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The Full-Fitton: Trump’s Funny Math with the Federal Records Act

As I laid out here, you really don’t need to get further than the second paragraph of Trump’s response to DOJ’s bid for a stay on Judge Aileen Cannon’s injunction against using seized evidence of obstruction and Espionage Act violations to find evidence of a crime. In that paragraph, Trump confesses that the FBI did seize documents marked as classified — and therefore documents responsive to a May 11 subpoena — from Mar-a-Lago on August 8; that’s tantamount to a confession to obstruction.

I want to look at another funny thing he does, before I move to the subject of his gaslighting (whether these documents are genuinely classified or not, which is irrelevant to the crimes under investigation).

Trump is trying to stall the Espionage and obstruction investigation into him. But he’s also attempting to either claw back documents into his own possession, or to bottle them up at the Archives under separate legal challenges. As such, he’s adopting Tom Fitton’s argument — based on a very different set of Bill Clinton records that weren’t seized from his home via a lawful warrant but were instead FOIAed — that he designated many of these documents as personal records while still President, so they don’t even have to be in the Archives.

Critical to that argument is that documents are either Presidential Records or personal records, and the latter don’t have to be in the Archives, and so (he makes several huge logical jumps) they can’t be used in a criminal prosecution against him.

The PRA further distinguishes records as either Presidential or personal. 44 U.S.C. § 2201. Presidential records are defined as: documentary materials, or any reasonably segregable portion thereof, created or received by the President, the President’s immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise or assist the President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President. 44 U.S.C. § 2201(2).

The PRA expressly excludes personal records from the definition of Presidential records. See id. § 2201(2)(B). Personal records are defined as “documentary materials, or any reasonably segregable portion therof, [sic] of a purely private or nonpublic character which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.” Id. § 2201(3). The PRA thus “distinguishes Presidential records from ‘personal records’” and “requires that all materials produced or received by the President, ‘to the extent practicable, be categorized as Presidential records or personal records upon their creation or receipt and be filed separately.’” Jud. Watch, Inc. v. Nat’l Archives & Recs. Admin., 845 F. Supp. 2d 288, 291 (D.D.C. 2012) (quoting 44 U.S.C. § § 2203(b)). “The categorization of the records during the Presidency controls what happens next . . . . The statute assigns the Archivist no role with respect to personal records once the Presidency concludes.” Id. (emphasis added). “The PRA contains no provision obligating or even permitting the Archivist to assume control over records that the President ‘categorized’ and ‘filed separately’ as personal records. At the conclusion of the President’s term, the Archivist only ‘assumes responsibility for the Presidential records.” Id. (quoting 44 U.S.C. § 2203(f)(1)). “[T]he PRA does not confer any mandatory or even discretionary authority on the Archivist to classify records. Under the statute, this responsibility is left solely to the President.” Id. at 301 (describing categorization decision by former President Clinton as not within the discretion of the Archivist as the subject materials “were not provided to the Archives at” the end of the Clinton presidency).

Critically, the former President has sole discretion to classify a record as personal or Presidential. See Jud. Watch, Inc., 845 F. Supp. 2d at 301 (“Under the statute, this responsibility is left solely to the President.”). The power of the Archivist is not greater than that of the President. Specifically, the PRA states “the Archivist of the United States shall assume responsibility for the custody, control, and preservation of, and access to, the Presidential records of that President.” 44 U.S.C. § 2203(f)(1). This section should not be interpreted as weakening a President’s authority under the Act. See Jud. Watch, Inc., 845 F. Supp. 2d at 300 (“[T]he plain language of section 2203(f) of the PRA does not say . . . that the Archivist must assume custody and control of all materials that fall within the definition of Presidential records.”).

Accordingly, all of the records at issue in the Government’s motion fall into two categories: (1) Presidential records, governed exclusively by the Presidential Records Act; and (2) personal records, the determination of which was in President Trump’s discretion. See id. To the extent President Trump may have categorized certain of the seized materials as personal during his presidency, any disagreement as to that categorization is to be resolved under the PRA and cannot possibly form the basis for any criminal prosecution. [my emphasis]

He’s not wrong about the Presidential Records Act reserving personal records. The category of personal records might even exempt documents pertaining to his coup attempt from storage at the Archives (though if Trump had made that designation, then he could not exempt them from subpoena under a claim of Executive Privilege, nor could he later claim those records memorialized his official acts).

(3) The term “personal records” means all documentary materials, or any reasonably segregable portion therof,2 of a purely private or nonpublic character which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President. Such term includes—

(A) diaries, journals, or other personal notes serving as the functional equivalent of a diary or journal which are not prepared or utilized for, or circulated or communicated in the course of, transacting Government business;

(B) materials relating to private political associations, and having no relation to or direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President; and

(C) materials relating exclusively to the President’s own election to the office of the Presidency; and materials directly relating to the election of a particular individual or individuals to Federal, State, or local office, which have no relation to or direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President.

If these documents hadn’t been seized via a lawful warrant authorizing the seizure of everything stored with documents bearing classification marks, the government might have a tough fight to get them.

This is also the reason why Trump wants the Archivist excluded from any Special Master proceeding — so Trump can persuade someone, in secret, that he actually designated such records personal and such a claim would stand up under the PRA, without leaving a record for such time as FBI subpoenaed the very same documents as personal documents.

But Trump chose to hoard classified records and as a result, the FBI was forced to get a warrant and seize records more broadly.

Still, as far as it goes, the Fitton argument is that everything is either a Presidential Record or a personal record, and the latter don’t belong in the Archives, and that should trump (heh) their seizure with a lawful warrant that authorized the seizure of everything stored with or in the same place as documents marked as classified.

Except in the paragraph immediately before the Fitton argument, Trump concedes that’s not right. Before you split things into Presidential and personal records, you need to split them into Presidential and Federal Records.

All government records (classified or otherwise) fall into two basic categories, either under the PRA or the Federal Records Act (“FRA”). “The FRA defines a class of materials that are federal records subject to its provisions, and the PRA describes another, mutually exclusive set of materials that are subject to a different, less rigorous regime. In other words, no individual record can be subject to both statutes because their provisions are inconsistent.” Armstrong v. Exec. Office of the President, 1 F. 3d 1274, 1293 (D.C. Cir. 1993).

That is, he admits his two-category sorting is false.

And then he just drops the FRA, never to mention it again.

Even setting aside the example of Mike Ellis — who on January 8, 2021, was discovered to have brought a compartmented NSA document to the White House and, at first, “refused to return the document, retained it for the White House archives, and, based on what the NSA employee saw, placed the document in a container that did not meet the security storage requirements for such a sensitive program” — there would be a number of other documents, classified and not, that were brought to the White House but which remained agency records. Another category of agency documents, for example, are those pertaining to the Russian investigation, which should never have been at the White House in the first place, but which Trump wants to own for all time by simultaneously claiming he declassified and then made personal records of them.

None of those records would fit into Trump’s neat binary.

So he just ignores that and goes full-Fitton and hopes Aileen Cannon will ignore that bit.

Go to emptywheel resource page on Trump Espionage Investigation.

Did Kash Patel Already Confess to Illegally Disseminating Carter Page FISA Information?

August 27, 2022/100 Comments/in 2020 Presidential Election, emptywheel, FISA, Leak Investigations /by emptywheel

I’m pretty proud of how closely my two posts (first, second) predicted what the likely and known contents of the Trump affidavit would be. I pretty accurately described the structure, the contents, and many of the known details of what we’ve seen of the application so far.

That’s especially true of the statutory section. I not only predicted that — “Particularly given the novel legal issues implicating a search of the former President” — there would be a substantial statutory background section, but that, “If there’s a version of this statutory language, it may be among the things DOJ would acquiesce to releasing.”

Which they did.

And, to a significant extent, I predicted what would be in that statutory section. Here is that section of my post, with the paragraphs of the Trump affidavit where that language appears in bold and linked.

The statutory language, basically a cut-and-paste describing the elements of the offense of each of the three statutes. ¶8, ¶20, ¶21
Language about classification, including separate paragraphs describing Confidential, Secret, Top Secret. [Here’s a version in Reality Winner’s search warrant.] ¶9-10, ¶17
Language about the special categories of Secure Compartmented Information, Special Access Programs, and (if they were really searching for documents pertaining to nuclear weapons) Restricted Data under the Atomic Energy Act ¶11-16
Language about 32 CFR sections 2001 and 2003, which cover the storage of classified information, with specific reference to the standards for locks and storage containers. ¶19
A description of the Presidential Records Act and Federal Records Act. ¶22, 23
A description of what qualifies as a Presidential Record and what qualifies as a Federal Record.

Everything I expected to be in there, was in there. The details I didn’t anticipate, though, are pretty noteworthy.

That’s particularly true of the section describing special designations. These designations all stem from what the FBI found in the 15 boxes Trump returned in January.

From May 16-18, 2022, FBI agents conducted a preliminary review of the FIFTEEN BOXES provided to NARA and identified documents with classification markings in fourteen of the FIFTEEN BOXES. A preliminary triage of the documents with classification markings revealed the following approximate numbers: 184 unique documents bearing classification markings, including 67 documents marked as CONFIDENTIAL, 92 documents marked as SECRET, and 25 documents marked as TOP SECRET. Further, the FBI agents observed markings reflecting the following compartments/dissemination controls: HCS, FISA, ORCON, NOFORN, and SI. Based on my training and experience, I know that documents classified at these levels typically contain NDI. Several of the documents also contained what appears to be FPOTUS ‘s handwritten notes.

If the FBI found a document of a particular type in May, it included that designation in this statutory section.

The Atomic Energy Act was not included, which means (as some knowledgable people predicted in advance), if Trump had nuke documents, they’re not about our nukes, they’re about someone else’s. Trump’s affidavit also includes a description of HCS and SI, Human and Signals Intelligence, designations which have appropriately sobered the response of at least some Republicans, because they mean Trump could get someone killed.

The mention of ORCON — Originator Controlled material — would mostly matter if the FBI found that one of NSA documents that Mike Ellis was sharing with unauthorized people and places during the period Trump was packing up were among the things in the boxes. Those documents were both described as relating to (a or some), “controlled, compartmented NSA program,” in the Inspector General Report on Ellis and the designation ORCON would matter more if documents were retained after the Originator made a sustained effort to get them back, as NSA did in this case.

It’s the mention of FISA, though, that I should have anticipated, and which could present heightened legal problems for Trump — and Kash Patel, and others.

14. Foreign Intelligence Surveillance Act, or “FISA,” is a dissemination control designed to protect intelligence information derived from the collection of information authorized under the Foreign Intelligence Surveillance Act by the Foreign Intelligence Surveillance Court, or “FISC.”

That’s because both Kash and John Solomon have been attempting to create an alibi for information that may include the final Carter Page application. And, as that preliminary review determined, there was at least one FISA document in the boxes returned in January.

On top of any violations of the Espionage Act, if Trump took a copy of that with him after he was fired, it might constitute unlawful dissemination under FISA.

Between them, Kash and Solomon — whom Trump made his representatives to NARA on June 19 — have described that materials relating to the Russian investigation were among those NARA found in the returned boxes and that they might include a Carter Page FISA warrant (which I assume must mean the application).

There’s the May 5 column in which Kash claimed that everything that had been returned in the 15 boxes had been declassified.

“Trump declassified whole sets of materials in anticipation of leaving government that he thought the American public should have the right to read themselves,” Patel told Breitbart News in a phone interview.

“The White House counsel failed to generate the paperwork to change the classification markings, but that doesn’t mean the information wasn’t declassified,” Patel said. “I was there with President Trump when he said ‘We are declassifying this information.’”

In that column, Kash exhibited knowledge that the materials included documents from “Russiagate” [sic] and Impeachment 1.0.

“It’s information that Trump felt spoke to matters regarding everything from Russiagate to the Ukraine impeachment fiasco to major national security matters of great public importance — anything the president felt the American people had a right to know is in there and more.”

That’s the column cited in the Trump affidavit — though there’s at least one sentence of that paragraph that remains redacted.

I am aware of an article published in Breitbart on May 5, 2022, available at https://www.breitbart.com/politicsi2022i05/05/documents-mar-a-lago-marked-classified-wereah-eadv-declassifi.ed-kash-patel-savs/, which states that Kash Patel, who is described as a former top FPOTUS administration official, characterized as ”misleading” reports in other news organizations that NARA had found classified materials among records that FPOTUS provided to NARA from Mar-a-Lago. Patel alleged that such reports were misleading because FPOTUS had declassified the materials at issue. [redacted]

Kash has issued a statement complaining, even though he had no complaint when information about Michael Isikoff was unsealed in the Carter Page FISA application for a similar published statement.

More interesting still, on July 20, John Solomon (who did a podcast on January 14, 2021 bragging of detailed knowledge of what Russian investigation materials would be released in the coming days) described having newly obtained a January 20, 2021 Mark Meadows memo to DOJ instructing them to declassify documents from the Russian investigation.

Even though the Meadows memo cites from Trump’s own January 19, 2021 order stating that the declassification, “does not extend to materials that must be protected from disclosure pursuant to orders of the Foreign Intelligence Surveillance Court,” Solomon described that the declassified information did include both transcripts of “intercepts made by the FBI of Trump aides,” (which may have included the intercepts of Mike Flynn obtained by targeting Sergey Kislyak which, because the intercepts took place in the US, may have been conducted under FISA) and “a declassified copy of the final FISA warrant approved by an intelligence court.”

The declassified documents included transcripts of intercepts made by the FBI of Trump aides, a declassified copy of the final FISA warrant approved by an intelligence court, and the tasking orders and debriefings of the two main confidential human sources, Christopher Steele and Stefan Halper, the bureau used to investigate whether Trump had colluded with Russia to steal the 2016 election.

In the end, multiple investigations found there was no such collusion and that the FBI violated rules and misled the FISA court in an effort to keep the probe going.

The documents that Trump declassified never saw the light of day, even though they were lawfully declassified by Trump and the DOJ was instructed by the president though Meadows to expeditiously release them after redacting private information as necessary. [my emphasis]

Curiously, the PDF of the Mark Meadows memo Solomon linked (my link) — which includes a staple mark and other oddities for an original document preserved by NARA — shows a September 27, 2021 creation date, with a modification date just days after Trump designated Solomon as his representative at NARA. (h/t @z3dster for the observation)

Back to Solomon’s implication that the documents in question — documents that Kash had suggested were among those boxed and sent back to NARA — included the final Carter Page warrant.

If the former President’s stash included an unredacted copy of the final FISA application targeting Carter Page, it could mean additional trouble for him and anyone else involved.

Even a Kislyak intercept would, because it would impact Mike Flynn’s privacy.

Similarly, even if, after three years of effort led largely by Kash Patel, an Inspector General hadn’t deemed the Carter Page FISA applications problematic, Trump took the Carter Page warrant application home after he left office, it would be an egregious violation of FISA’s minimization procedures, which strictly limit how such material can be disseminated. A disgruntled former government’s employee’s desire to spread propaganda about his tenure is not among the approved dissemination purposes.

But Carter Page, almost uniquely of any American surveilled under FISA, has special protections against such things happening.

That’s because in the wake of the IG Report on Carter Page, and in the wake of Bill Barr’s DOJ withdrawing its claim of probable cause for the last two Page warrants, James Boasberg required the government to ensure that materials for which there might not have been probable cause were no longer disseminated. In issuing that order, Boasberg cited 50 USC 1809(a)(2), the part of FISA that makes it a crime, punishable by a five year sentence, to disseminate improperly collected material from a targeted person. As a result, in June 2020, Boasberg issued an order sequestering the material collected from the Carter Page FISA except for five designated purposes.

Indulging the former President’s tantrum is not one of those five purposes.

And Trump and Kash, especially, have reason to know about this sequester. That’s because in October 2020 — at a time when Kash was still babysitting John Ratcliffe at DNI — DOJ violated the sequester by sharing information on Page with the Jeffrey Jensen and John Durham inquiries. As far as we know, that violation of the sequester order didn’t result in surveillance records on Carter Page being stored in a poorly secured storage closet in a resort hotel, but it still involved a hearing before the FISC and a public scolding.

If there’s an unredacted copy of the Page application, it would mean sections like this and this would be unsealed. There’s even a description of the emails that Page sent to the campaign bragging about his access to top Russian officials that, because of how it came to be in the application, would be subject to Boasberg’s sequestration order. There might even be contacts that Page had with Steve Bannon, whose privacy would also be implicated. Disseminating any of that stuff in unredacted form is, by itself, a crime, one the FISC has warned Trump and Kash’s bosses about repeatedly.

In his January 2021 podcast, Solomon claimed that the material Trump wanted to release would prove he was spied on. To show that from materials relating to Carter Page would require sharing information specifically covered by the sequestration order. Shipping that from the White House to Mar-a-Lago would be a crime. Sharing it from there would definitely be a crime. And any authorization would have to involve the FISA Court. No President — not Trump and not Biden — can lawfully ignore that order.

Since at least May, both Kash and Solomon seem frantic to help Trump develop a cover story. And their frantic efforts seem to explicitly include materials pertaining to Carter Page.

And that’s why the confirmation that Trump had FISA materials in his stolen boxes could present additional headaches for the former President and his flunkies.

Some Likely Exacerbating Factors that Would Contribute to a Trump Search

August 9, 2022/205 Comments/in 2020 Presidential Election, Foreign Influence, Impeachment /by emptywheel

From the start of the reporting on Trump’s theft of classified documents, commentators have suggested that Trump was only under investigation for violations of the Presidential Records Act or 18 USC 2071.

Reports that in June, one of the four people who met with Trump’s lawyers on this issue was Jay Bratt, head of Counterintelligence & Export Control Section at DOJ, which investigates Espionage, makes it highly unlikely that those are the only things under investigation.

In early June, a handful of investigators made a rare visit to the property seeking more information about potentially classified material from Trump’s time in the White House that had been taken to Florida. The four investigators, including Jay Bratt, the chief of the counterintelligence and export control section at the Justice Department, sat down with two of Trump’s attorneys, Bobb and Evan Corcoran, according to a source present for the meeting.

At the beginning of the meeting, Trump stopped by and greeted the investigators near a dining room. After he left, without answering any questions, the investigators asked the attorneys if they could see where Trump was storing the documents. The attorneys took the investigators to the basement room where the boxes of materials were being stored, and the investigators looked around the room before eventually leaving, according to the source.

Even 18 USC 1924, which prohibits unlawfully taking classified information, would involve complications if the person who stole the materials were the former President. Admittedly, the fact that DOJ had an in-person meeting with Trump before conducting a search might mitigate those complications; Trump may be refusing to return documents rather than just not turning them over.

Still, it’s possible — likely even — that there are exacerbating factors that led DOJ to search Mar-a-Lago rather than just (as they did with Peter Navarro) suing to get the documents back.

Remember, this process started when the Archives came looking for things they knew must exist. Since then, they’ve had cause to look for known or expected Trump records in (at least) the January 6 investigation, the Tom Barrack prosecution, and the Peter Strzok lawsuit. The investigation into Rudy Giuliani’s influence peddling is another that might obviously lead to a search of Trump’s presidential records, not least because the Archives would know to look for things pertaining to Trump’s impeachments.

With that as background, Trump would be apt to take classified documents pertaining to the following topics:

The transcript of the “perfect phone call” with Volodymyr Zelenskyy and other documents pertaining to his first impeachment
Notes on his meetings with other foreign leaders, especially Vladimir Putin and Saudi royals, including Trump’s July 16, 2018 meeting with Putin in Helsinki
Information surrounding the Jamal Khashoggi execution (and other materials that make Jared Kushner’s current ties to Mohammed bin Salman suspect)
Policy discussions surrounding Qatar, which tie to other influence peddling investigations (for which Barrack asked specifically)
Intelligence reports on Russian influence operations
Details pertaining to security efforts in the lead-up to and during January 6
Intelligence reports adjacent to Trump’s false claims of election fraud (for example, pertaining to Venezuelan spying)
Highly sensitive NSA documents pertaining to a specific foreign country that Mike Ellis was trying to hoard as boxes were being packed in January 2021

For many if not most of these documents, if Trump were refusing to turn them over, it might amount to obstruction of known investigations or prosecutions — Barrack’s, Rudy’s, or Trump’s own, among others. Thus, refusing to turn them over, by itself, might constitute an additional crime, particularly if the stolen documents were particularly damning.

One more point about timing: An early CNN report on these stolen documents describes that a Deputy White House Counsel who had represented Trump in his first impeachment was liaising with the Archives on this point.

Longtime Archives lawyer Gary Stern first reached out to a person from the White House counsel’s office who had been designated as the President Records Act point of contact about the record-keeping issue, hoping to locate the missing items and initiate their swift transfer back to NARA, said multiple sources familiar with the matter. The person had served as one of Trump’s impeachment defense attorneys months earlier and, as deputy counsel, was among the White House officials typically involved in ensuring records were properly preserved during the transfer of power and Trump’s departure from office.

By description, this is likely either John Eisenberg (who hid the full transcript of the perfect phone call but who was not obviously involved in Trump’s first impeachment defense) or Pat Philbin (who was the titular Deputy White House Counsel and was overtly involved in that defense). If it’s the latter, then Philbin recently got a DOJ subpoena, albeit reportedly in conjunction with January 6. If so, DOJ might have recent testimony about documents that Trump was knowingly withholding from the Archives.

While Trump Was Secretly Loading Up Documents, Mike Ellis Was Hoarding an NSA Document at the White House

February 11, 2022/86 Comments/in 2020 Presidential Election, Leak Investigations /by emptywheel

The WaPo continues to own the story of the Archives’ efforts to reclaim documents removed from the White House by Donald Trump. Yesterday, they reported that some of the documents Trump absconded with were marked as classified, including Top Secret.

Some of the White House documents that Donald Trump improperly took to his Mar-a-Lago residence were clearly marked as classified, including documents at the “top secret” level, according to two people familiar with the matter.

The existence of clearly marked classified documents in the trove — which has not previously been reported — is likely to intensify the legal pressure that Trump or his staffers could face, and raises new questions about why the materials were taken out of the White House.

While it was unclear how many classified documents were among those received by the National Archives and Records Administration, some bore markings that the information was extremely sensitive and would be limited to a small group of officials with authority to view such highly classified information, the two people familiar with the matter said.

But the more interesting part of WaPo’s latest is a description of Trump packing up boxes without letting his closest aides look at them (I take this to mean the repacking at Mar-a-Lago).

It is not precisely clear who packed up the classified materials at Mar-a-Lago, or how they got there in the first place. Trump was very secretive about the packing of boxes that were retrieved from Mar-a-Lago last month, and did not let other aides — including some of his most senior advisers — look at them, according to people close to him.

As this story has been snowballing, I can’t get a detail from the IG Report on White House Counsel Mike Ellis’ aborted hiring as NSA General Counsel out of my head.

The DOD IG found that Ellis’ hiring itself wasn’t a problem. But it also found that NSA Director Paul Nakasone correctly responded by holding up the process when Ellis was involved in two security incidents in the days after January 6. In both cases, Ellis was treating NSA information improperly.

First Security Incident

An NSA employee received a controlled, classified NSA notebook of documents on January 7, 2021, from a Department of State official who was not authorized to access that information. An initial NSA review further found that several copies of the notebook had been produced without NSA authorization. This event raised concerns that other individuals possessed copies of these sensitive materials without NSA authorization.

[NSA Deputy Director George] Barnes told us that “[they] were spending the last week or so of the administration trying to find out who had them, where they were, and trying to get them back into positive control before the administration members left.” NSA officials received information on January 13, 2021, that Mr. Ellis either created or directed the copying of these notebooks of documents with compartmented, classified information without NSA knowledge, consent, or control.

Second Security Incident

On January 8, 2021, an NSA employee tried to retrieve an NSA document from Mr. Ellis that contained information of a classified, controlled, compartmented NSA program “of some of the most sensitive information that NSA possesses.” Mr. Barnes told us that Mr. Ellis refused to return the document, retained it for the White House archives, and, based on what the NSA employee saw, placed the document in a container that did not meet the security storage requirements for such a sensitive program. Mr. Barnes told us that he contacted Mr. Eisenberg on January 9, 2021, for help obtaining the document, and the document was returned to the NSA on January 14, 2021. Mr. Barnes said, “The White House people were all leaving so every day new members were leaving and so we were prioritizing on identifying our documents that needed to be brought under positive control and accounted for.” [italicized brackets and bold mine]

When Nakasone was asked about this by the IG, he explained that the intelligence deals with a particular foreign actor.

I learned … that we had questions about the way that Mr. Ellis had handled our most sensitive intelligence that deals with a foreign actor when he was in the White House. … and I’m not able to get the actual full details until that Tuesday [January 19]. … I’m … growing concerned… I have an OGC that I’ve said is okay to be hired, now we have concerns about his clearance. We have concerns about merit. We have concerns about an ongoing inquiry by the DoD IG. And so, my sense was … let’s get this all resolved… before he actually becomes the General Counsel for the National Security Agency. [emphasis mine]

So at precisely the time when Trump was packing up documents to take with him, in the wake of his failed coup attempt, Mike Ellis was refusing to return an NSA document from the White House.

And the NSA’s concerns, even then, pertained to the possibility that White House staffers would move on and these documents would disappear.

Update: TF reminded me that in December 2020 (so during the period when Ellis’ nomination was pending), Mike Flynn and friends came up with a scheme to use NSA data to try to prove foreign interference in the election, one that Mike Lindell was trying to implement in January.

The memo used the banal language of government bureaucracy, but the proposal it advocated was extreme: President Donald Trump should invoke the extraordinary powers of the National Security Agency and Defense Department to sift through raw electronic communications in an attempt to show that foreign powers had intervened in the 2020 election to help Joe Biden win.

Proof of foreign interference would “support next steps to defend the Constitution in a manner superior to current civilian-only judicial remedies,” argued the Dec. 18, 2020, memo, which was circulated among Trump allies.

The document, a copy of which was obtained by The Washington Post, laid out a plan for the president to appoint three men to lead this effort. One was a lawyer attached to a military intelligence unit; another was a veteran of the military who had been let go from his National Security Council job after claiming that Trump was under attack by deep-state forces including “globalists” and “Islamists.”

[snip]

[North Dakota Senator Kevin] Cramer said Del Rosso sent the memo to his office after a Jan. 4 meeting that both men attended at the Trump International Hotel, which was organized by MyPillow chief executive Mike Lindell, a prominent backer of Trump’s bogus election fraud claims.

Cramer and Sen. Cynthia M. Lummis (R-Wyo.) joined some two dozen others crammed into a ground-floor hotel conference room to discuss election fraud allegations, according to Cramer and an aide to Lummis. Participants recalled that Johnson also attended, via videoconference. The details of the meeting, which took place two days before the attack on the U.S. Capitol, have not been previously reported. The meeting was similar to a briefing held in a congressional office building the next day for members of the House.

Michael Flynn, who resigned in 2017 as Trump’s national security adviser and had advocated using the military to “rerun” the election in battleground states, also extended an invitation to at least one senator and his staff, according to a person familiar with the meeting. Flynn did not respond to requests for comment.

Paul Nakasone’s Concerns about Mike Ellis Hiring Vindicated

October 22, 2021/18 Comments/in 2020 Presidential Election, emptywheel, Leak Investigations /by emptywheel

DOD Inspector General released a report yesterday finding there was no evidence of impropriety in the hiring of Michael Ellis as General Counsel, but also suggesting that NSA Director Paul Nakasone was vindicated in his concerns about Ellis’ hiring. DOD IG made those conclusions without succeeding in getting Pat Cipollone — who might know a back story to Ellis’ hiring — to sit for an interview about his role in the process.

The hiring process

As the report lays out, Ellis was one of 29 candidates who were deemed qualified for the position to apply in early 2020. An initial vetting process did not work as one of the participants said it had in the past, partly because of how the panel considered the technical requirements, partly because they did not conduct interviews. But by all accounts Ellis was deemed one of the top seven candidates, and so qualified for the position.

In the next round, just three people were reviewed, including Ellis. Several of the three panel members deemed a different candidate to have had an exceptionally good interview, but all agreed Ellis did quite well and that it was a close decision.

After that DOD General Counsel Paul Ney, who had selection authority, chose Ellis. When asked why he preferred Ellis, he cited Ellis’ more extensive Intelligence Community experience and his experience both on the Hill (where he wrote dodgy reports for Devin Nunes) and in the White House (where he ran interference for Trump), though there’s no evidence Ney understood Ellis’ role on those bodies. Ney told DOD IG that he had several calls with John Eisenberg and one with Pat Cipollone where the lawyers spoke favorably of Ellis during the hiring process, but he did not regard those as being an attempt to pressure him.

The law requires that the NSA Director be consulted in this process. After the decision was made, Nakasone conducted interviews and decided that the same candidate who had had the exceptionally good interview would best manage the 100-person General Counsel department at the NSA. He also shared concerns with Ney about the way that Ellis had done the classification review of John Bolton’s book (probably reflecting that Ellis was pursuing a political objective on that front). Nevertheless, Ney picked Ellis, and after the election, his hiring was announced.

As the transition wore on and Congress got involved, Nakasone raised concerns about whether the Office of Personnel Management had done an adequate review of the hiring of a political appointee. The review is not required (the IG Report recommended that it be required going forward), and was not used with Obama’s General Counsels Raj De and Glenn Gerstell either. On January 15, Nakasone attempted to stall the on-boarding process, citing the OPM review and concerns from Congress. But then Ney got Christopher Miller to order Nakasone to hire Ellis by the end of the following day, which Nakasone did.

After that (but before the inauguration), Nakasone learned of two security incidents involving Ellis, and based on that and the ongoing IG investigation, put the newly hired General Counsel on leave.

The Eisenberg and Cipollone calls

The IG Report considered whether in calls from John Eisenberg and Pat Cipollone, they inappropriately influenced Ney. It credibly shows they did not. That’s true, first of all, because the IG Report makes it clear that Ney had regular interactions with Eisenberg, Ellis, and Cipollone. Ellis’ bosses at the White House wouldn’t have needed to push him — he was a known figure to Ney.

Eisenberg’s positive comments were credibly described as a supervisor expressing positive comments about someone.

When we asked Mr. Eisenberg about the rationale for his comments to Mr. Ney, he told us,“I would not have been happy with myself if somebody who … works so hard for me, that I … couldn’t be bothered to basically give a recommendation before somebody makes a decision.” Mr. Eisenberg told us, “[T]here’s nothing inappropriate about … somebody from the White House in an appropriate context, providing an evaluation of their employee.”

The IG Report doesn’t describe (and it would be beyond its scope) that Eisenberg played a central role in some key cover-ups for Trump, the most notable of which was Trump’s attempt to coerce election assistance from Ukraine. Ellis was a part of those cover-ups (indeed, that’s arguably what the Bolton classification review was). Eisenberg also played a key role, way back in 2008, in withholding information from FISC for the first programmatic review of PRISM.

That is, a recommendation from Eisenberg is a recommendation from someone who did questionable things to protect the President, often with Ellis’ help. John Eisenberg is a very credible, experienced national security lawyer. He’s also someone who helped Trump undermine democracy.

Still, the IG Report credibly describes this as the normal kind of comment that a supervisor would make. It’s only important given who the supervisor was and what the supervisor had asked Ellis to do in the past.

I’m rather interested, however, that Cipollone blew off DOD IG’s request for information.

Shortly after interviewing Mr. Ney on March 15, 2021, we attempted to contact Mr. Cipollone. He did not respond; however, his assistant responded on July 12, 2021, and we asked to interview Mr. Cipollone. Neither Mr. Cipollone nor his assistant provided any response to our request. Based on the witness testimony and documents we reviewed, we determined that Mr. Cipollone likely did not have any additional information different from what we obtained from other sources, and we decided, therefore, not to further delay our review waiting for a response from Mr. Cipollone or his assistant.

Cipollone had no legal obligation to cooperate, and DOD IG had no legal means to coerce him to do so. But he’s also the kind of person who would know better than to get himself in an interview where he might have to reveal other pertinent details. For whatever reason, he just blew off the request.

In the days after January 6, Ellis was discovered to have two security violations

After determining, credibly, that Ellis was legally hired, DOD IG then considered whether Ellis was legally put on leave as soon as he was hired. The analysis involves the discovery of two security violations on January 7 and January 8, as laid out in this table.

In the first incident, NSA discovered that Ellis had put together and shared notebooks of documents of “compartmented, classified [NSA] information” without NSA knowledge or consent.

An NSA employee received a controlled, classified NSA notebook of documents on January 7, 2021, from a Department of State official who was not authorized to access that information. An initial NSA review further found that several copies of the notebook had been produced without NSA authorization. This event raised concerns that other individuals possessed copies of these sensitive materials without NSA authorization.

[NSA Deputy Director George] Barnes told us that “[they] were spending the last week or so of the administration trying to find out who had them, where they were, and trying to get them back into positive control before the administration members left.” NSA officials received information on January 13, 2021, that Mr. Ellis either created or directed the copying of these notebooks of documents with compartmented, classified information without NSA knowledge, consent, or control.

In the second, more alarming instance, two days after Trump’s coup attempt, an NSA employee tried to retrieve “some of the most sensitive information that NSA possesses” from Ellis, only to discover he was storing it with inadequate security and refusing to return it. (After DDIRNSA Barnes asked for help from Eisenberg, NSA got the information back.)

On January 8, 2021, an NSA employee tried to retrieve an NSA document from Mr. Ellis that contained information of a classified, controlled, compartmented NSA program “of some of the most sensitive information that NSA possesses.” Mr. Barnes told us that Mr. Ellis refused to return the document, retained it for the White House archives, and, based on what the NSA employee saw, placed the document in a container that did not meet the security storage requirements for such a sensitive program. Mr. Barnes told us that he contacted Mr. Eisenberg on January 9, 2021, for help obtaining the document, and the document was returned to the NSA on January 14, 2021. Mr. Barnes said, “The White House people were all leaving so every day new members were leaving and so we were prioritizing on identifying our documents that needed to be brought under positive control and accounted for.” Mr. Barnes added:

And then we started to get the pressure on the 15th is when Acting SecDef ordered us to issue a job offer to him. And so, in that intervening several days, all’s we knew his [sic]is we have a problem, we have to investigate the nature of how these documents were handled, distributed outside of our purview and control. And so that was—the flares were up but we didn’t have time to actually do anything yet and Mr. Ellis was not our employee so we didn’t have a chance to contact him yet for questioning for anything. We had to get security involved to do it right whenever we do an investigation because we didn’t know if there was a disconnect or an understanding that so these were just—the flares went up on the 7th and the 8th.

Effectively, at a time when NSA was trying to ensure that outgoing Trump officials didn’t walk out with NSA’s crown jewels, they learned that Ellis wanted to keep the crown jewels on White House servers.

Importantly, two aspects of these violations repeat earlier concerns about Ellis’ tenure: He shared information with people (like Nunes) not authorized to have it, and that he and Eisenberg played games with White House servers to avoid accountability. And while it’s not clear why Ellis was violating NSA’s security rules, it does seem of a part of his efforts to politicize classification with the John Bolton review.

DOD IG found that it was not proper to put Ellis on leave based on the then-ongoing IG investigation. But it did find Nakasone’s decision to put Ellis on leave was proper based on Nakasone having control over Ellis’ clearance.

The investigation into Ellis’ security violations appears to have ended when he resigned in April. The IG Report includes a recommendation that it be reconsidered.

The Office of the Undersecretary of Defense for Intelligence and Security should review the allegation and supporting material that Mr. Ellis improperly handled classified information on two occasions to determine what, if any, further actions the NSA or another agency should take regarding this allegation.

It’s possible, though, that this investigation didn’t go further for a different reason. That’s because the President is ultimately the Original Classification Authority for the entire US government. If Ellis was distributing these notebooks and withholding the NSA crown jewels based on Trump’s authorization, it wouldn’t be a violation at all.

That said, that seems reason enough to chase down why he did those things.

The DOD Flunkies’ Convenient Lapse of Executive Privilege

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1326: USCP orders evacuation of Capitol complex.

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

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

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

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

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

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

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

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

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

But the whole story reads like a fairy tale.

Palace Intrigue: Trump Prepares His Consolation Prize for Vladimir Putin

November 11, 2020/137 Comments/in 2016 Presidential Election, 2020 Presidential Election, Mueller Probe /by emptywheel

In the last two days, Trump has prepared a coup of sorts. First, he fired Mike Esper and replaced him with Christopher Miller; several of Esper’s top deputies went with him. Then, Trump installed three different Devin Nunes flunkies at several places in the DOD bureaucracy:

Mike Ellis — the guy who hid the Ukraine transcript and one source for the unmasking hoax — to NSA as General Counsel
Ezra Cohen-Watnick — a key Mike Flynn loyalist and another source for the unmasking hoax — to DOD Undersecretary of Intelligence
Kash Patel — who ensured that no HPSCI Republicans got sound intelligence during their Russian investigation, then pretended to be a Ukraine expert during impeachment, and then served to conduct a purge in the Office of Director of National Intelligence — to DOD Chief of Staff

To be clear, unlike these others, Christopher Miller, the Acting Secretary of Defense, reportedly does care about US security, even if he’s several ranks too junior for the job and got appointed over a Senate confirmed Deputy.

But the Nunes flunkies are there, serving as gate-keepers for the hoaxes favored by Trump and Nunes, as they have done so successfully throughout Trump’s term.

Spook-whisperer David Ignatius reports that these changes come amidst a sustained debate about what to do with a piece of likely Russian disinformation that — Trump and feeble-minded partisans like Lindsey Graham believe — will prove that Russia didn’t prefer Trump over Hillary.

President Trump’s senior military and intelligence officials have been warning him strongly against declassifying information about Russia that his advisers say would compromise sensitive collection methods and anger key allies.

An intense battle over this issue has raged within the administration in the days before and after the Nov. 3 presidential election. Trump and his allies want the information public because they believe it would rebut claims that Russian President Vladimir Putin supported Trump in 2016. That may sound like ancient history, but for Trump it remains ground zero — the moment when his political problems began.

CIA Director Gina Haspel last month argued strongly at a White House meeting against disclosing the information, because she believed that doing so would violate her pledge to protect sources and methods, a senior congressional source said. This official said a bipartisan group of Republican and Democratic senators has been trying to protect Haspel, though some fear that Trump may yet oust her.

Rumors have been flying this week about Haspel’s tenure, but a source familiar with her standing as CIA director said Tuesday that national security adviser Robert C. O’Brien and White House Chief of Staff Mark Meadows had both “assured her that she’s good,” meaning she wouldn’t be removed. Haspel also met personally with Senate Majority Leader Mitch McConnell (R-Ky.) Tuesday. She sees him regularly as a member of the “Gang of Eight” senior congressional leaders. But Tuesday’s visit was another sign of GOP support.

Haspel’s most unlikely defender has been Attorney General William P. Barr, who opposed a pre-election push to declassify the sensitive material, according to three current and former officials. At a showdown meeting at the White House, Barr pushed back against revealing the secret information.

Gen. Paul Nakasone, who heads U.S. Cyber Command and the National Security Agency, has also argued vehemently against disclosure, according to a senior defense official and the senior congressional source. Like Haspel, Nakasone took the unusual step of directly opposing White House efforts to release the intelligence, because he feared the damage that disclosure would cause.

With the new changes, General Nakasone reports through Cohen-Watnick and Patel and will have to rely on the legal “advice” of Ellis. So not only does this move put more senior votes in favor of declassifying this intelligence, but it puts them in places where Nakasone might be forced to accede to these demands.

Reporting suggests that Trump is seeking to make the full intelligence behind the reports described here available. Fundamentally, the intelligence shows that the US government obtained a Russian intelligence report that stated in late July 2016 — John Ratcliffe says it was July 26 but by handwriting it appears to be July 28 — Hillary approved of a plan to vilify Trump for his dalliance with Russian intelligence.

Already, this is a stupid hoax from the Republicans. It is public that, in the wake of the DNC release on July 22 — and particularly after Trump’s “Russia are you listening” comment on July 27 — Hillary started focusing on Trump’s coziness with Russia. In other words, the crack Russian analysts would have to do no more than read the paper to come to this conclusion. Nor would there be anything scandalous about Hillary trying to hold Trump accountable for capitalizing on an attack on her by a hostile foreign country.

I think Republicans are trying to suggest — by altering a date (July 26 instead of July 28) again and breathing heavy — that former government official Hillary Clinton was the reason why the FBI opened an investigation into Trump, rather than the Australians informing the US about Coffee Boy George Papadopoulos bragging about Russia offering help back in May. There’s not a shred of evidence for it, of course, but that has never stopped the frothy right.

The far more interesting part of this intelligence comes in the report that Peter Strzok wrote up, which is dated September 7. It makes it clear that Hillary’s alleged attack pertained to Russian hackers, notably Guccifer 2.0.

So a Russian intelligence report the US stole from Russia in late July 2016 claimed that, on July 26 0r 28, Hillary approved an attack on Trump pertaining to having help from Russian hackers, a report that did not get formally shared with the FBI until September 7. And either the report itself or FBI’s interpretation of it focuses on Guccifer 2.0.

Somehow this is the smoking gun — that over a month after opening up Crossfire Hurricane the FBI started investigating a claim that, starting on July 26 or 28, Hillary thought Trump was cuddling up with Russian hackers, interpreted by someone to be Guccifer 2.0 — the FBI learned that fact.

When I first wrote this up, I hadn’t started my Rashomon Rat-Fucker series, to say nothing of my report to the FBI that an American I knew may have served as an American cut-out for the Guccifer 2.0 operation (I’m jumping ahead of myself, but I’m certain the FBI investigated that claim for at least a year). At the time, I focused on how prescient the frothers were making Hillary look for anticipating that Roger Stone would first start doing propaganda for Guccifer 2.0 on August 5; best case for the frothers in this situation is that Stone somehow learned of the Russian report before the FBI did.

But now that I’ve written those posts, it’s clear that not only did the FBI have strong circumstantial evidence that Stone knew of the Guccifer 2.0 operation even before the first Guccifer 2.0 post, because he was searching for it on June 15 before the WordPress site went public, but that Stone probably had a face-to-face meeting with someone at the RNC from whom he got advance notice of the DNC drop.

In July 2016, this report is only mildly interesting, amounting to showing that the Russians read the newspaper like everyone else.

In 2020, after details from the Mueller investigation have become public, the Russian report makes far more sense as deliberate disinformation, an attempt to turn a direct contact with Stone into a hoax about Hillary.

Which makes Trump’s apparent determination to liberate this document all the more telling. It suggests that he wants to make public something, anything, he can use to counter what will be very damning allegations when this all becomes clear.

And, given how shoddy the actual intelligence itself is (at best showing that Russian intelligence officers read public sources and more credibly showing that Russia was building plausible deniability for contacts with Roger Stone in real time), Trump’s insistence on it, whether intentional or not, would serve to blow highly sensitive collection for a third-rate hoax.

I can see why Trump would prioritize this intelligence on his way out that the door. It comes at a time when he can be easily manipulated to burn the IC in ways that can only serve Russian interests.

In other words, one of Trump’s top priorities for the Lame Duck period is to give Vladimir Putin a consolation prize.

A Tale of Two National Security Advisors

June 18, 2020/71 Comments/in 2016 Presidential Election, 2020 Presidential Election, Impeachment /by emptywheel

As you no doubt heard, in addition to suing John Bolton for breach of contract over his Trump book, the Trump Administration has also asked for a Temporary Restraining Order against Bolton, purportedly with the goal of getting him to do things that are no longer in his control. At one level, the legal actions seem designed to make Bolton’s book even more popular than it would otherwise be — while starving him of any royalties for the book. Judge Royce Lamberth, who has a history of pushing back against Executive abuse (including claims involving classification) has been assigned the case; he scheduled a hearing for tomorrow.

I agree with the bulk of the analysis that these legal efforts will fail, to the extent they’re really trying to prevent Bolton from releasing the book. I also agree with analysis about the uphill climb Bolton faces to avoid having his profits seized.

That said, I can’t help but notice the way the filings set Bolton up — possibly, even for prosecution (which LAT reports remains under consideration), but also for a remarkable comparison with Trump’s first National Security Advisor, Mike Flynn.

Legally, the filings do what they need to do to seize Bolton’s profits, and will probably succeed (meaning you can buy the book and your money will go to the US Treasury). But, as noted, they’re not written to actually win an injunction, most especially against Bolton’s publisher, Simon & Schuster.

The filings do something else, though. They tell how Bolton apparently shared drafts of his manuscript before it had been cleared, which in turn got shared with the press.

35. On January 26, 2020, the New York Times published an article describing information purportedly “included in drafts of a manuscript” that Defendant, apparently without any protections for classified national security information, had “circulated in recent weeks to close associates.” The article set forth information allegedly contained in “dozens of pages” of the manuscript. A true and correct copy of this article is attached hereto as Exhibit F.

36. On information and belief, the January 26, 2020 article led to a tremendous surge in publicity for the pre-sales of the book, including hundreds of news articles, discussion on major television networks, statements by members of Congress, and widespread circulation of the article’s content on social media.

37. On January 27, 2020, the Washington Post published a separate article describing content contained in The Room Where it Happened, relying on the statements of “two people familiar with the book,” indicating, on information and belief, that Defendant had disclosed a draft of the manuscript to others without receiving prior written authorization from the U.S. Government. A true and correct copy of this article is attached hereto as Exhibit G.

38. Thus, notwithstanding this admonition, in late January 2020, prominent news outlets reported that drafts of Defendant’s manuscript had been circulated to associates of Defendant. These articles included reports from individuals supposedly familiar with the book, which indicates, on information and belief, that Defendant had already violated his non-disclosure agreements while purporting to comply with the prepublication review process. See supra ¶¶ 27, 29; see also Exhs. E & F

They lay out evidence that Bolton specifically knew the dangers of disclosing classified information, most ironically with a citation of his complaints about Edward Snowden (who also had his profits seized).

Defendant knows well the threat posed by disclosing classified information that might benefit the Nation’s adversaries. See John Bolton, “Edward Snowden’s leaks are a grave threat to US national security,” The Guardian, https://www.theguardian.com/commentisfree/2013/jun/18/edwardsnowden-leaks-grave-threat (June 18, 2013). Congress does as well, as reflected in its decision to criminalize the unauthorized disclosure of classified information. See, e.g., 18 U.S.C. §§ 641, 793, 794, 798, 952, 1924.

They provide multiple declarations — from Mike Ellis, the Trump hack who has politicized classified information in the past, from National Counterintelligence Director Bill Evanina claiming this is the kind of information our adversaries look for, from Director of NSA Paul Nakasone talking about the specific vulnerability of SIGINT, and from Director of National Intelligence John Ratcliffe, whose name the TRO misspells and whose experience looks exceedingly thin compared to the others, along with classified declaration from Ellis. Even though the declarations were obviously carefully curated by Ellis, these are nevertheless the kinds of things courts usually bow to, when the government makes claims about classification. While neither we nor Bolton or his lawyer will get to review the actual claims being made, such declarations are usually sufficient to get the desired recourse.

Perhaps notably, the filings include a letter from John Eisenberg (whose shenanigans regarding the Ukraine call Bolton made more significant), written on June 11, at a time when the White House already knew Bolton was moving to publish, accusing Bolton of publishing this information for financial gain.

Fourth, your self-serving insinuations that the NSC review process has been directed at anything other than a good faith effort to protect national security information is offensive. Your client has taken classified information, including some that he himself classified, and sold it to the highest bidder in an attempt to make a personal profit from information that he held in trust as a public servant–and has done so without regard for the harm it would do to the national security of the United States.

Effectively, this package of filings does nothing to prevent the book from coming out. But it very carefully lays a record to meet the elements of an Espionage charge. Given this notice, the government would be in a position to point to the publication of the book (that Bolton couldn’t stop now if he wanted) and prove that Bolton had an obligation to keep these things secret, he knew the damage that not doing so could cause, and yet nevetheless published the information.

Whether they will prosecute or not is unclear. But these filings make it far easier to do so.

The White House is preparing to claim that John Bolton is akin to Edward Snowden, solely because he aired Trump’s dirt in a book.

This all comes at the same time as the government is making extraordinary efforts to prevent Mike Flynn from being punished for secretly working for a frenemy country while getting classified briefings, and calling up the country that just attacked us in 2016 and discussing how Russia and the Trump Administration had mutual interests in undermining Obama’s policies.

The same DOJ that is magnifying Bolton’s risk for an Espionage prosecution found nothing inappropriate in Flynn calling up the country that had just attacked the US and teaming with that hostile country against the current government of the United States.

Nor was anything said on the calls themselves to indicate an inappropriate relationship between Mr. Flynn and a foreign power. Indeed, Mr. Flynn’s request that Russia avoid “escalating” tensions in response to U.S. sanctions in an effort to mollify geopolitical tensions was consistent with him advocating for, not against, the interests of the United States. At bottom, the arms-length communications gave no indication that Mr. Flynn was being “directed and controlled by … the Russian federation,” much less in a manner that “threat[ened] … national security.” Ex. 1 at 2, Ex. 2 at 2.

Indeed, the Attorney General even claimed the call was “laudable,” even while lying that it didn’t conflict with Obama’s policies.

But it’s not just in the courts where DOJ is working hard to protect the guy who really did harm the US. In an effort to sow the propaganda case for Mike Flynn, the Trump Administration has been on a declassification spree, including — by Ratcliffe — the transcripts of some (but not all) of Flynn’s calls with Sergey Kislyak, something that has never been done before. Significantly, the claims that Nakasone and Ratcliffe make in their declarations in the Bolton case, especially with regards to disclosing SIGINT burns the collection going forward, were clearly violated when Ratcliffe declassified the transcripts.

To be honest, I won’t weep if Bolton is prosecuted. He would have had more legal protection had he testified during the impeachment inquiry, which would have done more good for the country. It would be an abuse, but such abuse has been directed against far more vulnerable and admirable people.

But the comparison of the claims Mike Ellis is making about Trump’s third National Security Advisor with the treatment given his first — the guy who actively sold out his country rather than did so with his inaction — only serves to emphasize how Trump subjects what traditionally gets called national security to loyalty.

The greatest “national security” sin a Trump Administration official can commit, this comparison shows, is disloyalty to Donald Trump.

Who Violated Their Designated Role: Ezra Cohen-Watnick or Susan Rice?

April 3, 2017/27 Comments/in EO 12333, FISA, Russian hacks /by emptywheel

In the original version of the latest right wing claim — that Susan Rice requested that multiple incoming Trump figures’ names be unmasked in intercepts — Mike Cernovich describes the genesis of Devin Nunes’ concern this way:

The White House Counsel’s office identified Rice as the person responsible for the unmasking after examining Rice’s document log requests. The reports Rice requested to see are kept under tightly-controlled conditions. Each person must log her name before being granted access to them.

Upon learning of Rice’s actions, H. R. McMaster dispatched his close aide Derek Harvey to Capitol Hill to brief Chairman Nunes.

But as Eli Lake — fresh off having apologized for letting Devin Nunes use him — tells the story, close Mike Flynn associate Ezra Cohen-Watnick discovered it and brought the discovery to the White House Counsel’s office, whereupon he was told to “end his own research” on unmasking.

The pattern of Rice’s requests was discovered in a National Security Council review of the government’s policy on “unmasking” the identities of individuals in the U.S. who are not targets of electronic eavesdropping, but whose communications are collected incidentally. Normally those names are redacted from summaries of monitored conversations and appear in reports as something like “U.S. Person One.”

The National Security Council’s senior director for intelligence, Ezra Cohen-Watnick, was conducting the review, according to two U.S. officials who spoke with Bloomberg View on the condition of anonymity because they were not authorized to discuss it publicly. In February Cohen-Watnick discovered Rice’s multiple requests to unmask U.S. persons in intelligence reports that related to Trump transition activities. He brought this to the attention of the White House General Counsel’s office, who reviewed more of Rice’s requests and instructed him to end his own research into the unmasking policy.

This repeats a claim Lake had made in his earlier apology post, which he presented as one detail in the NYT version of this story that was not accurate.

Another U.S. official familiar with the affair told me that one of the sources named in the article, former Defense Intelligence officer Ezra Cohen-Watnick, did not play a role in getting information to Nunes. This official said Cohen-Watnick had come upon the reports while working on a review of recent Justice Department rules that made it easier for intelligence officials to share the identities of U.S. persons swept up in surveillance. He turned them over to White House lawyers.

But it adds the detail that Cohen-Watnick had been told to stand down. That would explain why Lake and others would want to claim that Cohen-Watnick wasn’t involved in dealing all this to Nunes: because he had already been told not to pursue it further. If the multiple accounts saying he was involved in the hand-off to Nunes, it appears he did.

The WaPo’s version of this included a detail not included by the right wingers: that Cohen-Watnick went to John Eisenberg, not Don McGahn, with his “discovery.” Eisenberg is significantly responsible, dating back to when he was at DOJ, for ensuring that ordinary Americans would be sucked up in surveillance under PRISM. For him to be concerned about the legal unmasking of Americans’ identities (to the extent that did exist — and the record is still unclear whether it did) is laughable.

The timing of Cohen-Watnick’s research — dating back to February — intersects in interesting ways with the timeline in this March 14 Politico story of H.R. McMaster’s attempt to sideline him, which was overruled by Steven Bannon.

On Friday [March 10], McMaster told the National Security Council’s senior director for intelligence programs, Ezra Cohen-Watnick, that he would be moved to another position in the organization.

The conversation followed weeks of pressure from career officials at the CIA who had expressed reservations about the 30-year-old intelligence operative and pushed for his ouster.

But Cohen-Watnick appealed McMaster’s decision to two influential allies with whom he had forged a relationship while working on Trump’s transition team — White House advisers Steve Bannon and Jared Kushner. They brought the matter to Trump on Sunday [March 12], and the president agreed that Cohen-Watnick should remain as the NSC’s intelligence director, according to two people with knowledge of the episode.

The House Intelligence Committee first asked NSA, CIA, and FBI for details on unmasking on March 15, the day after this story broke, at which point Nunes already knew of the White House effort. When Nunes first blew this up on March 22, he falsely claimed that that March 15 request had been submitted two weeks earlier.

It’s clear the right wing wants to shift this into Benghazi 2.0, attacking Susan Rice for activities that are, at least on the face of it, part of her job. But the only way the White House could be sure that she (or Ben Rhodes, who they’re also naming) were the ones to leak this would be to investigate not just those two, but also all the FBI (which would have access to this information without unmasking these names, which not a single one of these right wing scribes admit or even seem to understand). That is, the only way they could make credible, as opposed to regurgitated right wing propaganda accusations about leakers is to have spied even more inappropriately than they are accusing the Obama White House of doing.