Jack Burkman and Jacob Wohl’s Pathetic Disinformation May Finally Matter

Yesterday, Jack Burkman (he of the press conference with his fly down) and Jacob Wohl (he of the precocious financial fraud) had a press conference at CPAC yesterday to spew disinformation.

Again.

They claimed they were releasing all sealed documents from the Roger Stone trial, not just juror questionnaires, but also grand jury testimony. Their statements were inconsistent about whether, by “sealed documents,” they meant everything that had been loaded onto the docket (which might include just Steve Bannon and Randy Credico’s grand jury transcript, both of which were litigated before the trial), or everything released in discovery to Stone.

They purported to be journalists exposing a miscarriage of justice of an American hero, by which they meant Roger Stone.

They were given to us, they did not come from Roger Stone, they did not come from anyone on his defense team, we’ve never met Roger Stone. … What happened was court packing.

They claimed they had a journalistic duty to release these documents to show a systematic conspiracy, led by Judge Amy Berman Jackson, against Stone, to pack the jury. They claimed, “Not a single juror” on Stone’s trial, “watches Fox News,” that they are instead “religious Rachel Maddow viewers.” They also claimed one could never have a lawyer on a jury.

The documents released (which I won’t link) demonstrated, once again, that their implementation was embarrassingly shoddy and their claims were false. All they released were juror questionnaires, and they didn’t release the questionnaires all 12 jurors. They uploaded the questionnaire of one juror twice (making ten total). Those jurors described their media diet this way:

  • occasionally a CNN headline
  • DC Fox 5 News
  • Fox 5 News
  • New York Times, established news sources that appear in my Google Feed (WSJ, Washington Post, etc.)
  • Wall Street Journal
  • NYT, Washington Post, NPR
  • Washington Post, NPR
  • Washington Post, Facebook, Twitter
  • Washington Post, PBS Newswire, NPR
  • Washington Post, Apple News Service, Twitter, Facebook, New York Times, CNN, Politico, The Hill, CBS News, “not regularly, but CNN Shows (Anderson Cooper), MSNBC — Rachel Maddow/Chris Hayes

Admittedly, local Fox News is not the same thing as Fox News Channel, but at least two of the jurors listed it as their primary news diet, a refutation of Wohl and Burkman’s entire premise.

The last bullet — the only one specifically naming Rachel Maddow — is from the foreperson, the woman on whose selection Stone based his bid for a new trial (and for more juror information on which Mike Cernovich is attempting to intervene in Stone’s case). But all the foreperson’s questionnaire shows is that Stone had notice of her liberal news watching diet during voir dire, and his team didn’t choose to disqualify her. That is, they are to blame for her presence on the jury, not ABJ or the DC District Court or anyone but Stone.

Likewise, just four or five jurors said they had heard anything about Stone’s case.  Three who had seen coverage of Stone had generally remembered his arrest (which, given the right wing propaganda suggesting he was ill-treated, would have been helpful to Stone). Again, the foreperson is the one person who commented negatively, describing that he “is accused of inappropriate contact Russian officials in the effort of helping Mr. Trump’s campaign for President.” She is also the person who had the most family members — a niece and a brother — who had been prosecuted for a crime.

Wohl and Burkman claimed that the jury was packed with CIA people and lawyers. In reality, that consisted of two people (including the foreperson) who each said they had a single friend who worked for the FBI, one person whose father had worked for CIA for 2-3 years in the 1960s before the juror was born, and one person whose son is in the Coast Guard.

This is the frothy right’s idea of a Deep State plot against Roger Stone.

Wohl and Burkman did not mention that the juror with the most direct, high level current political connection has a spouse who appears to work for a conservative Republican Senator.

In short, like all their hoaxes, this one was badly executed and based on lies.

But the poor execution may be the downfall. The released documents don’t actually reveal anything beyond what had already been identified during the initial frenzy against he foreperson (and since the foreperson gave credible responses in the hearing, backed by the testimony of two other jurors who said she was one of the last jurors to vote to convict). But Wohl and Burkman failed to redact the handwritten notes about a potential juror on one of the questionnaires.

This is going to make it easier to identify the potential sources for this document, something that ABJ was already trying to do in the hearing earlier this week.

There is a concerted effort on the part of the frothy right to violate every single norm of jury service, all to discredit a slam-dunk case against Roger Stone that even Bill Barr said was righteous. And for once these shithole hoaxsters may have done some good — in the form of helping the FBI figure out who’s behind it all.

The State of Play: Joshua Schulte and Julian Assange

Last year, it looked like the Joshua Schulte trial, rescheduled in the fall to start January 13, would be done before the extradition hearing for Julian Assange started. Two things changed since then: Schulte got a delay until February 3, and then last month, Assange convinced Judge Vanessa Baraitser to split his extradition hearing into two, the first part lasting a week starting Monday, and then resuming on May 18 for three more weeks.

As a result, both men are in court during the same week, intersecting in interesting ways.

Thus far, Assange’s argument is threefold:

  1. His prosecution is hopelessly political, merely retaliation by the hated President that Assange helped elect, Donald Trump
  2. The evidence in the case against Assange is so weak as to be abusive
  3. A person cannot be extradited for political crimes like the Espionage Act

The first argument is a load of horseshit covering up the fact that the timing of the treatment of WikiLeaks as a non-state hostile intelligence service, the increased surveillance of Assange, and the initial December 21, 2017 charge all stem from WikiLeaks’ burning the CIA by publishing all its hacking tools. It’s horseshit, but it garners a lot of enthusiasm among WikiLeaks supporters who like to conveniently forget that, whatever Assange’s motivations were in 2010 (when he engaged in the acts he is charged with), he nevertheless helped Russia help Trump get elected. That said, even though the claims about what changed in 2017 are horseshit, it doesn’t change that the existing charges against Assange pose a real danger to journalism.

The second argument is far stronger. For each of the theories of prosecution under which Assange is charged — attempting to help Chelsea Manning crack a password, soliciting certain files via WikiLeaks’ wish list, and publishing a bunch of files in which the names of US and British sources were later revealed — Assange has at least a credible defense. Assange never succeeded, and could not have succeeded, in cracking that password. Manning didn’t leak the precise files that WikiLeaks had on its wish list (though did leak some of the same sets). WikiLeaks originally went to some effort to redact the names of sources, only to have a Guardian journalist release the password revealing them. Mind you, the extradition hearing is not the trial itself, so for these defenses to be relevant, WikiLeaks has to prove that the case against Assange is abusively weak.

The third argument, which is being argued today, is a more interesting legal question. Assange claims that the existing Anglo-US extradition treaty, passed in 2003, still prohibits extradition for political offenses like theEspionage Act. The US argues that Assange’s extradition is governed by the Extradition Act of 2003, which did not include such a bar (and also disagrees that these are political crimes). The lawyers are even arguing about the Magna Carta! Judge Vanessa Baraitser seems inclined to side with the US on this point, but the question will surely be appealed. Mind you, one of the charges against Assange, CFAA, is in no way a political offense, and the UK has not barred its own citizens, much less foreign citizens hanging out in foreign embassies, from being extradited on the charge (though several hackers, most recently Lauri Love, have challenged their extradition to the US for CFAA on other grounds).

Yesterday, Assange’s defense spent a good deal of time making the second argument. The US didn’t respond. Rather, it said it would deal with those issues in the May hearing.

Meanwhile, the Schulte trial is wrapping up, with Schulte doing little to mount a defense, but instead preparing an appeal. Yesterday, Schulte asked that an instruction on the defendant not testifying be added to the jury instructions (normally, these are included from the start, but Schulte has been claiming he would testify all this time). Today, Schulte told the court that Steve Bellovin won’t testify because he never got access to all the data Judge Paul Crotty ruled he couldn’t have access to (not mentioning, however, that the restrictions stemmed from Crotty’s own CIPA judgment).

I’m still unclear on the status of the witness, Michael. Schulte is trying to submit his CIA investigative report in lieu of finishing cross-examination (which is where things had left off). But it still seems possible that Crotty would require his testimony to be resumed, giving the government another opportunity to redirect his testimony. This is all likely happening today, but given that there’s so little coverage of the trial, we won’t know until Thursday.

Before all this happened, however, the jailhouse informant provided very damning testimony against Schulte, not only describing how Schulte obtained a phone (swapping an iPhone for a Samsung that he could load all the apps he wanted on it), but also claiming that Schulte said, “Russia had to help him with what he was doing,” launching an information war.” I had learned of similar allegations of ties or willingness to forge them with Russia via several sources in the past. And Schulte’s own jailroom notebooks include hints of the same, such as a bullet point describing how Russia could help the US “destroy itself.”

And his final plan — which the informant alerted his handlers to just before Schulte launched it — included some “Russia pieces.”

As part of the same plan to get fellow SysAdmins to leak all their secrets to WikiLeaks, then, Joshua Schulte was also hoping to encourage Russia to attack the US.

I’ve long said the Vault 7 case, if it were ever added to Julian Assange’s charges (including an extortion charge, which would also not be a political crime), would be far more damning and defensible than the ones currently charged. Filings from November suggested that the government had come to think of Schulte’s leaks to WikiLeaks as the last overt act in an ongoing conspiracy against the United States.

And by 2018, Schulte had come to see leaking to WikiLeaks as part of the same plan encouraging Russian attacks on the US, precisely the allegation WikiLeaks has spent years trying to deny, especially in the wake of Assange’s cooperation in Russia’s election year operation.

It’s not clear whether the US will add any evidence to the original 2010 charges against Assange before May (though Alexa O’Brien has pointed to where additional evidence might be), but the statement they’re waiting until then to rebut the solid defense that WikiLeaks is now offering suggests they might. That might reflect a hope that more coercion against Chelsea Manning will produce that additional evidence (she has renewed her bid to be released, arguing that such coercion has obviously failed). Or it might suggest they’ve got plans to lay out a broader conspiracy if and when Schulte is convicted.

Assange’s lawyers pushed for the delay to May in the first place. If the US government uses the extra time to add charges related to Vault 7, though, the delay may make a significant difference in the posture of the case.

Kim DotCom Posts Evidence Trump’s “Best Friend (Name Redacted)” in Pardon Discussions

Last night, Kim DotCom tried to take credit for brokering the meeting at which Dana Rohrabacher tried to pardon a pardon deal whereby Julian Assange would claim Seth Rich was his source for the DNC emails and Trump would pay him off with a pardon. He posted a bunch of texts with “Trumps best friend (name redacted)” where he pushed his  interlocutor to get Trump to take a public step in favor of the deal.

Only, the name of Trump’s “best friend (name redacted)” was not actually redacted.

While I have no doubt DotCom is overselling his own role in this, it does appear he was talking directly to Sean Hannity about it.

Which would suggest a real continuity between whatever happened when Hannity met Assange in January 2017, not long after Roger Stone reached out to Margaret Kunstler to discuss a pardon, and what happened in August 2017, when Dana Rohrabacher resumed discussion of the pardon. That suggests pardon discussions were not — as WikiLeaks is now falsely portraying — a one-time bid that got rejected, leading to Assange’s prosecution, but rather continued from late December 2016 until at least August 2017, through the time when Mike Pompeo labeled WikiLeaks a non-state hostile intelligence agency.

The Carter Page Clauses in the FISA Reform Bill Wouldn’t Help Carter Page

The House Judiciary Committee has released a mark-up for a bill that would reauthorize Section 215 and make some improvements. It’s not a bad bill. It would:

  • End the Call Detail Record program and prohibit prospective call record collection
  • Include notice for 215 collection
  • End FBI’s exemption for reporting requirements
  • Improve the FISA amicus
  • Impose deadlines for releasing FISA orders

But the bill almost certainly doesn’t accomplish the things it firs set out to do, to provide added protections for someone like Carter Page. It does this in two ways.

First, it requires the Privacy and Civil Liberties Oversight Board to complete a report on how much First Amendment activities or race, ethnicity, national origin, religion, or sex are used in targeting decisions under FISA.

SEC. 303. REPORT ON USE OF FISA AUTHORITIES REGARDING PROTECTED ACTIVITIES AND PROTECTED CLASSES.

(a) REPORT.—Not later than one year after the date of the enactment of this Act, the Privacy and Civil Liberties Oversight Board shall make publicly available, to the extent practicable, a report on—

(1) the extent to which the activities and protected classes described in subsection (b) are used to support targeting decisions in the use of authorities pursuant to the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.); and

(2) the impact of the use of such authorities on such activities and protected classes.

(b) ACTIVITIES AND PROTECTED CLASSES DESCRIBED.—The activities and protected classes described in this subsection are the following:

(1) Activities and expression protected by the First Amendment to the Constitution of the United States.

(2) Race, ethnicity, national origin, religious affiliation, sex, and any other protected characteristic determined appropriate by the Board.

(c) FORM.—In addition to the report made publicly available under subsection (a), the Board may submit to the appropriate congressional committees a classified annex.

One would imagine that Carter Page, whom the Republicans think was targeted because he volunteered for the Trump campaign, would be among the people bill drafters had in mind for First Amendment protect activities.

Except he wouldn’t be included, for two reasons.

First, PCLOB’s mandate is limited to counterterrorism programs. That didn’t matter for their very good Section 215 report, because they were examining only the CDR program, which itself was limited to terrorism (and Iran).

But it did matter for the Section 702 report. In fact, PCLOB ignored some of the most problematic practices under Section 702, conducted under the guise of cybersecurity, because that’s outside their mandate! It also didn’t explore the impact of NSA’s too-broad definition of targeting under the Foreign Government certificate.

In this case, unless you expand the scope of PCLOB, then this report would only report on the targets of terrorism FISA activity, not foreign intelligence FISA activity, and so not people like Carter Page.

Carter Page would also not be covered under this and a clause attempting to ensure the FISA amicus reviews applications with any First Amendment component.

(a) EXPANSION OF APPOINTMENT AUTHORITY.— Subparagraph (A) of section 103(i)(2) (50 U.S.C. 1803(i)(2)) is amended to read as follows:

‘‘(A) shall appoint an individual who has been designated under paragraph (1) to serve as amicus curiae to assist such court in the consideration of any application for an order or review that, in the opinion of the court—

‘‘(i) presents a novel or significant interpretation of the law, unless the court issues a finding that such appointment is 16 not appropriate; or

‘‘(ii) presents significant concerns with respect to the activities of a United States person that are protected by the first amendment to the Constitution, unless the court issues a finding that such appointment is not appropriate; and’’.

Here, the problem has to do with the investigation into Carter Page, and the way I understand FISA was written originally.

As I note in this post, DOJ IG didn’t figure out until 11 days after it published the Carter Page IG Report that the FBI used (and may still use) the same investigative code for both FARA — which by definition has a political component — and 18 USC 951 — which doesn’t need to have. The report as a whole had a long discussion of the standard to get beyond First Amendment considerations, as if all four Trump flunkies targeted under Crossfire Hurricane would qualify.

FISA provides that a U.S. person may not be found to be a foreign power or an agent of a foreign power solely upon the basis of activities protected by the First Amendment. 129 Congress added this language to reinforce that lawful political activities may not serve as the only basis for a probable cause finding, recognizing that “there may often be a narrow line between covert action and lawful activities undertaken by Americans in the exercise of the [F]irst [A]mendment rights,” particularly between legitimate political activity and “other clandestine intelligence activities. “130 The Report by SSCI accompanying the passage of FISA states that there must be “willful” deception about the origin or intent of political activity to support a finding that it constitutes “other clandestine intelligence activities”:

If…foreign intelligence services hide behind the cover of some person or organization in order to influence American political events and deceive Americans into believing that the opinions or influence are of domestic origin and initiative and such deception is willfully maintained in violation of the Foreign Agents Registration Act, then electronic surveillance might be justified under [“other clandestine intelligence activities”] if all the other criteria of [FISA] were met. 131

129 See 50 U.S.C. §§ 1805(a)(2)(A), 1824(a)(2)(A).

130 H. Rep. 95-1283 at 41, 79-80; FISA guidance at 7-8; see also Rosen, 447 F. Supp. 2d at 547-48 (probable cause finding may be based partly on First Amendment protected activity).

131 See S. Rep. 95-701 at 24-25. The Foreign Agents Registration Act, 22 U.S.C. § 611 et seq., is a disclosure statute that requires persons acting as agents of foreign principals such as a foreign government or foreign political party in a political or quasi-political capacity to make periodic public disclosure of their relationship with the foreign principal, as well as activities, receipts and disbursements in support of those activities.

Except it miscited the reference to the Senate Report. The citation, as written, goes to a passage of the Senate Report that says that if a potential target is acting under the direction of an intelligence service of a foreign power, they can be targeted even for their political activities.

It is the intent of this requirement that even if there is some substantial contact between domestic groups or individual citizens and a foreign power, as defined in this bill, no electronic surveillance wider this subparagraph may be authorized unless the American is acting under the direction of an intelligence service of a foreign power.

The investigation into Carter Page started because he kept sharing non-public economic information with people he knew to be Russian intelligence officers (it was probably started as some kind of economic espionage case).

That is, even before he joined the campaign, FBI had gotten beyond the bar that would treat Page’s targeting as a First Amendment concern, because the entire suspicion stemmed from Page’s explicit willingness to act at the direction of Russia’s intelligence service.

Don’t get me wrong. These are both improvements, with the amicus review for First Amendment activities especially (indeed, I suspect that’s what some of the applications that FBI withdrew in recent years pertained to).

But to do what this bill wants to do on the PCLOB report, you’d have to expand the mandate of PCLOB to cover hacking and spying — something that should happen in any case. That’s especially crucial in this case, given that one of the ethnicities most affected by FISA are Chinese Americans, but as suspected spies, not as suspected terrorists.

And if you want Carter Page to get these enhanced protections, you’d need to change how working for a foreign country affects the First Amendment calculation on FISA.

Hot and Cold Running Mike Pompeo and Other Ridiculous WikiLeaks Defense Claims

Today is the first day of Julian Assange’s fight to avoid extradition. In addition to legitimate First Amendment concerns about extraditing Assange on the charges as written, Assange is challenging the extradition with some very selective story-telling to pretend that he’s being prosecuted for political reasons.

For example, WikiLeaks is pointing to the Dana Rohrabacher pardon discussion in August 2017 to suggest that Trump was extorting Assange, demanding he provide certain details about the 2016 hack (details that are consistent with the lies that Assange told consistently about Russia’s role in the hack-and-leak) or else he would prosecute him. Unsurprisingly, WikiLeaks did not mention that discussions of a pardon started at least as early as December 2016 as payback for his role in the election, and continued in February 2017 as Assange tried to use the Vault 7 files to extort a pardon. If you can believe Roger Stone, pardon discussions continued even after DOJ first charged Assange in December 2017until early January 2018 (though that may have been an attempt to silence Randy Credico and thereby keep details of what really happened in 2016 secret).

WikiLeaks is also misrepresenting the timing of the increased surveillance by UC Global in December 2017 to suggest Assange was always being surveilled that heavily.

I will pass over the intervening period during which Julian Assange continued to have his conversations with his lawyers and family constantly monitored and recorded by a private agency acting on the instructions of US intelligence and for their benefit.

As slides from Andrew Müller-Maguhn make clear, the surveillance only began to really ratchet up in December 2017, after Assange had helped Joshua Schulte burn CIA to the ground (and at a time when WikiLeaks remained in communication with Schulte).

Assange’s team then mis-states when Trump’s war on journalists began, suggesting it preceded the April 2017 targeting of Assange, rather than came in August 2017.

That temporal slight is necessary because Assange’s team is claiming that Mike Pompeo decided to attack WikiLeaks in April 2017 out of the blue, out of some kind of retaliation.

That is why the prosecution of Mr. Assange, based on no new evidence, was now pursued and advocated by the Trump administration, led by spokesman such as Mike Pompeo of the CIA and Attorney General Sessions. They began by denouncing him in April 2017. I refer you to the following:

i. Firstly, the statements of Mr. Pompeo, as director of the CIA, on 13 April 2017, denouncing Julian Assange and WikiLeaks as “a non-state hostile intelligence agency“. [Feldstein, tab 18, p19 and K10] On the same occasion, Pompeo also stated that Julian Assange as a foreigner had no First Amendment rights (See Guardian article, bundle K)

ii. Then there was the political statement of Attorney General Sessions on 20 April 2017 that the arrest of Julian Assange was now a priority and that ‘if a case can be made, we will seek to put some people in jail‘ [Feldstein quoting Washington Post article of Ellen Nakashima, tab 18, at page 19]

That’s thoroughly absurd. Pompeo’s speech was entirely about CIA’s response to have been burned to the ground by WikiLeaks. This passage makes clear that, in his prepared speech at least, Pompeo’s comments about the First Amendment don’t pertain to him being a foreigner at all (I’m going to pull the video).

No, Julian Assange and his kind are not the slightest bit interested in improving civil liberties or enhancing personal freedom. They have pretended that America’s First Amendment freedoms shield them from justice. They may have believed that, but they are wrong.

[snip]

Third, we have to recognize that we can no longer allow Assange and his colleagues the latitude to use free speech values against us. To give them the space to crush us with misappropriated secrets is a perversion of what our great Constitution stands for. It ends now.

Here’s what he said in questions:

DIRECTOR POMPEO: Yeah, First Amendment freedoms. What I was speaking to there was, as – was a little less constitutional law and a lot more of a philosophical understanding. Julian Assange has no First Amendment freedoms. He’s sitting in an embassy in London. He’s not a U.S. citizen. So I wasn’t speaking to our Constitution.

What I was speaking to is an understanding that these are not reporters don’t good work to try to keep you – the American government honest. These are people who are actively recruiting agents to steal American secrets with the sole intent of destroying the American way of life. That is fundamentally different than a First Amendment activity, as I understand them, and I think as most Americans understand them. So that’s what I was really getting to.

We’ve had administrations before that have been squeamish about going after these folks under some concept of this right-to-publish. No one has the right to actively engage in the threat of secrets from America with the intent to do harm to it.

Mike Pompeo is and always will be a problematic figure to make this argument.

But all the evidence shows that Assange’s surveillance and prosecution arose in response to the Vault 7 leaks, not Trump innate hatred for journalists.

Update: Here are the Prosecution’s Opening Statement and Skeleton Argument.

The Kinds and Significance of Russian Interference — 2016 and 2020

Trump’s meltdown last week — in which he purged top staffers at the Director of National Intelligence after a briefing on Russian interference in the 2020 election, followed by National Security Advisor Robert O’Brien making shit up on Meet the Press — has created a firestorm about Russian interference in the 2020 election. That firestorm, however, has spun free of what ways Russia interfered in 2016 and what effect it had.

Five ways Russia interfered in 2016

First, remember that there were at least five ways Russia interfered in 2016:

  • Stealing information then releasing it in a way that treats it as dirt
  • Creating on-going security challenges for Hillary
  • Using trolls to magnify divisions and feed disinformation
  • Tampering with the voting infrastructure
  • Influence peddling and/or attempting to recruit Trump aides for policy benefits

Stealing information then releasing it in a way that treats it as dirt

The most obvious way Russia interfered in 2016 was by hacking the DNC, DCCC, and John Podesta (it also hacked some Republicans it did not like). It released both the DNC and Podesta data in such a way as to exaggerate any derogatory information in the releases, successfully distracting the press for much of the campaign and focusing attention on Hillary rather than Trump. It released DCCC information that was of some use for Republican candidates.

Roger Stone took steps — not all of which are public yet — to optimize this effort. In the wake of Stone’s efforts, he moved to pay off one participant in this effort by trying to get a pardon for Julian Assange.

Creating on-going security challenges for Hillary

In addition to creating a messaging problem, the hack-and-leak campaign created ongoing security challenges for Hillary. Someone who played a key role in InfoSec on the campaign has described the Russian effort as a series of waves of attacks. The GRU indictment describes one of those waves — the efforts to hack Hillary’s personal server — which came in seeming response to Trump’s “Russia are you listening” comment. An attack that is often forgotten, and from a data perspective was likely one of the most dangerous, involved a month-long effort to obtain Hillary’s analytics from the campaign’s AWS server.

Whatever happened with this data, the persistence of these attacks created additional problems for Hillary, as her staff had to spend time playing whack-a-mole with Russian hackers rather than optimizing their campaign efforts.

Using trolls to magnify divisions and feed disinformation

Putin’s “chef,” Yevgeniy Prigozhin, also had staffers from his troll factory in St. Petersburg shift an ongoing campaign that attempted to sow division in the US to adopt a specific campaign focus, pushing Trump and attacking Hillary. Importantly, Prigozhin’s US-based troll effort was part of a larger multinational effort. And it was in no way the only disinformation and trolling entity involved in the election. Both parties did some of this, other countries did some, and mercenaries trying to exploit social media algorithms for profit did some as well.

Tampering with the voting infrastructure

Russia also tampered with US voting infrastructure. In 2016, this consisted of probing most states and accessing voter rolls in at least two, though there’s no evidence that Russian hackers made any changes. In addition, Russian hackers targeted a vendor that provided polling books, with uncertain results. The most substantive evidence of possible success affecting the vote in 2016 involved failures of polling books in Durham County, NC, which created a real slowdown in voting in one of the state’s most Democratic areas.

In recent days, there have been reports of a ransomware attack hitting Palm Beach County in September 2016, but it is unclear whether this was part of the Russian effort.

Because there’s no certainty whether the Russian hack of VR Systems was behind the Durham County problems, there’s no proof that any of these efforts affected the outcome. But they point to the easiest way to use hacking to do so: by making it harder for voters in particular areas to vote and harder for specific localities to count the vote.

Some of what Russia did in 2016 — such as probes of a particularly conservative county in FL — may have been part of Russia’s effort to discredit the outcome. They didn’t fully deploy this effort because Trump won.

Influence peddling and/or attempting to recruit Trump aides for policy benefits

Finally, Russia accompanied its other efforts with various kinds of influence peddling targeting Trump’s aides. It was not the only country that did so: Saudi Arabia, Egypt, Turkey, UAE, and Israel were some of the others. Foreign countries were similarly trying to target Hillary’s campaign — and the UAE effort, at least, targeted both campaigns at once, through George Nader.

Importantly, however, these efforts intersected with Russia’s other efforts to interfere in the election in ways that tied specific policy outcomes to Russia’s interference:

  • An unrealistically lucrative Trump Tower deal involved a former GRU officer and sanctioned banks
  • At a meeting convened to offer Trump dirt about Hillary, Don Jr agreed in principle to revisit ending Magnitsky sanctions if Trump won
  • George Papadopoulos pitched ending sanctions to Joseph Mifsud, who had alerted him that Russia had emails they intended to drop to help Trump
  • Paul Manafort had a meeting that tied winning the Rust Belt, carving up Ukraine, and getting paid personally together; the meeting took place against the background of sharing internal polling data throughout the campaign

As I’ll note in a follow-up, information coming out in FOIAed 302s makes it clear that Mike Flynn’s effort to undercut Obama’s December 2016 sanctions was more systematic than the Mueller Report concludes. So not only did Russia make it clear it wanted sanctions relief, Trump moved to give it to them even before he got elected (and his Administration found a way to exempt Oleg Deripaska from some of these sanctions).

Manafort continued to pursue efforts to carve up Ukraine until he went to jail. In addition, Trump continues to take actions that undercut Ukraine’s efforts to fight Russia and corruption. Neither of these have been tied to a specific quid pro quo (though the investigation into Manafort’s actions, especially, remained inconclusive at the time of the Mueller Report).

So while none of these was charged as a quid pro quo or a conspiracy (and the reasons why they weren’t vary; Manafort lied about what he was doing, and why, whereas Mueller couldn’t prove Don Jr had the mens rea of entering into a quid pro quo), Russia tied certain policy outcomes to its interference.

Trump’s narcissism and legal exposure exacerbated the effects

The Russian attack was more effective than it otherwise would have been for two reasons. First, because he’s a narcissist and because Russia built in plausible deniability, Trump refused to admit that Russia did try to help him. Indeed, he clings more and more to Russian disinformation about what happened, leading the IC to refuse to brief him on the threat, leading to last week’s meltdown.

In addition, rather than let FBI investigate the people who had entered into discussions of a quid pro quo, Trump obstructed the investigation. Trump has spent years now attacking the rule of law and institutions of government rather than admit what DOJ IG found — there was reason to open the investigation, or admit what DOJ found — there was reason to prosecute six of his aides for lying about what happened.

The Russian effort was just one of the reasons Hillary lost

It’s also important to remember that Russia’s interference was just one of the many things that contributed to Hillary’s loss.

Other aspects were probably more important. For example, Republican voter suppression, particularly in Wisconsin and North Carolina, was far more important than any effect the VR Systems hack may have had in Durham County. Jim Comey’s public statements about the email investigation had at least as much effect as the Russian hack-and-leak campaign did on press focus. Hillary made some boneheaded choices — like barely campaigning in WI and MI; while I had worried that she made those choices because Russia tampered with her analytics (with the AWS hack), that doesn’t seem to have happened. Disinformation sent by the Trump campaign and associates was more significant than Russian disinformation. It didn’t help that the Obama Administration announced a sharp spike in ObamaCare prices right before the election.

The response matters

As noted, Trump’s narcissism dramatically increased the effect of the Russian efforts in 2016, because he has always refused to admit it happened.

Compare that to Bernie’s response to learning that Russia was trying to help his campaign, which accepted that it is happening and rejected the help.

“I don’t care, frankly, who [Russian President Vladimir] Putin wants to be president,” Sanders said in a statement. “My message to Putin is clear: Stay out of American elections, and as president I will make sure that you do.

“In 2016, Russia used Internet propaganda to sow division in our country, and my understanding is that they are doing it again in 2020. Some of the ugly stuff on the Internet attributed to our campaign may well not be coming from real supporters.”

This was not perfect — Bernie could have revealed this briefing himself weeks ago, Bernie blamed the WaPo for reporting it when it seems like the story was seeded by O’Brien. But it was very good, in that it highlighted the point of Russian interference — sowing divisions — and it reaffirmed the import of Americans selecting who wins. Plus, contrary to Trump, there’s no reason to believe Bernie would pursue policies that specifically advantaged Russia.

Other factors remain more important than Russian interference

There’s very serious reason to be concerned that Russia will hack the outcome of 2020. After all, it would need only to affect the outcome in a small number of precincts to tip the result, and the prospect of power outages or ransomware doing so in urgent fashion have grown since 2016.

That said, as with 2016, there are far more urgent concerns, and those concerns are entirely American.

Republicans continue to seek out new ways to suppress the vote, including by throwing large swaths of voters off the rolls without adequate vetting. There are real concerns about voting machines, particularly in Georgia (and there are credible concerns about the reliability of GA’s tally in past elections). Republicans have continued to make polling locations less accessible in Democratic precincts than in Republican ones.

Facebook refuses to police the accuracy of political ads, and Trump has flooded Facebook with disinformation.

And Bloomberg’s efforts this year — which include a good deal of trolling and disinformation — are unprecedented in recent memory. His ad spending has undercut the ability to weigh candidates. And his personnel spending is increasing the costs for other candidates.

Russian efforts to sway the vote are real. Denying them — as some of Bernie’s supporters are doing in ways that hurt the candidate — does not help. But, assuming DHS continues to work with localities to ensure the integrity of voting infrastructure, neither does overplaying them. Between now and November there’s far more reason to be concerned about American-funded disinformation and American money distorting our democratic process.

The Inconsistencies of the UC Global Julian Assange Spying Story

Tomorrow, the first of two extradition hearings for Julian Assange starts. In addition to the least damning of several pardon discussions that happened with Assange, the hearing will include discussion of allegations that Assange was spied on in the Embassy, the most recent incarnation of which appeared in the Australian press today. In addition, NYT covered the story here, some key El País stories are here, and Andrew Müller-Maguhn did a presentation on it at CCC.

The story goes that a Spanish company employed to ensure security in the Ecuadorian Embassy, UC Global, significantly ratcheted up the level of video and audio surveillance of Assange in 2017. Additionally, Spain is investigating whether the head of that company, David Morales, shared that surveillance — possibly in real time — with the United States, allegedly directly with the CIA.

I’d like to point to some inconsistencies in the stories. I’m not defending the levels of surveillance of Assange — but neither would I defend the gross abuses of privacy WikiLeaks has committed against private citizens in the US, Turkey, Saudi Arabia, and other countries. Nor am I contesting that the surveillance took place. I’m even willing to stipulate that the surveillance got shared with the US (though no story on this topic convincingly substantiates this, and some of the public bases for the claim CIA was the recipient are flimsy).

What legal regime has jurisdiction

One interesting question about all this pertains to the legal regime. This is surveillance conducted by a Spanish company with US business locations on Ecuadorian territory being raised in a post-Brexit British legal proceeding regarding extradition to the US. The surveillance of the embassy is Ecuador’s concern — and whatever you think of Rafael Correa’s Bolivarist politics, he embraced really intrusive surveillance. The sharing of data from the EU to the US — whether directly from the UK or via Spain — might come under GDPR or Privacy Shield protection, except EU law excepts out national security from these laws, which would apply here. And because UC Global does and did business in the US (it even had a location in New Mexico in 2016), it might be subject to subpoena or other legal process to conduct surveillance.

As it pertains to the question of extradition, as I understand it, the law in the UK has to do with proportionality, and as we’ll see, what we’re really talking about is surveillance of Assange during a period of investigation of one of the worst breaches of any Five Eyes intelligence agencies in history, Vault 7 (not the 2016 publications), and the surveillance ratcheted up during a period when WikiLeaks was still publishing those files. Which likely means the UK is going to be very permissive in how it weighs the question of this surveillance, because this was about an investigation into someone who helped burned a Five Eyes spying partner to the ground.

The escalation of surveillance happened after Vault 7 started

Virtually all of these stories obscure the timing, as illustrated by this AMM slide.

A key part of the story suggests that because UC Global owner Morales got a contract with Sheldon Adelson in 2015, under the Obama Adminsitration, that somehow proves CIA involvement, and some of the reports on this make it clear that UC Global was working for Adelson, which negates the entirety of his role. Sillier still, that Morales traveled to Chicago is no indication of a tie to CIA.

Once you’ve dismissed that, then it’s clear the escalation didn’t start in earnest until June and July 2017.

In his talk, AMM mentions that the US was unhappy about certain “publications,” plural, without describing them. There’s good reason to be silent about it — the same silence that WikiLeaks supporters like to enforce elsewhere. WikiLeaks was not only publishing CIA’s hacking tools with thin — and inaccurate — claims to justify doing so in the guise of journalism, but WikiLeaks was and is sitting on CIA’s actual hacking tools.

At the time, WikiLeaks was in ongoing communications with accused Vault 7 leaker Joshua Schulte (communication it continued at least as long as June 2018, when WikiLeaks posted the blogs Schulte published from jail, but probably even after that). The targeting of Schulte, himself, might explain some of this surveillance. And Morales’ presence in Alexandria (which AMM misstates as Arlington) is utterly consistent with someone subject to US subpoena appearing before a grand jury in EDVA; surveillance records are considered business records in the US subject to subpoena.

Certainly, questions about what WikiLeaks was doing with the still unpublished hacking tools might have elicited the surveillance. And in the months before the surveillance actually ratcheted up in December 2017 (which is when the surveillance in question really began), Schulte was doing some things on Tor that may have included reactionary communications with WikiLeaks.

Even AMM’s presentation, however, confirms that before December 2017 — that is, before the US finally detained Schulte and charged Assange — much of Assange’s private space was not covered by the surveillance. That actually dramatically contradicts claims about surveillance of Assange made in the past.

From there, all the stories make much about the events of December 21 and 22, 2017 (indeed, AMM presents the planned Ecuadorian-Russian exfiltration on those dates as a potential US kidnapping).

But here, too, the timing is obscured. The Australian piece, for example, suggests the surveillance put in place in anticipation of these events was a response to it.

“It got to the point where, during a visit to Mr Assange, the head of Ecuador’s intelligence service [Rommy Vallejo, on December 21, 2017] was also spied on,” Martinez added.

“In the meeting between Mr Vallejo and Mr Assange the possible release [from the embassy] of Mr Assange in a few days later was discussed.”

Within hours of that secret meeting, which was known to only a few people, the US Ambassador to Ecuador complained to Ecuadorian authorities, and the next day the US issued an international arrest warrant for Assange, Martinez said.

“That leads us to believe that the conversation was urgently sent to the US authorities and that they urgently issued the international arrest warrant the next day,” he said.

There’s a lot to be told about the events of December 21, which is the day Assange was actually charged. But events pertaining to Schulte preceded them. And Ecuador’s designation of Assange as a diplomat on December 19 — and the UK’s rejection of it — would have alerted the UK (and through them, the US) of the events two days before the meeting in question, without any surveillance.

Finally, as AMM notes, “PROM” took over surveillance after Ecuador made a security agreement with the US in April 2018. AMM suggests that that, for the first time, made such surveillance illegal. There’s no basis for that, particularly given that UC Global has a US component. Moreover, it was PROM, and not UC Global, that allegedly engaged in the corrupt sale of surveillance records, something that often gets lumped on UC Global.

In summary, say what you will about this surveillance, which clearly became oppressive in December 2017. Say what you will about whether obtaining all of CIA’s hacking tools and sitting on most of them is “journalism.” But if you’re going to talk about why surveillance ratcheted up, you do need to account for the fact that WikiLeaks was engaged in activities that resemble what CIA does, not what journalists do.

Assange has 1,000 lawyers

One of the key allegations is that this surveillance collected on conversations between Assange and his lawyers. The most recent Aussie version points to meetings with Geoffrey Robertson and Jennifer Robinson.

While this may be typical surveillance at a secure diplomatic property, what Robertson did not know was he and a handful of other lawyers, were allegedly being targeted in a remarkable and deeply illegal surveillance operation possibly run at the request of the US Government.

And recordings such as Robertson’s visit are at the heart of concerns about the surveillance: privileged legal conversations between lawyer and client in a diplomatic residence were recorded and, later, accessed from IP addresses in the United States and Ecuador.

Robertson was only one of at least three Australian lawyers and more than two dozen other legal advisers from around the world that were caught up in the surveillance operation.

Long-time WikiLeaks adviser Jennifer Robinson was one of the other Australian lawyers caught in the spying operation.

Jennifer Robinson is a pretty important lawyer for WikiLeaks, but even here she’s described as an “advisor.” And WikiLeaks has a long history of gaming legal representation, up to and including using it to obtain visibility about the defense of related persons.

Randy Credico even joked about how many people are claimed to be WikiLeaks lawyers at Roger Stone’s trial.

Q. Margaret Kunstler is one of WikiLeaks’s lawyers?

A. You’ll let — she’s going to have to describe her role as a — what her role is with WikiLeaks. You know, I don’t — he has — Julian Assange has about 1,000 lawyers. You know, Michael Ratner was one of his lawyers. Alan Dershowitz was one of his lawyers.

Q. Thank you.

A. There are a lot of lawyers. All right? But, that — you know, who’s a lawyer —

Robinson will present the Dana Rohrabacher story as a witness this week, so it’s worth attending to precisely what legal role these lawyers are playing.

Even if this surveillance was shared in real time with the United States, there are protocols in both the CIA and FBI about how to deal with it. The meetings were surveilled. That doesn’t mean the meetings with the lawyers actually representing him were viewed by American authorities.

A Discussion of a Pardon for Assange Is Why Stone’s Threats against Credico Worked

Given events of the last several days, I want to return to an exchange from Roger Stone trial. It came during Aaron Zelinksy’s questioning of Randy Credico. The exchange started with a discussion of a May 21, 2018 email exchange between Stone and Credico.

It started when Credico told Stone “you should have just been honest with the house intel committee… you opened yourself up to perjury charges like an idiot…”

Stone responded by threatening Margaret Kunstler.

You are so full of shit. You got nothing. Keep running your mouth and I’ll file a bar complaint against your friend Margaret.

Without any more context, Credico responded,

Go right ahead she’s no Assange lawyer never has been…

Several months earlier, Stone had threatened to expose that, in September 2016, Credico had forwarded a Stone request to find out of Assange had any emails relating to Libya and R.K. Paul to Kunstler.

But the questioning in the trial suggested this May 2018 threat related to something else. After getting Credico to read through the May 2018 email, Zelisnky immediately pivoted to something else: how Credico put Stone in touch with Kunstler in 2016 to discuss a pardon for Assange.

Q. What did you write to Mr. Stone on May 21st, 2018?

A. “Go right ahead. She’s not Assange’s lawyer.”

Q. I’m sorry. Below that. Let’s start at the first message, “You should have.” All the way at the bottom.

A. Where? Where am I? Here, “You should have.”

“You should have just been honest with the House Intel Committee. You’ve opened yourself up to perjury charges like an idiot. You have different versions. Maybe you need to get into rehab and get that memory straight.”

Q. What did Mr. Stone respond?

A. I don’t see it here.

Q. Just above that, do you see —

A. Oh, yes. “You are so full of S-H-I-T. You got nothing. Keep running your mouth and I’ll file a bar complaint against your friend Margaret.”

Q. And when he says “your friend Margaret,” who is he referring to?

A. Margaret Ratner Kunstler.

Q. Had you put Mr. Stone directly in touch with Ms. Kunstler after the election?

A. Yes, I did.

Q. And why had you done that?

A. Well, sometime after the election, he wanted me to contact Mrs. Kunstler. He called me up and said that he had spoken to Judge Napolitano about getting Julian Assange a pardon and needed to talk to Mrs. Kunstler about it. So I said, Okay. And I sat on it. And I told her–I told her–she didn’t act on it. And then, eventually, she did, and they had a conversation.

Q. And at this time period, in May of 2018, how did you feel about having put Ms. Kunstler directly in touch with Mr. Stone?

A. I was — I was ashamed of myself that I had done that. I should have never done that, you know. I don’t blame him; I blame me for doing that.

Q. For the remainder of 2018, did you continue to be concerned about Mr. Stone?

A. Remainder of 2018?

Q. Yes, sir.

A. Well, yes, I did.

Q. Why were you concerned about Mr. Stone?

A. Well, this is it, right here. This is the crux of it, is bringing Margaret into this, Mrs. Kunstler into it. That was the crux of it.

The suggestion — at least in the context of this particularly threat — is that it was the late 2016 contact, not the September 2016 one, that Credico primarily worried about.

For what it’s worth, this is not the only time Credico denied that Kunstler was Assange’s lawyer (even though he bragged about that colloquially during the election). During cross-examination from Robert Buschel, Credico dodged mightily, even claiming — in a statement that might put complaints about surveillance of Assange at the Ecuadorian embassy in a different light — that Assange has “about 1,000 lawyers.” Though ultimately Credico said that Kunstler represented Sarah Harrison, not Assange.

Q. Margaret Kunstler is one of WikiLeaks’s lawyers?

A. You’ll let — she’s going to have to describe her role as a — what her role is with WikiLeaks. You know, I don’t — he has — Julian Assange has about 1,000 lawyers. You know, Michael Ratner was one of his lawyers. Alan Dershowitz was one of his lawyers.

Q. Thank you.

A. There are a lot of lawyers. All right? But, that — you know, who’s a lawyer —

THE COURT: The question is, do you know —

THE WITNESS: I don’t consider —

THE COURT: — do you have personal —

THE WITNESS: — her to be his lawyer. I consider her to be — to know people, be part of a team.

BY MR. BUSCHEL: Q. That was —

A. Yes.

Q. — giving legal advice to WikiLeaks?

A. I don’t know if they gave to WikiLeaks or somebody else. I think it was somebody else, Sarah Harrison, maybe, but not — I don’t think she was giving legal advice.

That’s consistent with what Kunstler herself testified, though she also said that she “sometimes represented WikiLeaks.”

Q. Who have you represented who is connected to WikiLeaks?

A. I have represented Sarah Harrison. I still represent Sarah Harrison. She was — did work at WikiLeaks, but she no longer does.

Q. How long had you represented her?

A. For about four and a half years.

Q. How did Ms. Harrison become your client?

A. She became my client because the lawyers representing Mr. Assange decided that it would be helpful to have a second lawyer for Ms. Harrison, and I was asked to do that.

Q. Do you know who the founder of WikiLeaks is?

A. Yes.

Q. Who is it?

A. Julian Assange.

Q. Have you, as an attorney, ever represented Mr. Assange?

A. Only to the extent that I sometimes represented WikiLeaks, so it kind of overlaps. But technically, I don’t know.

Q. Have you ever spoken with Mr. Assange?

A. Yes.

Q. How often have you spoken with him?

A. I think about a total of under ten times.

Q. When is the last time that you have spoken with Mr. Assange, if you can remember?

A. Probably the end of 1918.

Q. I’m sorry, do you mean 2018?

A. Yes, I’m sorry, 2018.

So something about what happened in late 2016 served as a point of leverage over Credico.

As I have noted, Stone used Credico’s shared support for a pardon for Assange as leverage through early January 2018, by which point Stone’s buddy’s government had charged Assange as part of a bid to stave off an Ecuadorian-Russian exfiltration attempt.

Right in the middle of Credico’s claims about what WikiLeaks was up to in early October 2016, for example, on October 3, he pushed Stone to get Trump to back asylum for Assange.

Then there are the exchanges on the topic that MoJo reported on a year ago from early January 2018.

In the wake of Stone’s successful effort to get Credico to plead the Fifth, the President’s rat-fucker suggested that if Credico publicly revealed that he couldn’t be Stone’s back channel, it might screw up efforts he claimed he was making to get Assange a pardon.

They resumed the discussion about a pardon several days later, when Stone sent Credico Jerome Corsi’s story on Ecuador’s grant of a diplomatic passport to Assange.

Remarkably, given what has transpired since, Credico informed Stone that the British government was not honoring the diplomatic passport, observed that “Infowars ” — which in this case would be Corsi — “doesn’t know what they’re talking about,” then taunted, ‘Maybe your back Channel knows more than I do.”

The current operative story, of course, is that Corsi was the backchannel, though Credico wouldn’t have known that at the time.

It’s certainly possible that Stone was blowing smoke, raising something he knew Credico cared deeply about, pardoning Assange, to get him to toe the line. It’s likely, too, he was just taking reporting on efforts made in late 2017 to liberate Assange and claiming credit for it.

But at the very least, it shows that Stone used a pardon for Assange — something Credico still spends a lot of time pushing — as leverage to try to get Credico to sustain his cover story. It doesn’t explain why that point of leverage was so effective, though.

The Frothy Right Is Complaining that Amy Berman Jackson Sentenced Roger Stone to 57% of Lower Guidelines

In the aftermath of the news of Roger Stone’s sentence yesterday, some of DOJ’s beat journalists are doing irresponsible pieces giving Bill Barr’s close associates anonymity to lie, with no pushback, about what happened.

Another Justice Department official called Stone’s sentence a “vindication” of the attorney general’s decision last week to insert himself into the process, calling for a revised sentencing memorandum that undercut the line prosecutors’ prior recommendation of seven to nine years in prison. Four prosecutors quit the Stone case over the disagreement, and current and former Justice Department officials grew alarmed Trump was short-circuiting the law enforcement agency’s traditional independence. More than 2,600 former employees have signed onto a letter calling on Barr to resign over his handling of the matter.

Judge Amy Berman Jackson in no way vindicated Bill Barr’s intervention, and any experienced DOJ reporter passing on the claim unchallenged is doing their readers a gross disservice.

Worse still, confusion about what happened yesterday has permitted the frothy right to attack ABJ for what was a lenient sentence.

So I’d like to show how ABJ came up with her sentence. It shows that ABJ sentenced Stone to 57% of the sentence she judged the guidelines call for.

Probation Recommendation: 70-87 months

Between the original sentencing memo and Stone’s own memo, we can obtain what probation initially recommended. It started with a base offense level for Stone’s Obstruction, False Statements, and Witness Tampering of 14 (which would result in a 15 to 21 month guidelines sentence). Then it added four enhancements (Stone even cites the paragraphs of the presentencing report where Probation recommended these enhancements). First, it called for an 8-level enhancement under U.S.S.G. §2J1.2(b)(1)(B), which reads (PDF 243):

If the offense involved causing or threatening to cause physical injury to a person, or property damage, in order to obstruct the administration of justice, increase by 8 levels.

Next, it called for a 3-level enhancement for substantial interference with the administration of justice under U.S.S.G. §2J1.2(b)(1)(2) (meaning, the obstruction worked):

If the offense resulted in substantial interference with the administration of justice, increase by 3 levels.

Probation called for a 2-level enhancement under U.S.S.G. §2J1.2(b)(3)(C) for the extensive nature of Stone’s obstruction:

If the offense … (C) was otherwise extensive in scope, planning, or preparation, increase by 2 levels.

Given a footnote in Stone’s memo (and something ABJ said in the hearing yesterday), it appears that the government objected to the original January 16 recommendation from the Probation office and convinced them to apply this enhancement.

Obstruction of Justice 2 U.S.S.G. §2J1.2(b)(3)(C) 2 level increase ¶77

2 Government’s Objection to Presentence Investigation Report, dated January 30, 2020.

Finally, it called for a 2-level enhancement U.S.S.G. §3C1.1 2 for obstruction of this proceeding (meaning, his prosecution for the original obstruction charge; this is at PDF 367).

If (1) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (2) the obstructive conduct related to (A) the defendant’s offense of conviction and any relevant conduct; or (B) a closely related offense, increase the offense level by 2 levels.

The sentencing table can be found at PDF 415. It provides a range of 87 to 108 months for a first time offender, as Stone is.

According to the transcript, however, the final recommendation did not apply the 2-level enhancement for the extensive obstruction. That provides a range for 70-87 months.

Prosecution Recommendation: 87-108 months

In May 2017, Jeff Sessions issued an order stating that “prosecutors should charge and pursue the most serious, readily provable offense,” which are, “by definition … those that carry the most substantial guidelines sentence.” It also stated that, “In most cases, recommending a sentence within the advisory guideline range will be appropriate.”

ABJ noted this policy yesterday in the sentencing hearing.

And that’s what the prosecution team did — recommend the same 87 to 108 months the Probation Office came up with. They justified each of the enhancements in their sentencing memo.

They argued the witness tampering enhancement was justified — even in spite of Randy Credico’s letter asking for leniency — because Credico still expressed fear that Stone’s associates might respond to his threats by attacking him, and because the threat itself triggers the enhancement.

Pursuant to U.S.S.G. § 2J1.2(b)(1)(B), eight levels are added because the offense “involved causing or threatening to cause physical injury to a person, or property damage, in order to obstruct the administration of justice.” As detailed above, as part of Stone’s campaign to keep Credico silent, Stone told Credico in writing, “Prepare to die, cocksucker.” Stone also threatened (again in writing) to “take that dog away from you.” Stone may point to the letter submitted by Credico and argue that he did not have a serious plan to harm Credico or that Credico did not seriously believe that Stone would follow through on his threats. But Credico testified that Stone’s threats concerned him because he was worried that Stone’s words, if repeated in public, might make “other people get ideas.” Tr. 11/8/19, at 795.

In any event, it is the threat itself, not the likelihood of carrying out the threat, that triggers the enhancement. Endeavoring to tamper with a witness can involve a wide range of conduct. This enhancement recognizes that when the conduct involves threats of injury or property damage, rather than simple persuasion for example, the base offense level does not accurately capture the seriousness of the crime. To apply the enhancement, there is no “additional ‘seriousness’ requirement beyond the fact of a violent threat.” See United States v. Plumley, 207 F.3d 1086, 1089-1091 (8th Cir. 2000) (applying § 2J1.2(b)(1)(B) to a defendant who told coconspirators to “‘keep our mouth shut,’ because if anyone cooperated with the police he would ‘kick our ass’”); United States v. Bakhtairi, 714 F.3d 1057, 1061 (8th Cir. 2013) (holding there was no seriousness requirement and applying § 2J1.2(b)(1) to a defendant who wrote a menacing email, displayed a loaded rifle to a law partner, and doctored photographs of witnesses children to “add . . . crosshairs”); United States v. Smith, 387 F.3d 826, (9th Cir. 2004) (applying § 2J1.2(b)(1)(B) to a defendant who threatened to kill a witness and “kick [her] ass,” and noting that § 2J1.2(b)(1) does not contain a “seriousness requirement”).

Prosecutors argued the 3-level enhancement for substantial interference was justified because Stone’s obstruction led HPSCI not to call Jerome Corsi and not to subpoena Corsi and Credico for documents, both of which led to errors in the HPSCI report.

Pursuant to U.S.S.G. § 2J1.2(b)(2), three levels are added because the offense resulted in substantial interference with the administration of justice. Because of Stone’s conduct, the House Intelligence Committee never received important documents, never heard from Credico (who pled the Fifth), and never heard from Corsi (who was never identified to the Committee as the real “back-channel” that Stone had referenced in August 2016). The Committee’s report even wrongly stated that there was no evidence contradicting Stone’s claim that all his information about WikiLeaks was from publicly available sources.

Prosecutors argued that the multi-year effort Stone engaged in merited the 2-level enhancement because of his obstruction’s extensive scope.

Pursuant to U.S.S.G. § 2B1.2(b)(3)(C), two levels are added because the offense was otherwise extensive in scope, planning, or preparation. Stone engaged in a multi-year scheme involving (1) false statements in sworn testimony; (2) the concealment of important documentary evidence; (3) further lies in a written submission to Congress; and (4) a relentless and elaborate campaign to silence Credico that involved cajoling, flattering, crafting forged documents, badgering, and threatening Credico’s reputation, friend, life, and dog. Stone’s efforts were as extensive, if not more extensive, than those of other defendants who received this two-level enhancement at sentencing. See, e.g., United States v. Petruk, 836 F.3d 974 (8th Cir. 2016) (enlisting a friend to create a false alibi and scripting a false confession); United States v. Jensen, 248 Fed. Appx. 849 (10th Cir. 2007) (giving advance notice of testing and falsifying results of tests).

Finally, prosecutors argued for a 2-level enhancement for all the violations of ABJ’s orders during the trial, notably his implicit threat against her.

Finally, pursuant to U.S.S.G. § 3C1.1, two levels are added because the defendant “willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the prosecution of the instant offense of conviction.” Shortly after the case was indicted, Stone posted an image of the presiding judge with a crosshair next to her head. In a hearing to address, among other things, Stone’s ongoing pretrial release, Stone gave sworn testimony about this matter that was not credible. Stone then repeatedly violated a more specific court order by posting messages on social media about matters related to the case.

This enhancement is warranted based on that conduct. See U.S.S.G. § 3C1.C Cmt. 4(F) (“providing materially false information to a magistrate or judge”); see, e.g., United States v. Lassequ, 806 F.3d 618, 625 (1st Cir. 2015) (“Providing false information to a judge in the course of a bail hearing can serve as a basis for the obstruction of justice enhancement.”); United States v. Jones, 911 F. Supp. 54 (S.D.N.Y. 1996) (applying §3C1.1 enhancement to a defendant who submitted false information at hearing on modifying defendant’s conditions of release).

Prosecutors then showed how, under the guidelines, this adds up to an 87 to 108 month sentence.

Accordingly, Stone’s total offense level is 29 (14 + 8 + 3 + 2 + 2), and his Criminal History Category is I. His Guidelines Range is therefore 87-108 months.

Barr Recommendation: 30-46 months

In addition to violating DOJ policy of not deviating downwards from the Probation recommendation, the memo submitted under John Crabb Jr’s name (which his statements yesterday strongly indicate he did not write) offered little justification for why it was deviating from the Probation Office recommendation and never ultimately made a recommendation. But the memo suggested two of the enhancements — the 8-level enhancement for making a threat, and the 2-level enhancement for threatening ABJ — should not apply.

The memo suggested the 8-level enhancement shouldn’t apply, first, because doing so would double Stone’s exposure.

Notably, however, the Sentencing Guidelines enhancements in this case—while perhaps technically applicable— more than double the defendant’s total offense level and, as a result, disproportionately escalate the defendant’s sentencing exposure to an offense level of 29, which typically applies in cases involving violent offenses, such as armed robbery, not obstruction cases. Cf. U.S.S.G. § 2B3.1(a)-(b). As explained below, removing these enhancements would have a significant effect on the defendant’s Guidelines range. For example, if the Court were not to apply the eight-level enhancement for threatening a witness with physical injury, it would result in the defendant receiving an advisory Guidelines range of 37 to 46 months, which as explained below is more in line with the typical sentences imposed in obstruction cases.

It pointed to Credico’s letter to justify ignoring it.

First, as noted above, the most serious sentencing enhancement in this case—the eightlevel enhancement under Section 2J1.2(b)(1)(B) for “threatening to cause physical injury”—has been disputed by the victim of that threat, Randy Credico, who asserts that he did not perceive a genuine threat from the defendant but rather stated that “I never in any way felt that Stone himself posed a direct physical threat to me or my dog.” (ECF No. 273). While Mr. Credico’s subjective beliefs are not dispositive as to this enhancement, the Court may consider them when assessing the impact of applying the enhancement – particularly given the significant impact that the enhancement has on the defendant’s total Guidelines range.

Then, Barr’s memo argued (and this is the truly outrageous argument) that Stone’s attempts to obstruct his own prosecution overlapped with his efforts to obstruct the HPSCI investigation.

Second, the two-level enhancement for obstruction of justice (§ 3C1.1) overlaps to a degree with the offense conduct in this case. Moreover, it is unclear to what extent the Second, the two-level enhancement for obstruction of justice (§ 3C1.1) overlaps to a degree with the offense conduct in this case. Moreover, it is unclear to what extent the

Effectively, this language treated threats against a judge as unworthy of enhancement.

Probably the only part of this memo that really affected ABJ’s sentence was a discussion of avoiding disparities in sentencing, where it mentions Scooter Libby’s 30 month sentence (and Manafort’s obstruction-related sentence, by ABJ, which was just one part of her 7.5 year sentence of him).

Third, the Court must “avoid unwarranted sentencing disparities.” See 18 U.S.C. § 3553(a)(6). In its prior filing, the Government directed the Court’s attention to a non-exhaustive list of witness tampering, false statement, and obstruction of justice cases that resulted in sentences of thirty months (Libby), thirteen months (Manafort), six months (Lavelle), twelve months (Hansen), and thirty-five months (Solofa). While these cases involved lesser offense conduct, the sentences imposed constituted a fraction of the penalty suggested by the advisory Guidelines in this case.

In comments to Lindsey Graham, Bill Barr said he thought the guidelines should say 3.5-4.5 years, slightly more than the guidelines if the witness tampering were removed, but if you eliminate both the witness tampering and obstruction of proceedings enhancement the range would be 30-47 months.

ABJ Guidelines Calculation: 70-87 months

In court yesterday, ABJ started by going through the recommended sentence. Ultimately, she did the following with the guidelines (h/t Andrew Prokop for his great live tweeting):

  • Accepted the 8-level enhancement for witness tampering, but said she’d take Credico’s comments into account
  • Accepted the 3-level enhancement for substantial interference, noting that HPSCI was totally diverted by focusing on Credico
  • Rejected the 2-level enhancement for the extensive nature of Stone’s obstruction (thereby agreeing with the original Probation office recommendation)
  • Accepted the 2-level enhancement for Stone’s obstruction in this prosecution

That works out to a base level of 14 + 8 for the witness tampering threat + 3 for substantial interference + 2 for his obstruction in this prosecution. As ABJ calculated in court yesterday, that amounts to a guidelines offense level of 27, or a guidelines range of 70 to 87 months.

Importantly, these decisions mean ABJ disagreed with both the recommendations made in the Barr memo that she throw out the witness tampering threat and Stone’s interference in this trial (which included the threat against her).

Contrary to what the WaPo lets DOJ claim under cover of anonymity, this in no way vindicates Barr. Rather, it rebukes him, stating that neither of his interventions are valid.

ABJ Sentence: 40 months

Nevertheless, ABJ came up with a sentence of 40 months, a sentence that’s solidly in the range of what Barr wanted (and therefore a sentence he’s on the record as saying is just for Stone’s crimes).

ABJ got there, in part, by taking Credico’s comments into consideration, while still treating Stone’s threat as real. She got there in part by arguing that the sentencing guidelines are “inflated” — something anathema to Bill Barr’s policies at DOJ, and a stance that would say all defendants should be sentenced more leniently, not just Trump’s rat-fucker.

In her sentence, she explicitly said she was ignoring Trump’s comments and comments from the left asking for harsh punishment.

Ultimately, ABJ calculated the guidelines — which she said were inflated (and would be for all defendants) — at 70-87 months. She then sentenced Stone to 57% of the lower end of those guidelines.

And that is what has the frothy right in a tizzy — that she extended Roger Stone the same leniency that she would extend to other defendants, in defiance of Bill Barr’s demands that every defendant not covering up for the President be sentenced harshly.

This is in no way a vindication of Bill Barr. It is also, in no way, abusive.

Update: This has been updated to reflect what the transcript says about the final probation recommendation.

Four Ways Bill Barr Fucked Up the Roger Stone Cover-Up

Let me say at the outset that I’m not imagining, with this post, that Bill Barr won’t succeed in helping Trump to bury the Russian investigation. The power of the President is breathtaking, Trump will still be able to commute Roger Stone’s sentence, and neither Barr nor Trump have any compunction about abusing power.

Still, Bill Barr really fucked up the cover-up for Roger Stone. He did so in at least four ways:

  • He intervened after prosecutors advised a guidelines sentence (of 7-9 years) when Judge Amy Berman Jackson was never likely to impose that. She ultimately sentenced Stone to 40 months, solidly within the sentence Barr demanded after the fact. In other words, he intervened when he didn’t have to, but by doing so he put himself on the record stating that 40 months was a just sentence.
  • He personally intervened. At the sentencing hearing, ABJ asked John Crabb Jr, the prosecutors whose name was on the revised sentencing memo, what happened. He made it clear that US Attorney Timothy Shea had bought off on the harsher sentence, and said the Attorney General was personally involved. Among other things, this led ABJ to note that it is “unprecedented” for DOJ not to request a guidelines sentence. Crabb also declined to say whether he wrote the revised sentencing memo or not, establishing cause to demand those details.
  • After prosecutors withdrew in response to Barr’s intervention, he went on TV to try to contain the damage. In that appearance, he stated quite clearly that this was a “righteous” prosecution.

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

  • The whole scandal probably led ABJ to tailor her comments to address it. On top of making clear how outrageous Stone’s obstruction was, she also alluded to the tweets of the President. She ended her statements by saying, “He was not prosecuted, as some have claimed, for standing up for the president. He was prosecuted for covering up for the president.” She backed that by noting Stone’s comment to Randy Credico that he, Stone, couldn’t take the Fifth because it would hurt the President. This establishes a legal record that Stone is going to prison to protect Trump — far stronger than what went in for Scooter Libby, who was also going to prison to protect his superiors.

Add that to Barr’s statements during confirmation that pardoning someone because of their false testimony is obstruction, and when the eventual commutation does come, the record will already be developed that Trump is engaging in obstruction by doing so.

Again, this is not to say that Barr won’t still succeed with this cover-up. But along the way, he did a number of things that will significantly raise the cost of it.

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