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Don Jr Confesses He and Douglass Mackey Were “Put on Lists” Together

In an interview of far right troll and now convicted felon Douglass Mackey yesterday, Don Jr confessed that he and Mackey had frequented the same lists back in the day.

DONALD TRUMP JR. (HOST): And with that, guys, joining us now is Doug Mackey. Again, if you guys were in the meme wars, like, early adapters like me back in 2015 and ’16, you’ll know him as Ricky Vaughn. But Doug, for the people watching — and it’s great to have you. You know, I know — we’ve probably gone back and forth on Twitter back in the old days and DMs, and I’m sure we were put on lists way back then. But for the people watching, can you explain what happened here? I mean, you literally ran a Twitter account named Ricky Vaughn. And you got charged for posting a meme. What’s going on?

Later in the interview, Trump Jr. told Mackey that his Ricky Vaughn account was “awesome” and “may be my favorite Twitter account of all time” and “maybe the best of all time.” [my emphasis]

I find that particularly interesting, because there’s a troll in the troll rooms released as part of Mackey’s trial named P0TUS Trump. I’ve always wondered whether it could be Don Jr.

I had that suspicion not just because of the name, but also because P0TUS Trump always seemed even more focused on the WikiLeaks releases than the others. The others were busy conducting far more sophisticated campaigns.

On October 12, 2016, as everyone else was excited that Mackey had been added back to their group after being banned, P0TUS Trump was instead pushing #PodestaEmails3.

An hour later, in a conversation with Mackey co-conspirator MicroChip, he pushed #PodestaEmails4.

The next day, as MicroChip and unindicted co-conspirator HalleyBorderCol were casting doubt on claims that Trump was a rapist, P0TUS Trump again was focused on WikiLeaks.

That monomaniacal focus on WikiLeaks while everyone else was focused on other things came in the days after — according to the SSCI Report — WikiLeaks had DMed Don Jr at his normal Twitter account (for which Mueller obtained.a warrant in October 2017) directly to get him to push hashtags, including pertaining to PodestaEmails4.

(U) WikiLeaks also sought to coordinate its distribution of stolen documents with the Campaign. After Trump proclaimed at an October 10 rally, “I love WikiLeaks” and then posted about it on Twitter,1730 WikiLeaks resumed messaging with Trump Jr. On October 12, it said: “Strongly suggest your dad tweets this link if he mentions us … there’s many great stories the press are missing and we’re sure some of your follows [sic] will find it. btw we just released Podesta Emails Part 4.”1731 Shortly afterward, Trump tweeted: “Very little pick-up by the dishonest media of incredible information provided by WikiLeaks. So dishonest! Rigged System!”1732 Two days later, Donald Trump Jr. tweeted the link himself: “For those who have the time to read about all the corruption and hypocrisy all the @wikileaks emails are right here: wlsearch.tk.”1733 Trump Jr. admitted that this may have been in response to the request from WikiLeaks, but also suggested that it could have been part of a general practice of retweeting the WikiLeaks releases when they came out. 1734 [my emphasis]

WikiLeaks remained focused on cultivating Don Jr for at least another year, trying to get him rather than Roger Stone to take the lead on a pardon for Julian Assange, and when that didn’t happen, posting ominous warnings about dropping the source code Josh Schulte had stolen under the Vault 8 label.

And that’s just what’s public.

Imagine if the former President’s failson had a private identity, one playing right along with two men who have been convicted of conspiring to harm the civil rights of Hillary Clinton supporters, the same crime, 18 USC 241, for which Trump now stands accused.

Serving as Julian Assange’s Unwitting Data Mule to Israel Shamir Is Not Journalism

It’s a testament to how effective WikiLeaks’ propaganda is that almost none of the people implicated by things Julian Assange did years ago and almost none of the people who brainlessly repeat Julian Assange’s propaganda now know about this May 16, 2022 filing, submitted last year in the Josh Schulte case, which I wrote about here.

The redacted bits of the filing almost certainly describe things obtained in an ongoing investigation of WikiLeaks that pertain to how the data stolen by Schulte was used. The unredacted parts, however, describe that what must be the WikiLeaks investigation is both ongoing and has a scope that, “is neither known to the public nor to all of the targets of the investigation.”

“All of the targets.” That phrase is telling. At least one target — Assange — knows he is a target. The other targets (and DOJ uses the jargon to describe people who almost certainly will be charged, not just people who might be) don’t know.

The WikiLeaks investigation — which is ongoing and not just, as many boosters claim, an attempt to shore up the case against Assange — is not an investigation into Assange, exclusively. There are other targets.

Key WikiLeaks people almost certainly know about this filing, because they treated Schulte’s second trial — where he defended himself and repeatedly tried to publicly share classified information, almost certainly including details of the discovery about the ongoing WikiLeaks investigation he had received — differently than the first.

They’re just not telling you that there are other targets of the WikiLeaks investigation.

They’re not telling you, in part, because it ensures that when the Met or FBI or other investigators approach people to obtain information about those other targets, they’ll refuse, because they don’t want to be part of a prosecution of Julian Assange for what they’re telling themselves is journalism.

James Ball is the latest person describing how that happened.

In a Rolling Stone post describing the two year effort to obtain his cooperation, he claims journalists are being asked to cooperate against Assange.

And he claims he’s being approached — for information that clearly pertains to Israel Shamir — as a journalist.

He asserts that he’s being approached as a journalist by claiming that DOJ wants to talk to him about this 2013 article, rather than about his own conduct described in the article.

As the article described, in 2010, he unwittingly served as Assange’s data mule, handing off 90,000 State Cables to Israel Shamir, who then exploited them — by sharing them with Belarusian dictator Alexandr Lukashenko and/or selling them — before the entire Cable set was released.

Shamir is an anti-Semitic writer, a supporter of the dictator of Belarus, and a man with ties and friends in Russian security services. He and Julian—unknown to us—had been in friendly contact for years. It was a friendship that would have serious consequences.

Introduced to WikiLeaks staff and supporters under a false name, Shamir was given direct access to more than 90,000 of the U.S. Embassy cables, covering Russia, all of Eastern Europe, parts of the Middle East, and Israel. This was, for quite some time, denied by WikiLeaks. But that’s never a denial I’ve found convincing: the reason I know he has them is that I gave them to him, at Assange’s orders, not knowing who he was.

Why did this prove to be a grave mistake? Not just for Shamir’s views, which are easy to Google, but for what he did next. The first hints of trouble came through contacts from various Putin-influenced Russian media outlets. A pro-Putin outlet got in touch to say Shamir had been asking for $10,000 for access to the cables. He was selling the material we were working to give away free, to responsible outlets.

Worse was to come. The NGO Index on Censorship sent a string of questions and some photographic evidence, suggesting Shamir had given the cables to Alexander Lukashenko of Belarus, Europe’s last dictator. Shamir had written a pro-Belarus article, shortly before photos emerged of him leaving the interior ministry. The day after, Belarus’s dictator gave a speech saying he was establishing a WikiLeaks for Belarus, citing some stories and information appearing in the genuine (and then unpublished) cables. [my emphasis]

As he admits, at least by 2013, Ball was aware that Shamir had ties to Russian spooks.

What Ball describes in the piece is that he entered into an agreement with Assange to provide data to someone, Shamir, that Shamir did not publish, but instead shared with a repressive dictator and, probably, with Russian intelligence services.

That’s not journalism. That’s spying.

To be sure: as Ball describes, he realized his error and promptly left WikiLeaks (and, as he described in the 2013 article, refused to sign some of the NDAs Assange was pushing). That’s why he was approached as a witness and not a subject, because he made affirmative efforts to leave the conspiracy that has already been charged against Assange and almost certainly will be charged against Shamir, if it hasn’t already been, under seal.

After having served as an unwitting data mule for Assange in a handoff that would result in Lukashenko (and possibly Russian spies) getting advance access to the content of the Cables, Ball subsequently became a journalist. But that does not retroactively change what happened in 2010. Nor does that mean FBI approached him as a journalist. They approached him as a guy who once unwittingly served as a data mule for the part of the Cable releases that undermines all the claims that Assange is nothing but a publisher.

Here’s what people miss about the publication charges against Julian Assange, including the Cable count. They charge him for, “distributing them and then by publishing them.” Proving that Assange distributed the State Cables via unwitting data mule James Ball to Shamir is all DOJ would have to do to prove that charge against Assange, to prove that Assange shared them with someone not authorized to receive them. At a hypothetical trial of Assange (and whoever else gets charged), they’ll undoubtedly explain that after first giving privileged access to the Cables to Shamir, who handed them onto people who would use them to suppress dissent, Assange published all of them. That’s part of the cover. That’s part of what leads people like Ball to imagine he was involved in journalism when he shared the Cable files with Shamir.

For a number of WikiLeaks releases, there’s some story like this, about how before publication, files were either removed from the publication set or provided exclusively to someone in advance. The publication is, in part, cover for that earlier sharing. Schulte even described how if Russia got the source code he shared with WikiLeaks but which WikiLeaks, with limited exceptions, did not publish, they would never publish it, because it would be more useful to reverse engineer what the CIA had been doing.

These tools are MUCH more valuable undiscovered by the media or the nation that lost them. Now, you can secretly trace and discover every operation that nation is conducting.

Schulte is one of the people that anyone charged in a larger WikiLeaks conspiracy would be charged with conspiring with.

That’s the tough thing about US conspiracy law: Once you enter into a conspiracy, you’re on the hook for the actions of anyone who later enters into that conspiracy — like Shamir or Schulte — whether or not you know about it personally. You’re on the hook unless and until you take affirmative actions to leave the conspiracy. Lots of people with ties to WikiLeaks want no tie to Assange’s relationship with Shamir, but if DOJ adds him as a co-conspirator, then they’re not going to have much choice in the matter.

In any case, because so few of WikiLeaks’ boosters know that there are other targets in this investigation, they seem to be getting unfortunate legal advice, such as regarding the import of the detail that FBI obtained a statement from Shamir — whose statements, if and when he is charged as a co-conspirator, can be entered at trial — stating that Ball provided Cables, which he claimed to be about “the Jews,” to him.

The U.S. government cannot make much use of what I revealed in the article in a court of law unless I testify to it — and it is not hard to see how I could be useful if they were trying to strengthen the political case against Assange. In the article, I admit that I was the one who gave Shamir the material, albeit on Assange’s orders, without knowing who he was. If I testified to all this, it could, at least in theory, open me to criminal charges of my own.

[snip]

When, after months of delaying tactics had run out of road, we said a final “no”, there was a small sting in the tale from a DOJ prosecutor to my lawyers. Sending a statement in which Shamir had falsely claimed I had provided him with cables on “the Jews,” the prosecutor noted:

“Upon seeing those words from Shamir, I cannot help but ask whether Mr. Ball would reconsider his decision about speaking to the investigators, even if only just to respond to Shamir’s allegations.”

Yeah, it was a sleazy tactic, but also one designed to alert his lawyer that Ball does not currently have exposure but at a trial in which Shamir is a co-conspirator, Ball’s own conduct will be introduced at trial as part of proving that Cable charge and can be introduced without the article Ball wrote in 2013. Ball was advised they can’t use his article without his testimony — and because he had already left any agreement with Assange that’s probably right — but FBI can certainly introduce Shamir’s claims that he got the Cables from Ball, along with whatever other evidence they have about what Shamir did with them afterwards.

One more reason the fact that this is an ongoing investigation into targets not publicly identified matters: DOJ may or may not  or may already have gotten the UK to approve superseding the existing indictment against Assange, the one that has led people to believe he is the only target of it. But they certainly have the ability to charge a conspiracy in which Assange is an uncharged co-conspirator, showing a seven year conspiracy involving Russian spooks — starting no later than that handoff of cables to Shamir — charging everyone else that entered into a conspiracy via Assange with Russian spooks. Back in 2020, prosecutors implied to Jeremy Hammond that the long extradition process of Assange would provide the opportunity to charge Assange’s involvement in the 2016 Russian hack-and-leak. And because at least one of the people who would be charged in such a conspiracy, Josh Schulte, appears to have continued his efforts to leak through last year, any statute of limitations might go through 2027. That’s why they’re in no rush to charge Shamir publicly: because the way conspiracy law works in the US, they can charge everyone who didn’t affirmatively leave the WikiLeaks conspiracy so long as the conspiracy remains ongoing.

Ball may well be right that the other people the FBI has approached are being approached for coverage of WikiLeaks they did, as journalists (though there are some edge cases). But of the descriptions I’ve seen, there’s always another as yet uncharged target about whom the FBI is asking. That may not change their calculus about whether they want to cooperate, but it means, whether they know it or not, that their refusals are not limited to a bid to protect Assange’s conduct.

I think the people approached for their coverage of WikiLeaks should definitely tell the FBI to fuck off.

But there’s more going on here, particularly with the request to Ball.

James Gordon Meek and Merrick Garland’s “Suspect Exception”

According to a discovery response letter sent on April 7, the government had only been able to access one of four laptops it seized from investigative reporter James Gordon Meek’s house when it searched his home for Child Sexual Abuse Material a year ago.

The government has not been able to access evidence item 1B4 and has not relied on any content from that device in its charges against your client. The laptop referenced in the complaint is evidence item 1B6. That item is and has been available for your review at the FBI facility, and a copy of the data was provided for your visit on March 16.

The government did seize four laptops from Mr. Meek. Those items are labeled 1B3, 1B4, 1B5, and 1B6. At this time, the government has only accessed 1B6.

The letter was made available as part of a motion to compel discovery filed last week.

That detail came in response to a question about why, when Meek’s legal team conducted an evidence review at the FBI on March 16, they were not able to access one of the laptops.

During our evidence review at the FBI on March 16, 2023, we were not able to review the contents of the laptop seized from Mr. Meek (item 1B4). Three of the data volumes appeared to still be encrypted. Our expert asked CART Gabriela Mancini about this issue, and Ms. Mancini explained that the laptop had not been “processed.” We noted that the government stated in the complaint affidavit that the FBI recovered 90 CSAM items from the laptop. It is unclear how this was done without processing the laptop.

[snip]

Furthermore, it is my understanding that the government seized a total of four laptop computers. Can you please confirm that 1B4 is a MacBook laptop, and the status of the other seized laptop computers?

These three still unexploited laptops are of some interest given the questions Meek’s (refreshingly competent, given what I’ve become used to from many of the January 6 lawyers) attorney Eugene Gorkhov raised in the MTC about how DOJ treated Meek as a journalist.

Most of the issues in the MTC are just competent lawyering: demanding more details about how the investigation into Meek moved from a DropBox tip to the National Center for Missing and Exploited Children to the Virginia State Police to the Arlington County Police to the FBI, and asking for evidence that the leaks to the press detailing aspects of the investigation show bias. Those questions are likely fairly easily explained (or blown off). If they’re not, they’ll provide leverage at trial, if not reason to dismiss the case.

It’s how DOJ treats a journalist when investigating him for suspected crimes entirely unrelated to his journalism that is of interest in this MTC.

Gorokhov describes receiving notice that DOJ used a filter team, both in advance of his April 2022 search and — presumably — in advance of investigating materials obtained with a warrant served on a cloud provider, back in November 2021. But DOJ refused to share the filter protocol.

In its search of the electronic devices seized from Mr. Meek’s residence, the government accessed Mr. Meek’s newsgathering materials, including communications, sensitive confidential sources, and work product. The government stated that it employed filter procedures while carrying out these searches. The discovery materials reference filter team memoranda dated November 24, 2021 and April 22, 2022. The defense has requested copies of these memoranda, Ex. 4 at 6, but the government has refused to provide them, claiming that they are work product and that, in any event, Mr. Meek has no reporter’s privilege because no such privilege exists. Ex. 5 at 5. Mr. Meek has also requested documentation relating to requests to, and approvals by, senior DOJ officials19 in connection with the search warrant applications in this case or any other investigative steps in this case. Ex. 4 at 7. The government has refused to produce this material. Ex. 5 at 5.

Gorokhov asks how that’s consistent with its media policy, particularly given the 2021 report on legal process used with journalists. He suggests Meek shows up twice there — first, in a subpoena approved by the Assistant Attorney General served on a media outlet (presumably ABC) to identify who accessed a particular news article, then Deputy Assistant Attorney General approval under a “suspect exception” before obtaining the first warrant targeting Meek.

Mr. Meek has also requested documentation relating to requests to, and approvals by, senior DOJ officials19 in connection with the search warrant applications in this case or any other investigative steps in this case. Ex. 4 at 7. The government has refused to produce this material. Ex. 5 at 5.

The government’s own policies and actions belie its position that Mr. Meek’s newsgathering materials are entitled to no protection. If this were true, then why did the government claim to implement filter procedures? Additionally, why did the FBI agents at the search ask Mr. Meek to identify devices containing newsgathering materials? The DOJ’s own policies reflect the recognition that newsgathering materials are entitled to protection: “The Department recognizes the important national interest in protecting journalists from compelled disclosure of information revealing their sources, sources they need to apprise the American people of the workings of their Government.” 28 C.F.R. § 50.10(a)(2). To be sure, the DOJ’s policies provide more protection in circumstances where newsgathering activities are the subject of investigation, but the need to protect such information is recognized by the DOJ even in instances where the investigation is unrelated to newsgathering activities. See, e.g., 28 C.F.R. § 50.10(d)(2) (requiring authorization of Deputy Assistant Attorney General for the Criminal Division prior to issuing compulsory process to a member of the media for conduct unrelated to newsgathering); 28 C.F.R. § 50.10(o)(4) (“Members of the Department should consult the Justice Manual for guidance regarding the use of filter protocols to protect newsgathering-related materials that are unrelated to the conduct under investigation.”).

19 See Ex. 6, Annual Report: Department of Justice Use of Certain Law Enforcement Tools to Obtain Information from, or Records of, Members of the News Media; and Questioning, Arresting, or Charging Members of the News Media (Year 2021). The publicly available report indicates that in 2021, the Deputy Assistant Attorney General authorized a search warrant for an online account of a journalist in connection with a child exploitation investigation. The same report also states that “the Assistant Attorney General for the Criminal Division authorized the issuance of a grand jury subpoena to a news media entity in order to obtain IP address information for computers that accessed a particular online news article during a specified narrow timeframe.” The government has provided no records reflecting the latter investigative activity by the FBI, and

I highly doubt that Meek will get anywhere with this challenge for the legal reasons DOJ gave in its reply. There’s no reporter’s privilege, especially not in the Fourth Circuit, and especially not when a reporter has committed the offense at issue.

Your client has no reporter’s privilege in any way relevant to this case. The Fourth Circuit— following the Supreme Court—has declined to recognize a privilege for reporters in criminal proceedings even when the reporter is merely a witness to a crime. See United States v. Sterling, 742 F.3d 482 (4th Cir. 2013) (citing Branzburg v. Hayes, 408 U.S. 665 (1972)). There is no basis for the assertion of any such privilege when the reporter has himself committed the criminal offense, and even less so where, as here, the crime is unrelated to his newsgathering activities. That the government voluntarily took steps to shield the case prosecutors from materials related to your client’s newsgathering activities does not create any right or privilege for your client, and there would be no suppression right or remedy available, even supposing that there had been a deviation from the protocols the government elected to impose upon itself. [my emphasis]

But note the reference to “this case.”

As consistent with DOJ’s assurances that they will only rely on one laptop to prove the CSAM case against Meek, the forfeiture language in the indictment applies to just that one laptop.

But given Gorokhov’s language in the MTC, the warrants were written to access everything.

Given that the investigation was purportedly focused on CSAM, which is limited to a “visual depiction” of minors engaged in sexually explicit conduct, it is not clear why the government sought to have law enforcement agents search the entirety of Mr. Meek’s files.

To be fair, FBI searches everything in CSAM cases, not least because of means that sophisticated users use to hide CSAM.

But it’s an especially apt question given that, the day after the search, the FBI discussed suspicions that Meek had classified documents.

The FBI’s internal documents and communications in the wake of the raid, disclosed to defense counsel only after Mr. Meek was charged, revealed that the government planned to investigate its suspicions that Mr. Meek possessed classified documents.

This is a loophole I pointed out when Merrick Garland first rolled his revised media guidelines. The guidelines offered new protections to reporters obtaining classified materials in the course of newgathering — as Meek would have been.

But it also exempted subjects from the guidelines if they were suspected of a non-newsgathering crime. Like CSAM possession. Or, in the case of Julian Assange, the hacking charge with which he was first charged (I believe the Espionage Act is also exempted, and foreign agents are definitely exempted).

This is, I suspect, an error that Rashida Tlaib made in her letter calling on Merrick Garland to drop the charges against Assange. She suggests that dropping the indictment would be in keeping with Garland’s new policy.

As Attorney General, you have rightly championed freedom of the press and the rule of law in the United States and around the world. Just this past October the Justice Department under your leadership made changes to news media policy guidelines that generally prevent federal prosecutors from using subpoenas or other investigative tools against journalists who possess and publish classified information used in news gathering. We are grateful for these pro-press freedom revisions, and feel strongly that dropping the Justice Department’s indictment against Mr. Assange and halting all efforts to extradite him to the U.S. is in line with these new policies.

Ignoring the possibility that DOJ has made a foreign agent determination with Assange — a very real possibility, in his case, in which case the policy doesn’t apply at all — it still seems that the plain language of the policy suggests once you become an investigative subject for a non-newsgathering crime — hacking in the case of Assange, CSAM possession in Meek’s case — then the application of the policy is uncertain.

As DOJ moves towards a June 20 trial date for Meek on CSAM charges, three of his laptops remain, unexploited, at the FBI. DOJ has said he has no reporter’s privilege interest in the CSAM case and that’s absolutely right. But those three laptops, obtained with a warrant approved on that suspect exception, as well as other reporting materials from the devices they did exploit, still remain in FBI’s custody, obtained with a warrant gotten under the suspect exception.

The charges against Meek are very serious and quite disturbing. But that makes his case a very good test of how Garland’s media policy applies with someone who is a suspect in an awful crime, but also, by any measure, an investigative reporter. DOJ seized, and is holding (in potentially encrypted form) materials and devices that relate to his newsgathering which would otherwise be covered by the news media policy. DOJ has kept these materials from the CSAM team. But after his prosecution, what will become of those materials?

Disclosure: In this post I describe my limited acquaintance with Meek going back to the Libby trial, with more recent interactions in 2018 or 2019.

Timeline

March 11, 2021: NCMEC received tip from Dropbox

June 2021: Virginia State Police served subpoenas on Verizon and Google

N.d.: VSP referred case to Arlington County Police Department

September 7, 2021: Referral from ACPD to FBI

November 24, 2021: Filter team memoranda

April 22, 2022: Filter team memoranda

April 27, 2022: Search

April 28, 2022: FBI email chain stating Meek may be in possession of classified information

October 19, 2022: Rolling Stone reported on search; Marjorie Taylor Greene tweet claims to know search was about CSAM

November 2, 2022: Gorokhov raises leaks with AUSAs

December 19, 2022: Rolling Stone reported “indictment” being prepared

January 31, 2023: Arrest affidavit [warning: exceptionally graphic language]

February 1, 2023: At detention hearing, DOJ incorrectly claimed Meek said his “life was over”

February 20, 2023: Consent motion for extension of indictment

February 24, 2023: Meek discovery letter

March 16, 2023: DOJ response, stating that it does not intend to produce filter team memo

March 30, 2023: Indictment

March 31, 2023: Follow-up discovery letter

April 7, 2023: Government response

April 20, 2023: Motion to compel disclosure

April 21, 2023: Judge Claude Hilton granted complex designation, set June 20 trial date

Jack Teixeira: Leak Dumps Don’t Care about (the Story You Tell about) Motive

Dan Froomkin says reporters should call Jack Teixeira’s release of highly classified documents “theft,” not a leak, distinguishing “public-spirited” leakers from “self-serving … thieves.” Spencer Ackerman muses that Teixeira, “leaked for that most ineffable thing, something nonmaterial but nevertheless hyper-real in the logic of the poster, and particularly the right-wing-chud poster: clout.” Charlie Savage suggests something distinguishes this case, legally, from those of everyone else (among a limited subset) who took classified information. Glenn Greenwald has been all over the map, in one breath calling this, “a bullshit leak, despite some relevant docs, the impact of which has been severely overblown from the start,” but then applauding Tucker Carlson’s focus on the altered casualty numbers in Ukraine and Tucker’s claims that even Fox has factchecked as an example of, “the significant revelations these leaks provide.”

Now he’s just making shit up about WaPo and NYT hunting down Teixeira, shit that a quick reading of the arrest affidavit readily debunks, shit that ignores that WaPo’s source(s) for hundreds of still-unpublished documents, at least, are one or more of the Discord chat kids, to whom WaPo has given source protection (that will be utterly meaningless in the face of the subpoenas already served).

A bunch of people who made their careers because a young, narcissistic IT guy stole a shit-ton of records about which he had little personal expertise — some incredibly important, a great many useful only to America’s adversaries — seem to be uncertain what to make of Jack Teixeira, who, early reports at least suggest, is an even younger narcissistic IT guy who stole a smaller shit-ton of records about which he had even less personal expertise, some newsworthy, some useful primarily to America’s adversaries.

We will likely have the rest of Teixeira’s young life to get a better understanding of why he allegedly did what he did, which may well be very different than what he told the kids in the Discord chat rooms about why he did what he did, who in any case are entirely unreliable narrators. But then, they may be no more unreliable, as narrators, than Greenwald is about Edward Snowden, and for a similar reason: because their identity is wrapped up in a certain narrative about this dude.

Since this age of the leak dump started, journalists have been sustaining self-serving stories about what leak dumps really are.

That Ackerman treats Josh Schulte’s hack-and-dump in the same breath as the leak dumps of Chelsea Manning or Edward Snowden, calling Teixeira’s leaks, “something different than the Snowden leaks, Manning leaks or, say, the Vault 7 hack,” is a great example of that. At trial, Schulte didn’t so much claim he was a whistleblower as he was a scapegoat, someone the CIA already hated to blame for an embarrassing compromise. But in his second trial, in the course of representing himself, he performed precisely what the government said he was: a narcissistic coder — KingJosh, he called himself — exacting revenge for the escalating personnel problems he caused after his manager moved his desk. “I think you are playing into the government’s theory of the case,” Judge Jesse Furman warned in a sidebar during Schulte’s cross-examination of a former supervisor, “by making clear to the jury that even today you remain aggrieved by you as being mistreated.”

Vault 7 was not a noble leak. It was an epic act of nihilism. A man-boy retaliating because he couldn’t get his way at work.

And except for security researchers in the business of attributing CIA hacks, the Vault 7 files weren’t all that newsworthy, either — though they did give Julian Assange a way to pressure the Trump Administration. Plus, the fate of both the Vault 7 files during the nine months between leak and publication, during a period when Assange was a key part of a Russian influence operation, as well as the Vault 8 source code included in Schulte’s guilty verdict, remains unknown. In a letter attempting to exonerate himself (even while exposing the protected identities of several colleagues), Schulte himself described the value that the source code would have for Russia, particularly during that nine month window before the CIA learned Schulte had hacked them:

So much still unknown, and with potential (yet unconfirmed) link between wikileaks and Russia–Did the Russians have all the tools? How long? It seems very unlikely that an intelligence service would ever leak a nation’s “cyber weapons” as the media calls them. These tools are MUCH more valuable undiscovered by the media or the nation that lost them. Now, you can secretly trace and discover every operation that nation is conducting.

I don’t imagine that these issues were what Ackerman had in mind, when comparing Schulte to Manning and Snowden, but perhaps he should give some thought to why he believes otherwise.

Meanwhile, Marjorie Taylor Greene is already creating a heroic myth about Teixeira not all that dissimilar from the myths WikiLeaks spun about Schulte that Ackerman appears to still believe.

Maybe, like Chelsea Manning, a struggle with his own demons made Teixeira more apt to leverage classified records to win the adulation of a bunch of teenagers. Or maybe, like Schulte, he really is the racist shithole he sounds like.

Or both.

We may never learn how much damage these leaks did such that we could adequately balance their value against their cost. We will undoubtedly get inflammatory claims from prosecutors if Teixeira is ever sentenced, which may or may not be backed by some damage assessment that will get declassified in a decade or three.

Because it’ll be some time before we really understand this guy, because journalists seem to be struggling to understand how to treat him, I thought it worthwhile to lay out some lessons I have learned from covering leak-dumps for 15 years, lessons that have resulted in a radically different view than the Manichean belief in good dumps or bad dumps others have.

Leak dumps don’t care about all that.

In what follows, I’m not questioning the value of (some) of Snowden’s and Manning’s leaks. I’m saying that some of the people most closely involved haven’t taken a step back, in the decade since, to see what we’ve learned since, including some things these celebrated leakers have in common with what we know, so far, of Teixeira.

It’s worth distinguishing leaks from people knowledgable about what they’re leaking

Those who’ve worked on past leak dumps like to compare the leakers with Daniel Ellsberg, a comparison Ellsberg has welcomed.

But for most, there’s something that clearly distinguishes this later group of leakers: many don’t have expertise on the specific files they’re leaking.

Indeed, several of these leakers obtained new jobs while they were already contemplating leaking (or, in Snowden’s case, long after he had started collecting documents to leak). Several took files entirely unrelated to their jobs.

By comparison, Ellsberg was a PhD who leaked the Rand study he worked on himself.

To the extent that prior leak dumpers leaked files they didn’t have specific reason to want to expose, they often did so out of a generalized malaise, usually stemming from America’s war on terror policies. While I think Manning and Daniel Hale’s reaction to the war on terror was just and righteous, and while Teixeira thus far seems like a badly misguided conspiracy theorist, the type of motivation, a general malaise about American conduct, may not be that dissimilar.

Similarly, Teixeira clearly doesn’t have the knowledge or maturity to make an ethical decision to leak these documents. But it’s not clear some of his predecessors did either.

False claims about authentic documents are still false claims

Over the years, Greenwald and others — most recently #MattyDickPics Taibbi — have completely collapsed the distinction between “true” and “authentic.” There’s a good deal of Snowden reporting, for example, that remains uncorrected. Ackerman even repeated one such error, from the Guardian’s report on PRISM, in his 2021 book — “the NSA could conduct what internal documents described as ‘legally-compelled collection’ from the servers—the exact form of access remains unknown”—of PRISM participants. [my emphasis] This description of getting data directly from tech companies’ servers came from a guy who was overselling the program, effectively a Deep State hypester snookering civil libertarian journalists to buy into his hype.

As Bart Gellman described in his own book, not only was the direct access misleading, but it distracted from the more important policy points of the Section 702 collection.

Companies that had declined to comment in advance, or had said nothing of substance, now issued categorical denials that any U.S. agency had “direct access” to their servers. I scrambled to reconcile those statements with the NSA program manager’s explicit words—repeated twice—in the authoritative PRISM overview. Later that night I found a clue in another document from the Snowden archive. There, in a description of a precursor to PRISM, I found a variation on Rick’s formula. “For Internet content selectors, collection managers sent content tasking instructions directly to equipment installed at company-controlled locations,” it said. That sounded as though the U.S. government black box was on company property but might not touch the servers themselves. I updated my story to disclose the conflicting information and the new evidence.

[snip]

The “direct access” question became a big distraction, rightly essential to the companies but not so much to the core questions of public policy.”

The Snowden reporters were under a real time crunch and unbelievable security pressure to report, so have a good excuse, but others don’t.

#MattyDickPics blithely started reporting on Twitter without first bothering to get the least understanding of what he was looking at and he still has never gotten records showing what requests Trump made of Twitter, the only thing close to real censorship in question. Yet because he has some screen caps to wave around, vast swaths of people believe his false claims.

The same is true of the “laptop.” Virtually the entire Republican Party has refused to distinguish between authentic emails on a hard drive allegedly obtained from a Hunter Biden laptop, and the authenticity of the laptop itself, even after people in Rudy’s orbit started altering that hard drive. To say nothing of whether provably authentic emails say what the GOP breathlessly claims they do, which so far, they have not.

As noted, Tucker has already magnified (with Greenwald applauding) two of the false claims about the documents that Teixeira released: the doctored casualty numbers put out by Russia, and misrepresentations about the role of Special Operations forces in Ukraine, which have been debunked by the same Fox News reporter that Tucker tried to get fired one of the previous times she corrected the network’s false claims.

Notably, I think one thing that is contributing to more accurate reporting based on these files is more hesitation from responsible outlets to publish or magnify the files themselves, while still using them as a basis for stories, though as WaPo races to beat its competitors that may be changing.

Documents can serve to distract

And that’s because authentic documents have, from the start of these leak dumps, often served to distract attention from the actual content.

As I noted the other day, FBI’s cooperating troll witness in the Douglass Mackey trial, Microchip, described unashamedly how the trolls ensuring the John Podesta emails would go viral in the last weeks of the 2016 election knew there was no there, there. But they also knew that so long as they could invent some kind of controversy out of them, they could suck the air out of substantive political coverage.

Q What was it about Podesta’s emails that you were sharing?

A That’s a good question.

So Podesta ‘s emails didn’t, in my opinion, have anything in particularly weird or strange about them, but my talent is to make things weird and strange so that there is a controversy. So I would take those emails and spin off other stories about the emails for the sole purpose of disparaging Hillary Clinton.

T[y]ing John Podesta to those emails, coming up with stories that had nothing to do with the emails but, you know, maybe had something to do with conspiracies of the day, and then his reputation would bleed over to Hillary Clinton, and then, because he was working for a campaign, Hillary Clinton would be disparaged.

Q So you’re essentially creating the appearance of some controversy or conspiracy associated with his emails and sharing that far and wide.

A That’s right.

Q Did you believe that what you were tweeting was true?

A No, and I didn’t care.

Q Did you fact- check any of it?

A No.

Q And so what was the ultimate purpose of that? What was your goal?

A To cause as much chaos as possible so that that would bleed over to Hillary Clinton and diminish her chance of winning.

In this model — the exact model adopted by the Twitter Files (and, frankly, virtually all of Trump’s tweets) — the actual documents themselves are just a hook for viral dissemination of the false claims made about the documents, just like most of the Twitter Files are.

Microchip even admitted that disinformation can increase buzz.

Q As you sit here today, back in that time period, did you like to get a rise out of people?

A Sure, yeah.

Q And that’s one of the reasons you posted things on Twitter; correct?

A Correct.

Q Was it your belief back then that disinformation increases buzz? A Um, disinformation sometimes does increase buzz, yes.

The claims about the documents don’t work like truth claims do; instead, they serve to short-circuit rational thought, making it far easier to believe conspiracy theories or intentional disinformation.

We’re seeing some of that now from the disinformation crowd, starting with Tucker and Greenwald.

You can’t always tell who is in a chat room

The Discord kids told WaPo there were “roughly two dozen” active members of the Discord chat room where Teixeira allegedly first released the documents, about half of whom were overseas, including in Ukraine and elsewhere in post-Soviet countries.

Of the roughly 25 active members who had access to the bear-vs-pig channel, about half were located overseas, the member said. The ones who seemed most interested in the classified material claimed to be from mostly “Eastern Bloc and those post-Soviet countries,” he said. “The Ukrainians had interest as well,” which the member chalked up to interest in the war ravaging their homeland.

But the affidavit to search Teixeira’s house says there were twice that many members, approximately 50. WSJ reports that the group was more pro-Russian than the Discord kids have thus far admitted. So while initial reports suggest this was not espionage, it’s far too early to tell either what Teixeira’s motive was or whether he was cultivated by someone else in his server, encouraged to leak certain kinds of documents just as Chelsea Manning was encouraged to seek out certain things over a decade ago.

That’s why I harped on this earlier: I’ve learned, both stuff that’s public and not, about how easily sophisticated actors can manipulate precisely the kinds of people, usually young men, who inhabit these kinds of chat rooms.

Foreign intelligence services have been searching out these opportunities, eliciting both criminal hacking and leaks, for at least a decade.

For example, the LulzSec hackers knew there were Russians in their chat rooms, but didn’t much care. But it might explain why some documents hacked as part of the Syria Leaks that would be particularly damaging to Russia never got published by WikiLeaks, even though multiple sets of the documents were shared with the outlet.

Even the FBI, with subpoena power, may have troubles identifying everyone who participated in a chat room. And if the FBI can’t do it, the teenagers involved likely can’t either. That’s especially true as operational security increases. Which means they may have no idea who they were really talking to, no matter what they tell the WaPo and FBI.

So while Teixeira paid for with this server with his own credit card, it has been shut down long enough that FBI may never be able to figure out who else was in the chat room, much less their real identity. So we may never know what happened before someone decided to ruin their lives by leaking documents with what inevitably will be inadequate operational security.

Which, in the case of Teixeira’s leaks, means we may not know all the people who got advance access to documents months before their publication on Twitter and Telegram alerted the IC about them, to say nothing of whether those people were nudging Teixeira for certain kinds of leaks.

No one controls what happens with dump leaks

Back in 2021, former Principal Deputy Director of National Intelligence Sue Gordon and former DOD Chief of Staff Eric Rosenbach seemingly confirmed that the files released by Shadow Brokers in 2016 and 2017 were obtained after two NSA employees, Nghia Pho and Hal Martin, brought them home from work; there’s no evidence that Pho, at least, ever tried to share them and no proof Martin did either.

In two separate incidents, employees of an NSA unit that was then known as the Office of Tailored Access Operations—an outfit that conducts the agency’s most sensitive cybersurveillance operations—removed extremely powerful tools from top-secret NSA networks and, incredibly, took them home. Eventually, the Shadow Brokers—a mysterious hacking group with ties to Russian intelligence services—got their hands on some of the NSA tools and released them on the Internet. As one former TAO employee told The Washington Post, these were “the keys to the kingdom”—digital tools that would “undermine the security of a lot of major government and corporate networks both here and abroad.”

If that’s right, it means the last most damaging leak to DOD wasn’t intentionally leaked at all, which makes it not dissimilar from the way that Teixeira reportedly intended just to share it with the guys in his Discord server. It was exfiltrated from NSA’s secure servers by employees (in Pho’s case, purportedly for work reasons), then stolen, then released.

In the wake of that discovery, DOJ seems to have started pushing to hold leakers accountable for the unintended consequences of their leaks. In a declaration accompanying Terry Albury’s sentencing, for example, Bill Priestap raised the concern that by loading some of the files onto an Internet-accessible computer, Albury could have made them available to entities he had no intention of sharing them with.

The defendant had placed certain of these materials on a personal computing device that connects to the Internet, which creates additional concerns that the information has been or will be transmitted or acquired by individuals or groups not entitled to receive it.

But it’s a lesson journalists don’t take seriously, except (in most cases) their own operational security. What happened to the source code of CIA hacking tools Schulte took? What happened to the damning files on Russia from the Syria leaks? Did Chelsea Manning envision the State cables she leaked would be shared with someone like Israel Shamir, who reportedly shared them, in turn, with Alexander Lukashenko’s regime in advance — the same kind of advance knowledge that Schulte himself reflected on?

Even the laudable, distinguishing aspect of Snowden’s leaks, that he gave them to journalists to determine what was in the public interest (an approach he abandoned when he described CIA infrastructure in his own book), is a double-edged sword. He made multiple copies of his files — most of which weren’t in the public interest — and handed the files to others, including at least one person, Greenwald, that Snowden knew had started out with epically shitty OpSec. We would never know if someone got some the Snowden files as a result unless, like Shadow Brokers or Teixeira’s leaks, someone started sharing them openly on Telegram.

The damage assessment and the reporting goes on

We are nine days into the public part of this leak and, thanks to WaPo reporters’ success at befriending the Discord kids, WaPo has obtained hundreds of otherwise unpublished documents. In addition to about eight background stories on the leaks and charges against Teixeira, WaPo currently has Discord Leak stories on: Taiwan’s military vulnerability, China’s surveillance balloonsSurveillance on Mexican cartels. There’s nothing that makes WaPo’s reporting more or less credible, more or less honorable, because Teixeira released these to show off to his buddies (if that is why he released them).

The Discord Leaks are a leak dump. They may have more in common with past leak dumps than a lot of past leak dump journalists would like to admit. Importantly, no matter what journalists would like to tell themselves, Teixeira’s motive, if he is the source, will have virtually no impact on the damage he does to US national security or the value those documents offer to the public good, both of which will be driven by the content of the documents and the details of any advance notice adversaries may have gotten.

And legally, Teixeira is going to be treated just like Chelsea Manning and Josh Schulte — which is to say, harshly, unless he decides to flip before prosecutors can build charges on another twenty documents and has information of value to prosecutors. That’s not surprising in the least. But — short of proving he knowingly shared these documents with an agent of a foreign power — nor will it be tied to his motive.

Leak dumps don’t care about motive.

Update: PwnAllTheThings’ analysis of the damage caused by the Discord leaks is worth reading. Along with noting that at least one human source has been put in danger by these leaks (as well as a bunch of SIGINT collection), he describes how these releases could have gotten a bunch of Ukrainians killed.

We don’t know yet if Teixeira wanted lots of Ukrainians to die as a result of his leak. But we definitely know he didn’t care if they did, and they certainly had the potential to cause colossal amounts of death—both military and civilian—in Ukraine, even if that huge potential was never fully realized.

“Wink:” Where Jeff Gerth’s “No There, There” in the Russian Investigation Went

On July 28, 2017, Robert Mueller’s investigators served two warrants on the company (probably Rackspace) that hosted Paul Manafort’s DMP emails to obtain Manafort, Rick Gates, and Konstantin Kilimnik’s company emails.

Mueller obtained several things with that warrant that remain unresolved. Those are just some of the many things about the Russian investigation — the one Jeff Gerth claims had no there, there — that remain unanswered, four years after Mueller closed up shop.

Manafort’s lies about the plan to carve up Ukraine

One thing Mueller obtained with that warrant would have been an email Manafort sent Konstantin Kilimnik on April 11, 2016, “How do we get whole” with Oleg Deripaska, Manafort asked. The email showed that Manafort was using his position as the “free” campaign manager for Donald Trump to fix his legal and financial woes.

Another was an email Kilimnik wrote, but did not send, on December 8, 2016, but which Manafort knew to and did read, a “foldering” technique to prevent interception also used by terrorists. The email referenced a plan to carve up Ukraine that Kilimnik had first pitched to Manafort on August 2, 2016.

Russians at the very top level are in principle not against this plan and will work with the BG to start the process of uniting DNR and LNR into one entity, with security issues resolved (i.e. Russian troops withdrawn, radical criminal elements eliminated). The rest will be done by the BG and his people.

[snip]

All that is required to start the process is a very minor ‘wink’ (or slight push) from DT saying ‘he wants peace in Ukraine and Donbass [sic] back in Ukraine’ and a decision to be a ‘special representative’ and manage this process.

The email — and a text Kilimnik sent around the same time — talked about “recreating old friendship” with Deripaska at an in-person meeting. Less than a month later, Manafort flew to Madrid and met with a different Deripaska associate.

Six years later, we don’t know the fate of Manafort’s efforts to “get whole” with Deripaska, to recreate that old friendship.

It’s something that Manafort promised to tell Mueller’s prosecutors on September 13, 2018, when he entered into a plea agreement that averted a damaging trial during the election season. But it’s something that, Judge Amy Berman Jackson found, Manafort lied to hide from prosecutors in the ensuing weeks. We know that the last thing on Manafort’s schedule before he met with Kilimnik on August 2, 2016 was a meeting with Trump and Rudy Giuliani. We know that during the period when Manafort was lying to hide what happened with this plan to carve up Ukraine, his lawyer was speaking regularly with Trump’s lawyer, Rudy Giuliani. We know that during the period when Rudy Giuliani was seeking campaign assistance from Ukraine, he was consulting with Manafort. We know that Trump tried to coerce Volodymyr Zelenskyy to enter into a quid pro quo on July 25, 2019, but was caught by a whistleblower. We know that Bill Barr went to extraordinary lengths to protect Rudy Giuliani from any consequences for his dalliance with Russian agents in Ukraine.

We know that on December 24, 2020, Donald Trump pardoned Manafort, rewarding him for his lies. Yesterday, a judge in Florida approved a $3 million fine to settle Manafort’s failure to reveal the money he earned from working in Ukraine, money Manafort got to keep as a result of Trump’s pardon.

SDNY alleges that even as Manafort was lying about his plans with Kilimnik in September 2018, a different Deripaska associate was cultivating recently retired FBI Special Agent in Charge Charles McGonigal, someone who could tell him about what DOJ was learning (or not learning) from Manafort. We know that Seth DuCharme, who played a key role in Barr’s efforts to protect Rudy, now represents McGonigal.

We know that after Trump’s efforts to exploit dirt from Ukraine failed and Joe Biden became President, Russia expanded its invasion of Ukraine, trying to achieve by force what it attempted to achieve by coercing Trump’s “free” campaign manager and his personal attorney.

When I wrote the last installment of my series demonstrating the false claims about “Russiagate” made by Jeff Gerth, I wrote a long passage (included below) that showed what Mueller was discovering in August 2017, a period when Gerth falsely claimed prosecutors had determined there was “no there, there” to Trump’s ties to Russia.

There was not only a lot there, where Gerth never bothered to look. In fact, the “there, there” remains unresolved and raw, six years later.

The investment in Michael Cohen

Take the investigation into Michael Cohen. One thing Mueller would discover in August 2017 is that Trump Organization was not fully complying with subpoenas, at least not subpoenas from Congress. As I noted in my piece, Mueller almost certainly obtained an email with an August 1, 2017 warrant that showed Michael Cohen had direct contact with the Kremlin during the campaign. The email also showed, Mueller would learn once Felix Sater and Cohen began to explain this to investigators, that Cohen and Trump were willing to do business with a former GRU officer and sanctioned banks in pursuit of an impossibly lucrative real estate deal in Moscow. The email obtained in August 2017 was proof that Trump was publicly lying about his ongoing pursuit of business in Russia. And for two more years, Trump kept that secret from the American public. That entire time, Russia knew he was lying to the American people. Russia knew, the American public did not.

Mueller got that email by asking Microsoft, not Trump Organization, for the email. But shortly after Mueller did so, Microsoft made it far harder to obtained enterprise emails without notifying Microsoft’s client. There are other questions about missing records — such as a letter Trump sent to then Deputy Prime Minister Sergei Prikhodko — that might have been answered with more records from Trump Organization.

There’s also the matter of the big infusion of money — more than $400,000 over the course of a few months — that Cohen got from a Columbus Nova, in investment fund controlled by Russian oligarch Viktor Vekselberg. Mueller investigated whether the money had some tie to the different Ukrainian peace deal that Felix Sater got Cohen to bring to the White House.

It didn’t. As Cohen explained to Mueller in 2018, he got the money to explain how Trump worked to Andrew Intrater, who claimed to be looking to spend money on an infrastructure project in the US.

The pitch was to assist in Columbus Nova’s infrastructure fund. [redacted] invests in several different areas. At the time, there were discussions of significant foreign investment interest dedicated to U.S. infrastructure.

[snip]

In Cohen’s discussions with [Intrater] Cohen did not provide any non-public information. Cohen was not selling non-public information. Cohen could assist [Intrater] because Cohen understood Trump and what Trump was looking for.

But the payment, while legal, remains dodgy as hell.

Republicans, certainly, don’t want to talk about it. When Mark Meadows accused Cohen of omitting his contracts with foreign companies at his 2019 testimony before the Oversight Committee, Trump’s future Chief of Staff made no mention of Columbus Nova.

Mr. MEADOWS. Mr. Cohen, I’m going to come back to the question I asked before, with regards to your false statement that you submitted to Congress. On here, it was very clear, that it asked for contracts with foreign entities over the last two years. Have you had any foreign contract with foreign entities, whether it’s Novartis or the Korean airline or Kazakhstan BTA Bank? Your testimony earlier said that you had contracts with them. In fact, you went into detail——

Mr. COHEN. I believe it talks about lobbying. I did no lobbying. On top of that they are not government——

Mr. MEADOWS. In your testimony — I’m not asking about lobbying, Mr. Cohen.

Mr. COHEN. They are not government agencies. They are privately and——

Mr. MEADOWS. Do you have—do you have foreign contracts——

Mr. COHEN [continuing]. publicly traded companies.

Nor did Republicans include Nova in the FARA referral they sent to DOJ.

But Viktor Vekselberg was among the oligarchs Treasury would sanction in in 2018, along with Deripaska and Alexandr Torshin, and he was among the first people hit with expanded sanctions last year, after the invasion.

A December 2018 article about those payments to Cohen and the sanctions against Vekselberg was likely the article that Vekselberg associate Vladimir Voronchenko was sharing in 2018, which was cited as proof he knew of the sanctions, in his indictment for maintaining Vekselberg’s US properties in his own name after Vekselberg was sanctioned. Today, the government started the process of seizing Vekselberg’s US properties.

And questions about whether Vekselberg is influencing politics through his cousin, Intrater, have been renewed amid disclosures about Intrater’s big funding for the imposter Congressman George Santos.

“Sort of a spy deal going on”

Then there’s the matter of Julian Assange, whose extradition remains hung up at the final approval stage.

When Candace Owens confronted Trump about why he didn’t pardon Assange last year, he got really defensive, folding his arms. He explained, seemingly referring to Assange and probably referencing the Vault 7 and Vault 8 releases of stolen CIA hacking tools, “in one case, you have sort of a spy deal going on … there were some spying things, and there were some bad things released that really set us back and really hurt us with what they did.”

But Twitter DMs Mueller obtained with the first August 2017 warrant targeting Roger Stone showed that, in the wake of Mike Pompeo’s designation of WikiLeaks as a non-state intelligence service in the wake of that release, Stone and Assange discussed a pardon. On June 4, 2017, Stone said, “I don’t know of any crime you need to be pardoned for.” On June 10, Stone told Assange, “I am doing everything possible to address the issues at the highest level of government.”

Nine days later, on June 19, 2017, Trump ordered Corey Lewandowski to order Jeff Sessions to limit the investigation to prospective meddling from Russian, an order that — had Lewandowski obeyed — would have had the effect of shutting down the entire investigation, including that into Assange’s role in the hack-and-leak.

Texts obtained from Stone much later would show that he and Randy Credico discussed asylum for Assange on October 3, 2016 — before WikiLeaks started releasing the John Podesta emails.

And Credico had set Stone up to discuss the pardon with Margaret Kunstler by November 15, 2016.

Stone claimed to be pursuing a pardon for Assange at least through early 2018. It was only after Mueller asked Trump about such pardon discussions in September 2018 that Don Jr’s close friend Arthur Schwartz told Cassandra Fairbanks the pardon wouldn’t happen.

Those pardon discussions are just one of the things that Stone held over Trump’s head to ensure he’d never do prison time.

Stone kept a notebook of all the conversations he had with Trump during the 2016 election. He may have brought it with him to a meeting he had with Trump in December 2016.

After the win, STONE tried a full court press in order to get a meeting with TRUMP. [redacted] eventually set up a meeting with TRUMP and STONE in early December 2016 on the 26th floor of Trump Tower. TRUMP didn’t want to take the meeting with STONE. TRUMP told BANNON to be in the meeting and that after 5 minutes, if the meeting hadn’t concluded, to throw STONE out. STONE came in with a book he wrote and possibly had a folder and notes. [full sentence redacted] TRUMP didn’t say much to STONE beyond “Thanks, thanks a lot.”. To BANNON, this reinforced STONE [redacted] After five to six minutes, the meeting was over and STONE was out. STONE was [redacted] due to the fact that during the meeting TRUMP just stared.

After Stone was convicted of lying to cover up the real nature of his contacts with Russia during the election, he lobbied for a pardon by claiming, repeatedly and publicly, that prosecutors offered him a deal if he would reveal the content of the phone conversations he had with Trump during the election.

On December 23, 2020, Stone got that pardon. Four days later, Stone and Trump spoke about January 6 at Mar-a-Lago. That same day, also at Mar-a-Lago, Kimberly Guilfoyle, started the planning for Trump to speak (at that point, the plan included a march to the Capitol).

Earlier this month, DOJ included Stone’s contacts with Proud Boy Dan Scott at a January 3 Florida rally in Scott’s statement of offense for attempting to obstruct the January 6 vote certification. It included Stone’s ties to various Oath Keepers as part of the proof DOJ used to prosecute Stewart Rhodes of sedition.

“The boss is aware”

It took an extra week for prosecutors in the Mike Flynn case to get approval for his sentencing memo in early 2020. So senior officials at DOJ had to have approved of the explanation of why Flynn’s lies about calling the Russian Ambassador to undermine Obama’s sanctions on Russia were serious. “Any effort to undermine the recently imposed sanctions, which were enacted to punish the Russian government for interfering in the 2016 election,” the memo explained, “could have been evidence of links or coordination between the Trump Campaign and Russia.”

From the time that Mueller’s team obtained KT McFarland’s transition device and email on August 25, 2017, they had reason to believe Flynn’s calls with the Russian Ambassador were a group affair, not (as Trump had claimed) simply Flynn’s doing. McFarland’s emails showed that before Flynn called Kislyak, he had received an email from Tom Bossert reporting on what Lisa Monaco told him about Russia’s response to the sanctions, immediately after which he spoke to McFarland from his hotel phone for 11 minutes.

Mueller came pretty close to concluding that was why Flynn intervened with the Russian Ambassador, too. “Some evidence suggests that the President knew about the existence and content of Flynn’s calls when they occurred,” the Mueller Report explained in laying out reasons why Trump might have wanted to fire Jim Comey. “[B]ut the evidence is inconclusive and could not be relied upon to establish the President’s knowledge.” That’s because, after first denying that such calls happened at all, KT McFarland ultimately claimed not to remember telling Trump about the calls and Steve Bannon claimed not to remember discussing it with Flynn.

That was the conclusion Mueller reached in early 2019, a conclusion that already didn’t account for the fact that Flynn called the Russian Ambassador from a hotel phone, not his cell, or that he admitted that he and McFarland had deliberately written a text to cover up the contact. But the following year, in his effort to protect Trump, Bill Barr and other Republicans made available multiple pieces of evidence that make Trump’s knowledge of Flynn’s contacts more clear.

For example, after the House Intelligence Committee transcripts came out in 2020, it became clear that the White House had used Steve Bannon’s two appearances, with the assistance of Devin Nunes, to script certain answers. One of those answers denied continuing to discuss how to end sanctions against Russia after the inauguration. That scripting process happened between the time Flynn pled guilty and the time Bannon first denied remembering knowing of the sanctions discussion. Effectively, the White House scripted Bannon to deny knowledge of those sanction discussions in December 2016.

Then, in September 2020, as part of his efforts to justify overturning the prosecution of Flynn, Barr released the interview report from FBI agent Bill Barnett, who reportedly sent pro Trump texts on his FBI issued phone. It described how, after refusing to take part in that part of the Flynn investigation four different times, he nevertheless, “decided to work at the SCO hoping his perspective would keep them from ‘group think.'” He described being told that “was the only person who believed MCFARLAND was not holding back the information about TRUMP’s knowledge of [the sanction discussions].” He then asked a series of questions that would provide space for a denial: “BARNETT asked questions such as ‘Do you know that as a fact or are you speculating?’ and ‘Did you pass information from TRUMP to FLYNN?'”

Importantly, Barnett claimed it was “astro projection” that Trump directed Flynn’s contacts with the Ambassador.

He said that even after John Ratcliffe declassified the evidence that Mueller could never have used in the investigation, but which proved it wasn’t projection at all: the transcripts of Flynn’s calls with then-Ambassador Kislyak. They reveal that in the call on December 31, 2016, which Kislyak made to tell Flynn that “our conversation was also taken into account in Moscow” when Putin decided not to retaliate against the US for its sanctions, Flynn told Kislyak that “the boss is aware” of a plan to speak the day after Trump would be inaugurated. That would only be possible had Flynn either told Trump directly or had McFarland passed it along.

Once Barr came in, Flynn attempted to unwind all the things he had said to Mueller, directly contradicting multiple sworn statements. Just weeks after DOJ noted the centrality of Flynn’s lies to the question of whether Trump attempted to reverse sanctions just after Russia helped get him elected, Barr, too, joined the process of attempting to reverse the impact of the things Flynn had admitted to under oath. That effort extended to introducing notes with added, incorrect dates that Trump used in an effort to blame Biden for the investigation into Flynn. “We caught you,” Trump claimed to Biden in a prepared debate attack about the investigation that showed how his team first contacted Obama’s team to learn what they knew of the Russian response to sanctions, minutes before they called Russia to undermine those sanctions.

On November 25, Trump pardoned Flynn not just for his lies about the calls to the Russian Ambassador and working for Türkiye, but for any lies he told during the period he was reneging on his plea agreement. That same week, Flynn and Sidney Powell were in South Carolina together plotting ways to undermine Joe Biden’s election. Three weeks later, they would pitch Trump on a plan to seize the voting machines so he could stay in office.

When Bill Barr wrote his corrupt memo claiming there was no evidence that Trump obstructed the Mueller investigation, he was silent about the topic he had admitted, three times, would amount to obstruction: those pardon dangles. Those pardons aren’t just proof that Trump obstructed the investigation, stripping prosecutors of the leverage they might use to get Paul Manafort, Roger Stone, and Mike Flynn to tell the truth. But they’re also some of the most compelling proof that the secrets Stone and Manafort kept would have confirmed the suspicions that Trump coordinated with Russia in an attack on US democracy.

Update, 3/14: Corrected that Mueller closed up shop four years ago, not three. Time flies!

Links

CJR’s Error at Word 18

The Blind Spots of CJR’s “Russiagate” [sic] Narrative

Jeff Gerth’s Undisclosed Dissemination of Russian Intelligence Product

Jeff Gerth Declares No There, Where He Never Checked

“Wink:” Where Jeff Gerth’s “No There, There” in the Russian Investigation Went

My own disclosure statement

An attempted reconstruction of the articles Gerth includes in his inquiry

A list of the questions I sent to CJR


Just days earlier, on July 28, 2017, DOJ had already established probable cause to arrest George Papadopoulos for false statements and obstructing the investigation. His FBI interviews in the days after August 2 would go to the core questions of the campaign’s knowledge and encouragement of Russia’s interference. On August 11, Papadopoulos described, but then backed off certainty about, a memory of Sam Clovis getting upset when Papadopoulos told Clovis “they,” the Russians, have Hillary’s emails. On August 19, Papadopoulos professed to be unable to explain what his own notes planning a September 2016 meeting in London with the “Office of Putin” meant.

The investigation into Paul Manafort, too, was only beginning to take steps that would reveal suspect ties to Russia. Also on July 28, for example, DOJ obtained the first known warrant including conspiracy among the charges under investigation, and the first known warrant listing the June 9 meeting within the scope of the investigation. On August 17, DOJ would show probable cause to obtain emails from Manafort’s business involving ManafortGates, and Konstantin Kilimnik that would (among other things) show damning messages sent between Manafort and Kilimnik using the foldering technique, likely including Manafort’s sustained involvement in a plan to carve up Ukraine that started on August 2, 2016 (which Gerth omits from his description of that meeting).

Similarly, Mueller was still collecting evidence explaining why Flynn might have lied about his calls with Sergey Kislyak. On August 25, Mueller obtained a probable cause warrant to access devices owned by the GSA showing that Flynn had coordinated his calls with other transition officials, including those with Trump at Mar-a-Lago, when he called Kislyak to undermine Obama’s sanctions against Russia.

Plus, Mueller was just beginning to investigate at least two Trump associates that Rosenstein would include in an expanded scope in October 2017. On July 18, Mueller would obtain a probable cause warrant that built off Suspicious Activity Reports submitted to Treasury. That first known warrant targeting Michael Cohen never mentioned the long-debunked allegations about Cohen in the Steele dossier. Instead, the warrant affidavit would cite five deposits in the first five months of 2017 from Viktor Vekselberg’s Renova Group, totaling over $400K, $300K in payments from Korean Aerospace Industries, and almost $200K from Novartis, all of which conflicted with Cohen’s claim that the bank account in question would focus on domestic clients. On August 1, Mueller would obtain a probable cause warrant for Cohen’s Trump Organization emails from Microsoft. Mueller did so using a loophole that Microsoft would sue to close shortly afterwards, a move which likely stymied the investigation into a suspected $10 million donation to Trump, via an Egyptian bank, that kept him in the race in September 2016. That warrant for Trump Organization emails likely obtained Cohen’s January 2016 contact with the Kremlin – the one not turned over, to Congress at least, in response to a subpoena – a contact that Cohen would lie to Congress about four week later.

On August 7, Mueller used a probable cause warrant to obtain Roger Stone’s Twitter content, which revealed a mid-October 2016 exchange with WikiLeaks that disproved the rat-fucker’s public claims that he had never communicated with WikiLeaks during the campaign (a fact that Gerth gets wrong in the less than 1% of his series he dedicates to Stone). It also revealed that the day after the election, WikiLeaks assured Stone via DM that “we are now more free to communicate.” Those communications would, in one week (the subsequent investigation showed), turn into pardon discussions, which provides important background to the June 2017 Twitter DMs Stone had with Julian Assange, obtained with that August warrant, about “doing everything possible to address [Assange’s] issues at the highest level of Government.”

SDNY Calls DOJ’s Definition of the Espionage Act an “Academic Interest”

DOJ has now responded to my intervention in the Joshua Schulte case. Presumably because my motion, written by Kel McClanahan, focused on how flimsy the government’s claim to keep transcripts of a CIPA conference hidden, the government’s response pitches this as exclusively a CIPA battle. It’s totally a reasonable legal stance.

But along the way, in apparent effort to distract from the topic at issue — in part, the application of the Espionage Act to journalism — SDNY suggests it is just an academic interest whether DOJ would charge someone for sharing classified information already published by the NYT.

The mere fact that someone would like to know information is not a part of the right-of-access analysis, however, and the Government’s motion should be granted.

[snip]

Intervenor’s desire to speculate as to the potential application of the Government’s articulation of the elements of an offense to other circumstances has no bearing on the ability of the public to monitor or assess the actual rulings of the Court in the CIPA § 6 hearings to which Intervenor demands access.

[snip]

[T]he question is not whether redacted transcripts are coherent as a matter of language or whether they might be relevant to Intervenor’s academic interest.

I’m the intervenor here, not McClanahan (who is a professor on national security law at GW Law). I need to know this stuff not just to cover WikiLeaks (I’m more of an expert than the expert SDNY relied on in the first trial, Paul Rosenzweig), but also to understand my own exposure as a journalist.

Not once in the filing does the government use the words “Espionage Act.” Not once does DOJ mention “journalist.” Not once does it mention the NY Times, the hypothetical that DOJ is attempting to hide, which (as Judge Jesse Furman described in a court hearing) is this:

I gave you two hypotheticals. I think one is where a member of the public goes on WikiLeaks today and downloads Vault 7 and Vault 8 and then provides the hard dive with the download to someone who is not authorized to receive NDI, and I posed the question of whether that person would be guilty of violating the Espionage Act and I think your answer was yes. That strikes me as a very bold, kind of striking proposition because in that instance, if the person is not in a position to know whether it is actual classified information, actual government information, accurate information, etc., simply providing something that’s already public to another person doesn’t strike me as — I mean, strikes me as, number one, would be sort of surprising if that qualified as a criminal act. But, to the extent that the statute could be construed to the extend to that act one would think that there might be serious constitutional problems with it.

I also posed the hypothetical of the New York Times is publishing something that appears in the leak and somebody sharing that article in the New York Times with someone else. That would be a crime and there, too, I think you said it might well be violation of the law. I think to the extent that that would extend to the New York Times reporter for reporting on what is in the leak, or to the extent that it would extend to someone who is not in position to know or position to confirm, that raises serious constitutional doubts in my mind. That, to me, is distinguishable from somebody who is in a position to know. I think there is a distinction if that person transmits a New York Times article containing classified information and in that transmission does something that confirms that that information is accurate — right — or reliable or government information, then that’s confirmation, it strikes me, as NDI. But it just strikes me as a very bold and kind of striking proposition to say that somebody, who is not in position to know or does not act in a way that would confirm the authenticity or reliability of that information by sharing a New York Times article, could be violating the Espionage Act. That strikes me as a kind of striking proposition.

The government is no doubt exploiting the emphasis in my filing, but the notion that whether I can be charged for doing journalism is not an academic interest! It’s not just that there is an acute interest, amid the Julian Assange extradition proceedings, to know the government’s thinking about the Espionage Act, it goes to the chilling effect of not knowing what I can safely publish in the course of doing my job. I don’t have the luxury of “speculating” about the application of the Espionage Act, because if I guess wrong, I could be imprisoned for a decade.

The government wants this to be about CIPA. But the problem is that the government is attempting to hide something that is not classified — the elements of offense for a serious crime that can chill the ability to do journalism — via claims about CIPA.

Third, Intervenor asserts a First Amendment right of access premised on the assertion that “the Government present[ed] legal arguments about elements of the crime itself,” which Intervenor claims both have traditionally been open to the public and are of value to the monitoring of the judicial process. (D.E. 988 at 2). Intervenor’s contention that legal arguments the Government may have advanced at the Section 6 hearings are “something that interested persons in the field should know” (id. at 3) simply “cuts too wide a swath—taken to its extreme, considerations of logic would always validate public access to any judicial document or proceeding.” United States v. Cohen, 366 F. Supp. 3d 612, 631 (S.D.N.Y. 2019). Contrary to Intervenor’s suggestion that discussion of the elements of an offense “stray[s] far from a simple discussion of evidentiary issues” (D.E. 988 at 3), such discussion is integral to virtually any assessment of the relevance and admissibility of evidence, including that occurring in CIPA § 6 hearings, in which courts “look to what elements must be proven under the statute,” United States v. McCorkle, 688 F.3d 518, 521 (8th Cir. 2012); see also United States v. Bailey, 444 U.S. 394, 416 (1980) (describing need to “limit[] evidence in a trial to that directed at the elements of the crime”).

Tellingly, SDNY’s citation of a 2019 District opinion relating to the unsealing of Michael Cohen’s search warrants — which were released with redactions, the desired goal here! — is inapt to the question of whether the government should be able to hide its discussions of how it understands the Espionage Act by claiming that that needs to be protected as classified information.

Considerations of logic also counsel against recognizing a First Amendment right to access search warrant materials. Of course, public access to search warrant materials may promote the integrity of the criminal justice system or judicial proceedings in a generalized sense. United States v. Huntley943 F.Supp.2d 383, 385 (E.D.N.Y. 2013) (remarking that “the light of the press shining into the innards of government is necessary to inhibit violation of the public trust”). But such an argument cuts too wide a swath—taken to its extreme, considerations of logic would always validate public access to any judicial document or proceeding. Cf. Times Mirror Co.873 F.2d at 1213 (rejecting as overbroad the argument that the First Amendment mandates access to any proceeding or document that implicates “self-governance or the integrity of the criminal fact-finding process”); In re Bos. Herald, Inc.321 F.3d at 187 (“In isolation, the [rationale that the public must have a full understanding to serve as an effective check] proves too much—under it, even grand jury proceedings would be public.”). As the Ninth Circuit aptly observed, “[e]very judicial proceeding, indeed every governmental process, arguably benefits from public scrutiny to some degree, in that openness leads to a better-informed citizenry and tends to deter government officials from abusing the powers of government.” Times Mirror Co.873 F.2d at 1213.

Understanding the law is a matter that precedes the media’s scrutiny of whether the government abused the Espionage Act in this case (or in Julian Assange’s). And while the elements of the offense of the Espionage Act does dictate whether evidence would be helpful or not to the defense — the consideration of a CIPA hearing — ultimately this debate was about (and significantly appeared in) jury instructions, the law as applied.

Again, SDNY’s stance seems tactical, a response to our filing’s greater focus on matters of classification than the status of the press. But the outcome — SDNY’s claim that I have the luxury of merely “speculating” about the application of the Espionage Act — is alarmingly arrogant.


I was only able to make this challenge because McClanahan was able and willing to help — and he can only do so through the support of his non-profit. If you believe fights like this are important and have the ability to include it in your year-end donations, please consider supporting  the effort with a donation via this link or PayPal. Thanks!

If a Bear Shits in a Sealed CIPA Conference, Can It Expand the Espionage Act to the NYT’s Readers?

On May 3, 2022, Judge Jesse Furman posed two hypotheticals to prosecutors in the Joshua Schulte case about whether the Espionage Act would apply to people who disseminated already public information from the Vault 7/Vault 8 leaks: First, a member of the public, having downloaded publicly-posted CIA hacking materials made available by WikiLeaks, who gave those materials to a third party. Second, someone who passed on information from the Vault 7/8 leaks published by the NYT to a third party. In both cases, the government argued that someone passing on already public information from the leaked files could be guilty of violating the Espionage Act.

At least, it appears that the government argued for this expansive hypothetical application of the Espionage Act, based on what Furman said in a discussion about jury instructions on July 6. I’ve put a longer excerpt of the exchange from the discussion about jury instructions below; here’s how Judge Furman instructed the jury on the matter.

The actual discussion in May took place in a hearing conducted as part of the Classified Information Procedures Act, CIPA, the hearings during which the government and defense argue about what kind of classified information must be declassified for trial (I wrote more about CIPA in this post). Because the discussion happened as part of the CIPA process, the hearing itself is currently sealed.

And the government wants it to stay that way.

Both in a letter motion filed on November 11, postured as an update on the classification review of the transcripts of that hearing, and in a December 5 letter motion Furman ordered the government to file formally asking to keep the transcripts sealed, the government argued that CIPA trumps the public’s right of access to such court records.

CIPA’s mandatory sealing of the records of in camera proceedings conducted pursuant to Section 6 supersedes any common law right of access to those records, and neither history, logic, nor the right of attendance at proceedings support a right of access under the First Amendment.

The earlier letter even explained why it wanted to keep the “extensive colloquies” in these hearings sealed.

Beyond that, the extensive colloquies and the specific issues of law discussed at that hearing would reveal, by itself, the specific type of relief sought by the parties on specific subjects, which would in turn provide significant indications about what classified information was at issue, prompting undue speculation that would undermine national security interests.

But this specific issue of law, whether journalists or their readers have legal exposure under the Espionage Act for reporting on leaked, classified material, is not secret. Nor should it be.

That’s why, with the support of National Security Counselors’ Kel McClanahan, I’m intervening in the case to oppose the government’s bid to keep the May 3 and other transcripts sealed. How the government applies the Espionage Act to people who haven’t entered into a Non-Disclosure Agreement with the government to keep those secrets has been a pressing issue for years, made all the more so by the prosecution of Julian Assange. Indeed, the government may have given the answers to Judge Furman’s hypotheticals that they did partly to protect the basis of the Assange prosecution. But for the same reason that the Assange prosecution is a dangerous precedent, the prosecutors’ claims — made in a sealed hearing — that they could charge people who share a NYT article (or an emptywheel post) on the Vault 7 releases raise real Constitutional concerns. As Judge Furman noted, “there are hundreds of thousands of people unwittingly violating the Espionage Act by sharing the New York Times report about the WikiLeaks leak” (and, though he doesn’t say it, tens of thousands sharing the emptywheel reporting about it). And yet no one will learn that fact if the discussion about it remains sealed.

I’m not usually able to intervene in such matters because I don’t have the resources of a big media in-house counsel to do so. McClanahan’s willingness to help makes that possible. National Security Counselors are experts on this kind of national security law, with extensive experience both on the Espionage Act and on CIPA. But the group relies heavily on tax-exempt charitable contributions to be able to do this kind of work. Please consider supporting  the effort with a donation via this link or PayPal. Thanks!

Transcript excerpt

These transcripts were obtained by the Calyx Institute with funding from Wau Holland, the latter of which has close ties to WikiLeaks.

So that’s the context and a little bit of the background. I think I have frankly come around to thinking that for reasons and constitutional avoidance and otherwise that there is a lot to — that Mr. Schulte is not entirely correct but is substantially correct, that is to say that if all — let me put it differently. I think the reason that Mr. Schulte is in a different position with respect to the MCC counts is that he is someone in a position to know whether the information was classified, was NDI, was CIA information and in that sense by virtue of leaking it again, so to speak, he is providing official confirmation but it is the official confirmation that is the new information that would qualify as NDI and I think Rosen kind of highlights that, that particular nuance. I think that distinguishes Mr. Schulte from — I gave you a hypothetical, again, I think it is currently in the classified hearing and therefore not yet public, but I gave you two hypotheticals. I think one is where a member of the public goes on WikiLeaks today and downloads Vault 7 and Vault 8 and then provides the hard dive with the download to someone who is not authorized to receive NDI, and I posed the question of whether that person would be guilty of violating the Espionage Act and I think your answer was yes. That strikes me as a very bold, kind of striking proposition because in that instance, if the person is not in a position to know whether it is actual classified information, actual government information, accurate information, etc., simply providing something that’s already public to another person doesn’t strike me as — I mean, strikes me as, number one, would be sort of surprising if that qualified as a criminal act. But, to the extent that the statute could be construed to the extend to that act one would think that there might be serious constitutional problems with it.

I also posed the hypothetical of the New York Times is publishing something that appears in the leak and somebody sharing that article in the New York Times with someone else. That would be a crime and there, too, I think you said it might well be violation of the law. I think to the extent that that would extend to the New York Times reporter for reporting on what is in the leak, or to the extent that it would extend to someone who is not in position to know or position to confirm, that raises serious constitutional doubts in my mind. That, to me, is distinguishable from somebody who is in a position to know. I think there is a distinction if that person transmits a New York Times article containing classified information and in that transmission does something that confirms that that information is accurate — right — or reliable or government information, then that’s confirmation, it strikes me, as NDI. But it just strikes me as a very bold and kind of striking proposition to say that somebody, who is not in position to know or does not act in a way that would confirm the authenticity or reliability of that information by sharing a New York Times article, could be violating the Espionage Act. That strikes me as a kind of striking proposition.

So all of which is to say I think I have come around to the view that merely sharing something that is already in the public domain probably can’t support a conviction under this provision except that if the sharing of it provides something new, namely, confirmation that it is reliable, confirmation that it is CIA information, confirmation that it is legitimate bona fide national defense information, then that confirmation is, itself, or can, itself, be NDI. I otherwise think that we are just in a terrain where, literally, there are hundreds of thousands of people unwittingly violating the Espionage Act by sharing the New York Times report about the WikiLeaks leak.

MR. DENTON: So, your Honor, I think there is a couple of different issues there and one of them is sort of whether the question that you are posing right now is actually the right question for this moment in time when we are talking about the elements of the offense.

In the context of that earlier discussion, and I will repeat it here, I think one of the things that we emphasized is there is a difference between whether a set of conduct, either the hypotheticals that you describe would satisfy the elements of a violation of 793 as opposed to the separate question of whether a person or an organization in that context would have a well-taken, as-applied First Amendment challenge to the application of the statute to them in that context.

THE COURT: But I have to say — and I recognize this may be in tension with my prior holding on this issue — the First Amendment is an area where somebody — I mean, the overbreadth doctrine in the First Amendment context allows somebody, as to whom a statute could be applied, constitutionally to challenge the statute on the grounds that it does cover conduct that would violate the First Amendment. So in that regard, it is distinct from a vagueness challenge. I think to the extent that you are saying that in those instances — I mean, the reason being that the First Amendment embodies a concept of chilling. If a New York Times reporter doesn’t know whether he is violating the Espionage Act by repeating what is in the WikiLeaks leak notwithstanding the fact that there is serious public interest in it, it may chill the suppression and that suppression is protected by the First Amendment. That’s the point in the overbreadth doctrine.

Go ahead.

On the Shoddy Journalistic Defense of “WikLeaks”

When it was first published, a letter that the NYT, Guardian, Le Monde, Der Spiegel, and El País signed, calling on the US government to drop the Espionage Act charges against Julian Assange, got the date of Assange’s arrest wrong — it was April 11, not April 12, 2019. The outlets have since corrected the error, though without crediting me for alerting them to it.

A correction was made on Nov. 29, 2022: An earlier version of this letter misstated the date of Julian Assange’s 2019 arrest. It was April 11th, not April 12th.

An email was sent by me and then a correction was made. No bill was sent for the free fact checking.

As it currently exists, even after correcting that error, the Guardian version of the letter misspells WikiLeaks: “WikLeaks.”

For Julian Assange, publisher of WikLeaks, the publication of “Cablegate” and several other related leaks had the most severe consequences. On [April 11th] 2019, Assange was arrested in London on a US arrest warrant, and has now been held for three and a half years in a high-security British prison usually used for terrorists and members of organised crime groups. He faces extradition to the US and a sentence of up to 175 years in an American maximum-security prison. [my emphasis]

The slovenly standards with which five major newspapers released this letter suggest the other inaccuracies in the letter may be the result of sloppiness or — in some cases — outright ignorance about the case on which they claim to comment.

Take the claim Assange could serve his sentence in “an American maximum-security prison.” The assurances on which British judges relied before approving the extradition included a commitment that the US would agree to transfer Assange to serve any sentence, were he convicted, in Australia.

Ground 5: The USA has now provided the United Kingdom with a package of assurances which are responsive to the judge’s specific findings in this case. In particular, the US has provided assurances that Mr Assange will not be subject to SAMs or imprisoned at ADX (unless he were to do something subsequent to the offering of these assurances that meets the tests for the imposition of SAMs or designation to ADX). The USA has also provided an assurance that they will consent to Mr Assange being transferred to Australia to serve any custodial sentence imposed on him if he is convicted.

While the assurances that Assange wouldn’t be subject to Special Administrative Measures (basically contact limits that amount to isolation) aren’t worth the paper they were written on — partly because Assange did so much at the Ecuadorian Embassy that, if done in a US jail, would get him subject to SAMs, and partly because the process of designation under SAMs is so arbitrary — reneging on the agreement to transfer Assange to Australia would create a significant diplomatic row. A sentence in an American maximum-security prison is explicitly excluded from the terms of the extradition before Attorney General Garland, unless Assange ultimately chose to stay in the US over Australia (or Australia refused to take him).

The claim that he could be sentenced to 175 years, when the reality is that sentencing guidelines and concurrent sentences would almost certainly result in a fraction of that, is misleading, albeit absolutely within the norm for shoddy journalism about the US legal system. It’s also needlessly misleading, since any sentence he would face would be plenty draconian by European standards. Repeating a favorite Assange line, one that is legally true but practically misleading, does little to recommend the letter.

In the next paragraph, these five media outlets seem to suggest that the Computer Fraud and Abuse Act conspiracy alleged in “the indictment” is limited to Assange’s effort to crack a password.

This group of editors and publishers, all of whom had worked with Assange, felt the need to publicly criticise his conduct in 2011 when unredacted copies of the cables were released, and some of us are concerned about the allegations in the indictment that he attempted to aid in computer intrusion of a classified database. But we come together now to express our grave concerns about the continued prosecution of Julian Assange for obtaining and publishing classified materials.

It is — in the 2017 to 2019 charging documents. But not the one on which Assange is being extradited.

The hacking conspiracy, as currently charged, is a 5-year conspiracy that alleges far more than — and starts before — the password cracking seemingly described in the paragraph. It includes Assange’s use of Siggi’s credentials to access a police database to monitor any investigation into himself, a request to hack a former WikiLeaks associate, the recruitment of Anonymous hackers to target US-based companies (arguably also an attempt to aid in the computer intrusion of classified databases, albeit not US government ones), and the exploitation of WikiLeaks’ role in helping Edward Snowden flee to recruit more hacks including, explicitly, a sysadmin hack of the CIA’s classified databases like the one for which Joshua Schulte has now been convicted. (The existing indictment ends at 2015, before the start of Schulte’s actions, though I would be unsurprised to see a superseding indictment incorporating that hack, leak, and exposure of sensitive identities.)

Are these media outlets upset that DOJ has charged Assange for a conspiracy in which at least six others have been prosecuted, including in the UK? Are they saying that’s what their own journalists do, recruit teenaged fraudsters who in turn recruit hackers for them? Or are these outlets simply unaware of the 2020 indictment, as many Assange boosters are?

Whichever it is, it exhibits little awareness of the import that Judge Vanessa Baraitser accorded the hacking conspiracy to distinguish Assange’s actions from actual journalism.

At the same time as these communications, it is alleged, he was encouraging others to hack into computers to obtain information. This activity does not form part of the “Manning” allegations but it took place at exactly the same time and supports the case that Mr. Assange was engaged in a wider scheme, to work with computer hackers and whistle blowers to obtain information for Wikileaks. Ms. Manning was aware of his work with these hacking groups as Mr. Assange messaged her several times about it. For example, it is alleged that, on 5 March 2010 Mr. Assange told Ms. Manning that he had received stolen banking documents from a source (Teenager); on 10 March 2010, Mr. Assange told Ms. Manning that he had given an “intel source” a “list of things we wanted and the source had provided four months of recordings of all phones in the Parliament of the government of NATO country-1; and, on 17 March 2010, Mr. Assange told Ms. Manning that he used the unauthorised access given to him by a source, to access a government website of NATO country-1 used to track police vehicles. His agreement with Ms. Manning, to decipher the alphanumeric code she gave him, took place on 8 March 2010, in the midst of his efforts to obtain, and to recruit others to obtain, information through computer hacking

[snip]

In relation to Ms. Manning, it is alleged that Mr. Assange was engaged in these same activities. During their contact over many months, he encouraged her to obtain information when she had told him she had no more to give him, he identified for her particular information he would like to have from the government database for her to provide to him, and, in the most obvious example of his using his computer hacking skills to further his objective, he tried to decipher an alphanumeric code she sent to him. If the allegations are proved, then his agreement with Ms. Manning and his agreements with these groups of computer hackers took him outside any role of investigative journalism. He was acting to further the overall objective of WikiLeaks to obtain protected information, by hacking if necessary. Notwithstanding the vital role played by the press in a democratic society, journalists have the same duty as everyone else to obey the ordinary criminal law. In this case Mr. Assange’s alleged acts were unlawful and he does not become immune from criminal liability merely because he claims he was acting as a journalist.

Whether editors and publishers at the five media outlets know that Assange was superseded in 2020 or not or just used vague language that could be read, given the actual allegations in the indictment, to suggest that some of them think Assange shouldn’t be prosecuted for conspiring to hack private companies, the language they included about the CFAA charge has led other outlets, picking up on this misleading language (along with the original error about the arrest date), to write at length about an indictment, with a more limited CFAA charge, that is not before Attorney General Merrick Garland. So maybe the NYT, Guardian, Le Monde, Der Spiegel, and El País know about the true extent of the CFAA charge, but by their vagueness, these five leading newspapers have contributed to overtly false claims by others about it.

Finally, the letter repeats WikiLeaks’ narrative about the changing DOJ views on Assange, presenting it as a binary between the “Obama-Biden” and Donald Trump Administrations.

The Obama-Biden administration, in office during the WikiLeaks publication in 2010, refrained from indicting Assange, explaining that they would have had to indict journalists from major news outlets too. Their position placed a premium on press freedom, despite its uncomfortable consequences. Under Donald Trump however, the position changed. The DoJ relied on an old law, the Espionage Act of 1917 (designed to prosecute potential spies during world war one), which has never been used to prosecute a publisher or broadcaster.

This is a story WikiLeaks likes to tell even while incessantly publicizing a a story that debunks it. It is based on a public quote — made in November 2013 by former DOJ spox, Matt Miller, who left DOJ in 2011, about why DOJ wouldn’t charge Assange. But a Yahoo story last year included former Counterintelligence head Bill Evanina’s description of how the US approach to WikiLeaks began to change in 2013, after Miller left DOJ but still during the Obama Administration, based on WikiLeaks’ role in helping Snowden flee.

That began to change in 2013, when Edward Snowden, a National Security Agency contractor, fled to Hong Kong with a massive trove of classified materials, some of which revealed that the U.S. government was illegally spying on Americans. WikiLeaks helped arrange Snowden’s escape to Russia from Hong Kong. A WikiLeaks editor also accompanied Snowden to Russia, staying with him during his 39-day enforced stay at a Moscow airport and living with him for three months after Russia granted Snowden asylum.

In the wake of the Snowden revelations, the Obama administration allowed the intelligence community to prioritize collection on WikiLeaks, according to Evanina, now the CEO of the Evanina Group.

Years earlier, CNN reported the same thing: that the US understanding of WikiLeaks began to change based on its role in helping Snowden to flee.

It should be unsurprising that the government’s approach to WikiLeaks changed after the outlet helped a former intelligence officer travel safely out of Hong Kong, because at least one media outlet made similar judgments about how that distinguishes WikiLeaks from journalism. Bart Gellman’s book described how lawyers for WaPo believed the journalists should not publish Snowden’s key to help him authenticate himself with foreign governments — basically, something else that would have helped him flee. Once Gellman understood what Snowden wanted, he realized it would make WaPo, “a knowing instrument of his flight from American law.” By his description, the lawyers implied Gellman and Laura Poitras might risk aid and abetting charges unless they refused a “direct attempt to enlist [them] in assisting him with his plans to approach foreign governments.” Like the US government, the WaPo judged in 2013 that helping Snowden obtain protection from other, potentially hostile, governments would legally go beyond journalism.

This is one reason clearly conveying the scope of the CFAA allegations is central to any credible commentary on the Assange case: because Assange’s exploitation of the Snowden assistance is an overt act charged in it. But five media outlets skip both the import of that act and its inclusion in the charges against Assange in a bid to influence the Biden Administration.

This WikiLeaks narrative also obscures one more step in the evolution of the understanding of Assange during the Obama administration, one that is more problematic for this letter, given that it would hope to persuade Attorney General Merrick Garland. Per the Yahoo article that WikiLeaks never tires of publicizing, the US government’s understanding of WikiLeaks changed still more when the outlet partnered with Russian intelligence on its 2016 hack-and-leak campaign.

Assange’s communication with the suspected operatives settled the matter for some U.S. officials. The events of 2016 “really crystallized” U.S. intelligence officials’ belief that the WikiLeaks founder “was acting in collusion with people who were using him to hurt the interests of the United States,” said [National Intelligence General Counsel Bob] Litt.

That’s important because, while the parts pertaining to WikiLeaks are almost entirely redacted, the SSCI Report on responses to the 2016 hack-and-leak makes it clear how central a role then-Homeland Security Advisor and current Deputy Attorney General Lisa Monaco played in the process. You’re writing a letter about which Garland would undoubtedly consult with Monaco. She knows that the gradual reassessment of WikiLeaks was no lightswitch that flipped with the inauguration of Donald Trump. Treating it as one provides one more basis on which DOJ could dismiss this letter. What changed wasn’t the administration: it was a series of WikiLeaks actions that increasingly overcame the “New York Times problem,” leading to expanded collection on Assange himself, leading to a different understanding of his actions.

Here’s why I find the sloppiness of this letter so frustrating.

I absolutely agree that, as charged, the Espionage Act charges against Assange are a dangerous precedent. That’s an argument that should be made soberly and credibly, particularly if made by leaders of the journalistic establishment.

I agree with the letter’s point that, “Obtaining and disclosing sensitive information when necessary in the public interest is a core part of the daily work of journalists,” (though these same publishers decided that disclosing the names of US and coalition sources was not in the public interest, and Assange’s privacy breach in doing so was the other basis by which Baraitser distinguished what Assange does from journalism).

But so is fact-checking. So is speaking accurately and with nuance.

If you’re going to write a letter that will be persuasive to the Attorney General, it would be useful to address the indictment and extradition request as it actually exists, not as it existed in 2019 or 2020 or 2021.

And if you’re going to speak with the moral authority of five leading newspapers defending the institution of journalism, you would do well to model the principles of journalism you claim to be defending.

As noted, these outlets corrected the date error after I inquired about the process by which this letter was drafted. I have gotten no on-the-record comments about the drafting of this letter in response.

DOJ Rethinks — but in a Few Areas, Expands — Access to Media Content

In a story on the new media guidelines DOJ rolled out yesterday, Charlie Savage reveals what representatives of the press think they got in the new guidelines, in addition to a formal codification of broader restrictions on the use of legal process to find real journalists’ sources:

Those conversations led to several adjustments about potentially critical issues, like how “news gathering” is defined. According to participants, the Justice Department originally intended to define it in a way that was limited to the passive receipt of government secrets. But the final version now covers the act of pursuing information.

The language in question appears to cover things like encrypted dropboxes, something that journalists liked to compare (inaptly) to the charge against Julian Assange of attempting to hack a password for Chelsea Manning. Thus far, multiple criminal prosecutions show that dropboxes have not thwarted DOJ from prosecuting those who submitted documents into them.

Journalism includes reporting on classified information

A more important change is that the guidelines explicitly include reporting on classified information in its definition of newsgathering.

Newsgathering includes the mere receipt, possession, or publication by a member of the news media of government information, including classified information, as well as establishing a means of receiving such information, including from an anonymous or confidential source.

Savage describes that “is also said to have removed espionage from a list of criminal activities that are excluded from protected news gathering.” I’m not sure that’s right: 18 USC 793 and 798 were (along with Child Sexual Abuse Materials) included in the exceptions to 42 USC 2000aa, which I think is unchanged by this regulation.

What has been removed from the prior version (in addition to the inclusion of classified information in the definition of newsgathering) is an exception permitting the use of legal process in investigations of classified leaks. This language has been removed.

In investigations or prosecutions of unauthorized disclosures of national defense information or of classified information, where the Director of National Intelligence, after consultation with the relevant Department or agency head(s), certifies to the Attorney General the significance of the harm raised by the unauthorized disclosure and that the information disclosed was properly classified and reaffirms the intelligence community’s continued support for the investigation or prosecution, the Attorney General may authorize members of the Department, in such investigations, to issue subpoenas to members of the news media.

In other words, it wasn’t that there was an exception for the Espionage Act. Rather, there was language permitting searches in leak investigations that might be (and frequently have been in recent years) charged under the Espionage Act. That exception has been removed, and reporting on classified information has been explicitly included in the definition of newsgathering.

As we’ll see below, the regulation still authorizes searches in cases of suspected agents of a foreign power.

Expanded protection and a prohibition with exceptions instead of permission for exceptions

As Savage notes, however, the topline change is both a restructuring in the ways that a journalist’s sources might be accessed and the types of legal process covered. Whereas previously, the language on accessing source information included a presumption of access with a bunch of limits on use, as laid out in the prior regulation

The Department views the use of certain law enforcement tools, including subpoenas, court orders issued pursuant to 18 U.S.C. 2703(d) or 3123, and search warrants to seek information from, or records of, non-consenting members of the news media as extraordinary measures, not standard investigatory practices. In particular, subpoenas or court orders issued pursuant to 18 U.S.C. 2703(d) or 3123 may be used, after authorization by the Attorney General, or by another senior official in accordance with the exceptions set forth in paragraph (c)(3) of this section, only to obtain information from, or records of, members of the news media when the information sought is essential to a successful investigation, prosecution, or litigation; after all reasonable alternative attempts have been made to obtain the information from alternative sources; and after negotiations with the affected member of the news media have been pursued and appropriate notice to the affected member of the news media has been provided, unless the Attorney General determines that, for compelling reasons, such negotiations or notice would pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm. [my emphasis]

The new regulation outright prohibits compulsory legal process except in certain exceptions.

(c) Compulsory legal process for the purpose of obtaining information from or records of a member of the news media acting within the scope ofnewsgathering. Compulsory legal process for the purpose of obtaining information from or records of a member of the news media acting within the scope of newsgathering is prohibited except under the circumstances set forth in paragraphs (c)(l) through (3).

In other words, these regulations importantly flip the presumption from one that permits the access of journalist records in certain situations to one that prohibits it except according to an enumerated exception.

And this revised regulation has broader language prohibiting the use of legal process. It now includes interception orders (like that used against NBC journalists who were sourced by Henry Kyle Frese), MLAT orders (like the Mexican one that targeted Zach Whittaker in 2020), and orders served on obscure third party providers of enterprise email hosting (like orders used against the WaPo and NYT in recent years).

“Compulsory legal process” consists of subpoenas, search warrants, court orders issued pursuant to 18 U.S.C. 2703(d) and 3123, interception orders issued pursuant to 18 U.S.C. 2518, civil investigative demands, and mutual legal assistance treaty requests-regardless of whether issued to members of the news media directly, to their publishers or employers, or to others, including third-party service providers of any of the forgoing, for the purpose of obtaining information from or records of members of the news media, and regardless of whether the compulsory legal process seeks testimony, physical or electronic documents, telephone toll or other communications records, metadata, or digital content.

In other words, the revision closes loopholes used under the Trump Administration.

What journalism isn’t

More generally, DOJ has reconceptualized the regulation though the use of exceptions.

Some of these are exceptions that permit the compelled process of a journalist, the most interesting new one of which entails evidentiary authentication with DAAG authorization.

(1) To authenticate for evidentiary purposes information or records that have already been published, in which case the authorization of a Deputy Assistant Attorney General for the Criminal Division is required;

This may be a response to the need to get journalists to validate videos they took on January 6.

DOJ has slightly reworked an existing section that at least used to be tailored to the definition covered by FISA (and FISA surveillance of journalists is in no way excluded from these regulations). It still includes the same language excepting an agent of a foreign power or someone who aids or abets one.

A foreign power or agent of a foreign power, as those terms are defined in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801);

In at least one of the reworked categories, the regulations represent an (entirely reasonable) expansion. The regulation includes this definition of terrorist activity — adding 18 USC 2339B, C, and D — which not only aren’t tied to State’s Foreign Terrorist Organization designations, but also includes (with C) funding for what could be domestic terrorism.

Committing or attempting to commit the crimes of providing material support or resources to terrorists or designated foreign terrorist organizations, providing or collecting funds to finance acts of terrorism, or receiving military-type training from a foreign terrorist organization, as those offenses are defined in 18 U.S.C. 2339A, 2339B, 2339C, and 2339D; or

Seamus Hughes pointed me to this case in which three white supremacists were prosecuted under 18 USC 2339A as an example of how this might apply to domestic terrorists. The new regulations add a review by the National Security Division head on these categories, but since John Demers approved the data collection on real journalists under the Trump Administration, that’s unlikely to be a very useful protection.

Another new exception — this time not associated with newsgathering — is for an investigation targeting a journalist’s non-journalist housemate or similar who is the subject of an investigation.

To obtain information or records of a non-member of the news media, when the nonmember is the subject or target of an investigation and the information or records are in a physical space, device, or account shared with a member of the news media;

But the biggest change is that, in addition to that tweaked list of national security exceptions, DOJ added a bunch of more common crimes that journalism doesn’t include:

(B) Except as provided in paragraph (b)(2)(ii)(A) of this section, newsgathering does not include criminal acts committed in the course of obtaining information or using information, such as: breaking and entering; theft; unlawfully accessing a computer or computer system; unlawful surveillance or wiretapping; bribery; extortion; fraud; insider trading; or aiding or abetting or conspiring to engage in such criminal activities, with the requisite criminal intent.

The distinctions are not entirely clearcut though. Of most concern, what distinguishes a journalist reporting on tech vulnerabilities and a hacker is that “requisite criminal intent,” and one often determines that by accessing content.

Incorporation of cases against recent not-journalism cases

Importantly, however, these crimes include a number of the cases that got journalists all hot and bothered but which, under the new rules, are very clearcut (Savage’s professed uncertainty about Project Veritas notwithstanding).

DOJ’s approach to Julian Assange didn’t begin change until he helped Edward Snowden flee to Russia and Assange wasn’t charged — initially, with attempting to help Chelsea Manning crack a password, itself included in one of the distinguishing crimes — until after he had aided and abetted Russia in a hack-and-leak campaign, one of the national security exceptions. The Espionage charges against Assange were filed after Russia attempted to exfiltrate Assange at the end of 2017. Any superseding indictment of Assange in the future would likely include an extortion claim and an aid-and-abet claim of Josh Schulte’s hacking of the CIA, for which Assange clearly expressed the criminal intent.

With regards to Project Veritas, the very first subpoena targeting their office manager (one obtained while Bill Barr was still Attorney General) listed 18 USC 873, blackmail — a kind of extortion — among the crimes under investigation, and their own defenses raised the possibility of extortion. Plus, Robert Kurlander’s statement of offense described trying to raise the price Project Veritas would pay for Ashley Biden’s diary because it was “literally a stolen diary.” So these new guidelines, applied retroactively, make the Project Veritas search an obvious exception.

The distinction between certain crimes and journalism would encompass three other, still undisclosed investigations into journalists last year described in DOJ’s report on legal process. The first was into insider trading:

In connection with an investigation of securities fraud and wire fraud relating to insider trading activities, a Deputy Assistant Attorney General authorized a U.S. Attorney’s Office to apply for a warrant to search the person, personal effects, and cellular telephones of a member of the news media who was the subject of the insider trading investigation. Investigators had established probable cause that the member of the news media had participated in the insider trading activities with three coconspirators and was in communication with the primary target of the investigation, a former U.S. Congressperson; and that the information seized pursuant to the search warrant would lead to further evidence. Investigators had pursued multiple avenues to obtain the evidence, without success, and had exhausted all investigative leads. The Department’s News Media Policy generally requires that the Attorney General must approve any application to search the communications records of a member of the news media, see 28 C.F.R. § 50.10(d)(1), but here, because the suspected criminal conduct was wholly outside the scope of the member of the news media’s newsgathering activities, a Deputy Assistant Attorney General for the Criminal Division authorized the search warrant applications pursuant to the “suspect exception” of the Privacy Protection Act (PPA), see 28 C.F.R. § 50.10(d)(4).

The second was into fraud and money laundering.

In connection with a fraud and money laundering investigation involving employees of a news media entity, a Deputy Assistant Attorney General authorized a U.S. Attorney’s Office to search stored electronic content of email accounts maintained by a member of the news media and its affiliate entity; and to issue a subpoena to a thirdparty service provider for information relating to accounts maintained by a member of the news media. The Department’s News Media Policy generally requires that the Attorney General must approve any application to search the communications records of a member of the news media, see 28 C.F.R. § 50.10(d)(1), but here, because the suspected criminal conduct was wholly outside the scope of the entities’ and employees’ newsgathering activities, a Deputy Assistant Attorney General for the Criminal Division authorized the search warrant applications pursuant to the “suspect exception” of the PPA, see 28 C.F.R. § 50.10(d)(4).

A third investigation last year into stalking that included the use of spyware and hacking.

In connection with an investigation of a member of the news media for stalking offenses, a Deputy Assistant Attorney General authorized a U.S. Attorney’s Office to apply for a warrant to search the email account of the member of the news media. Investigators had established probable cause that the member of the news media had engaged in harassment and stalking of multiple people, including through the installation and use of spyware and the hacking of social media accounts, as well as employing several means to damage the reputations of the parties the member of the news media was harassing and stalking. The U.S. Attorney’s Office established evidence that the information seized pursuant to the search warrant would lead to evidence regarding the member of the news media’s criminal conduct, which was wholly outside the scope of his newsgathering activities. The Department’s News Media Policy generally requires that the Attorney General must approve any application to search the communications records of a member of the news media, see 28 C.F.R. § 50.10(d)(1), but here, a Deputy Assistant Attorney General for the Criminal Division authorized the search warrant application pursuant to the “suspect exception” of the PPA, see 28 C.F.R. § 50.10(d)(4).

In other words, DOJ has used the lessons from the Trump DOJ’s hunt for journalistic sources, Julian Assange, Project Veritas, and three other undisclosed investigations (and who knows? Perhaps also to media outlets run by Neo-Nazis to help fundraise) to change how they conceive of journalism. All of those are reasonable exceptions from journalism.

There are a bunch of potential loopholes. If DOJ wants a journalist’s content, there are a great many ways they can still get it and because those exceptions would permit sustained secrecy about the searches might never be disclosed.

But these regulations, at a minimum, have established that reporting on classified information is part of journalism and have eliminated a lot of the loopholes to surveillance used to target journalists during the Trump Administration.

Joshua Schulte Found Guilty on All Counts

The jury has returned guilty verdicts in all nine charges against Joshua Schulte. While I expected guilty verdicts on the revamped CFAA charges, I wasn’t sure about the far more circumstantial Espionage charges. DOJ must be breathing a sigh of relief.

I have no doubt Schulte will appeal. He has been setting up appeals on a Sixth Amendment SAMS challenge and on a Van Buren challenge to the CFAA charges; plus I imagine he’ll challenge some of the instructions and other decisions Judge Jesse Furman made (though I thought Furman was more favorable to Schulte than Paul Crotty before him).

I’m as interested in what happens with WikiLeaks after this.

WikiLeaks has been spamming references to the misleading Yahoo story about the response to WikiLeaks’ publication (and, more importantly, non-publication) of the stolen CIA files. And I know Assange’s US defense attorney has been getting transcripts from the case.

The WikiLeaks team surely recognizes what I have for years: The existing charges against Assange are all teed up to expand the CFAA count to incorporate the Vault 7 release and Vault 8 non-release (and, possibly, WikiLeaks’ role in the 2016 Russian effort). And Schulte was given discovery on an ongoing investigation into what is almost certainly WikiLeaks.

So while this closes the known part of the case against Schulte, it likely represents further headaches for Assange.

Update: SDNY’s statement calls this, straight up, Espionage.

Today, Schulte has been convicted for one of the most brazen and damaging acts of espionage in American history.