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One of Dianne Feinstein’s Greatest Legacies: Documenting CIA’s Torture

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Over forty years ago, I voted to make Dianne Feinstein a Senator. Multiple news outlets report that she has passed away, a Senator to the end.

I was only her constituent for a matter of months before I left the state. But her influence on US policy — good and bad — has been national in scope.

Amid what are sure to be many tributes, one part of her legacy deserves close focus: the SSCI Torture Report.

The US has still not fully atoned for the crimes it committed as part of an effort to gin up war on terror scares. It was just over a month ago, after all, that a judge threw out the post-torture confession of Abd al-Rahim al-Nashiri. It was just days ago that a different judge ruled Ramzi bin al-Shibh incompetent to stand trial. We’re still discovering that even after the torture, Khalid Sheikh Mohammed was deprived of legal counsel.

America’s crimes of torture remain very much unresolved, much less punished.

Dianne Feinstein wasn’t always right. But she used her tenure as SSCI Chair to ensure there was a document of the torture done in our name. That legacy deserves respect.

More Irregularities with the Andrew McCabe Notes: Bleg for Graphic Design Analysis

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The Andrew McCabe notes just certified on Monday as a regular FBI document have at least four and, I think, more irregularities. This kind of graphic analysis is not my forté, so I’m going to just post what I think the irregularities are, and invite some people who are better at this to test my hypotheses.

Here’s an annotated version of the McCabe notes (here’s the original). Below, I’ll describe what I think I’m seeing.

A: The left-hand rule of the notebook at the top of the page appears not to line up with the left-hand rule at the bottom of the page. To be sure, I’ve just sketched this up, and it’s the observation I’m the least confident in, so please check my work. [Note: This may arise from copying the notebook.] Update: a reader has convinced me I’m wrong about this — see below.

B: There’s a non-horizontal line drawn to the margin to the left of where the first big redaction begins. Below it, the horizontal page rules don’t appear for about nine lines.

C: As noted here, the footer reading, “SUBJECT TO PROTECTIVE ORDER,” has been redacted. It would be restored in the re-altered version authenticated on Monday.

D: As DOJ has now admitted, someone — and DOJ has not told Judge Emmet Sullivan what government agent it was — added a date. DOJ claimed this was done with a clear sticky with a blue tab, but there’s no sign of the blue tab. Moreover, when the document was re-altered to remove the date, that was accomplished by digitally whiting it out (not the technical term!), leaving a clean white rectangle with no rules.

E: This document has no declassification stamp. The larger redaction here, by topic, must hide notes from a prep session for the World Wide Global Threats hearing that would be held on May 11, 2017. It is, by definition, classified (indeed, that’s presumably the claimed reason for the redaction). And yet there is no declassification stamp for the document. The Peter Strzok notes released in the same batch have declassification stamps dated September 17 and 21.

This document got released after a dispute between McCabe and the FBI about whether he can access his own notes. After the Senate Judiciary Committee promised Andrew McCabe he could review his notes before testifying before the committee in early September, and after McCabe’s lawyer Michael Bromwich engaged in what he believed to be a good faith discussion about obtaining those documents on September 15, on September 16, FBI told the Committee that the request was “unmanageably voluminous;” the Committee passed that determination onto McCabe’s team. On September 18, McCabe’s lawyers worked with FBI’s OGC to narrow the request. One thing FBI lawyers were balking at, categorically, was providing McCabe’s calendars. In addition, they complained that if McCabe reviewed his own notes, he would have access to material beyond Crossfire Hurricane materials (as this page has). On September 23 — the day this document was provided to Flynn’s lawyers by DOJ, according to discovery correspondence — FBI for the first time raised a categorical objection, stating that, the FBI “has a policy of generally not providing documents to former employees and does not see a basis to make an exception to that policy under these circumstances.”

If McCabe had access to his own notes and calendar, he would be able to tell whether this document has been altered beyond the date addition. On the day DOJ sent it out, they decided that McCabe could not be provided access to any of his own notes or calendars so he could provide accurate testimony to Congress.

Update: I have a request for comment from FBI’s press office regarding the lack of a declassification stamp.

Update: FBI referred me to DOJ to ask them why FBI’s EAD certified a declassified document that lacked a declassification stamp.

Update: I have asked the Senate Judiciary Committee (which was supposed to have had McCabe testify earlier this month) for their copy of this set of McCabe notes, to see if we can make sense of the document. I am awaiting a response.

Update: A reader with expertise in the area provides these notes anonymously:

A. yes, the tilt with the line (to the left) at top left, normally would be compensated for with less visible binder rings at bottom right. (to which there is more showing) so its backwards.

B. Yes, agree. The line looks like it was hand drawn. And if you zoom in at 400% in the middle of the red box B) you can see an additional line, very faint. Whited out some way.

C. if you zoom in at 400% at the redaction box, it may have been redacted twice. There are two corners at top left, that are not lined up and same issue at lower right. If they were, it would look like one, clean cornered box.

D. the lines on each side of the date are fainter and in the same distance from each other implying that there was some kind of clear sticker put on top with a handwritten date in the center. When scanning light bounces off the sides of any clear plastic tab, mylar etc. and reflects and fades out whatever is next to it.

E. No opinion.

Other observations:

If you zoom in at 400% in between each of the 3 lines at the lower left (just above the redaction box) there are other faint lines, which make no sense.

At the 3 lines above the handwritten text “possible”, it looks like there was some handwritten text there before, the dot patterns resemble writing that was there once upon a time. Can’t prove it. I don’t have iText redaction software to see if that would show editing (it may be capable or may not), but the scanner would also have to have extra dirt on that area, and doesn’t have the same intensity of dot/dirt scatter as the rest of the white spaces on the rest of the page. Same issue under the 3-6 lines under the text “not the strongest”.

Update: A different reader, who also asks to remain anonymous, sends this screencap of the document pulled into Photoshop and darkened, which (the person explains) can show things that aren’t otherwise readily apparent. The person added a ruler which, I think, shows I’m wrong about the left margin. I’ve crossed out that observation above accordingly.

Chuck Grassley and Ron Johnson Waste Taxpayer Dollars Looking for Foreign Hackers the One Place They Aren’t

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Last Wednesday, majority staffers for the Senate Finance and Homeland Security Committees wrote Chuck Grassley and Ron Johnson a memo that purports to update those Committee chairs of the status of an investigation into —  well, the purpose of the investigation is actually not clear, but ultimately it’s an investigation designed to keep hopes of finding some smoking gun in Hillary’s servers that several other investigations haven’t found, an investigation that Grassley has been pursuing for four years.

As the memo describes, the most recent steps in this “investigation” involve some interviews that were completed and all related backup documentation obtained in April, four months ago.

We pursued this issue by requesting interviews with the two ICIG officials. On December 4, 2018, your staff, along with staff from Senators Feinstein and McCaskill, interviewed ICIG employees Mr. Rucker and Ms. McMillian. On December 20, 2018, you transmitted a copy of an interview summary of the Majority’s questions and the witness’s answers to the ICIG for a classification review. On January 30, 2019, the ICIG provided classified and unclassified versions of the interview summary, and the Office of Senate Security redacted the classified information. On February 28, 2019, the ICIG provided documentary evidence including copies of emails and notes from meetings. On April 9, 2019, the DOJ IG and ICIG provided a summary of their findings related to these Chinese hacking allegations.

The staffers use these investigative steps, completed four months ago, to make two insinuations: that State tried to classify Hillary’s emails as deliberative rather than classified (something long known, and easily explained by the known debate over retroactive classification for the emails).

In addition, the staffers report that one but not a second Intelligence Committee Inspector General employee remarked that FBI Agents seemed non-plussed by their concerns that China had hacked Hillary. The description of that claim in the topline of the memo drops Peter Strzok’s name as its hook.

[A]ccording to one ICIG official, some members of the FBI investigative team seemed indifferent to evidence of a possible intrusion by a foreign adversary into Secretary Clinton’s non-government server. The interview summary makes clear exactly what information Mr. Rucker and Ms. McMillian knew regarding the alleged hack of the Clinton server, as well as the information they shared with the FBI team, including Peter Strzok, the Deputy Assistant Director of the FBI’s Counterintelligence Division in charge of the Clinton investigation.

Wow, that Peter Strzok is some devious asshole, showing no concern about Hillary being hacked by a foreign government, huh? Presumably, that’s the headline the taxpayer funded staffers wanted: BREAKING Peter Strzok doesn’t care about foreign hacking or State trying to protect Hillary.

To the credit of press outlets that did cover this report, they did get what the more relevant conclusion to these documents is: After spending a year double-checking the work of the FBI, these Senate staffers found that the FBI was right when it said it had found no evidence Hillary’s server had been hacked.

What the backup actually shows is that an ICIG Inspector, Phil Rucker, found an “anomaly” while reviewing Hillary Clinton’s emails, an unknown Gmail for a company called Carter Heavy Industries in her email headers, which he thought could have been used to steal her emails as sent. At a meeting largely designed to explain the ICIG efforts to review Hillary’s email for classified information to Strzok, who had just been promoted to the DAD position at FBI a week earlier, Rucker shared what he found with Strzok and the FBI agent he had already been liaising with, Dean Chappell. The FBI already knew of it, and that same day would confirm the explanation: that tech contractor Paul Combetta had used a dummy email to copy over Hillary’s emails as he migrated Hillary’s email onto a Platte River server.

When interviewed about all this three years later, after Peter Strzok had become the villain in Donald Trump’s Deep State coup conspiracy, Rucker accused Strzok of being “aloof and dismissive” of his concerns.

Mr. Rucker said that Mr. Chappell was normal and professional as he had come to know him to be, but that he didn’t know anything about Mr. Strzok prior to the meeting. Mr. Rucker said that Mr. Strzok seemed to be “aloof and dismissive.” He said it was as if Mr. Strzok felt dismissive of the relationship between the FBI and ICIG and he was not very warm. He said that Mr. Strzok didn’t ask many questions including any about SAP related issues. He said the meeting lasted approximately 30 to 60 minutes and that only people from the FBI attended; there were no employees from DOJ. Mr. Rucker said that he knows that an FBI attorney was present, but he cannot remember the person’s name or even whether it was a man or a woman.

[snip]

Mr. Rucker said that he discussed SAP with the FBI. He said he discussed another of Secretary Clinton’s emails that they were never able to quite figure out. He said he verbally presented this information to Mr. Strzok which lasted only for a minute or so. He said that he doesn’t think he mentioned Carter Heavy Industries by name, but only the appearance of a Gmail address that seemed odd. He said that Mr. Strzok seemed “nonplused” by the info, and that he didn’t ask any follow-up questions. He said that Mr. Chappell seemed familiar with the discovery and he felt like Mr. Chappell was walling Mr. Rucker off intentionally as an investigator would, to protect the investigation.

That last detail — that Chappell seemed familiar with the discovery — is key. In fact, the emails sent in advance of the February 18, 2016 meeting reveal that several weeks earlier, Rucker had already shared this anomaly with Chappell, and Chappell had told him then that he already knew about it.

Along with making accusations about Strzok, Rucker changed his story about how strongly he believed that he had found something significant. The day before Chappell told him the FBI was already aware of the email, Rucker had emailed him that the anomaly was probably nothing.

Additionally, he wanted me to run something that I found in my research of the email metadata past you or someone on the team. It’s probably nothing, but we would rather be safe than sorry.

But when interviewed last year by Senate staffers seeking more evidence against Strzok, Rucker claimed that until a news report explained the anomaly in 2018, he had 90% confidence he had found evidence that China had hacked Hillary’s home server, and still had 80% confidence after learning the FBI had explained it.

Rucker: Mr. Rucker said that he didn’t find any evidence in the remainder of the email review they conducted, but that based on the subpoena issued by the FBI in June 2016 which he learned about this year through a news article, it decreased his confidence level from 90% to 80%.

Meanwhile, the one other ICIG employee interviewed last year, Jeanette McMillan, described what Rucker claimed was dismissiveness as adopting a poker face.

[T]hey provided the information to Mr. Strzok who found it strange. Even before their meeting with Mr. Strzok, Dean Chappell of the FBI informed them that he was aware of the Carter Heavy Industries email address. She said that she doesn’t know whether Mr. Chappell knew before they dropped off the original packet in January 2016, or if he learned of it afterward. News of this email address being found on Secretary Clinton’s emails wasn’t shocking to them, she said, but they took It seriously.

[snip]

[T]he FBI employees in attendance were “poker faced.”

In other words, what the backup released last week actually shows is a tremendous waste of time trying to second guess what the FBI learned with the backing of subpoenas and other investigative tools. To cover over this waste of time, Grassley and Johnson instead pitch this as a shift in their investigation, this time to examine claims that Strzok wasn’t concerned about State arguing that emails weren’t classified (and probably an attempt to examine the document, believed to be a fake, suggesting Loretta Lynch would take care of the Hillary Clinton investigation).

Staff from the Intelligence Community Inspector General’s office (ICIG) witnessed efforts by senior Obama State Department officials to downplay the volume of classified emails that transited former Secretary Hillary Clinton’s unauthorized server, according to a summary of a bipartisan interview with Senate investigators.

In fact, in the “summary” released, McMillan told Senate investigators that, “If anything, there were problems at State with upgrading of information,” exactly the opposite of what Grassley and Johnson claim in their press release.

And that word — summary — should raise a lot of questions. It’s not a transcript; in most cases, the report is a paraphrase of what the witnesses said. Moreover, it’s only a “summary” of what Majority staffers asked. Minority staff questions were not included at all, as best demonstrated by this nearly hour-long gap in the “summary.”

Because of the way Grassley brought this “investigation” with him when he assumed the Chairmanship of the Finance Committee, this release — from Chuck Grassley as Finance Committee Chair and Ron Johnson as Homeland Security Chair — effectively did not involve the Ranking members of the committees that did the work — Dianne Feinstein as Judiciary Ranking member and Claire McCaskill as HSGAC Ranking member.

To put what a colossal misuse of taxpayer funds this is, consider, first of all, that Grassley has been pursuing this for over four years.

Last fall, Majority staffers actually asked Rucker how ICIG came to be involved in the Hillary investigation.

How did ICIG come to be involved with the Secretary Clinton email investigation?

Rucker: – Mr. Rucker said ·that on March 12, 2015, the Senate sent a letter to ICIG requesting assistance regarding a Russian hacker who allegedly broken into Sidney Blumenthal’s email account. He said that the Sidney Blumenthal emails looked legitimate and were not at the SSRP level. He said that [redacted], a former CIA employee who worked with Blumenthal, was the author of most of the material. That was determined in part, he said, based on his writing style. Shortly after wards, he said, ICIG received another Senate request for assistance, this timein relation to the email practices of several former Secretaries of State including Secretary Clinton. He said that through ICIG, he was brought in to assist State in reviewing the email information in June 2015.

But they knew the answer to that. As their own staffers tacitly reminded Grassley and Johnson, Grassley has been pursuing this since 2015.

Your investigation began in March 2015 with an initial focus on whether State Department officials were aware of Secretary Clinton’s private server and the associated national security risks, as well as whether State Department officials attempted to downgrade classified material within emails found on that server. For example, in August 2015, Senator Grassley wrote to the State Department about reports that State Department FOIA specialists believed some of Secretary Clinton’s emails should be subject to the (b)(1), “Classified Information” exemption whereas attorneys within the Office of the Legal Advisor preferred to use the (b)(5), “Deliberative Process” exemption. Whistleblower career employees within the State Department also reportedly notified the Intelligence Community that others at State involved in the review process deliberately changed classification determinations to protect Secretary Clinton.1 Your inquiry later extended to how the Department of Justice (DOJ) and Federal Bureau of Investigation (FBI) managed their investigation of the mishandling of classified information.

That means that this effort — to misrepresent an interview conducted in December as a way to introduce new (and obviously bogus) allegations against Strzok — is a continuation of Barbara Ledeen’s efforts to prove some foreign government had hacked Hillary’s home server, as laid out in the Mueller Report.

Ledeen began her efforts to obtain the Clinton emails before Flynn’s request, as early as December 2015.268 On December 3, 2015, she emailed Smith a proposal to obtain the emails, stating, “Here is the proposal I briefly mentioned to you. The person I described to you would be happy to talk with you either in person or over the phone. The person can get the emails which 1. Were classified and 2. Were purloined by our enemies. That would demonstrate what needs to be demonstrated.”269

Attached to the email was a 25-page proposal stating that the “Clinton email server was, in all likelihood, breached long ago,” and that the Chinese, Russian, and Iranian intelligence services could “re-assemble the server’s email content.”270 The proposal called for a three-phase approach. The first two phases consisted of open-source analysis. The third phase consisted of checking with certain intelligence sources “that have access through liaison work with various foreign services” to determine if any of those services had gotten to the server. The proposal noted, “Even if a single email was recovered and the providence [sic] of that email was a foreign service, it would be catastrophic to the Clinton campaign[.]” Smith forwarded the email to two colleagues and wrote, “we can discuss to whom it should be referred.”271 On December 16, 2015, Smith informed Ledeen that he declined to participate in her “initiative.” According to one of Smith’s business associates, Smith believed Ledeen’s initiative was not viable at that time.272

[snip]

In September 2016, Smith and Ledeen got back in touch with each other about their respective efforts. Ledeen wrote to Smith, “wondering if you had some more detailed reports or memos or other data you could share because we have come a long way in our efforts since we last visited … . We would need as much technical discussion as possible so we could marry it against the new data we have found and then could share it back to you ‘your eyes only.'”282

Ledeen claimed to have obtained a trove of emails (from what she described as the “dark web”) that purported to be the deleted Clinton emails. Ledeen wanted to authenticate the emails and solicited contributions to fund that effort. Erik Prince provided funding to hire a tech advisor to ascertain the authenticity of the emails. According to Prince, the tech advisor determined that the emails were not authentic.283

Remember, Ledeen was willing to reach out to hostile foreign intelligence services to find out if they had hacked Hillary, and she joined an effort that was trawling the Dark Web to find stolen emails. She did that not while employed in an oppo research firm like Fusion GPS, funded indirectly by a political campaign, but while being paid by US taxpayers.

Chuck Grassley is now Chair of the Finance Committee, the Committee that should pursue new transparency rules to make it easier to track foreign interference via campaign donations. Ron Johnson is and has been Chair of the Homeland Security Committee, from which legislation to protect elections from foreign hackers should arise.

Rather than responding to the real hacks launched by adversaries against our democracy, they’re still trying to find evidence of a hack where there appears to have been none, four years later.

Update: For some reason I counted 2015-2019 as five years originally. That has been fixed.

The Mueller Report Has Been Delivered

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The Senate and House Judiciary Committees have officially been notified that the William Barr received the Mueller report. He notified them that neither the Acting Attorney General nor he vetoed any prosecutorial decision.

He told the Chairs and Ranking Members he may be able to inform them of the main jist of the report this weekend. And he will work with Mueller and Rod Rosenstein on how much else can be released.

Update: DOJ is now saying that there are no outstanding indictments, and no more expected.

Back to School: Planning for Climate Change Activism Success

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[NB: Check the byline. /~Rayne]

Remember this? It’s still a pretty snappy little tune which handily teaches the barest essentials of the legislative process. My kids watched frequently when they were in K-2 grades so they could understand discussions at home about bills and legislation.

Unfortunately, it’s not enough to know that an idea begins the legislative process and it ends (some of the time) as a law. The stuff that happens in between these points is more complex than depicted in this cute little animated film. But young kids can understand far more.

I hope that whomever is coaching kids to lobby members of Congress explains more than what’s in this School House Rock video; the children who met with Senator Feinstein didn’t appear prepared. As a parent I think those kids had been manipulated as weapons against an ally.

I don’t care what your position is on Feinstein’s reaction or the kids’ presentation. Both sides were set up for failure.

I care that the effort ended up dividing the party most likely to take action on the Green New Deal.

I care that the effort was wasted and should have been directed at the true bottlenecks to dealing with climate change and the environment.

The truth — which most of you know already if you’re a regular reader or politically awake — is that the GOP majority in the Senate is the obstruction.

The truth is that the GOP as a whole has an abominable track record on environmental protection, from green energy to toxic waste and now on climate change.

Republican president Richard Nixon may be responsible for the Environmental Protection Agency’s inception, but for the last couple decades the GOP abandoned any claim to conserving the environment, preferring instead to suck up to fossil fuel producers. They’ve actively undermined the EPA, going so far as to submit a bill to end it, albeit unsuccessfully (and for this act, Matt Gaetz FL-1 should already have been removed by voters – what the heck is wrong with you Floridians?).

Could Democratic Senators improve their efforts? Certainly; there are a few whose record is below 70% on the League of Conservation Voters’ scoreboard for all environmental legislation, like Joe Manchin (WV) at 45%. With her 90% overall score, Dianne Feinstein is not among them.

But the Republicans clearly have plenty of room for improvement; only one GOP senator scores above 21% on all environmental issues including climate change. The worst GOP senators are:

Strange, Luther (AL)
Perdue, David (GA)
Ernst, Joni (IA)
Kennedy, John (LA)
Sasse, Ben (NE)

All five of these senators had lifetime scores of a staggering 0% according to the League of Conservation Voters. Chances are slim they will change their voting habits much since they appear firmly against any and all pro-environment legislation.

However the following Class II GOP senators are vulnerable on the environment and climate change issues because they are up for re-election in 2020:

Senator

State

2017 Score

Lifetime Score
Ernst Joni

IA

0.00%

0.00%
Perdue David

GA

0.00%

0.00%
Sasse Ben

NE

0.00%

0.00%
Cotton Tom

AR

0.00%

2.00%
Daines Steve

MT

0.00%

2.00%
Rounds Mike

SD

0.00%

2.00%
Cornyn John

TX

0.00%

5.00%
Enzi Mike

WY

0.00%

5.00%
Inhofe James

OK

0.00%

5.00%
Cassidy Bill

LA

0.00%

7.00%
McConnell Mitch

KY

0.00%

7.00%
Risch Jim

ID

0.00%

7.00%
Sullivan Dan

AK

0.00%

7.00%
Tillis Thom

NC

0.00%

7.00%
Gardner Cory

CO

0.00%

10.00%
Graham Lindsey

SC

5.00%

12.00%
Capito Shelley Moore

WV

0.00%

17.00%
Collins Susan

ME

32.00%

63.00%
Hyde-Smith Cindy

MS
McSally Martha

AZ
Roberts Pat

KS

0.00%

9.00%
Alexander Lamar

TN

5.00%

21.00%

Note three of the absolute worst GOP senators on the environment and climate change are up for re-election. All of these Class II senators should be hammered for their performance to date, primary candidates who promise to vote with an eye to the environment should be encouraged to run against them, and their Democratic opponents aided (assuming they will promise to vote along party lines on the environment).

And yes, children should absolutely show up at their door steps and demand to know why these senators are selling out their futures, condemning children like them. Kids can easily understand that elected officials’ jobs are on the line in less than two years; they can tell these senators what they think of the job they’ve done so far and demand better.

The last four senators in the table above are special cases. Two are retiring, both Roberts (KS) and Alexander (TN); they have an opportunity to vote between now and the end of their term to favor the environment and to deter climate change. They should be pressed to do so. Their seats are open for the 2020 race and only candidates promising to vote for the environment should be supported.

McSally and Hyde-Smith don’t have scores at LCV yet. If they vote in line with their party, they need to go. Their Democratic opponents should be supported.

One last point: any entity filing paperwork to avoid paying taxes on revenues should be accountable to the public. That goes for environmental and climate change activism organizations filing as 501c3, 501c4, and PACs. They should have privacy policies and terms of service clearly posted on their websites if they are collecting email addresses and taking donations.

And if these activist groups are shepherding children anywhere, they had better have their organizational structure and team members listed on their site.

I certainly wouldn’t let any group I couldn’t identify fully use my children for their aims — especially if they aren’t doing a good job educating children on effective activism. I’d rather my family contacted its members of Congress directly and bypass any nonprofit organization which isn’t more transparent.

Congressional switchboard: (202) 224-3121

This is an open thread.

UPDATE — 12:15 P.M. ET —

Because apparently there are adults who need a goddamn picture to understand the problem:

The blue and pink parts of the Senate pie are willing to vote for climate change legislation. They have been friendly to the environment.

The red part of the Senate pie isn’t willing to vote for climate change, but it controls whether any legislation passes.

If you have a goddamn emergency needing legislation passed, there is NO WAY TO PASS IT unless you win over some of the red part of the Senate pie. By win over I mean persuade them now to vote on legislation, or vote them out and replace them with a climate-friendly candidate in 2020.

Further more, passing climate change legislation means not losing any of the blue or pink part of the pie.

A five-year old can understand this. So can a 16-year-old who will be 18 and eligible to vote in November 2020.

(Image source: Teen Vogue which is a damned fine media outlet.)

William Barr’s Asymmetric Confusion about Shitty Mueller Reporting

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It turns out that once and future Attorney General William Barr has been better able to wade past shitty reporting on the outcome of the Mueller investigation than he has shitty reporting on the public evidence about what Mueller has found.

In two of my posts on Barr’s memo about the Mueller investigation (one, two), I note that Barr’s project consists of writing up 19 pages on a subject that start with an admission he knows nothing about the subject.

Barr also adopts the logically and ethically problematic stance of assuming, in a memo that states, “I realize I am in the dark about many facts” in the second sentence, that he knows what Mueller is up to, repeating over and over claims about what theory of obstruction he knows Mueller is pursuing.

Both in his prepared statement yesterday and in his testimony, he excused his memo by blaming his badly mistaken understanding of what Mueller was doing on media reports.

[M]y memo was narrow in scope, explaining my thinking on a specific obstruction-of-justice theory under a single statute that I thought, based on media reports, the Special Counsel might be considering.

He’s not wrong! I have long bitched about shitty Mueller reporting that suggested Mueller was primarily investigating whether Trump obstructed justice. Such problems persist even in recent reports that the counterintelligence focus on Trump was any different from the obstruction inquiry.

The investigation the F.B.I. opened into Mr. Trump also had a criminal aspect, which has long been publicly known: whether his firing of Mr. Comey constituted obstruction of justice.

That has, in turn, led to claims that the counterintelligence concerns stemmed exclusively from the firing of Jim Comey and not a slew of other behaviors going back some time before that.

So Barr might be excused for totally misunderstanding what the public evidence from the Mueller investigation actually showed (though not his willingness to comment without first learning what the evidence actually was), because most mainstream media reports badly misreported the public record.

Curiously, Barr didn’t get snookered by the other topic that is consistently badly reported (and badly reportedly, most likely, for the same reason — because Trump’s team has seeded that shitty reporting): whether and how Mueller will issue a report. A great deal of yesterday’s testimony pertained to whether Barr will release “the Mueller report.” Barr promised, in his his prepared testimony and later, to release as much of the results of the investigation as he could.

I also believe it is very important that the public and Congress be informed of the results of the Special Counsel’s work. For that reason, my goal will be to provide as much transparency as I can consistent with the law.

But both Democratic and Republican Senators were concerned by that (which is itself a testament to wildly divergent understandings of what Mueller is looking at), with John Kennedy going so far as suggesting Barr should release all the grand jury materials and Dianne Feinstein conditioning her vote on whether Barr commits to make Mueller’s report public.

In fact, Barr did two things. First, he said he’d speak to Rod Rosenstein and Mueller to understand what their current plans for a report were. But he also repeatedly cited the regulations to argue that Mueller’s report is — by regulation — confidential.

For shits and giggles and because I knew what response I’d get, I asked Mueller’s spokesperson Peter Carr what form their report will take today. I wasn’t disappointed. His response was to attach their governing regulations and call attention to the language that describes the mandated Special Counsel Report.

Thanks for reaching out. All I can point you to is the regulations that govern our office, which are attached. Section 600.8 states the following:

(c) Closing documentation. At the conclusion of the Special Counsel’s work, he or she shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel. [my emphasis]

That is, if you ask Mueller — or the closest thing we get, his spokesperson — he will answer precisely what Barr did: that his mandated report is simply a confidential prosecutions and declinations report.

That shouldn’t be surprising, either. Mueller continues to use pseudonyms for identities of people in his filings — like Donald Trump himself — that are readily identifiable, based on the principle that DOJ doesn’t refer to uncharged individuals. It’s a principle that explains part of why Mueller submitted yesterday’s Manafort filing in heavily redacted form.

[T]he redactions relate to ongoing law enforcement investigations or uncharged individuals, and public disclosure of certain information in the submission could unduly risk harming those efforts.

In other words, virtually all of the coverage of the “Mueller report” has promised it will be something other than we had reason to believe — short of an indictment request overridden by the Attorney General — that it would be.

By the same token, there’s abundant reason to believe that that’s not what the “Mueller report” will be.

Yesterday, the same day questions about a Mueller report were central to Barr’s confirmation hearing, the WSJ reported this entirely unsurprising detail about Michael Cohen’s testimony before the Oversight Committee on February 7.

Mr. Cohen, who is scheduled to speak in an open hearing on Capitol Hill for the first time Feb. 7, won’t be able to talk about topics that he has discussed with special counsel Robert Mueller, according to a person close to Mr. Cohen.

The indication that Cohen’s testimony will be sharply limited (presumably based on the intercession of Mueller’s congressional liaison, Stephen Kelly, about whom we’re likely to hear more in coming days) suggests several things: First, Mueller doesn’t expect to be done with Michael Cohen by February 7. That, in turn, suggests that all the claims — which I’ve heard too — that Mueller will soon issue a “report” likely misunderstand what form that report will take, because a one-time report covering the importance of Trump Tower deals to entice Trump’s family would present little reason to silence Cohen next month, particularly because he’d be free to talk about it anyway. But if something more public — such as an indictment, even if it’s just of Trump Organization — or if a non-public report that can be conveyed to the House Judiciary Committee is in the works, then you’d want to silence Cohen. Indeed, contrary to a lot of other bad reporting, Cohen remains on the hook in his cooperation with Mueller; he won’t get a reduction in sentence until they decide he has done enough to get a year lopped off his existing sentence.

That many reporters are being told by reliable sources that Mueller will soon unveil a “report” and that Mueller still officially maintains that their required report won’t be public suggests Mueller is moving towards yet another speaking indictment, which is how he has always reported. That’s consistent with the limits on Cohen’s report, it’s consistent with reports that Mueller is presenting evidence against Jerome Corsi to a grand jury, and it’s consistent with what we saw in yesterday’s Manafort filing (which presented evidence of Trump campaign crimes dating to 2016).

I have my concerns about Barr, especially his willingness to make policy decisions informed only by right wing propaganda (on which point he was worse on his testimony about immigration and criminal justice issues than on Mueller). Those concerns extend to what will happen if Barr gets to decide what parts of a Mueller report gets made public; it’s clear that Barr currently believes that Mueller will issue a report finding that Trump did nothing criminal. Those concerns are heightened by the fact that on virtually every other topic, Barr had not done enough homework to answer basic questions (the most remarkable instance of which was his confession that he hasn’t read the Supreme Court’s decision in Carpenter), but he was prepared to state, correctly, that Mueller’s report will be confidential, addressed solely to him.

I have other concerns. Once CSPAN fixes their transcript, I hope to show how badly hypocritical Barr is about both Matt Whitaker and Donald Trump’s sleazy influence peddling. His comments about recusal from the Mueller investigation were troubling. And he seems to believe — as he explained to Patrick Leahy near the end of the hearing — that in November 2017 there remained, after DOJ had investigated both and after Mueller had rolled out the George Papadopoulos plea deal showing him trying to hide that he was discussing emails and meetings with Putin in the days after he became a foreign policy advisor to Trump, more evidence to support an investigation of the Uranium One and Clinton Foundation allegations than into “collusion.”

But Barr also strongly suggested he would not step in the way of any Mueller indictments. And Senators did get him on the record agreeing that if Trump suborned perjury it would be criminal. And he respects Mueller, so if Mueller shows him evidence that Trump has been gravely compromised, then he should take that evidence seriously.

Barr appears to be an arrogant man who believes right wing propaganda is sufficient evidence to base policy decisions on.

But he also has a better idea of what the regulations say to expect from a Mueller report — as distinct from Mueller indictments — than the Senators questioning him did.

Update: This useful JustSecurity piece lays out the regulations and the Attorney General’s discretion.

As I disclosed July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

William Barr Falsely Denies His Mueller Memo Makes the Case for Impeachment

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William Barr has released his opening statement for his confirmation hearing tomorrow. While it surely is tailored to address the biggest concerns about his nomination, there’s a lot to like about it.

He suggests he’s not as big of a hawk on criminal justice as he used to be. He emphasizes the need to protect the right to vote. He seems to suggest a concern about rising hate crimes.

And — as most outlets have focused on — he affirms the importance of Robert Mueller finishing his work and being able to publish his findings.

First, I believe it is vitally important that the Special Counsel be allowed to complete his investigation. I have known Bob Mueller personally and professionally for 30 years. We worked closely together throughout my previous tenure at the Department of Justice under President Bush. We’ve been friends since. I have the utmost respect for Bob and his distinguished record of public service. When he was named special counsel, I said that his selection was “good news” and that, knowing him, I had confidence he would handle the matter properly. I still have that confidence today.

Given his public actions to date, I expect that the Special Counsel is well along in his investigation. At the same time, the President has been steadfast that he was not involved in any collusion with Russian interference in the election. I believe it is in the best interest of everyone – the President, Congress, and, most importantly, the American people – that this matter be resolved by allowing the Special Counsel to complete his work. The country needs a credible resolution of these issues. If confirmed, I will not permit partisan politics, personal interests, or any other improper consideration to interfere with this or any other investigation. I will follow the Special Counsel regulations scrupulously and in good faith, and on my watch, Bob will be allowed to complete his work.

Second, I also believe it is very important that the public and Congress be informed of the results of the Special Counsel’s work. For that reason, my goal will be to provide as much transparency as I can consistent with the law. I can assure you that, where judgments are to be made by me, I will make those judgments based solely on the law and will let no personal, political, or other improper interests influence my decision.

I’m most interested, however, in the way that Barr addresses the memo on the Mueller investigation he wrote last year. In comments also surely designed to reassure Democrats, Barr claims that the memo only addressed one theory of obstruction.

I would like to briefly address the memorandum that I wrote last June. I wrote the memo as a former Attorney General who has often weighed in on legal issues of public importance, and I distributed it broadly so that other lawyers would have the benefit of my views. As I explained in a recent letter to Ranking Member Feinstein, my memo was narrow in scope, explaining my thinking on a specific obstruction-of-justice theory under a single statute that I thought, based on media reports, the Special Counsel might be considering. The memo did not address – or in any way question – the Special Counsel’s core investigation into Russian interference in the 2016 election. Nor did it address other potential obstruction-of-justice theories or argue, as some have erroneously suggested, that a President can never obstruct justice. I wrote it myself, on my own initiative, without assistance, and based solely on public information.

The claim that that’s what he addressed — which I correctly unpacked here — is important because, as Jack Goldsmith has since laid out, Barr’s views on that theory of obstruction fit solidly within OLC precedent.

Yet Barr makes a false claim in that paragraph: that his memo “did [not] address other potential obstruction-of-justice theories.” Indeed, before he finishes his first page, he addresses another potential obstruction-of-justice theory:

Obviously, the President and any other official can commit obstruction in this classic sense of sabotaging a proceeding’s truth-finding function. Thus, for example, if a President knowingly destroys or alters evidence, suborns perjury, or induces a witness to change testimony, or commits any act deliberately impairing the integrity or availability of evidence, then he, like anyone else, commits the crime of obstruction. Indeed, the acts of obstruction alleged against Presidents Nixon and Clinton in their respective impeachments were all such “bad acts” involving the impairment of evidence. Enforcing these laws against the President in no way infringes on the President’s plenary power over law enforcement because exercising this discretion — such as his complete authority to start or stop a law enforcement proceeding — does not involve commission of any of these inherently wrongful subversive acts.

It’s right there, on the bottom of his first page, another potential obstruction of justice theory.

As if his reference to Nixon and Clinton didn’t already make it clear, the rest of his memo describes that the proper remedy when the President engages in such crimes is impeachment.

And, as I have laid out, the public evidence (even before recent disclosures about how the FBI worried that Trump was literally taking orders from Russian when he fired Comey) provides strong circumstantial evidence that Trump attempted to impair the integrity and availability of evidence to the FBI, possibly including suborning perjury from Mike Flynn.

While Barr doesn’t presume to dictate whether Congress must judge such behavior adequate to sustain impeachment, he certainly sees it as an adequate basis for impeachment.

Which is why I find his statement troubling. He’s not only placating Democrats with this statement (and opposing any possibility that the President can be charged for criminal acts). He’s also backing off the clear implication of his memo, that if Trump engaged in witness tampering, it would be improper.

All that’s separate from the wisdom and ethics of writing 19 pages, as he did, on a theory based off a really skewed understanding of the evidence, or accepting a job after having done so in the scope of job considerations.

To be sure, if Barr really intends to let Mueller finish and ensure the right to vote, he may be the best Attorney General candidate we’re likely to get from Trump. But he still needs to be asked whether he backs the implications of his memo, which actually back impeachment.

Update: This is fairly batshit. In a letter to Lindsey Graham dated yesterday — the same day Barr released opening statements that say “Nor did [his memo] address other potential obstruction-of-justice theories,” he said that his entire memo was a different theory of obstruction of justice.

The principal conclusion of my memo is that the actions prohibited by section 1512(c) are, generally speaking, the hiding, withholding, destroying, or altering of evidence – in other words, acts that impair the availability or integrity of evidence in a proceeding. The memorandum did not suggest that a President can never obstruct justice. Quite the contrary, it expressed my belief that a President, just like anyone else, can obstruct justice if he or she engages in wrongful actions that impair the availability of evidence. Nor did the memorandum claim, as some have incorrectly suggested, that a President can never obstruct justice whenever he or she is exercising a constitutional function. If a President, acting with the requisite intent, engages in the kind of evidence impairment the statute prohibits – regardless whether it involves the exercise of his or her constitutional powers or not – then a President commits obstruction of justice under the statute. It is as simple as that.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

Trump Risks that Every Action Matt Whitaker Takes as Attorney General Can Be Legally Challenged

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George Conway (Kellyanne’s spouse, whom Trump considered to be Solicitor General) continues his habit of criticizing Trump from a conservative legal stance. This time, he joins Neal Katyal, author of the Special Counsel regulations under which Mueller operates, to argue that Trump’s appointment of Matt Whitaker is unconstitutional because Trump can’t name someone who hasn’t been Senate confirmed when a Senate confirmed candidate is available. The whole op-ed — which relies on a recent Clarence Thomas concurrence — is worth reading, but my favorite line is where they call Whitaker a constitutional nobody.

We cannot tolerate such an evasion of the Constitution’s very explicit, textually precise design. Senate confirmation exists for a simple, and good, reason. Constitutionally, Matthew Whitaker is a nobody. His job as Mr. Sessions’s chief of staff did not require Senate confirmation. (Yes, he was confirmed as a federal prosecutor in Iowa, in 2004, but President Trump can’t cut and paste that old, lapsed confirmation to today.) For the president to install Mr. Whitaker as our chief law enforcement officer is to betray the entire structure of our charter document.

I’m just as interested in what three rising Democratic House Chairs (House Judiciary Committee’s Jerrold Nadler, HPSCI’s Adam Schiff, and Oversight and Government Reform’s Elijah Commings) did, along with Dianne Feinstein. In the wake of Jeff Sessions’ resignation, they sent letters to every relevant department warning them to preserve all records on the Mueller investigation and Sessions’ departure. In their press release, they referred to Sessions departure not as a resignation, but as a firing.

Last night, House Judiciary Committee Ranking Member Jerrold Nadler (D-NY), Intelligence Committee Ranking Member Adam Schiff (D-CA), Oversight and Government Reform Committee Ranking Member Elijah Cummings (D-MD), and Senate Judiciary Committee Ranking Member Dianne Feinstein sent letters to top Administration officials demanding the preservation of all documents and materials relevant to the work of the Office of the Special Counsel or the firing of Attorney General Jeff Sessions.

In their letters, the Members wrote:  “Committees of the United States Congress are conducting investigations parallel to those of the Special Counsel’s office, and preservation of records is critical to ensure that we are able to do our work without interference or delay. Committees will also be investigating Attorney General Sessions’ departure. We therefore ask that you immediately provide us with all orders, notices, and guidance regarding preservation of information related to these matters and investigations.”

Letters were sent to the White House Counsel Pat Cipollone, FBI Director Chris Wray, Director of National Intelligence Dan Coats, CIA Director Gina Haspel, Deputy U.S. Attorney for the Southern District of New York Robert Khuzami, Treasury Secretary Steven Mnuchin, NSA Director Paul Nakasone, IRS Commissioner Charles Rettig, and Acting Attorney General Matt Whitaker. [my emphasis]

Even the letters themselves, while they don’t use the word “firing,” emphasize the involuntary nature of Sessions’ ouster.

Our understanding is that Attorney General Jeff Sessions has been removed at the request of the President. We ask that you confirm that the Justice Department has preserved all materials of related to any investigations by the Special Counsel’s office, including any related investigations conducted by any component of the Justice Department. We also ask that you preserve all the materials related to the departure of Attorney General Sessions.

While it’s not clear whether they more basis to believe this was a firing rather than a resignation, they’re proceeding as if it was, legally, a firing. That’s crucial because the only way that Whitaker’s appointment, as someone who is not Senate confirmed, would be legal under the Vacancies Reform Act is if Sessions legally resigned. The Democrats seem to suspect they can argue he did not.

And that’s important because (as Katyal and Conway argue) if his appointment is not legal, than nothing he does as Attorney General is valid.

President Trump’s installation of Matthew Whitaker as acting attorney general of the United States after forcing the resignation of Jeff Sessions is unconstitutional. It’s illegal. And it means that anything Mr. Whitaker does, or tries to do, in that position is invalid.

Plus, by demanding preservation of the records and framing this in terms that suggest Whitaker’s appointment was not legal (I’m not sure I agree, but encourage HJC to ask Katyal and Conway to argue the case for them), HJC lays out a basis to claim standing to challenge this, particularly if and when Whitaker makes a decision (such as preventing HJC from obtaining any report Mueller writes) that will cause them injury as an independent branch of government.

Again, I’m not sure I agree with the Katyal/Conway legal argument, though if HJC can prove that Sessions was fired then it’s clear Whitaker was not legally appointed. But these two challenges pose a real risk for Trump. It risks not just decisions pertaining to the Mueller investigation, but even things like surveillance approvals, can be challenged by anyone harmed by them (who gets notice of it). That’s an unbelievable risk for a position as important as Attorney General.

Back when a guy named Robert Mueller had his FBI tenure extended two years in 2011, Tom Coburn worried that even that action, done with Senate approval, would make the approvals Mueller made under Section 215 (this was before we knew the scope of the phone dragnet) legally suspect.

Could you envision colorable challenge to use of 215 authority during your 2 year extension of power?

While I have no problem with you staying on for two more years, I do have concerns we could get mired in court battles [over 215] that would make you ineffective in your job.

Coburn was worried about one (or a few) surveillance programs. The Attorney General touches far more than the FBI Director, and Trump’s DOJ could spend just as much time in court trying to defend the actions of his hatchetman.

And it looks like both the author of the statute governing Mueller’s appointment and the people who will oversee DOJ in a few months have real questions about the legality of Whitaker’s appointment.

Can Senator Feinstein Block The Appointment of Rachel Mitchell?

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As you know by now, Maricopa County (Arizona) sex crimes unit chief Rachel Mitchell has been deemed by Chuck Grassley and the Senate Judiciary Republicans as their front person to examine Dr. Christine Blasey Ford. From NBC News:

The woman chosen by Senate Judiciary Committee Republicans to question Supreme Court nominee Brett Kavanaugh’s accuser will be in an unusual position when she goes face-to-face with Christine Blasey Ford on Thursday.

Senate Judiciary Committee Chairman Chuck Grassley announced Tuesday that he hired Rachel Mitchell, an outside attorney to question Kavanaugh and Ford, on behalf of the 11 male Republicans on the committee — despite Ford’s wishes to be questioned by the senators themselves about her accusation that Kavanaugh sexually assaulted her when the two were teenagers.

So, the eleven old white men of the SJC want a female stand in to make their evisceration and shining on of putative kidnapping, sexual assault and attempted rape victim Dr. Ford. Because the optics the GOP men, and men are the only sex that has ever served for Republicans on SJC, looked too ugly for even them.

But is this unprecedented move, clearly designed with public optics and maximal humiliation of Dr. Ford even appropriate? Maybe not!

Now, I am not a Senate Rules expert, but a comment made me go do a little digging. Here is the text of the the most recent version of the United States Senate Standing Rules, Orders, Laws, And Resolutions. Here, specifically, is the section, contained in Chapter 43 thereof, in §4301(i)(3) relating to committee retention of consultants:

(3) With respect to the standing committees of the Senate, any such consultant or organization shall be selected by the chairman and ranking minority member of the committee, acting jointly. With respect to the standing committees of the House of Representatives, the standing com- mittee concerned shall select any such consultant or organization. The committee shall submit to the Committee on Rules and Administration in the case of standing committees of the Senate, and the Committee on House Oversight in the case of standing committees of the House of Representatives, information bearing on the qualifications of each consultant whose services are procured pursuant to this subsection, including organizations, and such information shall be retained by that committee and shall be made available for public inspection upon request. (Emphasis added)

So, Senator Feinstein, is this indeed the case? If so, why would you assent to appointment of a prosecutorial thug like Rachel Mitchell to examine the putative victim here, Dr. Ford?

Rachel Mitchell is currently head of the Sex Crimes Unit in the Maricopa County Attorney’s Office (MCAO). She has served under three heads of the MCAO, but she was elevated to her current position because she was an extremist who fit the desired bill by the notorious former MCAO head, Andrew Thomas. As you may recall, Andy Thomas not only had to leave the MCAO in disgrace, but subsequently was disbarred for his zealotry. And that kind of craven zealot is exactly who Rachel Mitchell identified with and was promoted by back in January of 2005. And is Mitchell always hard on sex criminals? No, in fact her past also includes sweetheart deals to abusive clergy members in politically charged cases.

Rachel Mitchell is one of the worst choices imaginable for the current task. It is a heinous move by Chuck Grassley and a direct and complete screw you to Dr. Ford and sexual abuse and rape victims across the United States and world.

And the “screw you” to victims is especially salient with the existence of additional putative victims of Brett Kavanaugh’s drunken debauchery. Not only is there Debbie Ramirez, who did not seek to come forward, but was located because friends and classmates of hers and Kavanaugh, while Kavanaugh was at Yale, started recalling her victimization and talking about it. Jane Mayer has more on that, not to mention her and Ronan Farrow’s original reporting on Ramirez.

And, just as of an hour or two ago, yet another troubling story of Brett Kavanaugh’s misogyny and conduct has been made public by her lawyer Michael Avenatti. Julie Swetnick has issued a sworn affidavit that is chilling. Swetnick is a A 1980 graduate of Gaithersburg High School in Gaithersburg, Maryland, and has has held multiple security clearances for work done at the Treasury Department, U.S. Mint, IRS, State Department and Justice Department. In short, she is a more than credible person who has put her statement under oath and penalty of perjury.

Here is her affidavit, and it is chilling. It describes what now seems obvious, Brett Kavanaugh and his friend Mark Judge were part of a group of a private boys school wilding gang that drank to excess regularly mistreated women. Judge and Kavanaugh were “joined at the hip” according to Swetnick. She further states:

There is more, much more, including descriptions of girls, including Ms. Swetnick herself, being knocked out with spiked punch and gang raped.

And that is where we find ourselves today. It appears that Senator Feinstein can put the kibosh on the craven hiring of a zealot prosecutorial thug like Rachel Mitchell and, further, can with the help of any and all Republican Senators of conscience, slow down this train wreck and investigate the claims and give a real hearing. That means someone among Jeff Flake, Lisa Murlowski, Susan Collins, or another, needs to step up and do the right thing. Will they? Will Senator Feinstein?

Within the last minute, Senator Feinstein has issued the following statement:

Washington—Following the release of a sworn affidavit from Julie Swetnick detailing new allegations of sexual assault by Brett Kavanaugh, all 10 Democratic members of the Senate Judiciary Committee today urged President Trump to immediately withdraw the nomination or order an FBI investigation into all allegations.

The senators wrote: “We are writing to request that you immediately withdraw the nomination of Brett Kavanaugh to be an Associate Justice on the Supreme Court or direct the FBI to re-open its background investigation and thoroughly examine the multiple allegations of sexual assault.

“Judge Kavanaugh is being considered for a promotion. He is asking for a lifetime appointment to the nation’s highest court where he will have the opportunity to rule on matters that will impact Americans for decades. The standard of character and fitness for a position on the nation’s highest court must be higher than this. Judge Kavanaugh has staunchly declared his respect for women and issued blanket denials of any possible misconduct, but those declarations are in serious doubt.”

That is a nice statement, but there appears to be so much more that Senator Feinstein can do Jeff Flake just took to the Senate Floor and, despite some words of empathy, wholeheartedly accepted that tomorrow’s sham hearing in SJC is all that there will ever be. While Flake appeared close to tears, he, as usual, said and intends to do nothing admirable and/or heroic.

It is a sad show we are watching. The hallowed halls of the Supreme Court deserve better, and so too do the American people.

Two Details about DOJ IG’s Leak Investigations, Plural, Including the One into Rudy Giuliani’s Sources

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Amid the discussions about the NY office’s rampant leaks to Rudy Giuliani back in 2016, HuffPo confirmed that he was interviewed by two FBI Agents who, he said, were investigating on behalf of the IG.

Giuliani told HuffPost that he spoke with [James] Kallstrom as well as one other former FBI official he would not identify.

But Giuliani said he told the FBI agents who interviewed him that he had neither inside knowledge of the Clinton probe’s status nor advance warning of Comey’s Oct. 28 announcement. He was merely speculating that FBI agents were so upset by Comey’s earlier decision not to charge the Democratic nominee with any crimes that they would “revolt,” either by leaking damaging information about her or by resigning en masse.

“Did I get any leaks from the FBI? I said no,” Giuliani said, adding that the “surprise” that he promised in 2016 was a 20-minute national television ad he was urging Trump to buy to deliver a speech “hitting very hard on the Comey decision.”

[snip]

The agents did not record the interview and did not offer him the opportunity to review their report before they submitted it to their supervisor. One of Giuliani’s private security guards was also present, he said.

“They seemed like straight kids,” he said of the agents.

He added that he was unconcerned that his inquisitors were from the FBI, which conducts criminal investigations, rather than investigators from Horowitz’s office. “They definitely told me they were investigating for the IG,” Giuliani said. “I wasn’t surprised at all.”

I’d like to add two data points from Inspector General Horowitz’s testimony about leaks.

First, while it should have been obvious, this exchange with North Carolina Congressman Mark Walker (particularly Horowitz’ lovely agreement self-correction) made me realize that there are leak investigations, plural.

Horowitz: Looking at the charts here you can see that these are not, generally speaking, one call. So, I would leave it at that. We’re looking at the, that deeper question.

Walker: When you say you’re looking at it, does that mean there may be warrant–it may warrant more investigation for some of those who’ve been players in this situation?

Horowitz: There is — there are, there are active investigations ongoing by our office.

As I said, that should have been clear: the IG Report refers to them as investigations.

Chapter Twelve describes the text messages and instant messages expressing political views we obtained between certain FBI employees involved in the Midyear investigation and provides the employees’ explanations for those messages. It also briefly discusses the use of personal email by several FBI employees, and provides an update on the status of the OIG’s leak investigations.

[snip]

In addition to the significant number of communications between FBI employees and journalists, we identified social interactions between FBI employees and journalists that were, at a minimum, inconsistent with FBI policy and Department ethics rules. For example, we identified instances where FBI employees received tickets to sporting events from journalists, went on golfing outings with media representatives, were treated to drinks and meals after work by reporters, and were the guests of journalists at nonpublic social events. We will separately report on those leak investigations as they are concluded, consistent with the Inspector General (IG) Act, other applicable federal statutes, and OIG policy. [my emphasis]

As a footnote notes, we learned of one result — the Andrew McCabe investigation — when it got referred for criminal investigation.

Between two hearings and three committees, not a single person asked about the methodology of the link clusters I complained about the other day, but I wonder whether they each represent a separate leak investigation?

The far more interesting exchange, however, came yesterday, between Horowitz and Dianne Feinstein. After she laid out Rudy’s claims back in 2016, she asked Horowitz if he was investigating. As he did repeatedly when asked about Rudy, he deferred. But after she asked if such leaks were lawful, and then followed up about whether the investigation was ongoing, he said something interesting.

Horowitz: I’m not in a position at this point to speak to any investigative outcomes.

Feinstein: Do you believe disclosures of this sort, especially during an election are appropriate, are they lawful?

Horowitz: I don’t believe disclosures of this sort are appropriate at any point in time in a criminal investigation. I was a former prosecutor. Worked extensively with FBI Agents, in my prior capacity, and all of us would have thought that was entirely inappropriate.

Feinstein: The report says that you, and I quote, will separately report on those investigations as they are concluded. Does this mean that this leak investigation is ongoing?

Horowitz: Our work remains ongoing and when we can do that consistent with the IG Act, the law, policy, we will do so.

Horowitz suggested that the reason they haven’t reported out the conclusions to these other leak investigations, plural, including the Rudy one is (in part) because it would be inconsistent with the IG Act.

There are specific restrictions on the DOJ IG in the IG Act, but the key one — which permits the Attorney General to halt an investigation for a variety of reasons — itself requires notice to the two committees that were in today’s hearing.

Which leaves the general restrictions on disclosing information in the IG Act. In both the specific DOJ IG language and here, the key restriction is on disclosing information that is part of an ongoing criminal investigation.

(1) Nothing in this section shall be construed to authorize the public disclosure of information which is—
(A) specifically prohibited from disclosure by any other provision of law;
(B) specifically required by Executive order to be protected from disclosure in the interest of national defense or national security or in the conduct of foreign affairs; or
(C) a part of an ongoing criminal investigation.

(2) Notwithstanding paragraph (1)(C), any report under this section may be disclosed to the public in a form which includes information with respect to a part of an ongoing criminal investigation if such information has been included in a public record.

Which would say that, as with the firing of Comey (which Horowitz explained they’ve halted because an ongoing investigation is investigating it), DOJ IG might have been unable to further report the results of its leak investigations because it referred them, plural.

Mind you, that’s not what happened with Andrew McCabe. The DOJ IG completed its investigation, concluded McCabe lied, and then referred him. But it does seem likely that the hold-up on explaining all those link clusters has to do with criminal investigations.