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To Justify Dismissing Mike Flynn’s Prosecution, Timothy Shea Claims Information DOJ Has Always Had Is “New”

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As noted earlier, the government has officially asked Judge Emmet Sullivan to drop the prosecution against Mike Flynn. Sullivan is not required to do so, particularly not after Flynn pled guilty twice and given that Sullivan has fully briefed sentencing memoranda before him.

This post will try to lay out the shoddiness of the argument they make to support that move. In a follow-up, I will show how Judge Sullivan already dismissed much of this argument. Finally, I will show that some of what DOJ relies on to claim they’ve discovered “new” information is actually utterly damning to the Trump White House, making it fairly clear Trump endorsed what Flynn had done.

As I always say, it is a fool’s errand to predict what Sullivan might do. But this argument is not one that I imagine will impress Sullivan, particularly given the past events in this prosecution.

Note that just Acting US Attorney Timothy Shea signed this filing, which may create a similar kind of dynamic at the DC US Attorney’s Office regarding this action as Barr’s interference in the Roger Stone sentencing did. Barr transparently removed the Senate approved US Attorney for DC, installed his flunky, and then had his flunky renege on statements that DOJ (even DOJ under Barr) had made in the past. It is a breathtaking abuse of power, and it’s likely that Sullivan will regard it as such.

Shea makes three arguments:

  • DOJ discovered new material that changed their understanding of the investigation
  • That material has led them to believe (they claim) that Flynn’s lies weren’t material to any investigation
  • Therefore they can’t prove to a non-existent jury that the lies were material, which they don’t have to do because Flynn has twice pled guilty, which Shea glosses over ineffectively

Shea claims there’s new material but points to none

As noted, Shea repeatedly justifies this move by claiming there is “newly discovered” material.

After a considered review of all the facts and circumstances of this case, including newly discovered and disclosed information appended to the defendant’s supplemental pleadings, ECF Nos. 181, 188-190,1 the Government has concluded that the interview of Mr. Flynn was untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn—a no longer justifiably predicated investigation that the FBI had, in the Bureau’s own words, prepared to close because it had yielded an “absence of any derogatory information.” Ex. 1 at 4, FBI FD-1057 “Closing Communication” Jan. 4, 2017 (emphases added)

1 This review not only included newly discovered and disclosed information, but also recently declassified information as well.

[snip]

Based on an extensive review of this investigation, including newly discovered and disclosed information attached to the defendant’s supplemental pleadings, see ECF Nos. 181, 188-190, the Government has concluded that continued prosecution of Mr. Flynn would not serve the interests of justice.

Except Shea never actually describes what is “new.”

He cites a bunch of exhibits, many of which have already been entered into this case. Zero of the documents he cites were new to DOJ, at all. Indeed, prosecutors dealt with almost all of the documents in their response to Sidney Powell’s Brady demand, at a time when Bill Barr was already Attorney General, so even Judge Sullivan already knew of them, and Bill Barr’s DOJ already accounted for most of them in this prosecution.

Moreover, Shea simply cites to them as exhibits. He doesn’t describe how DOJ purportedly discovered them. He doesn’t claim that Rod Rosenstein, who authorized this prosecution, didn’t know of the documents when he authorized this prosecution. He doesn’t explain why previously classified documents — which were always accessible to prosecutors and Rosenstein — count as new.

While he cites to prosecutors’ past mention of US Attorney Jeffrey Jensen’s review of the case, which is where these documents that were always known came to take on new relevance, he doesn’t mention it specifically, and he sure as hell doesn’t explain how it came to be that Jensen was appointed to review the case.

All of which is to say that the entire premise of this filing — that there is information that is new to DOJ (as opposed to newly in Flynn’s possession) — has no basis in fact and is demonstrably false with respect to a number of things Shea points to.

Shea misrepresents the status of the investigation to claim Flynn’s lies were not material to it

Shea then claims these new documents which are not new newly convinced DOJ that Flynn’s lies were not material to any investigation.

The Government is not persuaded that the January 24, 2017 interview was conducted with a legitimate investigative basis and therefore does not believe Mr. Flynn’s statements were material even if untrue. Moreover, we not believe that the Government can prove either the relevant false statements or their materiality beyond a reasonable doubt.

[snip]

Accordingly, a review of the facts and circumstances of this case, including newly discovered and disclosed information, indicates that Mr. Flynn’s statements were never “material” to any FBI investigation.6

6 The statements by Mr. Flynn also were not material to the umbrella investigation of Crossfire Hurricane, which focused on the Trump campaign and its possible coordination with Russian officials to interfere with the 2016 presidential election back prior to November 2016. See Ex. 1 at 3; Ex. 2 at 1-2. Mr. Flynn had never been identified by that investigation and had been deemed “no longer” a viable candidate for it. Most importantly, his interview had nothing to do with this subject matter and nothing in FBI materials suggest any relationship between the interview and the umbrella investigation. Rather, throughout the period before the interview, the FBI consistently justified the interview of Flynn based on its no longer justifiably predicated counterintelligence investigation of him alone.

Even ignoring how Shea pretends the 2020 Trump DOJ needs to be “persuaded” by the 2017 Trump DOJ, the argument here involves misrepresenting the record.

On August 16, 2016, the FBI opened an investigation into Flynn. The goal of that investigation was to figure out whether Flynn was being controlled by Russia; 18 USC 951 was one of the crimes for which Flynn was being investigated.

The goal of the investigation is to determine whether the captioned subject, associated with the Trump Team, is being directed and controlled by and/or coordinating activities with the Russian Federation in a manner which may be a threat to the national securit y and/or possibly a violation of the Foreign Agents Registration Act, 18 U.S.C section 951 et seq, or other related statutes.

Nothing about the predication of the investigation into Flynn was limited to election tampering. It was an investigation into whether Flynn was acting on Russia’s behalf, period. On January 4, 2017, FBI drafted a memo closing the Crossfire Hurricane investigation into Flynn. That they did so is proof they didn’t have it in for Flynn. They had investigated the reasons they had suspected him, not corroborated it, and decided to close the investigation.

But on those same days, in response to a request from Obama for insight into why the Russians hadn’t responded more aggressively to the sanctions, FBI discovered the Flynn call with Sergey Kislyak. When they discovered that new information, Peter Strzok asked the case agent to keep the case open, for now, until they could figure out what to do.

There was a lot of debate between FBI and DOJ over the following weeks about what to do, whether to inform Trump or not. Once Mike Pence made representations about what Flynn had done, however, it raised the stakes, because it meant that Flynn had lied internally, which also meant that Flynn was more of a counterintelligence concern. Ultimately, Comey said that because the FBI already had an investigation open, DOJ could not intervene.

And then the DNI and the Director of Central Intelligence Agency, so Mr. Clapper and Mr. Brennan, both approached me on the 19th, the last evening of the Obama administration, and asked me whether I was going to tell them about what I knew about Mr. Flynn before they took office, and I said that I was not, given our investigative equities, and the conversation ended there.

I’m perfectly sympathetic to a debate about Jim Comey being an asshole, but it is in fact the case that there was an ongoing investigation, and it is also in fact the case that even when Sally Yates informed Don McGahn about it, she herself refused to tell him about the status of the ongoing investigation.

In a description of the debrief after the interview, Bill Priestap made clear that they did this interview to find out whether Flynn was acting as an agent for Russia.

The FBI’s provided rationale for doing the interview was that the existence of the investigation had already leaked, so Flynn was already aware that the information was being discussed publicly and there was no element of surprise. Priestap told the group the goal of the interview was whether to determine whether or not Flynn was in a clandestine relationship with the Russians.

That’s what Comey said, too.

MR. COMEY: To find out whether there was something we were missing about his relationship with the Russians and whether he would — because we had this disconnect publicly between what the Vice President was saying and what we knew. And so before we closed an investigation of Flynn, I wanted them to sit before him and say what is the deal?

So to review: the investigation was started to determine whether Flynn was in a clandestine relationship with Russia, and they conducted the interview to find out whether he was in a clandestine relationship with Russia. The interview was solidly within the scope of the predicated investigation.

And once that interview had happened, you had someone who was being investigated to learn whether he had clandestine ties with Russia who had lied about having called up Russia several times to undermine US policy. Which is pretty solid evidence in an 18 USC 951 investigation.

Now, Shea concedes that that investigation was still open. He concedes that the closing documents never got filed. Which is, really, all that should matter.

But he says that because the FBI already knew what Flynn had said, they didn’t have a purpose to interview him.

He does that, first of all, by arguing that when the FBI discovers you’ve called up the foreign country that just attacked us and told them not to worry about it, and then the Vice President makes it clear you’ve lied about that, did not justify extending an investigation into whether Flynn was secretly working for Russia.

Notably, at this time FBI did not open a criminal investigation based on Mr. Flynn’s calls with Mr. Kislyak predicated on the Logan Act. See Ex. 7 at 1-2.4 See Ex. 3 at 2-3; Ex. 4 at 1-2; Ex. 5 at 9. The FBI never attempted to open a new investigation of Mr. Flynn on these grounds. Mr. Flynn’s communications with the Russian ambassador implicated no crime. This is apparent from the FBI’s rush to revive its old investigation rather than open and justify a new one, see Ex. 7 at 1-2, as well as its ongoing inability to espouse a consistent justification for its probe in conversations with DOJ leadership, See Ex. 3 at 5. In fact, Deputy Attorney General Yates thought that the FBI leadership “morphed” between describing the investigation into Mr. Flynn as a “counterintelligence” or a “criminal” investigation. Id.

In short, Mr. Flynn’s calls with the Russian ambassador—the only new information to arise since the FBI’s decision to close out his investigation—did not constitute an articulable factual basis to open any counterintelligence investigation or criminal investigation. Mr. Strzok and Ms. Page apparently celebrated the “serendipitous[]” and “amazing” fact of the FBI’s delay in formally closing out the original counterintelligence investigation. Ex. 7 at 1. Having the ability to bootstrap the calls with Mr. Kislyak onto the existing authorization obviated the need for the “7th Floor” of the FBI to predicate further investigative efforts. In doing so, the FBI sidestepped a modest but critical protection that constrains the investigative reach of law enforcement: the predication threshold for investigating American citizens.

Even though Shea has not contested the basis for the investigation in the first place, which was explicitly an 18 USC 951 investigation, he basically argues it is improper for the FBI to investigate whether people might be secretly working with Russia. At one point, notably, he pretends that an investigation that explicitly considered a 951 prosecution from the start is just about FARA.

Having repeatedly found “no derogatory information” on Mr. Flynn, id. at 2, the FBI’s draft “Closing Communication” made clear that the FBI had found no basis to “predicate further investigative efforts” into whether Mr. Flynn was being directed and controlled by a foreign power (Russia) in a manner that threatened U.S. national security or violated FARA or its related statutes, id. at 3.

Having done that, he then argues that meant there was no basis for the interview.

In light of the fact that the FBI already had these transcripts in its possessions, Mr. Flynn’s answers would have shed no light on whether and what he communicated with Mr. Kislyak.—and those issues were immaterial to the no longer justifiably predicated counterintelligence investigation. Similarly, whether Mr. Flynn did or “did not recall” (ECF No. 1) communications already known by the FBI was assuredly not material.

Under these circumstances, the Government cannot explain, much less prove to a jury beyond a reasonable doubt, how false statements are “material” to an investigation that—as explained above—seems to have been undertaken only to elicit those very false statements and thereby criminalize Mr. Flynn.

Consider: Flynn could have dealt with this interview in many different ways. He could have admitted his statements, which would have made it clear he wasn’t hiding the calls (though he had taken other steps to hide them). He could have refused the interview. Or, he could have lied, to cover up what he had one.

Just one of those actions would make it more likely he was secretly working for Russia. And that’s what he did. It’s hard to understand how anything could be more material to an ongoing counterintelligence investigation (and, indeed, FBI took the same approach with both Carter Page and George Papadopoulos when their investigations became public).

Shea pretends Flynn’s guilty pleas don’t count

Note how Shea argues that DOJ has decided to drop this prosecution as if they’d need to convince a jury. Bizarrely, when Shea admits that Flynn has already pled guilty, he neglects to mention the second time he did so.

On November 30, 2017, the Special Counsel’s Office filed a criminal information against Mr. Flynn charging him with a single count of making false statements in violation of 18 U.S.C. § 1001(a)(2). ECF No. 1. Mr. Flynn pleaded guilty to that offense, see ECF Nos. 3-4, but moved to withdraw that guilty plea on January 14, 2020, ECF Nos. 151, 154, 160. On January 29, 2020, Mr. Flynn also filed a “Motion to Dismiss Case for Egregious Government Misconduct and in the Interest of Justice,” ECF No. 162, and supplemented that motion on April 24 and 30, 2020 based on additional disclosures, see ECF Nos. 181, 188-190. Both Mr. Flynn’s motion to withdraw his guilty plea and motion to dismiss the case remain pending before the Court.3

He simply ignores that Flynn pled guilty, again, before Emmet Sullivan, on December 18, 2018.

Shea excuses those pleas — the provenance of the Judge in this case, not DOJ — by saying poor Mike Flynn didn’t know about all this newly discovered information.

Mr. Flynn previously pleaded guilty to making false statements. See Def’s Plea Agreement, ECF Nos. 3-4. In the Government’s assessment, however, he did so without full awareness of the circumstances of the newly discovered, disclosed, or declassified information as to the FBI’s investigation of him. Mr. Flynn stipulated to the essential element of materiality without cause to dispute it insofar as it concerned not his course of conduct but rather that of the agency investigating him, and insofar as it has been further illuminated by new information in discovery.

Here’s why Shea’s silence about Flynn’s December 18, 2018 plea is so important, though. First of all, Flynn actually knew virtually everything listed in this filing by his second guilty plea, which both the prosecution and Sullivan himself have pointed out. More importantly, when Flynn asked for copies of all the materials listed here as Brady materials (which is itself proof he knew they existed), Sullivan said he wasn’t entitled to them.

Nowhere does Shea deal with the reality of this case, that Flynn has already pled guilty twice, once knowing most of what is laid out in this filing.

So to sum up:

  • Shea says there’s new information, except all of this information was known to DOJ when they prosecuted Flynn. He’s the same DOJ, under the same Administration, and everyone involved with the case had access to this information.
  • Shea says whether someone covers up what he did is immaterial to an investigation of whether they’re working clandestinely for another country.
  • Then Shea claims Mike Flynn didn’t account for all this when he pled guilty the last two times, when in fact the record shows he did know most of it before he pled the second time, and even so, Judge Sullivan judged that he wasn’t entitled to it.

Ultimately, by making a claim there’s new information when DOJ had the information all the time but Mike Flynn did not, Shea admits — seemingly without awareness of doing so — that DOJ has become the defense attorney for a sworn felon.

As I keep saying, I would hesitate to predict how Sullivan will respond to this. But I would be surprised if he didn’t recognize all the giant holes in Shea’s argument.

Lindsey Graham and Ric Grenell Reveal Mike Flynn May Not Have Fully Disclosed His Foreign Contacts

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Lindsey Graham has used the tenure of Ric Grenell to get a slew of stuff declassified, such as a George Papadopoulos transcript bragging about fucking an older woman that redacts a reference to Sergey Millian, even though the Millian reference is the entire point of the exercise of releasing such transcripts. They’re doing it in the name of “FISA abuse,” even though most of it doesn’t relate to FISA and none of the additional material shows abuse beyond the FBI’s over-reliance on informants (which Lindsey has shown no interest in reforming).

Tonight, they released the memo Rod Rosenstein used to scope out Robert Mueller’s mandate on August 2, 2017 (I wrote about the original release of it here.)

The declassified bits describe the crimes FBI was investigating Carter Page, Paul Manafort, George Papadopoulos, and Mike Flynn for. Plus, there’s one other Trump person whom I’ve been told is not the person you think it is (though I understand new details about it seeing it redacted like this), the description of which is entirely classified.

For Page, Manafort, and Papadopoulos, the memo authorizes an investigation into whether they “colluded” in the 2016 election. Such a bullet point is not included for Flynn, one of many pieces of evidence that the FBI had ruled this out in late 2016/early 2017 only to discover that Flynn had called the country up that had just attacked us and told them “no big deal.”

Page was only being investigated for “collusion;” the memo doesn’t include his willingness to deal known Russian spies non-public economic information about American companies.

For the others, there were additional bullet points authorizing investigation into stuff there was substantial evidence they had done. For Manafort, the memo included two things that were ultimately charged:

  • Committed a crime or crimes arising out of payments he received from the Ukrainian government before and during the tenure of President Viktor Yanukovych;
  • Committed a crime or crimes arising out of his receipt of loans from a bank whose Chief Executive Officer was then seeking a position in the Trump Administration;

Though Stephen Calk is being prosecuted for Manafort soliciting a loan he had no business getting, not Manafort.

And the memo didn’t include all the things Manafort was charged or even investigated for.

With Papadopoulos, the memo (written less than a week after he’d been arrested after taking money from some Israeli) also included Israeli influence peddling.

  • Committed a crime or crimes by acting as an unregistered agent of the government of Israel;

That is, for Manafort and Papadopoulos, this memo authorized an investigation into things they were known to have done.

Which brings us to Flynn. As noted, Rosenstein did not authorize Mueller to investigate whether Flynn “colluded,” which is proof that once the FBI chased something down, they dismissed it.

The list of things Mueller was authorized to investigate includes three things that Flynn was known to have done (the italics are what Flynn was known to have done).

  • Committed a crime or crimes by engaging in conversations with Russian government officials during the period of the Trump transition;
  • Committed a crime or crimes by making false statements to the FBI when interviewed about his contacts with the Russian government;
  • Committed a crime or crimes by acting as an unregistered agent for the government of Turkey;

Flynn did converse with at least one Russian government official during the transition, though as written, this suggests there may have been more. Flynn did lie to the FBI when asked about those contacts. Flynn was still lying about his knowledge that his foreign influence peddling was for the government of Turkey, not some Dutch company.

That is, this memo (and most non-“collusion” bullet points) lays out things the person in question was known to have done.

But this detail is completely new:

  • Committed a crime or crimes by failing to report foreign contacts and income on a Form SF-86 that he completed in anticipation of his being selected to serve as the National Security Adviser to President Trump;

Lindsey Graham just released a document suggesting that General Flynn lied on this SF-86 form for clearance by hiding some of his foreign contacts.

To be sure: I’ve been told Flynn told DIA of the foreign contacts that raised the most suspicion, such as bopping off to Moscow to sit with Putin at a gala for RT. That said, last year DOJ claimed that Flynn’s DIA record was actually inculpatory, not exculpatory information they should have turned over as Brady.

Request #15: The government is not aware of any information in possession of the Defense Intelligence Agency that is favorable and material to sentencing, including the information that the government provided on August 16, 2019. Specifically, the information of which the government is aware, including that August 16 production, is either inculpatory or has no relevance to the defendant’s false statements to the FBI on January 24, 2017, or to the FARA Unit.

What Lindsey Graham just released to claim there was some kind of FISA abuse suggests that the FBI — which had access to the FISA intercepts showing Mike Flynn calling up the country that had just attacked us and telling them no big deal — believed on August 2, 2017 that Flynn had not disclosed all his foreign contacts when he got a security clearance tied to becoming National Security Advisor. Flynn’s 2016 security clearance review is something Powell has raised repeatedly in her bid to get Flynn’s prosecution set aside. If she knew that Flynn was investigated because he failed to fully disclose all his foreign contacts, that may explain why.

Which is to say, Lindsey Graham thinks he’s exposing abuse. But in the case of Flynn, he’s not only showing that the FBI stopped pursuing leads once they had chased them down, but were chasing one that was previously unknown.

DOJ Is Withholding the Mike Flynn 302 Describing How the Campaign Considered Reaching Out to Julian Assange after the Podesta Leaks

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As DOJ continues to respond to the BuzzFeed/CNN Mueller FOIAs by releasing big swaths of 302s (FBI interview reports) almost entirely redacted under b5 (deliberative) exemptions, there are a number of issues on which it is withholding information that are utterly critical to current debates.

For example, Trump renewed his claim the other day that Robert Mueller had interviewed for the FBI job before being named Special Counsel, which he claims presented a conflict. According to the Mueller Report, Steve Bannon, Don McGahn, and Reince Priebus all rebutted that claim, either on the facts or whether it presented a conflict. But Bill Barr’s DOJ has withheld all of McGahn’s 302s, as well as the Bannon one (from October 26, 2018) cited in the Mueller Report on this topic. And DOJ redacted all the substantial discussion of what Reince Priebus told the President about this purported conflict in his.

Plus there’s substantially redacted material in the Rod Rosenstein 302 that pertains to this topic (and possibly also in Jody Hunt’s 302). Which is to say that DOJ is letting the President make repeated assertions about this topic, while withholding the counter-evidence under claims of privilege.

A more glaring example, however, involves Mike Flynn. In response to the FOIA, DOJ has only released the same January 24, 2017 302 that got released as part of Flynn’s sentencing. Even as Barr has planted outside reviewers in the DC US Attorney’s office to second-guess Flynn’s prosecution, DOJ is withholding 302s that — the government has suggested — show that Flynn wasn’t even all that forthcoming after he was purportedly cooperating with Mueller.

Based on filings and assertions made by the defendant’s new counsel, the government anticipates that the defendant’s cooperation and candor with the government will be contested issues for the Court to consider at sentencing. Accordingly, the government will provide the defendant with the reports of his post-January 24, 2017 interviews. The government notes that the defendant had counsel present at all such interviews.

Even Flynn himself released a sworn declaration revealing that his Covington lawyers told him his first interview with Mueller, on November 16, 2017, “did not go well.”

More urgent, given today’s news that Julian Assange’s lawyers will claim that when Dana Rohrabacher met with Assange in August 2017 about trading a pardon for disinformation about Russia’s involvement in the 2016 operation, DOJ is withholding details about conversations Flynn participated in during the campaign about WikiLeaks, including a possible effort to reach out to them after the John Podesta release.

The defendant also provided useful information concerning discussions within the campaign about WikiLeaks’ release of emails. WikiLeaks is an important subject of the SCO’s investigation because a Russian intelligence service used WikiLeaks to release emails the intelligence service stole during the 2016 presidential campaign. On July 22, 2016, WikiLeaks released emails stolen from the Democratic National Committee. Beginning on October 7, 2016, WikiLeaks released emails stolen from John Podesta, the chairman of Hillary Clinton’s 2016 presidential campaign. The defendant relayed to the government statements made in 2016 by senior campaign officials about WikiLeaks to which only a select few people were privy. For example, the defendant recalled conversations with senior campaign officials after the release of the Podesta emails, during which the prospect of reaching out to WikiLeaks was discussed.

Assange has created a firestorm with the mere allegation — one already reported in great depth in real time — that Trump was involved in the 2017 Rohrabacher effort.

Except Mike Flynn’s 302s report something potentially more inflammatory: that the campaign started pursuing this effort in October 2016.

The President’s Conspiracy Theories Get More Whacko than George Papadopoulos’

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Perhaps because the entire legal establishment is pushing back against Bill Barr’s wholesale politicization of DOJ, the President is disturbed on Twitter. After launching a 3-tweet tirade against juror Tameka Hart and Judge Amy Berman Jackson based off a Judge Andrew Napolitano appearance on Fox on Friends (that perhaps unsurprisingly neglects to remind his followers that Napolitano made a case in favor of Trump’s removal by the Senate). he then launched a 3-tweet tirade against the Stone prosecution more generally.

I’m interested in it because of the way Trump attempts to deploy all the other conspiracy theories he has against the Russian investigation to the Stone prosecution, to which they simply don’t apply.

Start with the way Trump claims that 1) the Mueller investigation was “illegally set up” based on the Steele dossier and 2) “forging documents to the FISA Court.”

This is a conceit that has worked well since Paul Manafort, fresh off a meeting with an Oleg Deripaska deputy, suggested Trump could use attacks on the dossier to attack the Mueller Report.

Except one glaring fault of the dossier is that Roger Stone, who had already made comments that suggested he had a direct role in the operation by the time FBI opened investigations on the four initial subjects of it, doesn’t appear in the Steele dossier.

Moreover, whatever else the DOJ IG Report on the Carter Page FISA applications showed, it also showed that the predication of the investigation had nothing to do with the Steele dossier; in fact, Steele’s reports didn’t make it to the investigative team until about six weeks after opening the investigation.

Further, the suggestion that Kevin Clinesmith’s alteration of an email in June 2017 to claim that Page was “not a source” for CIA had anything to do with Roger Stone’s investigation falls flat given that Mueller’s team obtained the first warrant targeting Roger Stone on August 4, 2017, and there’s no insinuation anywhere that Stone ever spoke with Carter Page. (Indeed, in spring 2016, Stone was bitching to Rick Gates that he was not in the loop of foreign policy discussions.) In fact, had Roger Stone been more closely associated with Trump’s freebie foreign policy team, than both Page and George Papadopoulos’ claims to know nothing of campaign efforts to optimize WikiLeaks’ releases would be anything but exculpatory, as DOJ IG treated them, since Stone was doing just that in the time period when they were asked by informants.

Plus, Robert Mueller testified under oath that his team didn’t have anything to do with the Carter Page FISA order. And the investigative record shows that the investigation into Page was largely done by the time Mueller took over.

There’s simply no tie between either the Steele dossier or the Page FISA warrants and Roger Stone’s prosecution.

Trump continues to claim that Mueller interviewed to be FBI Director, even after evidence showing that Steve Bannon, Reince Priebus, and Don McGahn debunked this in real time, not to mention Rod Rosenstein’s 302 that shows that Mueller specifically said he did not want to be interviewed before he met with Trump about Jim Comey’s replacement. That is, a bunch of witnesses — all Republicans — say Trump is wrong.

The most interesting accusation is that the prosecutors who won a conviction against Stone “were Mueller prosecutors.”

Two were: Aaron Zelinsky and Adam Jed.

But two weren’t. Jonathan Kravis (the sole prosecutor who quit DOJ entirely) and Michael Marando were career DC prosecutors brought in to prosecute the case after Mueller shut down. These were, pointedly, not Mueller prosecutors, and the case still went off without a hitch.

In fact, in his interview the other day, Bill Barr made quite clear that this prosecution happened on his watch, and he believes it’s a righteous prosecution.

BARR: Well, as you know, the Stone case was prosecuted while I was attorney general. And I supported it. I think it was established, he was convicted of obstructing Congress and witness tampering. And I thought that was a righteous prosecution. And I was happy that he was convicted.

If Trump has a problem with the guy who prosecuted the case against Roger Stone, he has a problem with his Attorney General Bill Barr.

Which may be why Trump — who shouldn’t be affected by mere lies by Roger Stone to Congress — is threatening to “sue everyone all over the place.” Of course, he is affected by Stone — Stone is going to prison to protect the President, to avoid describing the multiple conversations they had about optimizing the WikiLeaks releases. And suing (whom?!?!) won’t help Trump suppress that.

The President sounds crazier than George Papadopoulos in this rant, and his conspiracy theories are just as unhinged. Which is, I guess, what happens when all the conspiracy theories you’ve been using to undermine the prosecution implicating you turn out to be utterly irrelevant to the most important firewall to protect.

The Slow Firing of Robert Mueller[‘s Replacement]

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On December 5, I suggested that Speaker Pelosi delay the full House vote on impeachment until early February. I intimated there were public reasons — the possibility of a ruling on the Don McGahn subpoena and superseding charges for Lev Parnas — I thought so and private ones. One of the ones I did not share was the Stone sentencing, which at that point was scheduled for February 6. Had Pelosi listened to me (!!!) and had events proceeded as scheduled, Stone would have been sentenced before the final vote on Trump’s impeachment.

But things didn’t work out that way. Not only didn’t Pelosi heed my suggestion (unsurprisingly), but two things happened in the interim.

First, Stone invented a bullshit reason for delay on December 19, the day after the full House voted on impeachment. The prosecutors who all resigned from the case yesterday objected to the delay, to no avail, which is how sentencing got scheduled for February 20 rather than the day after the Senate voted to acquit.

Then, on January 6, Trump nominated Jessie Liu, then the US Attorney for DC, to be Undersecretary for Terrorism and Financial Crimes, basically the person who oversees the process of tracking criminal flows of finance. She won’t get that position — her nomination was pulled yesterday in advance of a Thursday confirmation hearing. But her nomination gave Barr the excuse to install a trusted aide, Timothy Shea, at US Attorney for DC last Thursday, the day after the impeachment vote and in advance of the now-delayed Stone sentencing.

Liu, who is very conservative and a true Trump supporter, had been nominated for a more obvious promotion before. On March 5, Trump nominated her to be Associate Attorney General, the number 3 ranking person at DOJ. But then she pulled her nomination on March 28 because Senators objected to her views on choice.

But let’s go back, to late August 2018. Michael Cohen and Sam Patten had just pled guilty, and Cohen was trying to find a way to sort of cooperate. Rudy Giuliani was talking about how Robert Mueller would need to shut down his investigation starting on September 1, because of the election. I wrote a post noting that, while Randy Credico’s imminent grand jury appearance suggested Mueller might be close to finishing an indictment of Stone, they still had to wait for Andrew Miller’s testimony.

Even as a I wrote it, Jay Sekulow was reaching out to Jerome Corsi to include him in the Joint Defense Agreement.

During the entire election season, both Paul Manafort and Jerome Corsi were stalling, lying to prosecutors while reporting back to Trump what they were doing.

Then, the day after the election, Trump fired Jeff Sessions and installed Matt Whitaker. Whitaker, not Rosenstein, became the nominal supervisor of the Mueller investigation. Not long after, both Manafort and Corsi made their game clear. They hadn’t been cooperating, they had been stalling to get past the time when Trump could start the process of ending the Mueller investigation.

But Whitaker only reactively kept Mueller in check. After Michael Cohen’s December sentencing made it clear that Trump was an unindicted co-conspirator in a plot to cheat to win, Whitaker started policing any statement that implicated Trump. By the time Roger Stone was indicted on January 24, 2019 — after Trump’s plan to replace Whitaker with the expert in cover ups, Bill Barr — Mueller no longer noted when Trump was personally involved, as he was in Stone’s efforts to optimize the WikiLeaks releases.

But then, when Barr came in, everything started to shut down. Mueller moved ongoing prosecutions to other offices, largely to DC, under Jessie Liu’s supervision. As Barr came to understand where the investigation might head, he tried to promote Liu out of that position, only to have GOP ideology prevent it.

Barr successfully dampened the impeach of the Mueller Report, pretending that it didn’t provide clear basis for impeaching the President. It was immediately clear, when he did that, that Barr was spinning the Stone charges to minimize the damage on Trump. But Barr did not remove Mueller right away, and the Special Counsel remained up until literally the moment when he secured Andrew Miller’s testimony on May 29.

The next day, I noted the import of raising the stakes for Trump on any Roger Stone pardon, because Stone implicated him personally. That was more important, I argued, than impeaching Trump for past actions to try to fire Mueller, which Democrats were focused on with their attempt to obtain Don McGahn’s testimony.

Still, those ongoing investigations continued under Jessie Liu, and Stone inched along towards trial, even as Trump leveraged taxpayer dollars to try to establish an excuse to pardon Manafort (and, possibly, to pay off the debts Manafort incurred during the 2016 election). As Stone’s trial laid out evidence that the President was personally involved in optimizing the release of emails Russia had stolen from Trump’s opponent, attention was instead focused on impeachment, his more recent effort to cheat.

In Stone’s trial, he invented a new lie: both Randy Credico and Jerome Corsi had falsely led him to believe they had a tie to WikiLeaks. That didn’t help Stone avoid conviction: Stone was found guilty on all counts. But it gave Stone yet another cover story to avoid revealing what his ties to WikiLeaks actually were and what he did — probably with Trump’s assent — to get it. For some reason, prosecutors decided not to reveal what they were otherwise prepared to: what Stone had really done.

Immediately after his conviction, Stone spent the weekend lobbying for a pardon. His wife appeared on Tucker Carlson’s show and someone got inside White House gates to make the case.

But, as impeachment proceeded, nothing happened, as the Probation Office started collecting information to argue that Stone should go to prison for a long while. The day Democrats finished their case against Donald Trump, though, Bill Barr made his move, replacing Liu before she was confirmed, removing a very conservative Senate confirmed US Attorney to install his flunkie, Timothy Shea. But even that wasn’t enough. Prosecutors successfully convinced Shea that they should stick to the probation office guidelines recommending a stiff sentence. When Timothy Shea didn’t do what Barr expected him to, Barr intervened and very publicly ordered up the cover up he had promised.

Effectively, Bill Barr is micro-managing the DC US Attorney’s office now, overseeing the sentencing of the man who could explain just how involved Trump was in the effort to maximize the advantage Trump got from Russia’s interference in 2016, as well as all the other prosecutions that we don’t know about.

Trump has, finally, succeeded in firing the person who oversaw the investigations into his role in the Russian operation in 2016. Just as Stone was about to have reason to explain what that role was.

Timeline

August 21, 2018: Michael Cohen pleads guilty

August 31, 2018: Sam Patten pleads guilty

September 5, 2018: Jay Sekulow reaches out to Corsi lawyer to enter into Joint Defense Agreement

September 6, 2018: In first Mueller interview, Corsi lies

September 17, 2018: In second interview, Corsi invents story about how he learned of Podesta emails

September 21, 2018: In third interview, Corsi confesses to establishing a cover story about Podesta’s emails with Roger Stone starting on August 30, 2016; NYT publishes irresponsible story that almost leads to Rod Rosenstein’s firing

October 25, 2018: Rick Gates interviewed about the campaign knowledge of Podesta emails

October 26, 2018: Steve Bannon admits he spoke with Stone about WikiLeaks

October 31, 2018: Prosecutors probably show Corsi evidence proving he lied about source of knowledge on Podesta emails

November 1 and 2, 2018: Corsi continues to spew bullshit in interviews

November 6, 2018: Election day

November 7, 2018: Jeff Sessions is fired; Matt Whitaker named Acting Attorney General

November 9, 2018: Corsi appears before grand jury but gives a false story about how he learned of Podesta emails; Mueller threatens to charge him with perjury

November 15, 2018: Trump tweets bullshit about Corsi’s testimony being coerced

November 23, 2018: Corsi tells the world he is in plea negotiations

November 26, 2018: Corsi rejects plea

December 7, 2018: Trump nominates Bill Barr Attorney General

January 18, 2019: Steve Bannon testifies to the grand jury (and for the first time enters into a proffer)

January 24, 2019: Roger Stone indicted for covering up what really happened with WikiLeaks

February 14, 2019: Bill Barr confirmed as Attorney General

March 5, 2019: Jessie Liu nominated to AAG; Bill Barr briefed on Mueller investigation

March 22, 2019: Mueller announces the end of his investigation

March 24, 2019: Bill Barr releases totally misleading version of Mueller results, downplaying Stone role

March 28, 2019: Liu pulls her nomination from AAG

April 19, 2019: Mueller Report released with Stone details redacted

May 29, 2019: As Mueller gives final press conference, Andrew Miller testifies before grand jury

November 12, 2019: Prosecutors apparently change Stone trial strategy, withhold details of Stone’s actual back channel

November 15, 2019: Roger Stone convicted on all counts

January 6, 2020: Jessie Liu nominated to Treasury

January 16, 2020: Probation Office issues Presentence Report calling for 7-9 years

January 30, 2020: Bill Barr replaces Liu with Timothy Barr, effective February 3; DOJ submits objection to Presentence Report

February 3, 2020: Timothy Shea becomes acting US Attorney

February 5, 2020 : Senate votes to acquit Trump

February 6, 2020: Initial sentencing date for Roger Stone

February 10, 2020: Stone sentencing memoranda submitted

February 11, 2020: DOJ overrules DC on Stone sentencing memorandum, all four prosecutors resign from case

February 20, 2020: Current sentencing date for Roger Stone

“Fact Witness:” How Rod Rosenstein Got DOJ IG To Land a Plane on Bruce Ohr

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As I said in my summary post, the DOJ IG Report on Carter Page shows there were three problems with the Carter Page FISA application:

  • It did not reveal that the first of several attempted recruitments of Page by Russia happened when he was approved for contact by the CIA
  • It failed to update the application as questions about the Steele dossier’s reliability became known over time
  • It did not include exculpatory evidence (though the report overstates whether information related to George Papadopoulos was exculpatory or the opposite)

On that level, the report is an important portrayal of the FISA application process.

But, as I hope to show generally in a follow-up, the report commits precisely the kinds of errors that it takes the FBI to task for. And in the case of its treatment of Bruce Ohr, the report not only commits those types of errors, but does so in a way that risks harming national security. The Report basically suggests Ohr should be punished for doing what DOJ has spent the last 17 years demanding everyone do: share information related to national security.

Since 9/11, DOJ has emphasized sharing information relating to national security

Ever since 9/11, all parts of the government — especially DOJ and FBI — have concluded over and over again that they have to find ways to better share information relating to national security. 9/11 happened, in part, because CIA didn’t tell FBI that suspected al Qaeda figures had entered the US and, in part, because FBI’s Minnesota field office didn’t tell others about a suspect trying to learn to take off but not land planes. We went to war in Iraq on a mistaken premise because information got stovepiped, rather than shared with people who could appropriately vet it. Nidal Hassan was permitted to remain in the military and so kill 13 people because the FBI’s surveillance systems did not flag his prior contacts with Anwar al-Awlaki. Umar Farouk Abdulmutallab managed to board a plane and try to blow it up because a warning his father had given US authorities didn’t get entered into the flight screener. The FBI missed an opportunity to prevent the Boston Marathon bombing because warnings from Russia and Tamerlan’s travels didn’t get triggered for full investigation.

The emphasis on information sharing is not limited to terrorism. The government’s approach to cybersecurity, too, has focused on better sharing information among different parts of government and with the private sector. Indeed, in this case, the Democrats (not entirely credibly) claimed the FBI didn’t warn them aggressively enough of ongoing hacks and states (far more credibly) complained they didn’t get notice that Russia was targeting voting infrastructure.

DOJ’s Inspector General has repeatedly emphasized information sharing. Just during 2019, DOJ Inspector General Michael Horowitz’s office has released a number of reports calling for more information sharing. On December 20, multiple relevant Inspectors General submitted an assessment mandated by Congress on whether agencies are sharing cybersecurity threat information among themselves and with the private sector; it described continued barriers to sharing such information. On August 1, DOJ IG issued a report calling, in part, for better information sharing between the FBI and Homeland Security Investigations on the border with Mexico. On April 1, DOJ IG issued a report describing some of the impediments to informing victims when they’ve been targeted in a cyberattack, which may delay the victim’s ability to respond. On March 21, DOJ IG issued a report concluding, in part, that FBI Agents conducting assessments about whether terrorists might exploit maritime facilities need to gather better data.

Some of the key reports Horowitz has overseen historically also criticized inadequate information sharing. In March 2018, DOJ IG explained that the FBI gave Congress misleading information about Syed Rizwan Farook’s phone because people weren’t communicating internally about resources available to the Bureau. A September 2017 Report on whether there were known or suspected terrorists in FBI’s witness protection program complained that earlier information sharing recommendations had not yet been implemented. A March 2014 report on DOJ’s efforts to combat mortgage fraud found serious data integrity and collection issues. An October 2013 review of FBI’s responses to being badly burned by Chinese double agent Katrina Leung found the FBI needed to do better tracking and sharing of derogatory information from confidential human sources, a finding pertinent to this report. The September 2012 Fast and Furious report (largely completed prior to Horowitz’s arrival, but released just after he started) emphasized ATF’s inadequate information sharing with DEA and ICE.

None of these conclusions say, “share information, but only after it’s vetted.” DOJ’s Inspector General generally only complains about Department employees sharing information if it involves the sharing of investigative, classified, or sensitive information to unauthorized recipients (including but not limited to the media) or the improper use of whistleblower complaints to retaliate against them.

Ohr did neither of those things.

Indeed, this report is largely about FBI’s failure to share information. There’s even a complaint in there about the over two months it took for Christopher Steele’s first reports to get shared with FBI HQ.

FBI officials we interviewed told us that the length of time it took for Steele’s election reporting to reach FBI Headquarters was excessive and that the reports should have been sent promptly after their receipt by the Legat. Members of the Crossfire Hurricane team told us that their assessment of the Steele election reporting could have started much earlier if the reporting had been made available to them.

One of the three main complaints about FBI’s actions involves their failure to vet the dossier and share the results of that vetting in timely fashion. Along with State Department’s Kathleen Kavalec (whose feedback FBI failed to obtain for over a month), Ohr provided the best timely and accurate details about how the dossier fit into Fusion GPS’s election year process. But one of just nine recommendations DOJ’s IG made in this report is that DOJ’s Office of Professional Responsibility and DOJ’s Criminal Division review his actions.

The Department’s Office of Professional Responsibility should review our findings related to the conduct of Department attorney Bruce Ohr for any action it deems appropriate. Ohr’s current supervisors in CRM should also review our findings related to Ohr’s performance for any action they deem appropriate.

In short, DOJ’s IG has spent years saying “share more information, share more information, share more information.” Bruce Ohr did just that. In response, DOJ IG insinuated he should be fired for it.

Not only does this response undercut every single exhortation to share national security information since 9/11, but it bears similarities to other efforts by DOJ IG to help President Trump retaliate against his critics.

The IG Report misrepresents the nature of Bruce Ohr’s information sharing

The DOJ IG manages to attack a guy for doing what DOJ IG has repeatedly said people should do, share information, by obscuring the nature of his sharing.

While the IG Office declined to provide an on the record answer to a question not answered in the IG Report itself — why Ohr even came to be the subject of this investigation — the answer is clear: When Congress started nagging Rod Rosenstein about their conspiracy theories about Ohr, claiming that Ohr kept injecting the dossier back into the FBI to sustain an investigation into Trump, Rosenstein got the IG to expand the inquiry to include Ohr. The IG Report’s presentation of Ohr’s actions must be taken against the backdrop of what started it: Rosenstein’s capitulation to politicized claims that someone in his office was responsible for pushing the Steele dossier and therefore the investigation into Trump.

The IG Report never does for Ohr’s conversations what it does with Operation Crossfire as a whole (though the facts it presents merit it) — debunk the conspiracy theory about the role of the dossier in predicating the investigation. It leaves out or downplays some key facts. And its narrative does not fit the actual facts it presents about Ohr’s actions.

The facts it does present show:

  • Ohr and Steele had been sharing information of mutual interest for years as part of Ohr’s efforts to bring an information-sharing approach to combatting organized crime, including Russian organized crime
  • They were sharing information unrelated to the dossier specifically or Trump generally prior to and during their July 30, 2016 meeting
  • The report includes no evidence Ohr shared two allegations from the dossier learned at a July 30 meeting with anyone involved in opening Crossfire Hurricane before the investigation got opened
  • Steele continued to share information with Ohr that did not appear in the dossier (but that, because it involved credulity about Oleg Deripaska’s willingness to help the US government, was problematic for entirely different reasons)
  • Some information Ohr shared from Glenn Simpson was information the FBI otherwise pursued on its own
  • During the weeks after FBI closed Steele as a source, Ohr provided some of the most useful information to vet the dossier and the FBI regarded that information as part of the vetting process
  • The only time Ohr shared reports from the dossier directly with the Crossfire Hurricane team came during and was regarded as useful because it was part of this vetting process
  • The IG Report provides no evidence that Ohr pushed Steele’s Trump-related intelligence in 2017 (even though Steele was working with Dan Jones to continue to collect it)
  • The 2017 conversations Ohr had with Steele about the Trump investigation pertained either to protecting sources — something DOJ treated as a priority even in this Report — or to Steele’s concerns about the consequences of the various ongoing investigations on him and his sources
  • As he had for years, including in 2016, Steele shared information about other topics with Ohr in 2017, proving that this was not an exclusively Trump-focused effort
  • The complaints that Ohr didn’t inform his superiors about this sharing, while justified, are overstated

As noted, there are still problems with what Ohr did in 2016-2017, largely because he and Steele were being used by someone who — lots of evidence suggests — had a role in the 2016 operation, Oleg Deripaska. I plan to do a separate post on what the IG Report says about Deripaska, but the short version is Ohr and Steele’s coziness with him posed real counterintelligence risks. With a few exceptions, it appears that FBI limited the impact of those risks. And that counterintelligence risk is part of the downside of a call to share information widely, but not something unique to Ohr’s actions.

Steele and Ohr had been sharing information as part of their common pursuit against Russian organized crime for years

The IG Report splits up its introduction to how Steele came to work with FBI from its introduction of Ohr’s relationship with him. That means key details about Ohr’s career appear almost 200 pages after the IG Report’s first explanation of how Ohr introduced Steele to his handling agent, Mike Gaeta, described as Handling Agent 1.

In the later section, the IG Report explains Ohr’s background in prosecuting organized crime — including Russian organized crime — and how he moved into more of a policy role on the topic, including leading an Obama initiative to pursue transnational organized crime using an intelligence-based approach similar to the one used to fight terrorism (that is, one based on information sharing). That initiative included a focus on Russian organized crime from the start, and Ohr continued to share information on the topic.

Ohr told the OIG that as Chief of OCRS, he tried to develop the Department’s capacity for fighting transnational organized crime and that this was when he began tracking Russian organized crime.

[snip]

He stated that he was often the Department’s “public face” at conferences and was sometimes approached by individuals who provided information about transnational organized crime.

[snip]

Ohr told us that when he became the OCDETF Director, then DAG Jim Cole expressed his desire for Ohr to expand OCDETF’s mission to include transnational organized crime matters. He said that, as a result, he continued working on transnational organized crime policy and, in order to maintain awareness, tracked Russian organized crime issues.

That later section also describes how Ohr, who had been passing on information from Steele already, came to encourage FBI to open a direct channel with the former MI6 officer for investigative purposes while he continued to accept information from Steele for his own policy purposes.

Ohr said he introduced Steele to Handling Agent 1 so that Steele could provide information directly to the FBI in approximately spring 2010. 407 He told us that he “pushed” to make Steele an FBI Confidential Human Source (CHS) because Steele’s information was valuable. Ohr also said that it was “not efficient” for him to pass Steele’s information to the FBI and he preferred having Steele work directly with an FBI agent. According to Steele, Ohr and Handling Agent 1 coordinated over a period of time with Steele to set up his relationship with the FBI.

Ohr’s contact with Steele did not end after Steele formalized his relationship with Handling Agent 1 and the FBI.408 Ohr met or talked with Steele multiple times from 2014 through fall 2016, and on occasion those in-person meetings or video calls included Handling Agent 1. Ohr told us that he viewed meeting with Steele as part of his job because he needed to maintain awareness of Russian organized crime activities and Steele knew Russian organized crime trends better than anyone else. He said he knew Steele was also speaking to Handling Agent 1 at this time because Steele would say that he provided the same information to Handling Agent 1. Handling Agent 1 told us that he knew Steele and Ohr were in contact and talked about issues “at a higher policy level,” but stated that he did not know anything further regarding their interactions.

Here’s how the more general introduction of Ohr’s introduction of Steele to Gaeta appears without that context, almost 200 pages earlier:

Steele’s introduction in 2010 to the FBI agent who later became Steele’s primary handling agent (Handling Agent 1) was facilitated by Department attorney Bruce Ohr, who was then Chief of the Organized Crime and Racketeering Section in the Department’s Criminal Division in Washington, D.C. Ohr told the OIG that he first met Steele in 2007 when he attended a meeting hosted by a foreign government during which Steele addressed the threat posed by Russian organized crime. Ohr said that, after this first meeting with Steele, he probably met with him less than once a year, and after Steele opened his consulting firm, Orbis Business Intelligence, he furnished Ohr with reports produced by Orbis for its commercial clients that he thought may be of interest to the U.S. government. Ohr said that he eventually put Steele in contact with Handling Agent 1, with whom Ohr had previously worked.

By splitting these two discussions, the IG Report also splits the discussion of the centrality of Steele’s intelligence on Russian oligarchs from the discussion of Ohr’s conversations with Steele in 2016. For example, the FBI formally entered into a source relationship with Steele in 2013 after he shared a report on a fugitive Russian oligarch that proved really valuable.

For example, we learned that, in October 2013, Steele provided lengthy and detailed reports to the FBI on three Russian oligarchs, one of whom was among the FBI’s most wanted fugitives. According to an FBI document, an analyst who reviewed Steele’s reporting on this fugitive found the reporting “extremely valuable and informative” and determined it was corroborated by other information that the FBI had obtained.

The earlier discussion explains how Ohr remained personally involved with Steele in this period, including meeting with Oleg Deripaska (described as Russian Oligarch 1).

Handling Agent 1 told the OIG that Steele facilitated meetings in a European city that included Handling Agent 1, Ohr, an attorney of Russian Oligarch 1, and a representative of another Russian oligarch. 209 Russian Oligarch 1 subsequently met with Ohr as well as other representatives of the U.S. government at a different location. Ohr told the OIG that, based on information that Steele told him about Russian Oligarch 1, such as when Russian Oligarch 1 would be visiting the United States or applying for a visa, and based on Steele at times seeming to be speaking on Russian Oligarch 1’s behalf, Ohr said he had the impression that Russian Oligarch 1 was a client of Steele. 210

Note, the IG Report rather dishonestly either redacts or does not include the dates of these interactions involving Deripaska. Those interactions continued into 2016, and indeed, are — for better and worse — inseparable from any conversations they had about Steele’s work for Fusion.

In addition to providing information on Russian oligarchs that FBI found valuable, Steele also provided information on other topics, including on hacking and Russia’s sports doping.

Steele’s prior reporting to the FBI addressed issues other than Russian oligarchs. For example, we reviewed FBI records reflecting that he provided information on the hack of computer systems of an international corporation, and corruption involving former Ukrainian President Viktor Yanukovych. In addition, Steele told us he introduced Handling Agent 1 to sources with knowledge of Russian athletic doping and obtained samples of material for the FBI to analyze.

As a result, FBI paid Steele $64,000 in 2014 and 2015 and — it doesn’t say this explicitly but the math suggests — $31,000 for information in 2016, none of it for information related to the dossier.

As a result, in 2014 and 2015, the FBI made five payments to Steele totaling $64,000. By the time the FBI closed Steele in November 2016, his cumulative compensation totaled $95,000, including reimbursement for expenses.

All of these topics, of course — Russian oligarchs, Russian doping, and Russian hacking — are an integral part of Russian organized crime. All were part of Bruce Ohr’s job in 2016. That’s the kind of information sharing that the IG Report, with its rebuke of Ohr, is saying DOJ shouldn’t do, contrary to what both the IG and DOJ as a whole have been saying for decades.

By suggesting that sharing this kind of information with other experts on the topic merits discipline or firing, as the IG Report does, DOJ IG risks making us less safe.

The IG Report largely ignores Ohr and Steele’s discussions from the first half of 2016

The IG Report then examines what it claims to be Steele and Ohr’s “2016 contacts … regarding Russian issues.” It starts this story with a meeting the two had on July 30, 2016.

Suggesting that Ohr’s July 30, 2016 meeting with Steele is the beginning of the story of contacts they had in 2016 “regarding Russian issues” is profoundly dishonest — the kind of failure to disclose relevant information that the IG Report as a whole condemns the FBI for with regards to Carter Page’s FISA application.

A Judicial Watch FOIA for Ohr’s communications with Steele between January 1, 2015 and December 12, 2017 shows they spoke in March 2016.

In the Judicial Watch FOIA, DOJ redacted the dates on all their other emails in part because of ongoing investigations (suggesting they still had investigative sensitivity at the time DOJ responded to JW’s FOIA), but leaks from Congress to the frothy right made it clear that they also communicated in January, February, and earlier in July. As coverage of those leaks makes clear, the vast majority of their conversations earlier that year include discussion about Deripaska.

The emails, given to Congress by the Justice Department, began on Jan . 12, 2016, when Steele sent Ohr a New Year’s greeting. Steele brought up the case of Russian aluminum magnate Oleg Deripaska (referred to in various emails as both OD and OVD), who was at the time seeking a visa to attend an Asia-Pacific Economic Cooperation meeting in the United States. Years earlier, the U.S. revoked Deripaska’s visa, reportedly on the basis of suspected involvement with Russian organized crime. Deripaska was close to Paul Manafort, the short-term Trump campaign chairman now on trial for financial crimes, and this year was sanctioned in the wake of Russian involvement in the 2016 presidential election.

“I heard from Adam WALDMAN [a Deripaska lawyer/lobbyist] yesterday that OD is applying for another official US visa ice [sic] APEC business at the end of February,” Steele wrote in the Jan . 12 email. Steele said Deripaska was being “encouraged by the Agency guys who told Adam that the USG [United States Government] stance on [Deripaska] is softening.” Steele concluded: “A positive development it seems.”

Steele also asked Ohr when he might be coming to London, or somewhere in Europe, “as I would be keen to meet up here and talk business.” Ohr replied warmly the same day and said he would likely travel to Europe, but not the U .K ., at least twice in February.

An early July exchange includes the reference to a “favorite business tycoon” that the frothy right would — falsely — spin up into an early reference to Trump (it was another reference to Deripaska).

Then, on July 1, came the first apparent reference to Donald Trump, then preparing to accept the Republican nomination for president. “I am seeing [redacted] in London next week to discuss ongoing business,” Steele wrote to Ohr, “but there is something separate I wanted to discuss with you informally and separately. It concerns our favourite business tycoon!” Steele said he had planned to come to the U.S. soon, but now it looked like it would not be until August. He needed to talk in the next few days, he said, and suggested getting together by Skype before he left on holiday. Ohr suggested talking on July 7. Steele agreed.

Both of these passages, even with the error imagining a Deripaska reference invokes Trump, include discussion (bolded in both) about what appears to be other business. Yes, the reference in the IG Report explaining that Ohr thought Steele might be working for Deripaska, appearing 180 pages earlier, probably incorporates these references. But their earlier 2016 contacts — both about Deripaska (and therefore Russia) and other business — provide important context for the discussion of the July 30 meeting, which IG Report falsely suggests is the beginning of the discussions about Russia they had been happening since the beginning of the year. Not least, because those earlier contacts not only make it clear that their relationship did not shift radically when Steele started working on the dossier, but they also make it clear that Steele and Ohr’s contacts about Deripaska — however problematic — would not appear to be a break from their previous three year focus on Deripaska and other oligarchs.

Having ignored earlier conversations about other topics in 2016, the Report then provides this description of the first meeting where they did speak about Trump.

On Saturday, July 30, 2016, at Steele’s invitation, Ohr and Nellie Ohr had breakfast with Steele and an associate in Washington, D.C. Nellie Ohr told us she initially thought it was going to be a social brunch, but came to understand that Steele wanted to share his current Russia reporting with Ohr. According to Steele, he intended the gathering to be a social brunch, but Ohr asked him what he was working on. Steele told us that he told Ohr about his work related to Russian interference with the election. Ohr told us that, among other things, Steele discussed Carter Page’s travel to Russia and interactions with Russian officials. He also said that Steele told Ohr that Russian Oligarch 1 ‘s attorney was gathering evidence that Paul Manafort stole money from Russian Oligarch 1. Ohr also stated that Steele told him that Russian officials were claiming to have Trump “over a barrel.” According to Ohr, Steele mentioned that he provided two reports concerning these topics to Handling Agent 1 and that Simpson, who owned Fusion GPS, had all of Steele’s reports relating to the election. Steele did not provide Ohr with copies of any of these reports at this time. Later that evening, Steele wrote to Ohr asking to “keep in touch on the substantive issues” and advised Ohr that Simpson was available to speak with him. [my emphasis]

If you didn’t know better, you’d think that on July 30, 2016, Christopher Steele lured Bruce Ohr to brunch to push his dossier and only his dossier.

Except … that would be wrong.

Even leaving out the context of the years during with Steele and Ohr had discussed matters of Russian oligarchs generally and Deripaska specifically, as the IG Report does, Deripaska’s feud with Paul Manafort — while likely crucial background to the dossier — cannot be described as content from the dossier. The only possible reference to the feud in the dossier is a report, dated October 19, referring to “scandals involving MANNAFORT’s [sic] commercial and political role in Russia/Ukraine.” If the Deripaska feud were to be treated as part of the dossier, then so should be Deripaska’s outreach to Manafort on August 2, 2016, one of the most suspect unexplained events from 2016 (as I’ll show in a follow-up, this is a critical overlap, but one that points to other problems the IG Report barely mentions).

Plus, this passage appears to deliberately obscure behind the phrase “among other things,” the full range of what got discussed. As it appears, the phrase suggests Ohr and Steele discussed, among other things, Carter Page’s alleged trip to Moscow, with the other things being Deripaska’s feud with Manafort and Russia’s claim to have Trump “over a barrel.” This passage suggests those are the only three topics discussed.

But that’s false. As Ohr’s own notes and testimony make clear, in between the time he discussed Page and Russia having Trump over a barrel and Manafort’s dispute with Deripaska and when he told Ohr that Steele’s handling agent, Mike Gaeta, had two reports on this and Glenn Simpson had four, Steele discussed something about Russian doping.

Q Were there any other topics that were discussed during your July 30, 2016, meeting?

A Yes, there were. Based on my sketchy notes from the time, I think there was some information relating to the Russian doping scandal, but I don’t recall the substance of that. And based on my notes, it indicated that Chris Steele had provided some reports to the FBI, I think two, but that Glenn Simpson had more.

In other words, in addition to information about the Deripaska feud that doesn’t appear in the dossier, Steele also shared information on Russian doping, information on Russia that had nothing to do with Trump.

In other words, what appears to have happened is that Steele and Ohr had a meeting that, in significant part, reflected a continuation of their past discussions, especially regarding Deripaska, but also Russian doping, both key parts of Ohr’s work on organized crime. Along with that, Steele shared two details that showed up in some form in dossier reports. And Ohr seems to have treated that the way he treated other information he got from Steele. He shared it with Gaeta (who already had received the dossier-related information) and Deputy Assistant Attorney General for International Affairs Bruce Swartz (who had been concerned about Manafort’s corruption for several years). DOJ IG found no evidence he shared it with the people who opened Crossfire Hurricane and therefore no evidence that the dossier was part of the reason they opened the investigation.

Then, Ohr spoke with or met Steele or Glenn Simpson four more times before the election. According to the IG Report’s own descriptions, those four additional times Ohr shared information related to Steele before the election, it was often tangential to matters in the dossier, rather than the key allegations in it.

On August 22, for example, Ohr met with Glenn Simpson, who shared the names of three people who he thought might be intermediaries between Trump and Russia. The two of those that are public — Sergei Millian and (by description) probably Sergey Yatsenko — were of interest in the Mueller Report. In fact, Millian was already on the FBI’s radar, and in October 2016, FBI would open a counterintelligence investigation into him. According to the IG Report, Ohr probably shared that information with Gaeta and maybe with FBI’s Transnational Organized Crime people.

Then, on September 23, Ohr met Steele. They discussed who was funding Fusion GPS’s opposition research, allegations about the Alfa Bank/Trump Tower server, including a claim that Millian also used the Alfa Bank server, and that an individual working with Carter Page was a Russian intelligence officer. None of these topics show up in Steele’s publicly released dossier reports, though FBI obtained three reports that are not public. Steele would explain to DOJ IG that Orbis was not responsible for the Alfa Bank allegations, though would do a report on the relationship Alfa’s founders had with Putin from years earlier. According to the IG Report, Ohr probably shared this information with Bruce Swartz and possibly Gaeta.

On October 13, FBI’s Transnational Organized Crime-East people told Ohr (probably in response to a question from him) that counterintelligence agents had spoken with Gaeta; Ohr told them he had the names of three possible intermediaries, one of whom (Millian) FBI had either just or was about to open an investigation into. The IG Report is inconclusive about whether this conversation went any further.

Early on October 18, Steele contacted Ohr about Oleg Deripaska’s company, Rusal, being sanctioned (probably in Ukraine). Shortly thereafter, Ohr scheduled a meeting to discuss Steele’s information with Andrew McCabe, with whom he had worked on organized crime in the past. According to Lisa Page’s notes from the meeting, they discussed Steele’s background, Nellie Ohr’s by then past relationship with Fusion (her last day was September 24), and the three intermediaries Simpson was concerned about. They also talked about Deripaska.

Lisa Page’s notes from the meeting show that Ohr discussed Steele, provided Steele’s previous employment background, talked about issues concerning Russian Oligarch 1, and indicated that Simpson provided Ohr with names of intermediaries between the Kremlin and the Trump campaign. Lisa Page also wrote that Ohr met with Russian Oligarch 1 the previous year and “Need report?”

DOJ IG was clearly skeptical of Ohr’s decision to set up this meeting after having been told, five days earlier, that counterintelligence agents were meeting with Gaeta. But there’s an explanation that would be bloody obvious if the Report hadn’t downplayed the continuity in Ohr and Steele’s discussions about Deripaska but instead treated all the information coming in from Steele as dossier-related information. This was, according to the description in the IG Report, a meeting significantly focused on Deripaska (which makes sense, given that’s what Steele called Ohr that morning about).

Deripaska was treated at the time less as a counterintelligence issue and more as a witness to Manafort’s corruption. Probably, this was Deripaska’s effort to work both sides, offering to provide dirt on Manafort in exchange for some protection against US sanctions (which makes the reference to “scandals involving MANNAFORT’s [sic] commercial and political role in Russia/Ukraine” in a Steele report the next day all the more provocative). Again, Ohr’s involvement in a Deripaska channel deserves far more attention, but of the kind that the IG Report only gives a passing mention to. But it’s an obvious explanation for why Ohr would schedule this meeting in the wake of discussing increasing pressure on Deripaska’s company.

In any case, at the meeting, per both McCabe and Ohr, Ohr provided information that was treated as derogatory information against Steele: that Nellie had worked with Simpson, that he was sharing his information with a number of others, and that he was collecting the information as opposition research. This is the kind of information the IG Report, generally, complains wasn’t shared widely enough. And yet it faults Ohr for sharing it.

Immediately after Mother Jones published an article demonstrably based on Steele’s reporting, the FBI closed him as a source. Up until that point, Ohr had shared:

  • The Carter Page allegation and a general allegation about Trump that might reflect the pee tape report
  • Information (however problematic from a counterintelligence standpoint) about Oleg Deripaska that showed up in the dossier in passing if at all
  • Information about another Russia-related topic, doping
  • Three names that Glenn Simpson thought might be intermediaries between Trump and Russia, two of whom FBI agreed were suspect
  • Allegations about Alfa Bank that Steele claims did not come from Orbis
  • What the IG Report treats as the kind of derogatory information it wishes FBI had obtained earlier

In short, the IG Report does not support two key conspiracy theories about Ohr’s role — that he introduced the Crossfire Hurricane team to the dossier before they opened the investigation into Trump, and that his information sharing amounted to an effort to push the dossier to the FBI (though he definitely believed Trump’s close ties to Russia merited scrutiny, and kept pushing the names of intermediaries the FBI seems to have considered concerning themselves). Nevertheless, the IG Report seems to treat Ohr’s information sharing as if those conspiracy theories were true.

The IG Report demands that FBI treat information from Ohr as vetting information but doesn’t give Ohr credit for helping FBI to vet the dossier

During the month from November 21 to December 20, Ohr had a series of meetings with the Crossfire Hurricane team or a Supervisory Agent from it (SSA 1) in which he provided extensive information about Steele, the dossier, Glenn Simpson, and his wife Nellie’s work for Simpson (most of which, by time and apparent volume, was paid for by right wing billionaire Paul Singer).

The IG Report makes it clear that the Crossfire Hurricane team treated the first of these meetings, on November 21, as part of their vetting process

Strzok, the OGC Unit Chief, SSA 1, and the Intel Section Chief told us the purpose of the meeting was to better understand Steele’s background and reliability as a source and to identify his source network.

Members of the team believed some of what Ohr shared in the following weeks might be helpful in the vetting process, too. Bill Priestap, FBI’s Counterintelligence Assistant Director, who was overseeing the investigation, described Ohr’s ties with Steele as potentially useful as a way to better understand the dossier.

Priestap stated that the FBI’s engagement with Ohr to learn what Steele had shared with Ohr was potentially useful in understanding Steele and verifying his reporting.

The agent he had follow-up meetings with found Ohr’s background helpful and though Ohr might be able to help him identify Steele’s source network (how the FBI succeeded in identifying Steele’s source network remains unexplained in the IG Report).

SSA 1 stated that he was in “receive mode” with respect to Ohr’s information and was trying to glean from it as much as he could about Steele’s source network. He also said that Ohr was well-versed in Russian organized crime and that, in SSA 1’s view, Ohr’s motives for coming to the FBI were “pure.”

The Supervisory Analyst involved with the investigation told the IG that “the Simpson thumb drive containing some of Steele’s reports the FBI did not already possess [was] an example of useful information from Ohr.”

There’s no evidence in the IG Report that Ohr attempted to protect Steele during this vetting process. Indeed, the IG Report focuses on a number of the potentially derogatory things Ohr says about Steele’s actions or his reporting.

  • Because of the impact of the dossier-based David Corn article, Ohr apologized to Gaeta for even introducing him to Steele
  • Ohr told Kathleen Kavalec (before or after a meeting on how to respond to Russian efforts to influence foreign elections) that Steele’s information was “kind of crazy”
  • Ohr warned the Crossfire Hurricane team that reporting of Kremlin activities “may be exaggerated or conspiracy theory talk,” so Steele cannot know whether all the reporting is true
  • Ohr revealed that Steele was “desperate” that Trump not be elected, but was providing reports for ideological reasons, specifically that “Russia [was] bad”(while notes from the meeting made it clear Ohr described this as ideological, the 302 of that meeting did not reflect that, which has formed a key sound bite to undermine Steele)

And in fact, a failure to integrate Ohr’s candid comments about Steele and the Fusion project — starting at least in October — make up two of the IG Report’s 17 complaints about the FBI’s actions.

11. Omitted information obtained from Ohr about Steele and his election reporting, including that (1) Steele’s reporting was going to Clinton’s presidential campaign and others, (2) Simpson was paying Steele to discuss his reporting with the media, and (3) Steele was “desperate that Donald Trump not get elected and was passionate about him not being the U.S. President”

12. Failed to update the description of Steele after information became known to the Crossfire Hurricane team, from Ohr and others, that provided greater clarity on the political origins and connections of Steele’s reporting, including that Simpson was hired by someone associated with the Democratic Party and/or the DNC;

Yet, even though the IG Report makes it clear the team treated these discussions as useful for vetting, and even though the IG Report criticizes the FBI for not including derogatory information Ohr provided in the Carter Page FISA applications, the IG Report does not treat these exchanges (or comments from State Department’s Kathleen Kavalec) as part of the vetting process, which it covered 80 pages earlier in the IG Report.

Effectively, then, DOJ IG advocates punishing Ohr for the most timely vetting of the dossier, including the details about Steele’s efforts to share it with the press.

DOJ IG protects sources while complaining that Steele attempted to protect his sources

The final period of Ohr’s communications with Steele covered by the IG Report spans from January 25 through November 2017. As I lay out in this post based on the underlying notes and FBI 302s, those communications largely consist of Steele panicking about the possibility his source will become exposed and require help, followed by Steele’s concern about the impact of ongoing investigations on him or his sources. There’s no mention — in the 302s, the IG Report, or the underlying notes — of Steele sharing any details of his ongoing intelligence collection into Trump, though there continue to be references to Deripaska.

Given that even Bill Barr’s DOJ kept all Steele’s identified sources (even Oleg Deripaska and Sergei Millian) anonymous and the earlier release of the 302s and his notes use the FOIA exemption designated for source protection, DOJ clearly agrees with the import of protecting his sources, so it’s hard to understand how this could be an improper conversation (even if you can be exasperated with Steele’s panic given that he himself was sharing his own raw intelligence with the press).

Moreover, as the IG Report admits far more forthrightly for this period than it did their earlier conversations, to the extent that Steele was sharing his intelligence reporting in 2017, it didn’t have to do with Trump.

In addition to the information summarized in this section, Ohr also provided information to the FBI from Steele and other individuals on unrelated matters.

[snip]

On February 14, 2017, Ohr shared with SSA 3 and Case Agent 8 information on topics Steele was working on for different clients, unrelated to Russia or Crossfire Hurricane.

[snip]

SSA 3 also told us that Ohr forwarded other information to the team regarding Russian oligarchs and other issues unrelated to the Crossfire Hurricane investigation.

Some of these conversations were ill-considered (such as the Deripaska ones, as well as an effort by the lawyer that represented both Julian Assange and Deripaska to trade Assange immunity for advance notice of the Vault 7 files). But the IG Report provides no indication that they were outside the norm for Ohr or detrimental to Trump.

The IG Report also makes it clear that, even though Steele was likely trying to get Ohr to help his clients, it never found evidence he did so. DOJ didn’t find any instance of it.

Ohr said that he understood Steele was “angling” for Ohr to assist him with his clients’ issues. For example, Ohr stated that Steele was hoping that Ohr would intercede on his behalf with the Department attorney handling a matter involving a European company. Ohr denied providing any assistance to Steele in this regard, and we found no evidence that he did.

Nor did the FBI.

The FBI personnel we interviewed generally told us that Ohr did not make any requests of the FBI, nor did he inquire about any ongoing cases or make any recommendations about potential investigative steps.

DOJ IG’s analysis of Ohr’s actions strains to reach a negative conclusion

Which brings us to the basis of the IG’s complaint about Ohr’s information sharing. The complaint is twofold. First, some people claimed that Ohr was doing stuff that was not part of his job. The most credible of those complaints came from the Transnational Organized Crime-East Section Chief, who complained Ohr should have just handed off Steele entirely to the FBI (though Ohr’s direct meeting with Oleg Deripaska happened with an FBI Agent).

The TOC-East Section Chief noted that while it was odd to have a high-level Department official in contact with Russian oligarchs, it did not surprise him that Ohr would be approached by individuals, such as Steele, who wanted to talk to the U.S. government. The TOC-East Section Chief said that it would be “outside [of Ohr’s] lane” to continue the relationship with these potential sources after their introduction to the FBI.

Steele’s handler, Mike Gaeta, knew that Ohr continued his contacts with Steele, even if he didn’t know the substance of them. And one of the Steele emails to Ohr the IG Report does not include in the report shows that Steele also knew his intelligence had to go through Gaeta.

Steele said he would send the reporting to a name that is redacted in the email, “as he has asked, for legal reasons I understand, for all such reporting be filtered through him (to you at DoJ and others).”

That’s consistent with the fact that Steele did not provide any of his reports directly to Ohr; only Simpson did that, during the period the FBI was vetting the dossier.

Meanwhile, contrary to the claims that Ohr was working outside his lane, the State Department believed he was an appropriate attendee for a meeting focusing on Russia’s interference in other countries’ elections.

On the morning of November 21, 2016, at the State Department’s request, Ohr met with Deputy Assistant Secretary Kathleen Kavalec and several other senior State Department officials regarding State Department efforts to investigate Russian influence in foreign elections and how the Department of Justice might assist those efforts.

Perhaps the most telling complaint that Ohr was doing something that was not his job came from Sally Yates, in whose office he worked during the most substantive conversations he had with Steele. She was “stunned,” she told the IG investigators, by press reports describing Ohr communicating to Steele about stuff that “involved the Russia investigation.”

Former DAG Yates told the OIG that she was “stunned” to learn through media reports in late 2017 that Ohr had engaged in these activities without telling her, and that she would have expected Ohr to inform her about his communications with Steele because they were outside of his area of responsibility and involved the Russia investigation. Yates added that she “would have hoped that [Ohr and the FBI] would have both told me” of Ohr’s meetings with Steele and the FBI. She further stated that Ohr’s activities needed to be coordinated with the overall Crossfire Hurricane investigation, which included ensuring that the chain of command at both the Department and FBI were jointly deciding what actions, if any, Ohr might take relating to the Russian interference investigation.

The thing is, Yates’ response is clearly a response to the press reporting, which claimed that every communication they had pertained to the Steele dossier and Trump, not the substance of what Ohr was doing — which included communications about Deripaska and Russian doping. This passage suggests that the IG didn’t inform her the depictions of what Ohr was doing in the press were significantly debunked by what IG investigators found. Yates also complained that Ohr should not have had the October 18 meeting with someone as senior as Andrew McCabe without informing her, which is a far more substantial complaint, except one that is inconsistent with her suggestion that Ohr communicated with the Crossfire Hurricane team without coordinating with FBI’s chain of command.

The person leading the Deputy Attorney General’s office (and therefore the Russian investigation once Jeff Sessions recused) after Yates got fired was Dana Boente. The IG Report shows that Boente — along with the entire rest of the chain of command, including Scott Schools, who would later demote Ohr — at least got briefed of his relationship with Steele in the context of the Russian investigation.

As described in Chapter Nine, handwritten notes of an FBI briefing Boente received in February 2017 indicate that the FBI advised Boente and others at that time-including [Stu] Evans, then Acting Assistant Attorney General Mary McCord, then Deputy Assistant Attorney General George Toscas from NSD, ADAG Tashina Gauhar, ADAG Scott Schools, and Principal ADAG James Crowell-that Ohr knew Steele for several years and remained in contact with him, and that Ohr’s wife worked for Simpson as a Russian linguist. However, none of these handwritten notes-which include separate notes taken by Boente, Schools, and Gauhar-stated that the FBI had interviewed Ohr or that Ohr had provided the FBI with information regarding Steele’s election reporting or Steele’s feelings toward candidate Trump. Schools told us that he recalled a meeting in which the OGC Unit Chief referenced Ohr having contact with Simpson, but Schools was not sure if it was during this February 2017 briefing or another briefing. Further, he said that it was a “passing reference,” and he never would have imagined that Ohr was having regular contact with the Crossfire Hurricane team and providing the information that appeared in the FD-302s. Boente and the other attendees of the February 2017 briefing told the OIG that they did not recall the FBI mentioning Ohr at any time during the investigation, and that they did not know about the FBI’s interviews with Ohr at the time of the FISA applications. According to Gauhar, she was surprised to find a reference to Ohr in her notes, and, regardless, she “would never have dreamt” back then what she knows now concerning the extent of Ohr’s interactions with Steele, Simpson, and the FBI on Steele’s election reporting.

The IG Report seems to complain that the FBI did not offer up Ohr’s role robustly enough. But it seems to hold Jim Comey responsible for having received the same level of briefing about Ohr’s actions (which question, in addition, seems to be premised on the public conspiracies about Ohr which may explain why he didn’t believe he had heard about them).

Comey told us he had no knowledge of Ohr’s communications with members of the Crossfire Hurricane investigative team and only discovered Ohr’s association with Steele and the Crossfire Hurricane investigation when the media reported on it. However, notes taken by Strzok during a November 23, 2016 Crossfire Hurricane update meeting attended by Comey, McCabe, Baker, Lisa Page, Anderson, the OGC Unit Chief, the FBI Chief of Staff, and Priestap, reference a discussion at the meeting concerning “strategy for engagement [with Handling Agent 1] and Ohr” regarding Steele’s reporting. Strzok stated that, based on his notes, he believed he informed FBI leadership that Ohr approached the FBI concerning his relationship with Steele and that Ohr relayed Steele’s information regarding Russia to the team. Although the OGC Unit Chief could not recall when it occurred, she recalled discussing with executive leadership that the FBI should not use Ohr to direct Steele’s actions. Because Strzok’s notes of the meeting were classified at the time we interviewed Comey, and Comey chose not to have his security clearances reinstated for his OIG interview, we were unable to show him the notes and ask about the reference in them to Steele and Ohr. [my emphasis]

That’s especially true given that no one was using Ohr to direct Steele’s actions, which seems to suggest that these questions were based, as many of the ones about Ohr, on a false premise arising from the conspiracy theories that the IG Report does not support.

If you ask top managers whether they knew of Ohr’s actions that exist only in conspiracy theories but not in reality, there may be a ready explanation for why they didn’t know about it: because (as the evidence presented in the IG Report makes clear) the conspiracy theories imagined things had happened that had not.

In any case, DOJ IG seems to hold the FBI to a much higher standard for asking questions at briefings, and so doesn’t treat a briefing where the entire chain of command at ODAG and NSD was informed Ohr had a role as informing them he had a role. Scott Schools, who was in that FBI briefing with NSD and was the one who demoted Ohr, complains that FBI didn’t fully report Ohr’s involvement to NSD.

Then Associate Deputy Attorney General Scott Schools, who was the highest-ranking career official in the Department, and ODAG’s ethics advisor, stated that the FBI had a responsibility to fully report Ohr’s involvement to the Department’s National Security Division (NSD) and that Ohr had a duty to report his involvement to ODAG’s managers.

But he also describes a conversation with Ohr where Ohr asked about ethics.

Schools recalled that Ohr, at some point, “stuck his head in the door and said, hey I just wanted to make sure there’s nothing I need to do. My wife works at Fusion GPS. I don’t know if there’s anything, like, a recusal, or anything I need to deal with.” Schools stated that he responded to Ohr by saying that “you don’t have anything to do with that case. We don’t typically in the Department recuse individuals who aren’t responsible for the matter giving rise to a potential conflict.” Schools believed this conversation occurred a couple months before Ohr’s conduct became public and may have coincided with Ohr’s October 2017 conversation with Rosenstein.

If this conversation really did not take place until October 2017, as Schools says, then his understanding of it is inaccurate, as by that point Nellie Ohr had not worked for Fusion for over a year and Ohr had had no role in sharing substantive information about the Russian investigation for ten months. If Ohr really did raise the issue of a conflict because of Nellie’s work, however, it’s much more likely it happened a year earlier, when he was providing the same warnings to FBI.

In any case, Ohr’s question to Schools, whenever it occurred, raises real questions about why DOJ IG included analysis finding that Ohr “displayed a lapse in judgment” for not choosing to use a process that, guidelines say, should not be characterized as a lapse.

The federal ethics rules further provide in Section 502(a)(2) that an employee “who is concerned that circumstances other than those specifically described in this section would raise a question regarding his impartiality should use the process described in this section [namely, to consult with Department ethics officials] to determine whether he should or should not participate in a particular matter.” However, while OGE has made clear that employees are “encouraged” to use this process, it also has stated that “[t]he election not to use that process should not be characterized … as an ‘ethical lapse.”‘ OGE 94 x 10(1), Letter to a Department Acting Secretary, March 30, 1994; see also, OGE 01 x 8 Letter to a Designated Agency Ethics Official, August 23, 2001. While OGE guidance establishes that Ohr did not commit a formal ethical violation, we nevertheless concluded that Ohr, an experienced Department attorney and a member of the SES, should have been more cognizant of the appearance concerns created by Nellie Ohr’s employment with Fusion GPS and availed himself of the process described in Section 502(a). We found that his failure to take this step displayed a lapse in judgment. [my emphasis]

The first step of using the process, it seems, is asking the department ethics advisor if he needed to use the process.

All of which brings us to Rod Rosenstein’s claimed surprise of hearing about Bruce Ohr’s relationship with Steele. Ohr warned Rosenstein that his role in introducing Steele to the FBI when he learned it might become public. Rosenstein didn’t pursue it until Congress started sowing conspiracy theories about it.

He complains, fairly, about the fact that he did not know Ohr had an operational role in the investigation (note, as with all of this, it’s unclear whether Rosenstein knew the actual details of what Ohr had done when, or whether he understood Ohr to have tried to sustain the Steele dossier, as the GOP was alleging).

Ohr told the OIG that in October 2017, Nellie Ohr received a call from someone at Fusion GPS who told her that the company was providing documents to Congress that identified her as a Fusion GPS contractor and that he realized that then DAG Rosenstein may need to know about this, so he asked to speak with him. He stated that he informed Rosenstein that his wife, Nellie Ohr, worked for Fusion GPS, and that it may become public that Ohr knew Steele and introduced him to the FBI. Ohr told the OIG that he was “prepared to go into more detail [with Rosenstein], but there really wasn’t time.” Rosenstein recalled having this conversation in Ohr’s office and told us he remembered Ohr stating he knew Steele and that Nellie Ohr worked for Fusion GPS. Rosenstein told us that during this conversation, Ohr may have also said that he introduced Steele to the FBI and that all this information may become public. Rosenstein described the meeting with Ohr as casual and noted that he was in Ohr’s office for another reason, which indicated to him that Ohr did not make a special effort to notify him. Rosenstein stated that he left the conversation under the impression that it was only a “strange coincidence” that Ohr knew Steele.

[snip]

Ohr told us that a few weeks after his first conversation with Rosenstein on this issue, he spoke with Rosenstein again and told him that he still talked to Steele from time to time and provided information to the FBI when Steele called him. Rosenstein told us that he recalled a second conversation with Ohr concerning Steele, which he believed occurred in early December 2017. According to Rosenstein, Ohr told him that he delivered a thumb drive containing Steele’s election reports to the FBI. Rosenstein said this information changed his perspective of the situation. Rosenstein told us the fact that Ohr

knew Steele was kind of just an unusual coincidence, but the idea that he had actually had some role in this Russia investigation was shocking to me…. [W]e had been fending off these Congressional inquiries. And they were asking for all sorts of stuff, [FD-]302s and things, and .. .l had no idea that somebody on my staff had actually been involved in … an operational way in the investigation.

[snip]

Rosenstein told us Crowell and Schools reported back to him with their findings, and at that point, he realized Congress likely knew more about Ohr’s activities with Steele and the FBI than anyone in ODAG did. Rosenstein told us:
[It] was really disappointing to me that he had made the decision originally not to brief anybody [on] our staff and then even after it was clear it was going to be … of national interest…he chose not to disclose, at least to [Schools], that he had actually had an active role …. I felt like, if you’re in the DAG’s office, and the DAG is getting criticized by Congress for the handling of the Russia investigation, you ought to tell him that you had some role in it.

Again, this is fair enough, though Rosenstein seems to be interpreting Ohr’s effort to inform him in the light that best serves himself.

The truly crazy take from Rosenstein’s office, however, came from Principal Associate Deputy Attorney General James Crowell, who complained about how bad it would be to have a “potential fact witness” on Rosenstein’s staff when he supervised the Russia investigation.

Crowell stated that he was “flabbergasted” when he learned about Ohr’s involvement with Steele and the FBI. He stated that Ohr should have informed ODAG officials of his relationships with Steele and Simpson and his provision of information from them to the FBI, especially when Rosenstein appointed the Special Counsel and began supervising the investigation, because “a potential fact witness” was on Rosenstein’s staff.

Rosenstein’s staff was worried about Ohr because it meant that “a potential fact witness” was on Rosenstein’s staff.

Bruce Ohr’s name shows up once in the Mueller Report, in a quoted August 2018 tweet from Trump, perhaps not unsurprisingly given that he dossier was not central to the Mueller investigation. Rosenstein’s name shows up 78 times.

If Rosenstein and his deputies were worried about potential fact witnesses working in his office while he supervised the investigation, he should have recused himself.

By all means, Ohr should have revealed his role earlier. Most of all, he should have done so to avoid being criticized for things he did not do — like sustaining the dossier with FBI — so we could instead have a conversation about what point sharing information moves from vetting and becomes a counterintelligence risk.

In a follow-up, I hope to compare what DOJ IG did with Ohr and what Andrew McCabe has substantiated in a recent court filing.

But the bigger concern, to me, is that because Rod Rosenstein was embarrassed by conspiracy theories that this IG Report rebuts, DOJ’s Inspector General wrote up a report that villainizes one of the few people in this Report that was doing what DOJ has spent almost two decades trying to get people to do: sharing information on national security in timely fashion. The facts presented in the report don’t support such a stance, and the facts left out of the report even further undermine the case.

Update: Added the weird ethics language.

OTHER POSTS ON THE DOJ IG REPORT

Overview and ancillary posts

DOJ IG Report on Carter Page and Related Issues: Mega Summary Post

The DOJ IG Report on Carter Page: Policy Considerations

Timeline of Key Events in DOJ IG Carter Page Report

Crossfire Hurricane Glossary (by bmaz)

Facts appearing in the Carter Page FISA applications

Nunes Memo v Schiff Memo: Neither Were Entirely Right

Rosemary Collyer Responds to the DOJ IG Report in Fairly Blasé Fashion

Report shortcomings

The Inspector General Report on Carter Page Fails to Meet the Standard It Applies to the FBI

“Fact Witness:” How Rod Rosenstein Got DOJ IG To Land a Plane on Bruce Ohr

Eleven Days after Releasing Their Report, DOJ IG Clarified What Crimes FBI Investigated

Factual revelations in the report

Deza: Oleg Deripaska’s Double Game

The Damning Revelations about George Papadopoulos in a DOJ IG Report Claiming Exculpatory Evidence

A Biased FBI Agent Was Running an Informant on an Oppo-Research Predicated Investigation–into Hillary–in 2016

The Carter Page IG Report Debunks a Key [Impeachment-Related] Conspiracy about Paul Manafort

The Flynn Predication

Sam Clovis Responded to a Question about Russia Interfering in the Election by Raising Voter ID

Judicial Watch Reveals Reza Zarrab’s Lawyer May Have Pitched Rosenstein on Special Counsel Pick

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I love when Judicial Watch liberates documents they think are damning but actually demonstrate that conspiracy theories are false, as they did when they liberated Bruce Ohr documents showing he actually helped the FBI vet the Steele dossier. Then there’s the recent release showing that current US Attorney George Terwilliger was pushing Bill Barr’s theory that Jim Comey deserved to be fired the weekend before Robert Mueller was hired.

But there’s something potentially more important in that batch.

The WaPo’s coverage of Rudy Giuliani and Michael Mukasey’s efforts to pressure Rex Tillerson to push DOJ to release Turkish money launderer Reza Zarrab contextualizes the fall 2017 meeting by recalling that Trump and Erdogan met on May 16, 2017


The two leaders finished their first meeting and performed their ceremonial handshake at about 1PM.

Just half an hour earlier, at 12:30 PM, Andrew McCabe had explained to Rod Rosenstein that he had opened an investigation into Donald Trump. The two then discussed Rosenstein’s thoughts about appointing a special prosecutor. Rosenstein said he was choosing between two candidates, one (who must be Mueller) who could start immediately.

At 1:09, former Deputy Attorney General Mark Filip (and Bill Barr colleague) called Rosenstein from his Kirkland and Ellis phone, left a message, and asked Rosenstein to call him.

At 3:25, Rosenstein wrote back and told him “Mukasey might call.” It’s unclear whether this is Marc or Michael Mukasey, but it doesn’t much matter, because Michael was already representing Zarrab and Marc was very very close to Giuliani.

In other words, within hours after Erdogan met Trump at the White House and asked for Zarrab’s release, someone effectively representing Zarrab appeared to be in touch with Rosenstein, who then suggested that whichever Mukasey it was call Filip.

The thing is, by all appearances, this Mukasey call pertained to question about hiring a Special Counsel. That’s because shortly thereafter, Rosenstein writes Filip back and tells him he’s going with Mueller (which suggests Filip may have been his other candidate).

If all that’s right, it suggests one of Zarrab’s lawyers may have weighed in on the Special Counsel decision just minutes after Erdogan requested Trump release him and (simultaneously) a key McCabe-Rosenstein meeting.

That’s not all that surprising. After all, the Mike Flynn investigation had already developed to include at least two of four strands, the lies about Russia and the lies about Turkey.

But then Rosenstein chose to appoint Mueller, not his other choice (who may have been Filip).

From that moment, Republicans were pushing the Bill Barr line. And Bill Barr is now in charge (and was, for the closure of the Mueller investigation). And that push may have had as much to do with Turkey as it did Russia.

The Definition of “Collusion” as Impeachment Proceeds: the Risk Trump Poses to All Americans

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It’s a testament to how crazy things have been this week that this memo — Andrew McCabe’s memorialization of opening the investigation into Donald Trump on May 16, 2017 — only got covered by obsequious propagandists on the frothy right. Judicial Watch liberated it via FOIA and actually had to focus on something else — Rod Rosenstein’s offer to wear a wire — to drive interest.

I suspect that’s because the memo paints McCabe’s own actions in favorable light (and Rosenstein in a damning light, both as regards his own integrity and his purported loyalty to Trump). Consider this paragraph:

I began by telling [Rosenstein] that today I approved the opening of an investigation of President Donald Trump. I explained that the purpose of the investigation was to investigate allegations of possible collusion between the president and the Russian Government, possible obstruction of justice related to the firing of FBI Director James Comey, and possible conspiracy to obstruct justice. The DAG questioned what I meant by collusion and I explained that I was referring to the investigation of any potential links between the Trump campaign and the Russian government. I explained that the counterintelligence investigations of this sort were meant to uncover any [sic] the existence of any threat to national security as well as whether or not criminal conduct had occurred. Regarding the obstruction issues, I made clear that our predication was based not only on the president’s comments last week to reporter Lester Holt (that he connected the firing of the director to the FBI’s Russia investigation), but also on the several concerning comments the president made to Director Comey over the last few months. These comments included the President’s requests for assurances of loyalty, statements about the Russia investigation and the investigation of General Michael Flynn. I also informed the DAG that Director Comey preserved his recollection of these interactions in a series of contemporaneously drafted memos. Finally, I informed the DAG that as a result of his role in the matter, I thought he would be a witness in the case. [my emphasis]

The substance of this paragraph has been told before, albeit by certain NYT reporters who have consistently misunderstood the substance of Trump’s ties to Russia. Those tellings have always left out that McCabe also predicated a conspiracy to obstruct justice investigation (meaning, among other things, that Rosenstein himself was on the line for his actions to create an excuse for firing Comey). The emphasis, here, is also not focused exclusively on Mike Flynn but on the Russian investigation generally; as I’ve been meaning to show, Trump faced at least as much direct exposure given the investigation into Roger Stone, and his actions after he learned Stone was a target in March 2017 reflect that more than commonly understood.

By far, the most important detail in this paragraph, however, is McCabe’s definition of “collusion,” as he explained it the day before Rosenstein appointed Robert Mueller to investigate what he would later call collusion. Collusion, for McCabe, is just “potential links between the Trump campaign and the Russian government,” not necessarily any criminal ties. McCabe made this statement at a time when FBI knew about neither the June 9 meeting to get dirt on Hillary Clinton nor Trump’s sustained effort to pursue an improbably lucrative Trump Tower deal, to say nothing of the fact that Trump’s campaign manager was sharing campaign strategy while discussing how to carve up Ukraine to Russia’s liking. That is, according to the definition McCabe used, the investigation did find “collusion.” Period, end of sentence.

Importantly, the first thing McCabe raised when discussing such — at that point hypothetical — links was national security, not criminal campaign finance or bribery exposure. That is, McCabe opened the “collusion” investigation to find out whether Trump’s — at that point hypothetical — links to the Russian government were making the US less secure. The answer to that question was not included in the Mueller Report; indeed, the most glaring evidence that those links did make the US less secure were very pointedly not included in the report.

This is an important lesson as the Ukraine investigation — which cannot and should not be separated from the Russian investigation — proceeds, one that has thus far been deemphasized again. Trump’s continued efforts to pursue policies — foreign and domestic — that personally benefit him don’t just amount to breathtaking corruption. They provide foreign countries more and more leverage to use against Trump to limit his policy options. Every time Trump does something scandalous with a foreign leader — and he does it all … the … time — it means those foreign leaders can hold that over Trump going forward and in so doing, limit his negotiating position. So not only do Americans lose out on having a President who makes decisions based on how they benefit the country rather than himself personally, but they also get a far weaker President in the bargain, someone who — if he ever decided to prioritize American interests over his own — would have already traded away his bargaining chips to do so.

Through his actions thus far as President, Trump has guaranteed he cannot pursue policies that would benefit average Americans, and he has done so not just with Russia and Ukraine, and not just because of his executive incompetence.

There is an impact that Trump’s “collusion” and corruption have on everyday Americans, whether they wear pussy hats or MAGA caps, an impact that Democrats have permitted Republicans to obscure. Trump’s actions effectively rob Americans of the powerful executive on foreign policy issues that our Constitution very imperfectly sought to ensure, without stripping the weakened Trump of the tools he can wield to punish those who call him on his weakness.

Because he always self-deals, Trump has made himself an intolerably weak President, one who makes the US less secure at every step. Republicans defending him need to be held accountable for weakening the US.

What we know of Bill Barr’s treatment of the ICIG referral on the Ukrainian whistleblower suggests he only reviewed it, cursorily, for criminal campaign finance violations — possibly not even the obvious presidential bribery prohibited explicitly by our Constitution it exhibits. Bill Barr did not, with the Russian investigation and has not with the Ukrainian referral, consider how by protecting Trump’s actions, he robs every American of what the Constitution guarantees: a President, not a man shopping for revenge and phallic symbols in foreign capitals. That’s why Barr had to totally distort the conclusions of the Mueller report on collusion: to hide what it is really about and to hide how enabling such activity by Trump hurts Americans.

Yet from the start, from the moment when McCabe opened an investigation into Trump, that’s what it was supposed to be about.

The January 30 Memo Doesn’t Help Flynn Like the Frothy Right Thinks It Does

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As I noted, some of the claims Sidney Powell made today to justify her demand for material that really doesn’t help her client got blown up, including by Emmet Sullivan, before the end of the hearing. Others, such as the fact that Michael Flynn passed a polygraph in April 2016 are undisguised horseshit. How does passing a poly exonerate you from committing a bunch of crimes after you pass it?

But I’m particularly interested in Powell’s complaint that they didn’t get a memo, written on January 30, 2017 clearing him of being a paid agent of Russia. It was another thing Sullivan sniffed out as bullshit during the hearing, noting that that Flynn did not plead guilty to being an agent of Russia. “It has to be more than theoretical relevance,” he politely responded.

Nevertheless the frothy right has seized on it like trained seals.

But it helps Flynn even less than the frothy right thinks.

Obviously, as both Brandon Van Grack and Sullivan noted, he didn’t plead guilty to being a Russian agent. He pled to two other things: lying about being a paid agent of Turkey (while getting top secret briefings during the campaign) and lying about trying to undercut the sanctions Obama imposed on Russia for helping Trump get elected.

But there’s one more problem. Over six months after the Russian agent investigation was closed on January 30, 2017, Rod Rosenstein scoped the Mueller investigation to include four allegations against Flynn.

The Acting Attorney General further clarified the scope of the Special Counsel’s investigatory authority in two subsequent memoranda. A memorandum dated August 2, 2017, explained that the Appointment Order had been “worded categorically in order to permit its public release without confirming specific investigations involving specific individuals.” It then confirmed that the Special Counsel had been authorized since his appointment to investigate allegations that three Trump campaign officials-Carter Page, Paul Manafort, and George Papadopoulos- “committed a crime or crimes by colluding with Russian government officials with respect to the Russian government’s efforts to interfere with the 2016 presidential election.” The memorandum also confirmed the Special Counsel’s authority to investigate certain other matters, including two additional sets of allegations involving Manafort (crimes arising from payments he received from the Ukrainian government and crimes arising from his receipt of loans from a bank whose CEO was then seeking a position in the Trump Administration); allegations that Papadopoulos committed a crime or crimes by acting as an unregistered agent of the Israeli government; and four sets of allegations involving Michael Flynn, the former National Security Advisor to President Trump. [my emphasis]

Two of these are presumably the crimes he pled to, the Turkish foreign agent and lying about his conversation with the Russian Ambassador. One might be his willingness to use his position to sell nuclear reactors to Saudi Arabia (lowering US standards on proliferation in the process). The fourth might be his participation in Peter Smith’s efforts to find Hillary’s deleted emails, which included asking Russian hackers for help, but that had only been disclosed at the end of June.

Whatever it is, though, it’s clear there was still plenty for the FBI to investigate long after the “exoneration” in January.

Which may be how the government will respond to Powell’s silly claims — to lay out all the damning information against Flynn.

DOJ Should Just Give Andrew McCabe What He Wants, But They Won’t

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185 paragraphs into his complaint against Bill Barr, Christopher Wray, and DOJ and FBI for unlawful termination, Andrew McCabe makes what is probably an untrue statement.

Had Plaintiff pledged his personal loyalty to Trump, voted for Trump in the 2016 election (or falsely told Trump that he had), not worn a T-shirt supporting Dr. McCabe’s campaign, and not been married to Dr. McCabe, Defendants would not have reached the decisions to demote him and terminate him, nor would they have proceeded on the accelerated schedule that deprived him of his full vested pension and related benefits.

The statement is true, insofar as they’re the issues that Trump bitched about for the year leading up to McCabe’s firing in part to discredit the Mueller investigation. They’re true because Trump has claimed they’re true, so there will be abundant evidence to submit to prove they are true. But they’re not true insofar as the Russian investigation is what led Trump to hunt down his perceived enemies, and the DOJ IG investigation is the claimed reason for McCabe’s firing.

But the claims nevertheless assert the principle that FBI employees can’t be forced to take a loyalty oath. And as such, the lawsuit seeks to uphold a principle at the core of our judicial system.

That’s not the only complaint McCabe makes. Along another First Amendment claim, he also makes two due process claims and one mandamus claim that gets into the legal fine print of the way that, in response to pressure from Trump, top DOJ officials fast-tracked an effort to get rid of McCabe.

The legal details are actually of real interest, given that Wray, then Associate Deputy Attorney General Scott Schools, and Jeff Sessions, among others, bolloxed the firing of McCabe. As Schools told McCabe while he was trying to accelerate the review of his termination in March 2018, “We’re making it up as we go along.” DOJ fucked up in two significant ways.

First, they didn’t get around to “firing” McCabe until 10:00 pm on March 16, 2018, after FBI clocked the final day McCabe had to put in before qualifying for retirement at 5:00 pm that same day. FBI registered that day as a full vacation day. By the time Sessions fired McCabe late at night, he claims, he was already legally retired. (Note, there’s a real tragicomic section describing Sessions’ role, including that the firing did not come with any of the official details like time of termination needed for such a firing, that are very similar to the way that Sessions himself would be fired 8 months later).

The other way they bolloxed McCabe’s firing is by demoting him on January 28, 2018. On that day, Wray gave McCabe a choice: to remain at FBI in a demoted role of his picking if he lied and said the demotion was voluntary, or remain in a lesser role of Wray’s choice if he refused to lie. Instead, McCabe took terminal leave, meaning he was no longer one of the positions that the Attorney General or Acting Attorney General could terminate directly. As McCabe described it, Sessions didn’t have the authority to fire McCabe.

Sessions publicly announced that he had terminated Plaintiff “[p]ursuant to [DOJ] Order 1202,”but that did not give Sessions the authority to terminate employees in Plaintiff’s position. DOJ Order 1202, promulgated pursuant to 5 U.S.C. § 3151, provides that the FBI Director alone has authority to terminate career FBI senior executives, except that the Attorney General and Deputy Attorney General retain authority to remove those who serve in certain enumerated “key positions.” After Defendant Wray removed Plaintiff from the role of Deputy Director in January 2018 and replaced him with Bowdich, Plaintiff remained a career FBI senior executive but did not serve in any of the “key positions” listed in DOJ Order 1202. Defendant Wray, as FBI Director, did not authorize Plaintiff’s termination and in fact previously refused Sessions’ request to terminate Plaintiff. Accordingly, Plaintiff was not, in fact, terminated before his retirement.

[snip]

Additionally, Sessions lacked any authority to terminate Plaintiff due to conflicts of interest and recusals, including Sessions’ March 2017 recusal from “investigations of any matters related in any way to the campaigns for President of the United States.” Defendants’ pretextual basis for Plaintiff’s termination arose from the OIG investigation of Plaintiff’s actions related to the 2016 U.S. presidential campaign, specifically his actions regarding campaign-related articles published in October 2016 by the Wall Street Journal. Sessions’ recusal, on its face, extended to the OIG investigation. Sessions’ recusal was therefore a “disability” under 28 U.S.C §508(a), meaning that he lacked qualification to participate in Plaintiff’s termination. As a result, Sessions had no authority to terminate Plaintiff.

The entire complaint is (as one would expect for a suit filed by four Arnold & Porter lawyers on behalf of a lawyer who happens to be a former top FBI official) very well lawyered in such a way that the legal issues are very narrow, even while invoking the entirety of Trump’s obstructive behavior along the way.

The easiest way DOJ could make this go away would be to grant McCabe’s request, to find that he had retired before he was fired, with the benefits accruing accordingly (McCabe refutes the findings of the DOJ IG investigation against him in more cursory fashion, though it’s key to his due process claims and his allegations reflect badly on the well-respected Michael Horowitz). But to do that, DOJ would rob Trump of one of his favorite petty wins.

So they probably won’t.