists’ sources.

Review of the Department of Justice’s Use of Subpoenas and Other Legal Authorities to Obtain Communication Records of Members of Congress and Affiliated Persons, and the News Media

The DOJ OIG is reviewing the DOJ’s use of subpoenas and other legal authorities to obtain communication records of Members of Congress and affiliated persons, and the news media in connection with recent investigations of alleged unauthorized disclosures of information to the media by government officials. The review will examine the Department’s compliance with applicable DOJ policies and procedures, and whether any such uses, or the investigations, were based upon improper considerations. If circumstances warrant, the OIG will consider other issues that may arise during the review. The review will not substitute the OIG’s judgment for the legal and investigative judgments made in the matters under OIG review.

There’s the implementation of guidelines for COVID release that saw Paul Manafort get released from a facility unaffected by COVID before Michael Cohen got released from one facing an outbreak (which is only the highest profile of a number of inexplicable prioritization decisions).

Review Examining BOP’s Use of Home Confinement as a Response to the COVID-19 Pandemic

The Office of the Inspector General (OIG) has initiated a review of the Federal Bureau of Prisons’ (BOP) use of home confinement as a tool to mitigate the effect of the Novel Coronavirus Disease (COVID-19) pandemic on the federal prison population.

The review will assess the BOP’s process for implementing the use of home confinement as authorized under the CARES Act, the process for its consideration of the eligibility criteria outlined in the Attorney General’s March 26 and April 3, 2020 memoranda, and the process by which BOP headquarters evaluated wardens’ recommendations that inmates who did not meet the Attorney General’s criteria be placed in home confinement. The review will also select particular cases for examination to determine whether there were irregularities in the BOP’s processes. If circumstances warrant, the OIG will consider including other issues that may arise during the course of the review. The OIG is undertaking this review in response to requests from Members of Congress, and issues the OIG identified during the series of remote inspections it has conducted regarding the BOP’s response to the COVID-19 pandemic.

And while Barr was gone before the attack itself, even DOJ IG’s review of January 6 might implicate Barr, not least his treatment of Antifa as a bigger threat than the militia whose threats to Amy Berman Jackson he had dismissed as a technicality; the number of Proud Boys who contributed to the riot but who had earlier been made informants to report on Antifa really threatened to upend those prosecutions.

Review Examining the Role and Activity of DOJ and its Components in Preparing for and Responding to the Events at the U.S. Capitol on January 6, 2021

The DOJ Office of the Inspector General (OIG) is initiating a review to examine the role and activity of DOJ and its components in preparing for and responding to the events at the U.S. Capitol on January 6, 2021. The DOJ OIG will coordinate its review with reviews also being conducted by the Offices of Inspector General of the Department of Defense, the Department of Homeland Security, and the Department of the Interior. The DOJ OIG review will include examining information relevant to the January 6 events that was available to DOJ and its components in advance of January 6; the extent to which such information was shared by DOJ and its components with the U.S. Capitol Police and other federal, state, and local agencies; and the role of DOJ personnel in responding to the events at the U.S. Capitol on January 6. The DOJ OIG also will assess whether there are any weaknesses in DOJ protocols, policies, or procedures that adversely affected the ability of DOJ or its components to prepare effectively for and respond to the events at the U.S. Capitol on January 6. If circumstances warrant, the DOJ OIG will consider examining other issues that may arise during the review.

Jerry Nadler’s referral of Scott Brady for his misleading House testimony regarding the Hunter Biden side channel is another potential investigation that could implicate Barr personally (including for public comments after he left government) — though at DOJ IG’s current pace, we might not get results from that investigation until long after Hunter Biden served any sentence for crimes charged largely because of the renewed focus on the effort, ordered by Bill Barr, that ended up framing Joe Biden.

DOJ IG can investigate more quickly. Obviously, it did so during the Trump Administration, producing a number of flawed reports that served Trump’s revenge tour against Peter Strzok, Jim Comey, and Andrew McCabe.

And DOJ IG recently released an interim report on an intelligence product raising concerns about radicalization and Catholic Churches that has inflamed right wingers for years. The results debunk many of the things right wingers have been fearmongering about.

Rather than an investigation into right wing Catholic churches, the intelligence product instead arose out of the investigation of a recently released right wing extremist, whom Seamus Hughes helped NYT identify as Xavier Lopez, who was trying to recruit at a Catholic Church.

The FBI opened an assessment of Defendant A in 2019, after he made online statements advocating civil war and the murder of politicians. Defendant A later was overheard making comments about political violence while purchasing several AR-type rifles, multiple high-capacity magazines, and large quantities of .223 ammunition. In August 2020, Defendant A was arrested by local police after he vandalized and slashed the tires of a parked car. Defendant A plead guilty to felony vandalism charges and agreed as part of his guilty plea to avoid contact with firearms, firearms components, and ammunition. He was sentenced to 5 years in jail, with 4 years suspended and 10 years of probation.

[snip]

Defendant A was released from jail in June 2021. Within a week of his release, contrary to the conditions of his guilty plea and sentence, he began visiting the firearms sections of various sporting goods stores. Although he did not purchase weapons, he discussed his desire to build a .308 caliber rifle and obtain ammunition for it. In addition to his prior plea agreement restrictions, as a convicted felon, both state and federal law prohibited Defendant A from purchasing or possessing a firearm. Based on Defendant A’s online rhetoric, threats, and other activity, an FBI Richmond task force had been aware of Defendant A since 2019 and continued to monitor him. They identified a social media profile associated with Defendant A that included Nazi symbols and rhetoric, as well as posts advocating killing police officers, “ganging up on and beating” racial and religious minorities, conducting a mass shooting at a school for special needs children, taking up armed resistance against the government, learning how to manufacture pipe bombs, and using untraceable means to purchase supplies to manufacture 3D-printed weapons. The FBI Richmond task force also identified online purchases of firearm build kits and lock picking devices.

In early 2022, Defendant A began to attend a church (Church 1) associated with an international religious society that advocates traditional Catholic theology and liturgy but is not considered by the Vatican to be in full communion with the Catholic Church (Organization 1). In social media posts, Defendant A claimed that Church 1 was a “traditional church that isn’t totally kiked [sic],” and stated that he “had to deal with the priest and some (thankfully not all) the parishioners talking about how ‘Hitler bad’ though thankfully they do actually acknowledge that the allies were evil.” As described in more detail below, Defendant A also described himself in his social media profile as “Fascist and Catholic” and a “[radical-traditional (rad-trad)] Catholic clerical fascist.” Based on his online communications, investigators determined that Defendant A was attempting to actively recruit other individuals with similar belief systems into Organization 1 and had begun talking about an attack. [brackets original]

DOJ IG completed that review in 120 days — because they had to. Congress ordered up the report, and imposed the deadline, as part of last year’s intelligence authorization.

Congress has found a way to make DOJ IG release reports they (mistakenly) imagine might reflect poorly on Merrick Garland’s DOJ in timely fashion. And meanwhile, reports on Bill Barr’s conduct plod away, unfinished, even as voters try to understand how we got here.

In His House Judiciary Committee Testimony, John Durham Confessed that Michael Horowitz Was Right

November 13, 2023/29 Comments/in 2016 Presidential Election, emptywheel, Mueller Probe /by emptywheel

Given all the discussion of Trump ordering prosecutors to go after his political enemies, I want to go back — way back — to comment on something John Durham said at his House Judiciary Committee testimony in June.

Adam Schiff observed that Durham violated DOJ policy when, in December 2019, he publicly disagreed with the conclusion DOJ’s Inspector General had made in the Carter Page investigation.

Schiff: Mr. Durham, DOJ policy provides that you don’t speak about a pending investigation, and yet you did, didn’t you?

Durham: Um, I’m not exactly sure what–

Schiff: When the Inspector General issued a report saying that the investigation was properly predicated, you spoke out, in violation of Department of Justice, Department of Justice policy, to criticze the Inspector General’s conclusions, didn’t you?

Durham: I issued a public statement. I didn’t do it anonymously, I didn’t do it through third persons, there were —

Schiff: Nonetheless, you violated Department policy by issuing a statement while your investigation was ongoing, didn’t you?

Durham: I don’t know that. If I did, then I did. But I was not aware that I was violating some policy.

Schiff: And you also sought to get the Inspector General to change his conclusion, did you not, when he was concluding that the investigation was properly predicated. Did you privately seek to intervene to change that conclusion?

Durham: This is outside the scope of the report but if you want to go there, we asked the Inspector General to take a look at the intelligence that’s included in the classified appendix that you looked at, and said that that ought to affect portions of his report.

The classified appendix, recall, pertained to what Durham called the “Clinton Plan,” details Dutch intelligence found in purportedly hacked materials at GRU. That included documents purportedly stolen from a top Hillary Foreign Policy Advisor, on which a Russian intelligence product based a claim that,

Hillary Clinton had approved a campaign plan to stir up a scandal against U.S. Presidential candidate Donald Trump by tying him to Putin and the Russians’ hacking of the Democratic National Committee.

From that allegation, Durham appears to have simply made up out of thin air a claim that Hillary planned to fabricate things to tie Trump to Russia, rather than just point to him begging Russia to hack the United States.

First, the Clinton Plan intelligence itself and on its face arguably suggested that private actors affiliated with the Clinton campaign were seeking in 2016 to promote a false or exaggerated narrative to the public and to U.S. government agencies about Trump’s possible ties to Russia. [my emphasis]

In another exchange with Schiff at the hearing, Durham professed to be utterly ignorant of all the things confirmed in the Mueller investigation that provided abundant reason to tie Trump to Russia. There was no need to invent anything.

In any case, what Durham revealed in his testimony is that he shared this information with Michael Horowitz, expecting it would change his mind about the predication of Crossfire Hurricane.

That’s not all that surprising. After all, Durham described as the first mandate of his investigation to determine whether any personnel at the FBI violated federal law by not fully considering potential Russian disinformation before opening an investigation into Trump.

[D]id the FBI properly consider other highly significant intelligence it received at virtually the same time as that used to predicate Crossfire Hurricane, but which related not to the Trump campaign, but rather to a purported Clinton campaign plan “to vilify Donald Trump by stirring up a scandal claiming interference by Russian security services,” which might have shed light on some of the Russia information the FBI was receiving from third parties, including the Steele Dossier, the Alfa Bank allegations and confidential human source (“CHS”) reporting? If not, were any provable federal crimes committed in failing to do so?

To put it bluntly, Bill Barr told John Durham to figure out whether he could charge Peter Strzok (and presumably, Jim Comey and Bill Priestap) for not letting a Russian intelligence report dictate American investigative decisions. And either in an attempt to preempt Horowitz’ conclusion that the investigation was legally predicated or in an attempt to stave off any determination on criminality, Durham pitched him on this theory before publicly attacking his conclusion.

And Durham did so even though — accepting all his conspiracy theories about inventing false claims about Trump were true — that theory never made sense. As Phil Bump (one, two) and Dan Friedman showed when the report came out, Hillary’s concerns about Trump couldn’t have been the cause of the investigation into Trump. By the time (a Russian intelligence product claimed) that Hillary approved a plan to tie Trump to Russia on July 26, 2016, the events that would lead FBI to open an investigation were already in place. Here’s Friedman:

This isn’t just false. It would require time travel. Durham himself confirms that the FBI launched its investigation into Trump and Russia based on events that occurred months prior to Clinton’s alleged July 26 approval of the plan. In April 2016, George Papadopoulos, a foreign policy adviser to the Trump campaign, met with a professor with Kremlin ties, who informed him that Russia “had obtained ‘dirt’ on…Clinton in the form of thousands of emails,” as Robert Mueller’s final report noted. A week later, according to Mueller, Papadopoulos “suggested to a representative of a foreign government that the Trump Campaign had received indications from the Russian government that it could assist the Campaign through the anonymous release” of damaging material. When hacked Democratic emails were indeed published—by WikiLeaks on July 22—this foreign diplomat alerted US officials about what Papadopoulos had said. The FBI quickly launched an official investigation into the Trump campaign’s Russia ties in response to that tip, Durham notes, while arguing they should have begun only a “preliminary investigation.”

It was the same Russian hack, not Hillary Clinton, that drove media attention, even before the documents were leaked to the public.

There’s another problem with telling Horowitz that his Clinton conspiracy theory should have changed Horowitz’ conclusions. At the earliest, analysts and Priestap only became aware of the intelligence (though probably without Durham’s spin on it) on September 2, well after the opening of Crossfire Hurricane.

When interviewed by the Office, Auten recalled that on September 2, 2016 – approximately ten days after Headquarters Analyst-2’s email – the official responsible for overseeing the Fusion Cell briefed Auten, Moffa, and other FBI personnel at FBI Headquarters regarding the Clinton Plan intelligence. 411 Auten did not recall any FBI “operational” personnel (i.e., Crossfire Hurricane Agents) being present at the meeting. 412 The official verbally briefed the individuals regarding information that the CIA planned to send to the FBI in a written investigative referral, including the Clinton Plan intelligence information. 413

[snip]

Separate and apart from this meeting, FBI records reflect that by no later than that same date (September 2, 2016), then-FBI Assistant Director for Counterintelligence Bill Priestap was also aware of the specifics of the Clinton Plan intelligence as evidenced by his hand-written notes from an early morning meeting with Moffa, DAD Dina Corsi and Acting AD for Cyber Eric Sporre. 415

And despite looking for four years, Durham never confirmed that CIA’s formal referral memo got shared with Peter Strzok, to whom it was addressed.

In spite of never acquiring such proof, not even after four years of searching, recently confirmed Connecticut Supreme Court Justice Nora Dannehy has confirmed that Barr pushed Durham to release an interim report on those claims. NYT described that plan this way:

By summer 2020, with Election Day approaching, Mr. Barr pressed Mr. Durham to draft a potential interim report centered on the Clinton campaign and F.B.I. gullibility or willful blindness.

On Sept. 10, 2020, Ms. Dannehy discovered that other members of the team had written a draft report that Mr. Durham had not told her about, according to people briefed on their ensuing argument.

Ms. Dannehy erupted, according to people familiar with the matter. She told Mr. Durham that no report should be issued before the investigation was complete and especially not just before an election — and denounced the draft for taking disputed information at face value. She sent colleagues a memo detailing those concerns and resigned.

By that point, Durham hadn’t yet interviewed Priestap and others who might inform him of what they actually learned.

From the start, Durham was pursuing this conspiracy theory. He tried to forestall the damning but inconvenient conclusions of the Horowitz report to sustain his conspiracy theory. And he tried to interfere with the 2020 election with his physics-defying conspiracy theory.

Bill Barr didn’t just order John Durham to investigate Hillary Clinton and all the FBI agents who had deigned to investigate Trump’s ties to Russia. He did so based on a conspiracy theory rooted in Russian intelligence.

“Ebb and Flow:” How David Weiss Volunteered for a Subpoena, or Worse

August 20, 2023/113 Comments/in 2024 Presidential Election, Hunter Biden /by emptywheel

Politico and NYT have stories — relying on what Politico describes as, “more than 300 pages of previously unreported emails and documents exchanged between Hunter Biden’s legal team and prosecutors,” — chronicling the legal negotiations leading up to the failed Hunter Biden plea deal.

Politico’s, written by Betsy Woodruff Swan, is good.

NYT’s is not, in part because it dedicates a long passage to repeating Gary Shapley’s claims without noting the many things in his own testimony that discredit those claims, even while relying on props from Shapley’s testimony that have since been challenged. Luke Broadwater knows where his beat gets sweetened, and it is in treating James Comer like a credible person, not in exhibiting the critical thinking of a journalist.

When first published, the NYT couldn’t even get the date of the failed plea hearing, July 26, correct.

But hey — at least that error is less catastrophic than the one in a WaPo story on the same topic the other day, in which three reporters (at least two of whom never bother to hide their right wing allegiances, particularly when it pertains to chasing Hunter Biden dick pics) claimed that Joe Biden was now a “former” President.

For its errors and other problems, however, the NYT story is useful for the way in which it puts David Weiss at risk for his own subpoena.

Hunter Biden lays the groundwork for holding the government to their signed agreements

To understand why, a review of the current state of the (known) legal case is in order.

On August 11, as Merrick Garland was announcing that he had given David Weiss Special Counsel status, Weiss’ prosecutors filed a motion to dismiss the charges against Hunter Biden. After describing that, “When the parties were proceeding to a negotiated resolution in this matter, a plea in this District was agreed upon,” the filing said that because Hunter did not plead guilty, it may have to file charges in the district where venue lies. At the same time, Weiss also moved to vacate the briefing schedule in the gun diversion.

Judge Maryellen Noreika gave Hunter a day to respond to the motion to vacate. That response, signed by Chris Clark but including Abbe Lowell on the signature line, explained that Hunter planned to fulfill the terms of the gun diversion agreement, which the government had stated was a contract between the two parties.

[T]he Defendant intends to abide by the terms of the Diversion Agreement that was executed at the July 26 hearing by the Defendant, his counsel, and the United States, and concurs with the statements the Government made during the July 26 hearing,1

The Government stated in open court that the Diversion Agreement was a “bilateral agreement between the parties” that “stand[s] alone” from the Plea Agreement, and that it was “in effect” and “binding.”

But, “in light of the United States’ decision on Friday to renege on the previously agreed-upon Plea Agreement, we agree that those issues are moot at this point.” Effectively, Hunter’s team was saying they considered the gun diversion as still valid, recognized everything else was moot, and described that it was moot because the government had reneged on the terms of the deal.

Then Abbe Lowell entered his appearance in the case. And Clark moved to withdraw from the case because — given that the plea and diversion would be contested — he might have to serve as a witness.

Mr. Clark’s withdrawal is necessitated by recent developments in the matter. Pursuant to Delaware Rule of Professional Conduct 3.7(a), “a lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless… disqualification of the lawyer would work substantial hardship on the client.” Based on recent developments, it appears that the negotiation and drafting of the plea agreement and diversion agreement will be contested, and Mr. Clark is a percipient witness to those issues. Under the “witness-advocate” rule, it is inadvisable for Mr. Clark to continue as counsel in this case.

Noreika never actually approved Clark’s withdrawal, but the defense team filed notice that Hunter consented to the withdrawal while the docket remained active.

Meanwhile, Noreika ordered the government to reply to Hunter’s response on the briefing, and ordered Hunter to respond to the thing she failed to ask about in the first place, whether he objected to the dismissal of the charges.

Hunter’s team agreed that the charges must be dismissed, but reiterated that the court had no oversight over the diversion agreement (which had been Noreika’s complaint from the start).

Without adopting the Government’s reasoning, as venue for the existing information does not lie in this District, the information must be dismissed.

Further, the Defendant’s position is that the enforceability of the Diversion Agreement (D.I. 24-1 in No. 23-cr-00061-MN) has no bearing on the United States’ Motion to Dismiss for Lack of Venue (D.I. 31 in No. 23-mj-00274-MN), and any disputes regarding the effect of the Diversion Agreement are therefore not before the Court at this time.

The government, meanwhile, filed a seven page reply attempting to claim that the government did not renege on the plea that had been negotiated in advance of its filing in June, by describing how after Hunter refused to plead guilty because Leo Wise, an AUSA who had not been involved in the original deal, claimed its scope was far narrower than Hunter understood, the parties did not subsequently agree on one to replace the signed deal Hunter entered into.

First, the Government did not “renege” on the “previously agreed-upon Plea Agreement,” as the Defendant inaccurately asserts in the first substantive sentence of his response. ECF 33, Def. Resp. at 1. The Defendant chose to plead not guilty at the hearing on July 26, 2023, and U.S. Probation declined to approve the proposed diversion agreement at that hearing.

Then Noreika dismissed the charges.

David Weiss may have plenty of time to argue with Lowell, relying on Chris Clark’s testimony, that he should not be held to the terms of signed agreements he entered into in June.

But the two important takeaways from all this are, first, that Hunter Biden is stating that before the plea hearing, Weiss attempted to change the terms of the signed plea deal, and second, that Chris Clark is no longer bound by any terms of confidentiality that will allow him to prove that’s true.

A senior law enforcement official speaks, illegally

These twin stories are a warning shot to Weiss — before Hunter even gets more discovery on all the other problems with this investigation — what that is going to look like.

Which brings me to the things for which the NYT is really useful: giving David Weiss or someone in his immediate vicinity an opportunity to cause David Weiss more problems.

Three times in the story, NYT provides anonymity to a “senior law enforcement official” to push back on the representation of the deal, including as laid out by documentary evidence. In one such instance, NYT helpfully notes that if Weiss commented, he would be violating DOJ policies and possibly the law (though the leaks in this story don’t appear to violate grand jury secrecy).

A spokesman for Mr. Weiss had no comment. He is legally barred from discussing an open investigation, and a senior law enforcement official with knowledge of the situation pushed back on the idea that Mr. Weiss had been influenced by outside pressures, and ascribed any shifts to the typical ebb and flow of negotiations.

In a second instance, this anonymous “senior law enforcement official” denies something — that David Weiss told an associate that “the average American would not be prosecuted for similar offenses,” the kind of assertion that might provide basis for an exceedingly rare successful claim of selective prosecution — that only David Weiss would know.

Mr. Weiss told an associate that he preferred not to bring any charges, even misdemeanors, against Mr. Biden because the average American would not be prosecuted for similar offenses. (A senior law enforcement official forcefully denied the account.)

This chatty senior law enforcement official similarly denies something else that could bollox any further charges against Hunter Biden — that the only reason he “reneged” on the original terms of the plea deal are because IRS agents got journalists like the NYT’s to report claims of bias that their own testimony did not substantiate.

Now, the I.R.S. agents and their Republican allies say they believe the evidence they brought forward, at the precise time they did, played a role in influencing the outcome, a claim senior law enforcement officials dispute.

Now, normally, misconduct by a prosecutor like Weiss would be reviewed by the feckless Office of Professional Responsibility. But that’s less likely with a Special Counsel, because of the reporting structure for an SCO. And that’s particularly true here given the involvement of Associate Deputy Attorney General Bradley Weinsheimer in earlier discussions about the plea. Weinsheimer oversees OPR, and so any review by OPR presents a conflict. Indeed, Weiss may have asked to be made SCO precisely so he could escape the purview of OPR.

But to some degree that may not matter.

That’s because there are already parallel investigations — at TIGTA and at DOJ IG — into the leaking that occurred during this investigation. David Weiss was already going to be a witness in them, because Gary Shapley made claims about what Weiss said personally at a meeting on October 7, 2022, a meeting that was called first and foremost to discuss leaks.

So if Michael Horowitz wanted to subpoena Weiss to find out whether he was the senior law enforcement official denying things only he could deny, to find out whether days after being made a Special Counsel, Weiss decided to violate DOJ guidelines to which he still must adhere, the only way Weiss could dodge that subpoena might be to resign from both his US Attorney and his Special Counsel appointment.

And if Weiss and DOJ IG didn’t already have enough to talk about, there’s this passage from the NYT, with its truly epic use of the passive voice: “Mr. Weiss was quietly assigned,” by whom, NYT didn’t choose to explain.

NYT corrected their earlier error on the date of the failed plea hearing, but the date here is probably another: Both IRS agents and the FBI agent have testified that this occurred in 2019, not 2018. Indeed, Joseph Ziegler testified, then thought the better of it, in a period when Bill Barr was making public comments about all this, that Barr himself was involved, which would date it to February 2019 or later, in a period when Barr was engaged in wholesale politiciziation of the department. Who assigned Weiss to investigate Joe Biden’s son as Trump demanded it would already be a question for any inquiry into improper influence, but it’s nice for NYT to make it more of one, in a story otherwise repeatedly sourced to “a senior law enforcement official” who might know.

I don’t know whether Hunter Biden’s lawyers deliberately intended to bait Weiss into responding in the NYT. But under DOJ guidelines, he is only permitted to respond to these claims in legal filings, after Abbe Lowell makes it an issue after Weiss files an indictment somewhere, thereby confirming precisely the concerns raised in these stories and creating another avenue of recourse to address these issues.

But whether that was the intention or not, that appears to be what happened.

And that’s on top of the things that Gary Shapley and Ziegler have made issues by blabbing to Congress: describing documentation in the case file of 6th Amendment problems and political influence, the documentation showing that no one had validated the laptop ten months after starting to use it in the investigation, Lowell’s claims that after the IRS got a warrant for an iCloud account that probably relied on the tainted laptop, they did shoddy summaries of WhatsApp texts obtained as a result and mislabeled the interlocutors, and Shapley’s own testimony showing that he was hiding something in his own emails.

That’s on top of anything that Denver Riggleman’s work with the “Hunter Biden” “laptop,” the one Weiss’ office never bothered to validate before using, has produced.

Don’t get me wrong: if and when Weiss decides to charge Hunter Biden with felonies — and I assume he will (indeed, given that the Bidens are all together in Tahoe this weekend, he may have already alerted Biden to that fact) — it’s going to be hell for everyone, for the entire country. But the IRS agents demanding this happen will have made things far harder for Weiss going forward with their disclosures of details of misconduct conducted under Weiss’ watch.

Hunter’s lawyers have already documented the political influence behind this case

Swan’s story, but not the Shapley-parroting NYT one likely based on the same documents, describes that Hunter’s lawyers repeatedly raised the improper political influence on this case, starting with an April 2022 Powerpoint presentation on why DOJ would be stupid to charge Hunter.

In light of Trump’s ceaseless demands for an investigation of the first son, charging the younger Biden with tax crimes would be “devastating to the reputation” of the Justice Department, his lawyers asserted. It would look like the department had acquiesced to Trump’s political pressure campaign.

They noted that Trump had laid into Biden in his speech to the rowdy crowd right before the Jan. 6, 2021, attack on the Capitol. “What happened to Hunter?” the president said. “Where’s Hunter? Where’s Hunter?”

Biden’s lawyers argued that the political pressure was itself a compelling reason not to bring any charges. A move seen as caving to the pressure, they contended, would discredit the department in the public eye, especially if the Justice Department was only going to charge him with paying his taxes late.

Clark wrote Weiss directly in October 2022, in the wake of the October 6 leak, noting that the only reason an unusual (and potentially unconstitutional) gun charge had been added in the interim was pressure from Republicans.

On Oct. 31, 2022, he wrote directly to David Weiss, the U.S. attorney for Delaware who was overseeing the probe. Weiss had been appointed by Trump and had been allowed to stay on during Joe Biden’s administration to continue the investigation — and Attorney General Merrick Garland had pledged to give Weiss full independence.

But Clark argued in his letter to Weiss that charging Hunter Biden with a gun crime would torpedo public trust in the Justice Department.

Biden, Clark continued, didn’t use the allegedly purchased gun to commit a crime, didn’t buy another one and didn’t have any prior criminal record. No drug user had ever been charged with a felony in Delaware for buying a gun under those same circumstances, he wrote. Prosecutors, he alleged, were weighing gun charges for one reason: “the relentless political pressure from the opponents of the current President of the United States.”

After all, Clark noted, federal law enforcement officials had known about Biden’s gun episode since 2018. Only politics explained why years later they were considering charges, he argued.

In January, Clark did another presentation — the first one threatening to put Joe Biden on the stand to talk about how this case was targeted at him, not Hunter.

He said Joe Biden would undoubtedly be a witness at trial because of leaks about the probe. He wrote that just a few weeks before sending his letter, there had been two back-to-back leaks related to Hunter Biden and the gun issue. First, someone told The Washington Post that investigators thought Biden deserved tax and gun charges. Then a few days later, The Daily Mail reported on a voicemail Joe Biden left for his son in the window of time when he allegedly owned the gun. Surely the back-to-back leaks were part of a coordinated campaign to push the Justice Department to charge his client with crimes. And, Clark said, the leaks prompted the president to address his son’s legal woes the next day on CNN.

“There can be no doubt that these leaks have inserted President Biden into this case,” he said.

On April 26, Associate Deputy Attorney General Bradley Weinsheimer met with Hunter’s lawyers, which immediately preceded the efforts to reach a plea deal.

On May 11, Weinsheimer thanked Clark for the meeting and told him Weiss would handle the next steps. The prosecutors appeared to be nearing the end of their investigation, and they were ready to make a deal. This type of process is not unusual in high-profile white collar investigations where the targets of the probes have engaged with the government and signaled openness to pretrial resolution.

On May 18, another lawyer for Biden sent two Delaware prosecutors — including Lesley Wolf, a senior prosecutor in the Delaware U.S. Attorney’s Office — the first draft of a proposed deal, structured so it wouldn’t need a judge’s sign-off and wouldn’t require a guilty plea from Biden.

As noted, Weiss may have used Weinsheimer’s intervention to justify his request to be appointed Special Counsel, but if he did it may backfire.

At each stage, after another wave of pressure from Republicans, the ask from prosecutors got bigger and bigger, first to include the gun, then to include a guilty plea with diversion.

That’s what the anonymous senior law enforcement official claims was just “ebb and flow.”

On June 7, the immunity agreement was written as follows.

The United States agrees not to criminally prosecute Biden, outside of the terms of this Agreement, for any federal crimes encompassed by the attached Statement of Facts (Attachment A) and the Statement of Facts attached as Exhibit 1 to the Memorandum of Plea Agreement filed this same day. This Agreement does not provide any protection against prosecution for any future conduct by Biden or by any of his affiliated businesses.

In the wake of the failed plea, prosecutors demanded that all immunity language be stripped, a truly insane ask.

No wonder Hunter’s lawyers are furious.

No wonder Clark dropped off the case, to be replaced by a far more confrontational Abbe Lowell, so he could lay all this out.

NYT describes that David Weiss thought that being provided Special Counsel status, “could provide him with added leverage in a revamped deal with Mr. Biden,” which is not something included in the Special Counsel regulations. Those regulations especially don’t envision getting that status for the purpose of reneging on already signed deals.

Abbe Lowell (who is not named in either of these stories) has something else entirely in mind.

Gary Shapley used notes that utterly contradict his public claims to dupe credulous reporters like Broadwater to build pressure on Weiss. Hunter’s team laid out that long before that, they had made the case that this prosecution was designed to target Joe Biden. Since then, they’ve identified at least one witness who could testify that Weiss is pursuing charges he knows other Americans wouldn’t face and learned of another — Ziegler’s first supervisor — who documented improper political influence from the start.

That’s before getting discovery that may show how Ziegler sat and watched as Hunter Biden’s digital identity got stolen and rather than doing anything to halt that attack in process, instead responded by deciding to charge Biden, not those tampering with his identity.

Sure. Weiss can charge the President’s son now — and he may well have already refiled tax charges in California.

But like his bid to renege on the original terms of the plea deal, that may not work out the way he thinks.

The Overt Investigative Steps into Trump’s Co-Conspirators TV Lawyers Ignored

August 9, 2023/86 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

The first overt act in the investigation into Donald Trump’s six co-conspirators happened on January 25, 2021.

The Jeffrey Clark investigation started at DOJ IG

On that day, DOJ Inspector General Michael Horowitz announced that he was opening an investigation, “into whether any former or current DOJ official engaged in an improper attempt to have DOJ seek to alter the outcome of the 2020 Presidential Election.” The announcement came three days after Katie Benner did a story laying out Jeffrey Clark’s efforts to undermine the election results. Horowitz explained that he made the announcement, “to reassure the public that an appropriate agency is investigating the allegations.”

We don’t know all the details about what happened between Horowitz’s announcement of that investigation and last week’s indictment describing Clark as co-conspirator 4. Probably, when Merrick Garland arranged for Joe Biden to waive Executive Privilege so Jeffrey Rosen and others could tell the Senate Judiciary Committee what happened in July 2021, that freed up some communications to DOJ IG. For the record, I raised questions about why it took so long — though I suspect the delay in restoring the contacts policy at DOJ was part of it. Some time before May 26, 2022, DOJ obtained warrants for a private Jeffrey Clark email account and on May 26, Beryl Howell approved a filter process. On June 23, 2022, the FBI seized Clark’s phone — with some involvement of DOJ IG — and the next day DOJ seized a second email account of Clark’s. When FBI seized Clark’s phone, I predicted it would take at least six months to fully exploit Clark’s phone, because that’s what it was generally taking, even without a complex privilege review. Indeed, five months after first seizing some of Clark’s cloud content, on September 27, 2022, he was continuing to make frivolous privilege claims to keep his own account of the events leading up to January 6 out of the hands of investigators.

The first overt act in the investigation into one of Trump’s co-conspirators happened 926 days ago. Yet TV lawyers continue to insist the investigation that has resulted in an indictment including Clark as Donald Trump’s co-conspirator didn’t start in earnest until Jack Smith was appointed in November 2022.

A privilege review of Rudy’s devices was set in motion (in the Ukraine investigation) in April 2021

Clark is not the only one of Trump’s co-conspirators against whom investigative steps occurred in 2021, when TV lawyers were wailing that nothing was going on.

Take the December 6, 2020 Kenneth Chesebro memo that forms part of the progression mapped in the indictment from Chesebro’s efforts to preserve Wisconsin votes to trying to steal them. NYT liberated a copy and wrote it up here. It’s not clear where DOJ first obtained a copy, but one place it was available, which DOJ took steps to obtain starting on April 21, 2021 and which other parts of DOJ would have obtained by January 19, 2022, was on one of the devices seized from Rudy Giuliani in the Ukraine influence-peddling investigation. The PDF of a December 6 Kenneth Chesebro memo shows up in Rudy’s privilege log in the Ruby Freeman suit, marked with a Bates stamp from the Special Master review initiated by SDNY.

While Rudy is claiming privilege over it in Freeman’s lawsuit, it is highly likely Barbara Jones ruled that it was not (only 43 documents, total, were deemed privileged in that review, and there are easily that many emails pertaining to Rudy’s own defense in his privilege log).

The way in which SDNY did that privilege review, in which SDNY asked and Judge Paul Oetken granted in September 2021 that the review would cover all content post-dating January 1, 2018, was public in real time. I noted in December 2021, that Rudy’s coup-related content would be accessible, having undergone a privilege review, at any such time as DC investigators obtained probable cause for a warrant to access it.

Since then, Rudy has claimed — to the extent that claims by Rudy are worth much — that all his coup-related content would be available, and would only be available, via materials seized in that review. (In reality, much of this should also have been available on Gmail and iCloud, and Rudy’s Protonmail account does not appear to have been captured in the review at all.)

But unless you believe that Rudy got designated co-conspirator 1 in the indictment without DOJ ever showing probable cause against him, unless you believe DOJ decided to forego directly relevant material that was already privilege-reviewed and in DOJ custody, then we can be certain January 6 investigators did obtain that content, and once they did, the decisions made in April and August and September 2021 would have shaved nine months of time off the investigation into him going forward.

Indeed, those materials are one likely explanation for why DOJ’s investigation, as represented by subpoenas sent starting in May 2022, had a slightly different focus than January 6 Committee did. The first fake elector warrants sent in May 2022 as well as those sent in June and November all included Victoria Toensing and Joe DiGenova. Rudy’s known J6C interview included the couple as key members of his post-election team. But no one else seems to have cared or figured out what they did. After Rudy listed them in his January 6 interview, the Committee never once raised them again. But they were always part of a sustained focus by DOJ.

The more explicit investigative steps targeting Rudy have come more recently. Rudy was subpoenaed for information about how he was paid in November 2022. He sat for an interview in June.

But a privilege review on the coup-related content on seven of Rudy’s devices would have been complete by January 19, 2022 — the day before the long privilege battle between J6C and John Eastman started.

DOJ’s investigation of Sidney Powell’s graft was overt by September 2021

The investigation into one more of the six co-conspirators described in Trump’s indictment was also overt already in 2021: Sidney Powell.

Subpoenas sent out in September — along with allegations that Powell’s associates had made damning recordings of her — were first reported in November 2021. The investigation may have started under the same theory as Jack Smith’s recent focus on Trump: That Powell raised money for one thing but spent the money on something else, her legal defense. Molly Gaston, one of the two prosecutors who has shown an appearance on Trump’s indictment and who dropped off her last crime scene cases in March 2021, played a key role in the investigation.

By the time of DOJ’s overt September steps, both Florida’s Nikki Fried and Dominion had raised concerns about the legality of Powell’s graft.

According to Byrne, Powell had received a wave of donations in the aftermath of the election after being praised by mega-popular right-wing radio host Rush Limbaugh. But the donations were often given haphazardly, sometimes as a dollar bill or quarter taped to a postcard addressed to Powell’s law office. Byrne claims he discovered that Powell had amassed a fortune in contributions, somewhere between $20 and $30 million but provided no evidence to support the claim. A projected budget for Defending the Republic filed with the state of Florida lists only $7 million in revenue for the group.

Defending the Republic’s funds weren’t going towards the pro-Trump goals donors likely envisioned, according to Byrne. Instead, he claimed they were spent on paying legal bills for Powell, who has faced court disciplinary issues and a daunting billion-dollar defamation lawsuit from Dominion Voting Systems.

“It shouldn’t be called ‘Defending the Republic,’” Byrne said in the recording. “It should be called ‘Defending the Sidney Powell.’”

Attorneys for Dominion have also raised questions about the finances for Defending the Republic, which the voting technology company has sued alongside Powell. In court documents filed in May, Dominion accused Powell of “raiding [Defending the Republic’s funds] to pay for her personal legal defense.”

Dominion attorneys claimed in the filing that Powell began soliciting donations to Defending the Republic before officially incorporating the group. That sequence, they argued, meant that donations for the group “could not have been maintained separately in a bank account” and “would have necessarily been commingled in bank accounts controlled by [Powell].”

[snip]

Defending the Republic’s finances first attracted the scrutiny of regulators in Florida shortly after Powell founded the group in November 2020 when authorities received a complaint and subsequently issued a subpoena to internet hosting service GoDaddy for information about the group’s website.

In a June press conference, Florida Agriculture Commissioner Nikki Fried said Defending the Republic was “found to be soliciting contributions from the State of Florida or from persons within the State of Florida” on the internet “without having filed in the State of Florida” as a charitable organization.”

On Aug. 24, Defending the Republic paid a $10,000 fine as part of a settlement agreement with Florida authorities over its fundraising.

All that graft would directly overlap with the sole focus on Powell in the indictment: on her false claims about voting fraud, particularly relating to Dominion. Aside from a claim that Powell was providing rolling production of documents in January 2022, it’s not clear what further steps this investigation took. Though it’s not clear whether Powell showed up on any subpoenas before one sent days after Jack Smith’s appointment in November.

Unlike Clark and Eastman, there have been no public reports that Powell had her phone seized.

DOJ may have piggybacked off John Eastman’s legislative purpose subpoena

DOJ’s overt focus on John Eastman came after the January 6 Committee’s long privilege battle over his Chapman University emails. Two months after Judge David Carter found some of Eastman’s email to be crime-fraud excepted (at a lower standard for “corruptly” under 18 USC 1512(c)(2) than was being used in DC District cases already), DOJ obtained its own warrant for Eastman’s emails, and a month later, his phone.

While it seems like DOJ piggybacked off what J6C was doing, the phone warrant, like Clark’s issued on the same day, also had involvement from DOJ IG.

Whatever the import of J6C, it’s notable that J6C was able to get those emails for a legislative purpose, without first establishing probable cause a crime had occurred. DOJ surely could have subpoenaed Eastman themselves (though not without tipping him off), but it’s not clear they could have obtained the email in the same way, particularly not if they had to show “otherwise illegal” actions to do so, which was the standard Beryl Howell adopted in her first 1512(c)(2) opinion, issued orally on January 21, 2022.

DOJ’s focus on Kenneth Chesebro (whom J6C didn’t subpoena until July 2022, months after DOJ was including him on subpoenas; see correction below) and whoever co-conspirator 6 is likely were derivative of either Rudy and/or Eastman; J6C subpoenaed Rudy, Powell, and Epshteyn on January 18 — though Epshteyn did not comply — and Mike Roman on March 28. Epshteyn shows up far more often in Rudy’s privilege log than Roman does.

But of the four main co-conspirators in Trump’s indictment, DOJ opportunistically found means to take investigative steps — the DOJ IG investigation, probable cause warrants in another investigation, and a fundraising investigation — to start investigating at least three of the people who last week were described as Trump’s co-conspirators. Importantly, with Clark and Rudy, such an approach likely helped break through privilege claims that would otherwise require first showing the heightened probable cause required before obtaining warrants on an attorney.

We know a fair amount about where and when the investigation into four of Trump’s six co-conspirators came from. And for three of those, DOJ took investigative steps in 2021, before the January 6 Committee sent out their very first subpoena. Yet because those investigative steps didn’t happen where most TV commentators were looking — notably, via leaks from defense attorneys — those steps passed largely unnoticed and unobstructed.

Update, August 20: The J6C sent a subpoena to Chesebro in March, before the July one that was discussed at his deposition.

DOJ Inspector General Report on the Tensions Created by Parallel Construction

October 3, 2022/26 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

Before you read this report on tensions between FBI Office of General Counsel’s National Security and Cyber Law Branch (NSCLB) and DOJ’s National Security Division (NSD), remember the following things:

In significant part because of jurisdictional limitations, DOJ Inspector General blamed FBI for everything that went wrong with the Carter Page FISA applications, and in the wake of that report, Bill Barr, Trump, and his allies in Congress used it to damage the career every single person at FBI who had been involved with the Russian investigation (except for the two guys who made multiple mistakes in dismissing the Alfa Bank allegations).
John Durham then used that damage to attempt to coerce testimony, sometimes false, from FBI figures in his never-ending witch-hunt.
For the same jurisdictional limitations, any abuse John Durham engages in or Andrew DeFilippis engaged in can only be reviewed by DOJ’s feckless Office of Professional Responsibility, not by DOJ IG.
After that report, DOJ IG developed proof that Carter Page was not special; by some measures, his FISA application was better than those of people who hadn’t been fired by a future President for precisely the same foreign ties that the FISA was meant to assess.
The NSD then dismissed those findings from DOJ IG, largely by adopting a standard different from the one that had been adopted with Carter Page (it’s unclear whether DOJ IG is still trying to resolve these discrepancies or not).
None of the stuff that happened thus far addresses the substantive problems with the Page applications.

The report talks about the “historically strained” relationship between these two sets of lawyers, without laying out the role that the Carter Page review — and the Trump DOJ’s use of DOJ IG to punish his enemies generally — did to make things worse.

That tension plays out in the report. For example, Horowitz only provides recommendations to NSCLB and FBI’s OGC, not NSD. In each case, FBI is directed to coordinate with NSD, without the counterpart recommendation. The tension is particularly critical to something that DOJ IG cannot, therefore, recommend: That NSD have access to FBI case files, which would allow them to play a more proactive role in the vetting of FISA applications. It would also make NSD share in accountability for any problems that arise (as they should have with Page), though, and unsurprisingly NSD doesn’t want that.

NSCLB attorneys expressed their concern that although NSD attorneys assist agents in drafting the FISA applications submitted to the FISC, they do not share accountability when compliance incidents are reported to the FISC. Although NSCLB officials acknowledged the oversight role that NSD has related to FISA, they emphasized the need for FISA to be a team effort and not an adversarial relationship and stated their belief that the number of compliance incidents would be reduced if NSD would review the FISA-related documents housed in the FBI’s IT systems. However, according to NSCLB attorneys, NSD has expressed disinterest in ensuring FISA compliance on the front end and has said that it is the agent’s responsibility to identify in the first instance, anything that is necessary to be reported to the FISC. We were also told by NSCLB attorneys that NSD has said that it is concerned that an appearance of NSD attorneys having knowledge of the underlying documents would imply that they have full knowledge of all of the supporting documents, which would not be practicably feasible for them to have.

A senior NSD official that we spoke with told us that NSD has limited resources, and it does not have direct access to FBI systems.

NSD wants none of this accountability and DOJ IG can’t make them.

For all the tensions, though, it’s a fascinating report, as useful for providing both historical and bureaucratic background on this process as anything else. Much of this tension arises out of DOJ’s admitted parallel construction — using alternative sources for certain facts to protect sources and methods. There’s even a paragraph that describes NSCLB’s role as such (though not by name).

For instance, we were told that NSD relies on NSCLB to review documents such as search warrants and criminal complaint affidavits for law enforcement or other sensitivity concerns before they are filed with the court by prosecutors. When this process is not followed, it can become particularly problematic if NSCLB later finds that sensitive information was contained in the court filing. For example, if the FBI used a sensitive platform to obtain information, prosecutors may decide that a description of the platform is needed to support the search warrant or complaint. In such instances, NSCLB may ask prosecutors to anonymize that information. However, if NSCLB does not review the case agent’s draft affidavit in support of a search warrant or complaint before the agent provides it to the prosecutor, sensitive information may be exposed. Also, senior NSCLB officials told us that including an NSCLB attorney early in this process can provide an effective means of ensuring prosecutors have information necessary to support their case. Specifically, NSCLB can help identify which information may be difficult to use from a classification and sensitivity perspective and provide suggestions to obtain the information from an independent source without implicating sensitive techniques.

The report claims the particular roles of each side are not well-defined. I’m not convinced that’s the case, though. As described, NSCLB protects national security and the secrets that go along with that (including secret intelligence techniques). And NSD fulfills the needs of prosecutions as well as “protect[ing] FISA as a tool so the FBI can continue to use it.”

In one telling explanation,

NSCLB senior officials highlighted the fact that criminal prosecution is not necessarily the FBI’s aim in every national security investigation and that the FBI sometimes appropriately pursues investigations with the aim of disrupting threats or collecting intelligence.20

These are tensions, but they are not necessarily bad tensions. And it doesn’t seem like this report considers how this compares to the relationship between a prosecutor and a case agent where there are none of the national security (and classification) concerns.

In any case, the report attributes that tension for two radically different understandings about the standards involved in two FISA concepts, including one — material facts that must be disclosed to the FISA Court — that was at the core of the Carter Page case.

In the case of materiality, the FBI seems to be playing dumb (perhaps to avoid opening a whole historical can of worms given the aftermath of the Page IG Report).

The 2009 Accuracy Memorandum defined material facts as, “those facts that are relevant to the outcome of the probable cause determination.” The FBI had interpreted this standard as facts that are outcome determinative, or facts that would invalidate the legal determination. However, NSD had applied a broader standard than the FBI, with NSD’s interpretation of material facts being facts that are capable of influencing the requested legal determination. An NSD senior official told us that the FBI’s viewpoint was based on the FBI’s involvement in the criminal law enforcement arena where the threshold for materiality in a criminal search warrant is outcome determinative. This official also stated that most material errors reported to the FISC do not invalidate the legal determination, and that the FISC still expects for these types of errors to be reported to them.

Senior NSD officials stated NSD had applied the same standard for at least 15 years and NSCLB had known of NSD’s application of the standard because it was reflected in previous Rule 13 notices filed with the FISC. For example, in the OIG’s report on the FBI’s Crossfire Hurricane Investigation, NSD supervisors stated that “NSD will consider a fact or omission material if the information is capable of influencing the court’s probable cause determination, but NSD will err on the side of disclosure and advise the court of information that NSD believes the court would want to know.”41 Similarly, in a FISC filing on January 10, 2020, NSD referred to this statement in the OIG report while describing its oversight and reporting practices when errors or omissions are identified.42 However, senior NSCLB officials told us that NSCLB was first made aware of NSD’s interpretation of the materiality standard in the OIG’s Crossfire Hurricane Investigation report and NSD’s subsequent January 2020 FISC filing.43

In the case of the claimed differing understand of querying techniques under 702 (in which, by my read, both sides were pretending this hasn’t dramatically changed as FISC became aware of how 702 collection was really used), NSD seems to engage in the knowing bullshit.

In contrast, NSD told us that the query standard has been the same since 2008. A senior NSD official stated that the FBI had a fundamental misunderstanding of the standard and that compliance incidents were not identified sooner because NSD can only review a limited sample of the FBI’s queries and NSD improved upon its ability to identify non-compliant queries over time.

I knew the standard the FBI was using. It is not credible that I knew what it was and NSD did not.

In both cases, this claimed disagreement seems to be an effort to avoid applying the standards adopted post-Page to the FISA approach (and not just on individualized orders) applied before then.

The report confirms something that had been obvious from heavily redacted sections of the last several 702 reauthorizations: FBI had been using 702 collection (and FISA collection generally) to vet potential confidential human sources.

For example, we were told disputes occurred related to queries conducted for vetting purposes.52 Specifically, according to the FBI, it was concerned that as a result of the change to the query standard it could no longer perform vetting queries on raw FISA information before developing a confidential human source (CHS). FBI officials told us that it was important for agents to be able to query all of its databases, including FISA data, to determine whether the FBI has any derogatory or nefarious information about a potential CHS. However, because of the implementation of the 2018 standard, the FBI is no longer able to conduct these queries because they would violate the standard (unless the FBI has a basis to believe the subject has criminal intent or is a threat to national security). According to the FBI, because its goal is to uncover any derogatory information about a potential CHS prior to establishing a relationship, many agents continue to believe that it is irresponsible to engage in a CHS relationship without conducting a complete query of the FBI’s records as “smoking gun” information on a potential CHS could exist only in FISA systems. Nevertheless, these FBI officials told us that they recognize that they have been unsuccessful when presenting these arguments to NSD and the FISC and, as noted below, they follow NSD’s latest revision of query standard guidance.

Using back door searches to vet informants is an approved use on the NSA and, probably, CIA side. In the FBI context, my understanding is that informants understand they’re exchanging Fourth Amendment protections as part of their relationship with the FBI. Perhaps if the FBI had simply made this public, it could have been an approved use. Instead, we’re playing all these games about the application.

The report describes — but doesn’t really address — how the tension between NSCLB and NSD undermined National Security Reviews which,

examine (1) whether sufficient predication exists for FBI preliminary and full investigations, (2) whether a sufficient authorized purpose exists for assessments, (3) whether tools utilized during or prior to the assessment are permitted, and (4) all aspects of National Security Letters issued by the FBI.

There was a huge backlog of these until NSD hurriedly closed a bunch of them in 2020, which is the kind of thing that when Bush did them with FISA tools in 2008 was itself a symptom. So, too, may be some policy memos that happened in Lisa Monaco’s first days and John Demers’ last ones.

The section I found to be most interesting (and one that DOJ IG could not or chose not to address in recommendations) pertains to the tension over declassification of material for prosecutions.

According to the FBI’s Declassification of Classified National Security Information Policy Guide, NSCLB must participate in the approval of discretionary declassification decisions concerning FBI classified information. NSCLB assists in ensuring that the declassification of either FISA derived material or other FBI classified information is: (1) necessary to protect threats against national security; (2) will not include classified materials obtained from foreign governments; (3) will not include classified materials obtained from other U.S. agencies (unless authorized by the originating agency); (4) will not reveal any sensitive or special techniques; and (5) will not adversely impact other FBI investigations.

[snip]

Despite the FBI’s limited support role, NSD and DOJ staff we spoke with told us that they believe NSCLB has involved itself inappropriately in discovery matters. For example, an NSD senior official told us that NSCLB has attempted to second guess discovery decisions made by prosecutors. This NSD official believed that NSCLB’s role is not to participate in the determination of how the prosecutors choose to protect a piece of classified information, but instead to identify information that is classified, its level of classification, and how a declaration from the owner of that information would explain to a court why the information presents a national security concern. According to this official, NSCLB may rightfully conclude the information is too sensitive to provide in discovery and, as a result, prosecutors may have to dismiss that case. However, we were told that discovery issues do not generally reach that point. We also were told by some AUSAs that they have had to remind NSCLB attorneys that AUSAs have the discovery obligations to courts and will make discoverability determinations.

An official from one USAO told us that, while it is understood that satisfying discovery obligations is the responsibility of the prosecutor, the FBI’s interest in protecting its equities may justify challenging a prosecutor’s discovery decisions. The official explained that such back and forth may be necessary to reach a balance between the needs of discovery and the protection of sensitive information; however, when the FBI’s role in the process extends into making assessments of what is discoverable it can slow the process down and necessitate the prosecutor asserting authority over discovery decisions.

[snip]

By contrast, senior NSCLB officials noted that several factors outside of NSCLB’s control can cause the declassification process to take a considerable amount of time. According to these officials, the FBI addresses the risk of disclosing information that could cause significant harm to the American public by using a thorough, deliberate process which can be impacted by the volume of information, the sensitivities involved, and the resources available to conduct a review. In defending NSCLB’s role in the discovery process, a senior NSCLB official expressed the view that AUSAs tend to err on the side of making material discoverable, even when it involves national security information, and do not appreciate how the disclosure of information may affect other FBI or USIC operations. This official told us that NSD often prefers to declassify all information that could be relevant, necessary, or discoverable to ease the prosecution of the case or the discovery process. .

This is, in my opinion, the description of what lawyers for an intelligence agency would do. That seems to be the role NSCLB is playing, for better or worse. In light of the cases described out of which the more specific tensions arise, I find the complaint that NSCLB is delaying discovery rather telling. If prosecutors choose to make a case that NSCLB believes would have been better handled via disruption, for example, or are entirely frivolous, such tensions are bound to surface. That said, if FBI’s General Counsel’s Office has been coopted people trying to protect sources and methods, NSD lawyers are going to look like the only ones guarding due process (though I’m sure they would with CIA’s lawyers, too).

There’s a lot of worthwhile observations in this report. But it’s hard to shake the conclusion that the most important takeaway is that DOJ cannot continue to have such asymmetry in the oversight that FBI and DOJ experience.

“All Texts Demanded!” Right Wingers No Longer Worried about “Wiped” Phones, John Eastman Edition…

June 28, 2022/30 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

As noted in the last thread, more than twelve hours later on the same day that federal agents conducted a search on Jeffrey Clark’s home in Virginia, FBI agents seized John Eastman’s phone as he was leaving a restaurant in Santa Fe. He has launched a bozo lawsuit attempting to get the phone back. And as part of that, he released the warrant used to seize his phone.

Orin Kerr has a long thread treating the bozo lawsuit seriously here — noting among other things that Constitutional law professor John Eastman forgot he was in New Mexico and therefore in the Tenth Circuit, not the Ninth. File411 has a post treating it like the bozo suit it is here.

But I’m interested in the warrant itself. As many people have noted (including Eastman himself), the warrant is from DOJ IG’s Cyber Division, not DC USAO. CNN has a helpful explanation for that: at least on the Eastman search, DOJ IG is engaged in fairly unusual coordination with the USAO (which explains all the squirreliness about which Federal agents had searched Clark’s home).

Federal agents from the Justice Department’s Office of Inspector General, which is coordinating with the wider FBI and US attorney investigation into January 6, 2021, last week raided the home of former DOJ official Jeffrey Clark, a source familiar previously told CNN. That search — during which the Justice Department inspector general’s participation had not been previously reported — came the same day as Eastman’s.

The inspector general investigates accusations of legal violations by Justice Department employees and has the ability to conduct searches and seizures. After investigating, the inspector general can refer possible criminal matters to prosecutors.

That makes a reference in the search warrant more interesting. This is just a seizure warrant, not a warrant authorizing the search of the phone. And it states that agents will bring the phone either the DOJ IG forensic lab in Northern Virginia or to some unidentified location in DC; it doesn’t mention the FBI’s Quantico facility, though that is also in NoVA and even experts on DOJ IG aren’t aware of any dedicated forensic lab DOJ IG has.

This warrant would be consistent with use in parallel investigations, the DC (or Main) investigation into Trump and Eastman as well as a DOJ IG investigation into January 6 that Michael Horowitz announced in early 2021. I’ve been wondering whether DOJ IG’s investigation(s), which can be quite slow, have delayed the review of DOJ’s conduct. This may be the solution: coordinated investigations. In his January 2021 announcement, Horowitz addressed that concern.

The DOJ OIG is mindful of the sensitive nature of the ongoing criminal investigations and prosecutions related to the events of January 6. Consistent with long-standing OIG practice, in conducting this review, the DOJ OIG will take care to ensure that the review does not interfere with these investigations or prosecutions.

In other words, this seizure may actually reflect at least two underlying search warrants, and as such may be an attempt to obscure (like the original Rudy Giuliani warrants would have) the focus of the underlying January 6 investigation. That is, DOJ IG could hand Eastman a warrant for an investigation into Jeffrey Clark, and that would be sufficient to answer his demands for a warrant, even if there were a more substantive warrant for the DCUSAO investigation.

That’s why the timing is of interest. As File411 notes, it was authorized on June 17, so after the Big Lie January 6 Committee hearing, but five days before it was executed on June 22. If this warrant was a response to the January 6 Committee hearings, it wasn’t a response to the hearing focused on Jeffrey Clark, but rather on one focused on Eastman.

In the days ahead, you will hear wailing about how poor Constitutional attorney John Eastman had his privacy abridged — that’s the point of the bozo lawsuit, just like Russian oligarchs do. But the very same people who’ll be whining were huge fans of DOJ IG’s best known cyber work — a 2018 report explaining why the FBI’s text archiving system hadn’t captured 19,000 texts between Peter Strzok and Lisa Page.

That investigation, like this one, appears to be focused on a DOJ employee who has already resigned (though the earlier report was started when Strzok and Page were still at FBI). And given the seizure of devices, it may be focused on inappropriate politicization of DOJ — the allegation at the core of investigations into Strzok and Page, yet for which DOJ IG never substantiated proof.

Both Rudy and Trump are on the record supporting such DOJ IG investigations into phones for evidence of improper politicization. Chances are they’re going to be less enthusiastic now that the subjects of the investigation are John Eastman and Jeffrey Clark.

There Was No Crime Predicating the Durham Investigation

June 2, 2022/118 Comments/in 2016 Presidential Election, emptywheel, Mueller Probe /by emptywheel

Deep in a NYT piece that suggests but does not conclude that John Durham’s purpose is to feed conspiracy theories, Charlie Savage writes,

Mr. Barr’s mandate to Mr. Durham appears to have been to investigate a series of conspiracy theories.

That’s as close as any traditional media outlet has come to looking at the flimsy predication for Durham’s initial appointment.

Billy Barr, however, has never hidden his goal. In his memoir, he describes returning to government — with an understanding about the Russian investigation gleaned from the propaganda bubble of Fox News, not any firsthand access to the evidence — with a primary purpose of undermining the Russian investigation. He describes having to appoint Durham to investigate what he believed, again based off Fox propaganda, to be a bogus scandal.

I would soon make the difficult decision to go back into government in large part because I saw the way the President’s adversaries had enmeshed the Department of Justice in this phony scandal and were using it to hobble his administration. Once in office, it occupied much of my time for the first six months of my tenure. It was at the heart of my most controversial decisions. Even after dealing with the Mueller report, I still had to launch US Attorney John Durham’s investigation into the genesis of this bogus scandal.

In his shameless excuses for bypassing MLAT to grill foreigners about their role in the investigation, Barr describes “ha[ving] to run down” whether there was anything nefarious about the intelligence allies shared with the US — a rather glorified description for “chasing George Papadopoulos’ conspiracy theories around the globe.”

Durham’s investigation was up and running by the late spring. Pending IG Horowitz’s completion of his review of Crossfire Hurricane, I asked Durham to focus initially on any relevant activities by the CIA, NSA, or friendly foreign intelligence services. One of the more asinine aspects of media coverage about Durham’s investigation was all the heavy breathing during the summer as news seeped out that I had contacts with foreign governments on Durham’s behalf. Various journalists and commentators claimed this indicated that I was personally conducting the investigation and suggested there was something nefarious about my communicating with allied governments about Russiagate. [sic] This coverage was a good example of the kind of partisan nonsense that passes as journalism these days.

One of the questions that had to be run down was whether allied intelligence services had any role in Russiagate [sic] or had any relevant information. One question was whether US officials had asked foreign intelligence services to spy on Americans. Various theories of potential involvement by British, Australian, or Italian intelligence agencies had been raised over the preceding two years. Talking to our allies about these matters was an essential part of the investigation. It should not surprise anyone that a prosecutor cannot just show up on the door- step of a foreign intelligence agency and start asking questions. An introduction and explanation at more senior levels is required. So— gasp!—I contacted the relevant foreign ambassadors, who in turn put me in touch with an appropriate senior official in their country with authority to deal with such matters. These officials quite naturally wanted to hear from me directly about the contours of the investigation and how their information would be protected.

Much later, when Barr claimed that Durham would not lower DOJ standards just to obtain results, Barr again described an investigation launched to “try to get to the bottom of what happened” rather than investigate a potential crime.

I acknowledged that what had happened to President Trump in 2016 was abhorrent and should not happen again. I said that the Durham investigation was trying to get to the bottom of what happened but “cannot be, and it will not be, a tit-for-tat exercise.” I pledged that Durham would adhere to the department’s standards and would not lower them just to get results. I then added a point, meant to temper any expectation that the investigation would necessarily produce any further indictments:

[W]e have to bear in mind [what] the Supreme Court recently re- minded [us] in the “Bridgegate” case—there is a difference between an abuse of power and a federal crime. Not every abuse of power, no matter how outrageous, is necessarily a federal crime.

And then Durham lowered DOJ standards and charged two false statement cases for which he had (and has, in the case of Igor Danchenko) flimsy proof and for which, in the case of Michael Sussmann, he had not tested the defendant’s sworn explanation before charging. Durham further lowered DOJ standards by turning false statement cases into uncharged conspiracies he used to make wild unsubstantiated allegations about a broad network of others.

This entire three year process was launched with no evidence that a crime was committed, and it seems likely that only the Kevin Clinesmith prosecution, which DOJ Inspector General Michael Horowitz handed Durham months after he was appointed as a fait accompli and which could easily have been prosecuted by the DC US Attorney’s Office, provided an excuse to convene a grand jury to start digging in the coffers of Fusion GPS and Perkins Coie.

There was no crime. Durham was never investigating a suspected crime and then, as statutes of limitation started expiring, he hung a conspiracy theory on a claimed false statement for which he had no solid proof. Eight months into Durham repeating those conspiracy theories at every turn — conspiracy theories that Durham admitted would not amount to a crime in any case! — a jury told Durham he had inadequate proof a crime was committed and that the entire thing had been a waste of time and resources.

“The government had the job of proving beyond a reasonable doubt,” she said, declining to give her name. “We broke it down…as a jury. It didn’t pan out in the government’s favor.”

Asked if she thought the prosecution was worthwhile, the foreperson said: “Personally, I don’t think it should have been prosecuted because I think we have better time or resources to use or spend to other things that affect the nation as a whole than a possible lie to the FBI. We could spend that time more wisely.”

Compare that to the Russian investigation, which was started to figure out which Trump associate had advance knowledge of Russia’s criminal hack-and-leak operation and whether they had any criminal exposure in it. Here’s how Peter Strzok described it in his book:

[A]gents often don’t even know the subject of a counterintelligence investigation. They have a term for that: an unknown subject, or UNSUB, which they use when an activity is known but the specific person conducting that activity is not — for instance, when they are aware that Russia is working to undermine our electoral system in concert with a presidential campaign but don’t know exactly who at that campaign Russia might be coordinating with or how many people might be involved.

To understand the challenges of an UNSUB case, consider the following three hypothetical scenarios. In one, a Russian source tells his American handler that, while out drinking at an SVR reunion, he learned that a colleague had just been promoted after a breakthrough recruitment of an American intelligence officer in Bangkok. We don’t know the identity of the recruited American — he or she is an UNSUB. A second scenario: a man and a woman out for a morning run in Washington see a figure toss a package over the fence of the Russian embassy and speed off in a four-door maroon sedan. An UNSUB.

Or consider this third scenario: a young foreign policy adviser to an American presidential campaign boasts to one of our allies that the Russians have offered to help his candidate by releasing damaging information about that candidate’s chief political rival. Who actually received the offer of assistance from the Russians? An UNSUB.

[snip]

The FFG information about Papadopoulos presented us with a textbook UNSUB case. Who received the alleged offer of assistance from the Russians? Was it Papadopoulos? Perhaps, but not necessarily. We didn’t know about his contacts with Mifsud at the time — all we knew was that he had told the allied government that the Russians had dirt on Clinton and Obama and that they wanted to release it in a way that would help Trump.

The answer, by the way, was that at least two Trump associates had advance knowledge, George Papadopoulos and Roger Stone, and Stone shared his advance knowledge with Rick Gates, Paul Manafort, Steve Bannon, and Donald Trump, among others. By all appearances, DOJ was still investigating whether Stone had criminal exposure tied to his advance knowledge when Barr interfered in that investigation in February 2020, a fact that Barr hid until the day before the 2020 election.

With the Russian investigation, there was a crime: a hack by a hostile nation-state of a Presidential candidate, along with evidence that her opponent at least knew about the related leak campaign in advance. With the Durham investigation, there were only Fox News conspiracy theories and the certainty that Donald Trump shouldn’t be held accountable for encouraging Russia to hack his opponent.

The fact that this entire three year wild goose hunt was started without any predicating crime is all the more ridiculous given Durham’s repeated focus both on the predication of Crossfire Hurricane (in criticizing Horowitz’s report on Carter Page) and the Alfa Bank inquiry (during the Sussmann trial). John Durham, appointed to investigate conspiracy theories, deigns to lecture others about appropriate predication.

And that’s undoubtedly why, in the face of this humiliating result for Durham, Billy Barr is outright lying about what Durham’s uncharged conspiracy theories revealed about the predication of the Russian investigation.

Barr: I’m very proud of Durham and I do take responsibility for his appointment. pic.twitter.com/odKy2FaqKG

— Acyn (@Acyn) June 1, 2022

He and his team did an exceptionally able job, both digging out very important facts and presenting a compelling case to the jury. And the fact that he … well, he did not succeed in getting a conviction from the DC jury, I think he accomplished something far more important, which is he brought out the truth in two important areas. First, I think he crystalized the central role played by the Hillary campaign in launching — as a dirty trick — the whole RussiaGate [sic] collusion [sic] narrative and fanning the flames of it, and second, I think, he exposed really dreadful behavior by the supervisors in the FBI, the senior ranks of the FBI, who knowingly used this information to start an investigation of Trump and then duped their own agents by lying to them and refusing to tell them what the real source of that information was.

That’s not what the trial showed, of course. Every witness who was asked about the centrality of the Alfa Bank allegations responded that there were so many other ties between Trump and Russia that the Alfa Bank allegations didn’t much stick out. Here’s how Robby Mook described it in questioning by Michael Bosworth.

[I]t was one of many pieces of information we had. And, in fact, every day, you know, Donald Trump was saying things about Putin and saying things about Russia. So this was a constituent piece of information among many pieces of information, and I don’t think we saw it as this silver bullet that was going to conclude the campaign and, you know, determine the outcome, no.

Q. There were a lot of Trump/Russia issues you were focused on?

A. Correct.

Q. And this was one of many?

A. Correct.

In response to questioning by Sean Berkowitz, Marc Elias traced the increased focus on Russia to Trump’s own request for Russia to hack Hillary.

Q. Let’s take a look — let me ask a different question. At some point in the summer of 2016, did Candidate Trump make any statements publicly about the hack?

A. Yes.

Q. What do you recall him saying and when?

A. There was a publication of emails, of DNC emails, in the days leading up to the Democratic National Convention. And it was in my opinion at the time clearly an effort by Russia to ruin what is the one clean shot that candidates get to talk to the American public. Right? The networks give you free coverage for your convention. And in the days before the convention, there was a major leak. And rather than doing what any decent human being might do and condemn it, Donald Trump said: I hope Russia is listening and, if so, will find the 30,000 Hillary Clinton emails that he believed existed and release them. That’s what I remember.

Q. Did you feel the campaign was under attack, sir?

A. We absolutely were under attack.

Q. And in connection with that, were there suggestions or possibilities at least in your mind and in the campaign’s mind that there could be a connection between Russia and Trump?

A. Again, this is, you know — this was public — Donald Trump — you know, the Republican Party historically has been very anti-Russia. Ronald Reagan was like the most anti-communist, the most anti-Soviet Union president.

And all of a sudden you had this guy who becomes the nominee; and they change the Russian National Committee platform to become pro-Russian and he has all these kind things to say about Putin. And then he makes this statement.

And in the meantime, he has hired, you know, Paul Manafort, who is, you know, I think had some ties to — I don’t recall anymore, but it was some pro-Russia thing in Ukraine.

So yeah. I thought that there were — I thought it was plausible. I didn’t know, but I thought it was an unusual set of circumstances and I thought it was plausible that Donald Trump had relations with — through his company with Russia.

Democrats didn’t gin up the focus on Trump’s ties to Russia, Trump’s own begging for more hacking did.

The trial also showed that this wasn’t an investigation into Trump. Rather, it was opened as an investigation into Kirkland & Ellis client Alfa Bank, which FBI believed had ties to Russian intelligence.

The investigation even considered whether Alfa Bank was victimizing Trump Organization.

Barr is similarly lying about whether supervisors revealed the source(s) of this information and what it was.

The source for the allegations was not Hillary, but researchers. And the trial presented repeated testimony that David Dagon’s role as one source of the allegations being shared with investigative agents. That detail was not hidden, but agents nevertheless never interviewed Dagon.

And even the purported tie to the Democrats was not well hidden. Indeed, the trial evidence shows that the FBI believed the DNC to be the source of the allegations, and that detail leaked down to various agents — including the two cyber agents, Nate Batty and Scott Hellman, whose shoddy analysis encouraged all other agents to dismiss the allegations — via various means.

Andrew DeFilippis made great efforts (efforts that lowered DOJ standards) to claim differently, but the evidence that key investigators assumed this was a DNC tip was fairly strong.

Three years after launching an investigation into conspiracy theories, Barr is left lying, claiming he found the result he set out to find three years ago. But the evidence — and the jury’s verdict — proves him wrong.

For years, Durham has been seeking proof that the predication of the Russian investigation was faulty. The only crime he has proven in the interim is that his own investigation was predicated on Fox News conspiracy theories.