February 6, 2023 / by 

 

A Close Rudy Giuliani Associate Alerted FBI’s Assistant Director to Charles McGonigal’s Alleged Albanian Graft

I know of two journalists who had reported on parts of the charges against former FBI Special Agent in Charge Charles McGonigal before he was indicted: In December 2021, Scott Stedman (with an assist from Wendy Siegelman) reported on the relationship between McGonigal, Oleg Deripaska, Sergey Shestakov, and Yevgenyi Fokin that was disclosed in a November 29, 2021 FARA filing.

And in September 2022, Mattathias Schwartz reported on a subpoena that (this was made more clear later) had been served ten months earlier, in November 2021. In the story, Schwartz claimed the documents he had in hand showed that McGonigal was under investigation for his Deripaska ties, which he only substantiated with a link to the FARA filing. The story itself pertained entirely to the Albanian side of the investigation, based off that subpoena, part of which he published.

Schwartz published that story a month after he won a lot of attention for getting Paul Manafort to confirm on the record the cover story someone had fed a NYT team including Maggie Haberman and Ken Vogel in February 2019: that Manafort had shared (just) campaign data with Konstantin Kilimnik. When first published in 2019, that cover story successfully distracted attention from outlines of a more substantive exchange pitched by Deripaska associate Kilimnik at an August 2, 2016 cigar bar meeting (and, indeed, from Deripaska’s involvement generally).

Manafort’s calendar showed that before he went to that meeting on August 2, 2016, he met with Trump and Rudy Giuliani. And while Manafort was serving his abbreviated prison term, Rudy reportedly consulted with him about his efforts to dig up dirt helpful to Trump.

In the wake of McGonigal’s indictments, Schwartz wrote a story about the person that he all but confirms was the one who received the subpoena: Allison Guerriero, who had a year-plus long affair with McGonigal that started sometime before October 2017 and lasted until late 2018, past the time McGonigal retired from the FBI in September 2018. According to the story, their relationship covered the most important period of the corruption described in the two indictments against McGonigal (meetings with Albania in the the DC indictment start in August 2017 and end in August 2018; favors for a Deripaska agent described in the SDNY indictment start in spring 2018; the favors continued through 2021, at which point the investigation into Deripaska had become overt).

In fact, Schwartz suggests that Guerriero may have tipped off FBI’s Assistant Director William Sweeney to McGonigal’s corruption in a drunken act of revenge after the affair ended.

In late 2018, McGonigal and Guerriero broke up. She remembers receiving an anonymous and hostile note in the mail. Soon after, McGonigal told her he was still married and had no plans to divorce his wife. “I was shocked,” she said. “I was very much in love with him, and I was so hurt.” She started drinking heavily to cope. A few months later, Guerriero, after a bout of drinking, dashed off an angry email to William Sweeney, who was in charge of the FBI’s New York City bureau, and who, she recalls, had first introduced her to McGonigal. She remembers telling Sweeney in the email that he should look into their extramarital affair, and also McGonigal’s dealings in Albania. McGonigal had already befriended Albania’s prime minister and traveled to the country extensively, dealings that would appear later in one of his indictments. Guerriero told Insider that she had deleted the email.

As Schwartz describes it, Guerriero told Sweeney he should look at not just McGonigal’s ties to Albania but also their affair, which is a nutty thing to say to an FBI official.

It’s a weird claim, because elsewhere, the story implies that Guerriero believed McGonigal’s stories about why he had bags of cash lying around, including a bag of cash that (Schwartz convincingly argues) is likely the one McGonigal is accused of receiving in a parked car on October 5, 2017.

That day in October wasn’t the only time that Guerriero remembers McGonigal carrying large amounts of cash. After he brushed her curiosity aside, she tempered her suspicions. She told herself it was probably “buy money” for a sting operation, or a payoff for one of McGonigal’s informants.

The story never describes that Guerriero learned of McGonigal’s ties to Albania, much less how or when she learned about them. And yet one takeaway from the story is that she might be the source of the entire investigation into her former boyfriend.

If she did send that email, it’s virtually certain an Assistant Director of the FBI would not delete it.

Schwartz describes Guerriero as,

a former substitute kindergarten teacher who volunteered for law-enforcement causes and was working as a contractor for a security company while living at home with her father.

The Facebook page for the charity for which she works shows the kind of NY law enforcement people she networks with.

Which partly explains the really remarkable detail about Guerriero. She’s close enough with Rudy Giuliani — who was himself being cultivated by Russian assets during the same period that McGonigal was — that the by-then discredited mayor put her up in his guest room after she suffered a burn injury in 2021.

Guerriero’s troubles worsened in early 2021, when she was badly burned during a fire at her father’s house. She asked friends for help through a GoFundMe. Former Mayor Rudy Giuliani of New York City, whom she knew from law-enforcement circles, let her stay in a guest bedroom. Since then, Guerriero has been a frequent on-air caller for Giuliani’s radio shows. She maintains that the 2020 election was marred by widespread voter fraud, a belief pushed by Giuliani that has been repeatedly debunked. “Whatever Giuliani says about the 2020 election is what I believe,” she said.

What a small world, that the woman who may have triggered the investigation into McGonigal was staying with Rudy as the investigation developed? Presumably, for example, some of Guerriero’s communications with Rudy would have been found on his phones after they were seized in April 2021 (though the investigation into McGonigal was already very advanced by the time the FBI actually started getting any communications from Rudy’s phones in November 2021, and emails with Guerriero would be out of scope of any known or suspected warrant targeting Rudy).

Schwartz doesn’t pursue the fact that McGonigal has such close ties to Rudy, though the connection would be even more interesting if McGonigal’s role in the Trump Russian investigation were as central as Schwartz presented it (he’s not alone in overstating McGonigal’s known role).

But there are two additional reasons the detail is particularly interesting.

First, as noted, Schwartz published part of the subpoena that, this second story clarifies, Guerriero received in November 2021.

Regardless, by November 2021, the FBI was looking into McGonigal. Two agents showed up at Guerriero’s door, she says, showed her a picture of McGonigal with the Albanian prime minister, and interviewed her about their interactions. She also received a grand-jury subpoena requesting all of her communications with McGonigal as well as information about any “payments or gifts” he may have given her.

It tracks the DC indictment closely (and was sent by the LA-based team investigating it). Four bullets ask for information about the Albanians that are the central focus of the indictment. Bullet f references McGonigal’s ties to Kosovo, which show up in ¶28 of the indictment. Bullet h and i ask for information on the Bosnians who appear in ¶¶45, 46 and 48 of the indictment; bullet j asks for information about the alleged access peddling to the UN described in ¶¶50-52 of the indictment.

But the subpoena — bullet g — asks about another country, Montenegro, where much of Deripaska and Manafort’s long history began and where Deripaska was still allegedly interfering as late as 2016. If Montenegro shows up in the indictment at all, it’s only as one of the other locations in Europe to which McGonigal was traveling with his Albanian contact (for example, a spring 2018 trip described in ¶44). That may simply reflect Montenegro’s relative import in McGonigal’s paid travel, the quality of evidence, or maybe DOJ didn’t want to include it for some other reason. But if Montenegro were a key part of McGonigal’s Balkans travels — on which, ¶22 of the indictment makes clear, he worked to persuade Albania not to sign oil contracts with Russian front companies — it would put him in a country where Deripaska likely still has a rich network of sources.

In any case, the only other thing that doesn’t map directly from the subpoena to the indictment are any payments or gifts McGonigal gave to Guerriero. The DC indictment never explained why, “no later than August 2017,” McGonigal allegedly asked his Albanian contact if he could provide him money, but Schwartz’ story reveals that the indicted former SAC was giving Guerriero gifts of cash and taking her to high-end restaurants during their affair, which started at least by October 2017 (her subpoena asked for records going back to April 2017). The indictment never mentions her, but the affair with her may explain part of McGonigal’s urgent need for cash in September 2017, something that would make McGonigal ripe to compromise by anyone who learned of it.

As I noted earlier, there’s one more remarkable player in this little network that includes Rudy Giuliani: Seth DuCharme, who spent much of the last year of the Trump Administration implementing Bill Barr’s bureaucratic efforts to ensure that Rudy Giuliani would not be prosecuted for his efforts to obtain benefit for Trump — including, but not limited to, dirt on Hunter Biden — from people that included several suspected Russian agents. DuCharme, who works at Rudy’s former firm, Bracewell, is part of the team representing McGonigal.

And to the extent that Guerriero is one of the witnesses from whom DOJ learned the specifics about how much cash McGonigal received in bags in parked cars (though, again, Schwartz’ story is inconsistent about whether she knew none of that or whether she knew enough to tip off William Sweeney) it would be part of DuCharme’s job to discredit Rudy’s former houseguest as a witness. He would do so, presumably, by pointing to all the things Guerriero told Schwartz she regrets, including harassment of McGonigal’s family that was serious enough to merit restraining orders in two states.

By her own account, Guerriero contacted one of McGonigal’s children despite being prohibited from doing so by a court order, an incident that led to her spending the night in a New Jersey jail. The court order stemmed from a 2019 police report, obtained by Insider, that McGonigal’s wife, Pamela, filed with the Montgomery County Police Department in Maryland. The report states that McGonigal and Guerriero “had a relationship” and that Guerriero had repeatedly harassed her with unwelcome emails and phone calls — including 20 calls in one day — despite her asking Guerriero to stop.

Guerriero confirmed that her contact with the McGonigal family led to a separate restraining order issued in New Jersey. “I am ashamed and embarrassed and sorry for my actions during the time that I was drinking,” she said.

In Schwartz’ story, Guerriero doesn’t say she regrets that email to Sweeney, which could well have sparked this entire investigation. She regrets the harassment of McGonigal’s family, which might come out if she were called as a witness.

All of which may provide insight into why the DC case against McGongial is charged as it is. Among the overt acts of which McGonigal is accused in DC are:

  • Networking with representatives of the government of Albania in late 2017 and early 2018 during the period when he used information from them to launch an investigation against the US citizen lobbyist for their rival.
  • Proposing that his prime Albanian contact be paid $500,000 (which may have been meant as repayment of money the Albanian gave McGonigal in 2017) to set up a high level UN meeting for some Bosnians.

Both of these overt acts could be charged under FARA and the Albanian tie, at least, could well have been charged under 18 USC 951. But McGonigal would likely offer the same kind of defense that Tom Barrack did in his EDNY trial: when McGonigal counseled the Albanian Prime Minister not to sign oil contracts with Russian on September 9, 2017, he could easily argue, he did so because he was genuinely opposed to Russian influence and not because he was seeking a benefit for his key Albanian contact.

Instead, DOJ charged him with inadequate disclosure to the FBI on forms FD-772b and OGE-278, with each inadequate disclosure charged as a false statement under either 18 USC 1001 or 1519 (though I don’t understand why McGonigal would not immediately challenge the three of the charges tied to filings submitted more than five years ago, especially if FBI had notice of all this in 2018). The 1001 charges would normally only get a few months sentence, though with a sentencing enhancement for abusing his official position, and by treating each inadequate disclosure as a separate crime, potential exposure could easily add up to years, or, with a plea deal, it could be pitched as “process crimes” meriting just months of prison time.

Charging it that way not only gives DC USAO more flexibility in plea discussions.

It would also make it a “paper case,” something that depends largely on documentation rather than the credibility of a witness like McGonigal’s primary Albanian contact (who seems to have told FBI that the cash payments were loans, not payments) or Guerriero. For each false form McGonigal submitted, DOJ will only have to show where he traveled, how his travel was paid, and that he didn’t properly disclose it. It would rely on travel records and bank statements and not the testimony of a witness who harassed McGonigal’s family out of jealousy.

I don’t want to make too much of Schwartz’ revelation that a key witness against McGonigal was staying in Rudy’s guest room as the investigation developed. Drunken jealousy is all the motive you need to explain her actions (though not, perhaps, inconsistencies about how much of the Albanian graft she knew about).

But once you throw Rudy and Montenegro into the mix, the trajectory on which McGonigal traveled, from arguing against Russian oil contracts in September 2017 to thinking he could manage ties to Deripaska in spring of 2018, gets a lot more interesting.


About Your Pence Special Counsel Complaint: On the Missing Coverage of Section 600.2(b)

I’m seeing people ask why Merrick Garland hasn’t appointed a Special Counsel yet to investigate Mike Pence when (the claim is) he did for President Biden.

The answer is … that’s not what happened.

DOJ learned about the documents at Pence’s house no earlier than January 18 (probably on January 19), so seven or eight business days ago.

At this stage of the Biden review (seven days after DOJ learned about the documents from the Archives), Garland hadn’t appointed US Attorney for Chicago John Lausch yet. As Attorney General Garland explained when he announced the appointment of Robert Hur, ten days after DOJ learned about the documents at Biden’s office, he asked Lausch to investigate:

  • November 4: DOJ learns of the Biden documents
  • November 9: FBI starts an assessment
  • November 14: Garland appoints John Lausch

More importantly, Lausch wasn’t appointed as a full Special Counsel under 28 CFR 600.4, which is what Jack Smith was appointed under. Rather, Garland appointed Lausch under 600.2(b).

On November 14, pursuant to Section 600.2(b) of the Special Counsel regulations, I assigned U.S. Attorney Lausch to conduct an initial investigation to inform my decision whether to appoint a Special Counsel.

Section 600.2(b) permits the Attorney General to appoint someone to conduct an “initial investigation” to better inform the decision whether to appoint a full-blown Special Counsel.

Importantly, Garland didn’t reveal that he had appointed Lausch until the day he appointed Hur, this time under 600.4.

So Garland could well have appointed someone — could be Lausch, could be Hur, could be someone who wasn’t appointed under the Trump-Pence Administration, as both Lausch and Hur were — to conduct an initial assessment regarding Pence’s documents without telling the public, just as he did with Biden. If he followed the same approach he did with Biden, he might not reveal that step unless and until he appointed a full Special Counsel.

Check back on March 17 to see where DOJ is with a Pence review, which would be the same almost two months out as it took to appoint a Special Counsel with Biden.

Maybe by then someone will have been appointed to review the classified holdings of all former Presidents and Vice Presidents.

To anticipate one more complaint, about why Garland waited nine months after the discovery of classified documents in boxes that had been at Mar-a-Lago before appointing Jack Smith: DOJ started using a grand jury no later than May 11 in Trump’s case, which is when they sent a subpoena for all documents with classification markings (I believe the subpoena reflects a grand jury seated on April 27). The subpoena came just over two months after FBI received the NARA referral on February 9. The timing of the Special Counsel appointment pivoted on the fact that Trump announced his his run for President, not the intensity of the investigation.

In fact, Garland might not appoint a Special Counsel if Pence doesn’t formally announce (if even there’s cause to do so).

It’s not at all clear that these investigations should follow a parallel track. But even if they should, Pence has not yet been treated differently than Biden.


“Why Did Mike Pence Wait So Long to Reveal His Stash of Classified Documents?”

At a press availability yesterday, Merrick Garland repeated a line he often uses, that DOJ applies the law the same for everyone.

“We do not have different rules for Democrats or Republicans, different rules for the powerful or the powerless, different rules for the rich and for the poor, we apply the facts, and the law in each case in a neutral, non-partisan manner,” Garland told reporters during a press availability at Justice Department headquarters. “That is what we always do.”

Many of the reporters covering it treated it as a comment about DOJ’s handling of the Trump and Biden classified document inquiries. Maybe it was.

Little did anyone know, though, that Garland might well have had the FBI’s collection of about a dozen documents with classified markings from Mike Pence’s home in mind.

Greg Jacob first told the Archives about the documents on January 18, six days ago and two days after the search. The next day, the FBI arrived in Indiana to collect the documents, which Jacob complained was against standard protocol. Yesterday Pence’s staff delivered several boxes to the Archives to check for adherence to the Presidential Records Act.

I don’t much care that Pence didn’t immediately run to the press to announce the documents, but it is the kind of thing that journalists who are good at horse race coverage, unaware of many of the thus-far distinguishing details about the Trump documents, and ill-equipped to cover classified documents stories latched onto with Biden.

So in an effort to provide some structure for the kids-chasing-a-soccer-ball-like coverage we’re already seeing, here’s a table that summarizes what we know and don’t know about all three cases.

Until we have answers about some of the details that currently distinguish Biden and Pence from Trump — like whether they knew of the documents (both claim they did not), whether they ever accessed the documents after leaving office, whether we have reason to believe they’re harboring more — this should not be a story.

And the key difference, one that should be included in every story that tries to make such a comparison, is that Trump refused to give documents back, whereas Biden and Pence freely offered them up.

The reason that’s important, aside from the both sides drama of it, is that it is an element of the offense that would be most likely to be used if DOJ took the unprecedented step of charging a former Original Classification Authority with harboring classified documents.

As we can now see, it happens that men who have aides pack them up at the end of their tenure go home with documents they didn’t know they had. It happens. (By the time Kamala Harris leaves, there’s likely to be a new protocol in place, so Harris can set a perfect record as the first woman being packed up.) What matters — what distinguishes a mistake from a potential crime — is what you do with the documents when you become aware you have them.

It’s possible we’ll learn details that suggest Biden knowingly stashed classified documents. But thus far, we don’t have any such details. And that should — but thus far has often not — show up in any competent coverage.


No, Charles McGonigal Likely Isn’t Responsible for that Part of the Russian Investigation You Hate

Everyone — whether from a left, right, or frothy perspective — has seized on the arrest of former FBI Special Agent in Charge Charles McGonigal to assume he was responsible for something they don’t like about the Russian investigation: the leaks (attributed to but not exclusively from SDNY) about the Clinton Foundation investigation; the problems on the Carter Page applications and vetting of the Steele dossier; the tanking of the Alfa Bank allegations; some later sabotage of the Mueller investigation.

There’s no reason to believe he was primarily responsible for most of that, and good reason to believe he was not. But he was in a place where he could have tampered in other really serious cases. So I want to lay out what his timeline is, with some comment on how it intersects with key investigations.

Here’s an excerpt from the bio sent out with the October 4, 2016 announcement of his promotion to SAC in NY Field Office.

FBI Director James B. Comey has named Charles McGonigal as the special agent in charge of the Counterintelligence Division for the New York Field Office. Mr. McGonigal most recently served as the section chief of the Cyber-Counterintelligence Coordination Section at FBI Headquarters.

[snip]

In 2014, Mr. McGonigal was promoted to assistant special agent in charge of the Baltimore Field Office’s cyber, counterintelligence, counterespionage, and counterproliferation programs.

[snip]

McGonigal will assume this new role at the end of October.

This 2016 promotion would have put him in New York too late to be a key 2016 leaker; the damage to Hillary had already been done by the time he would have arrived in New York.

He should have had a role in the Alfa Bank investigation, which included both a cyber and a counterintelligence component, though the latter was in Chicago. But his name did not show up (in unredacted form, anyway) in the Michael Sussmann files. Plus, we know what bolloxed that investigation: two cyber agents, Nate Batty and Scott Hellman, who decided the anomaly was nothing even before they had looked at all the data, then kept telling the counterintelligence investigators that too.

McGonigal was in the loop on the Crossfire Hurricane investigation. He had a hand in forwarding the tip from the Australians to DC headquarters. And he was in the vicinity of the Carter Page investigation after it got moved back to New York in January 2017 (in which context he shows up in communications with Jennifer Boone). But at least per the Horowitz Report, he wasn’t a key player.

Because McGonigal was tangential to the above matters — including the successful effort, aided by Sussmann and Rodney Joffe — to kill the early NYT story on the Alfa Bank allegations, he’s probably not the most important player in the October 2016 NYT story every Democrat hates (though his expertise could have made him a source for several of the journalists involved).

He likely was involved in coordination in the early parts of the investigation into the DNC hack (which was investigated in Pittsburgh and San Francisco), including a decision not to open an investigation on Roger Stone, and there were steps not taken in those early days that probably should have been. Perhaps McGonigal is to blame for the fact that, when Jeannie Rhee asked for a briefing on the investigation into the hack-and-leak in 2017, nothing had been done. Ultimately, it did get done though. He was no longer in a position to interfere with the investigation during the key part of it in 2018 (though he likely knew important details about it).

One thing that’s absolutely certain, though: He was in a position to sabotage investigations into Oleg Deripaska, and with him, Paul Manafort. And he would have greatly facilitated Deripaska’s campaign to undermine the Russian investigation with disinformation, which continued beyond 2018. Just as one measure of timing, Deripaska’s column in the Daily Caller was at the beginning of the time when Shestkov was reaching out to McGonigal.

The materials on the SDNY indictment pertaining to Deripaska make it clear that he had accessed sanctions packages pertaining to Deripaska before he left the FBI in 2018.

As SAC, McGonigal supervised and participated in investigations of Russian oligarchs, including Deripaska. Among other things, in 2018, McGONIGAL, while acting as SAC, received and reviewed a then-classified list of Russian oligarchs with close ties to the Kremlin who would be considered for sanctions to be imposed as a result of Russia’s 2014 conflict with Ukraine.

He appears to have leaked that information with the daughter of Agent 1 (believed to be Yevgenyi Fokin).

An NYPD Sergeant assigned to brief Agent-1’s daughter subsequently reported the event to the NYPD and FBI, because, among other reasons, Agent-1’s daughter claimed to have an unusually close relationship to “an FBI agent” who had given her access to confidential FBI files, and it was unusual for a college student to receive such special treatment from the NYPD and FBI.

It seems likely, then, Manafort got visibility onto what the FBI knew about him. And he got it around the same time Konstantin Kilimnik was included in a conspiracy indictment with Paul Manafort in June 2018. He almost certainly got it before the Mueller investigation was over, which hypothetically could have influenced or facilitated Manafort’s effort to thwart DOJ’s investigation.

I have reason to suspect that people associated with McGonigal, if not he himself, have seeded disinformation about Deripaska-related investigations.

McGonigal’s tie to Deripaska and the trajectory of his career would have put him in a position to tamper in other investigations. As noted above, he moved from Baltimore (overseeing matters involving the NSA during years when the materials that would be leaked as part of the Shadow Brokers operation were stolen), to a cyber/CI role in DC, to NYC. The overt acts described in his two indictments (SDNY, DC) only start in 2017, which would suggest he may not have sold out until then.

Except there’s a problem with that: The first overt act in the DC indictment is him asking for money. So it’s not clear when he got started.

August 2017: McGonigal first asks Albanian for money.

September 7, 2017: McGonigal travels to Albania.

October 5, 2017: McGonigal receives $80,000 in a parked car from the Albanian.

November 18, 2017: McGonigal conducts an interview in Vienna with the Albanian acting as translator; the FBI has no record of the interview. Then McGonigal flies to Albania and discusses business with the same witness.

November 25, 2017: McGonigal predicates an investigation into the lobbyist for a rival Albanian politician.

February 28, 2018: McGonigal formally opens investigation into rival Albanian relying on witnesses whose expenses were paid by his source.

March 4, 2018: McGonigal dines with Prime Minister of Albania.

April 27, 2018: McGonigal pitched by two people in Germany to get involved in Bosnian affairs, facilitates an introduction to US Ambassador to UN.

June to August 2018: McGonigal sets up arrangement whereby Bosnian-tied pharma company would pay Albanian $500K to broker UN ties.

Spring-Summer 2018: At Sergey Shestakov’s request, McGonigal sets up Deripaska’s agent’s daughter with an NYPD internship.

September 2018: McGonigal retires from the FBI.

There are a number of key investigations, including some in which Deripaska had tangential interest, on which McGonigal would have had complete visibility. Their compromise would present a grave threat to the country.

They’re not the ones left, right, and frothers are most concerned about though.

Given how DOJ has charged these two indictments (and given the charges they have yet to file), I suspect they will try to get McGonigal to plead to one side and cooperate in the other — in part to unpack everything he did before and after he left the FBI. But even if they do, they’re not going to tell us what he was up to.


Former FBI SAC Charles McGonigal Indicted for Crimes Spanning from 2017 to 2021

When I said on Saturday that, “I wouldn’t be surprised if there were a few stray indictments [relating to Oleg Deripaska] we haven’t seen yet,” I wasn’t specifically thinking of former Special Agent in Charge of FBI’s New York Counterintelligence Office, Charles McGonigal, who was arrested that same day in SDNY for conspiring to hide that he was working for Deripaska.

Though I had noted Scott Stedman’s report, which itself piggybacked on a Wendy Siegelman catch of a FARA filing from McGonigal’s alleged co-conspirator, Sergey Shestakov, which laid out the relationship.

In fact, DOJ seems to be treating this case — and a DC indictment given less prominence in DOJ’s releases today — as a public integrity prosecution first, and only after that the kind of national security case that the other Deripaska cases have been. That is, this is about how Deripaska and his associates used McGonigal’s alleged corruption to harm national security, and not the way McGonigal made a corrupt decision to work with Deripaska.

DC US Attorney Matthew Graves even suggested that’s the trajectory by which McGonigal came to be working for one of the Russians he should have been hunting. “Covering up your contacts with foreign nationals and hiding your personal financial relationships is a gateway to corruption.”

The DC charges pertain to $225,000 in payments McGonigal took from a former Albanian security official while he was still at the FBI. After taking the payments, McGonigal initiated an investigation into someone lobbying for competing Albanian interests.

According to the nine-count indictment, unsealed today, from August 2017, and continuing through and beyond his retirement from the FBI in September 2018, McGonigal concealed from the FBI the nature of his relationship with a former foreign security officer and businessperson who had ongoing business interests in foreign countries and before foreign governments.  Specifically, McGonigal requested and received at least $225,000 in cash from the individual and traveled abroad with the individual and met with foreign nationals.  The individual later served as an FBI source in a criminal investigation involving foreign political lobbying over which McGonigal had official supervisory responsibility.  McGonigal is accused of engaging in other conduct in his official capacity as an FBI Special Agent in Charge that he believed would benefit the businessperson financially.

Effectively, a top CI official was on the take from someone who then used that influence to take out a rival.

The charges in DC include a bunch of false statements and obstruction counts (though the obstruction could amount to twenty years in prison).

The NY charges accuse McGonigal and Shestakov of working with someone else in an attempt to get Oleg Deripaska’s sanctions lifted.

Even before McGonigal left the FBI, he was doing favors for someone listed as Deripaska’s agent (I’ll come back to him, but I believe his identity, too, is public). Then starting in 2018, McGonigal and Shestakov started working with a law firm, which earlier reporting identified as Kobre & Kim, in an attempt to help Deripaska get his sanctions lifted. Then after K&K stopped pursuing that effort in 2020, McGonigal and Shestakov continued to work for Deripaska, laundering the funds through a Friend (who may be the Albanian, in which case that may be where they discovered the tie to him).

Because of the money laundering in the SDNY indictment, it may in practice include a stiffer sentence than the DC one.

As I said above, on paper (based, in part, on the prosecutors assigned) this is being treated as a public integrity problem that led to a huge counterintelligence one. There’s not even any mention of the KleptoCapture initiative started in response to the Russian war.

But like the Deripaska investigations, I expect this one will continue for a while.

Update: I want to talk a bit about what I mean that these are Public Integrity indictments with a CI twist.

The DC prosecution team consists of two DC USAO attorneys, with the assistance of a senior NSD executive.

The case is being prosecuted by Assistant United States Attorneys Elizabeth Aloi and Michael Friedman of the U.S. Attorney’s Office for the District of Columbia, with assistance from Acting Deputy Chief Evan Turgeon of the DOJ’s National Security Division Counterintelligence and Export Control Section, and the Criminal Division’s Office of International Affairs.

In addition to a bunch of January 6 cases in the last two years, Aloi is on the Navarro team and the case against two guys who pretended to be DHS agents to get close to some FBI agents. Most if not all of her January 6 cases included cooperation agreements. Michael Friedman’s January 6 cases included two involving threats, and two involving movement right wingers, including Zeeker Bozell, the scion of the family.

The DC team seems like one you’d use to try to get McGonigal to cooperate to unwind whatever other fuckery he did at the FBI.

The SDNY prosecution team consists of three public integrity prosecutors and an NSD one.

The case is being prosecuted by the Office’s Public Corruption Unit.  Assistant U.S. Attorneys Hagan Scotten, Rebecca T. Dell, and Derek Wikstrom are in charge of the prosecution with assistance from Trial Attorney Scott A. Claffee of the National Security Division’s Counterintelligence and Export Control Section.

All the SDNY prosecutors have been involved with very large multi-defendant conspiracies. Hagan Scotten was involved in the Rudy Giuliani and Parnas Fruman investigation. Derek Wikstrom was on the Build the Wall (Steve Bannon) team.

Scott Claffee has been involved in some of the highest profile Chinese counterintelligence prosecutions. But he’s also involved in at least one of the other Deripaska-related cases, the one involving dual use sourcing.

But by far the most interesting lawyer involved in this case is McGonigal’s defense attorney: Seth DuCharme, a top Billy Barr aide who was at the center of numerous Barr efforts to protect Trump associates.

Including Rudy.

Especially Rudy.

Finally, a word about timing.

The SDNY indictment came first. That indictment is dated January 12.

That press release hails the Border Patrol, and given that the arrest happened at JFK, that may be why SDNY went first.

DC got its indictment on January 18. That same day there was a sealed document placed in the SDNY docket, perhaps related to the other case

Update: Here’s his bio from when he was promoted to the NY position.

Charles McGonigal Named Special Agent in Charge of the Counterintelligence Division for the New York Field Office

FBI Director James B. Comey has named Charles McGonigal as the special agent in charge of the Counterintelligence Division for the New York Field Office. Mr. McGonigal most recently served as the section chief of the Cyber-Counterintelligence Coordination Section at FBI Headquarters.

Mr. McGonigal entered on duty with the FBI in 1996. He was first assigned to the New York Field Office, where he worked Russian foreign counterintelligence and organized crime matters. During his tenure in New York, Mr. McGonigal worked on the TWA Flight 800 investigation, was assigned to the task force investigating Wen Ho Lee, investigated the 1998 terrorist bombings of the U.S. Embassies in Tanzania and Kenya, and investigated the September 11, 2001 terror attacks.

Following the terrorist attacks on September 11, 2001, Mr. McGonigal was assigned to an investigative response squad, which focused on pending international terrorist threats in the New York City area.

Mr. McGonigal was assigned to the Cleveland Division where he investigated white-collar and violent crime matters. In 2002, Mr. McGonigal was promoted to a supervisory special agent in the Counter-Espionage Section at FBI Headquarters, where he handled several high-profile espionage investigations. In April 2004, Mr. McGonigal was promoted to chief of the Asia-Near East Counterintelligence Unit.

In 2006, Mr. McGonigal was promoted to field supervisor of a counter-espionage squad at the Washington Field Office. In this capacity, Mr. McGonigal was in charge of many high-profile espionage, economic espionage and media leak investigations resulting in criminal prosecution. In 2014, Mr. McGonigal was promoted to assistant special agent in charge of the Baltimore Field Office’s cyber, counterintelligence, counterespionage, and counterproliferation programs. Mr. McGonigal earned a Bachelor of Business Administration degree in 1990 and completed a master’s degree from Johns Hopkins University.

Mr. McGonigal will assume this new role at the end of October.

For those trying to assess whether he was a part of the Russian investigation, he largely missed it. I think he would have been in the loop after he moved to NY, but he didn’t show up in the Sussmann trial.


“Several Work and Storage Areas:” Why DOJ Likely Doesn’t Trust Biden’s Personal Attorneys

Charlie Savage has a story that — while he doesn’t say it — likely explains why DOJ doesn’t entirely trust Biden’s attorneys on the classified documents and so appointed a Special Counsel.

The currently operative story, as told by Savage, is the following:

  • Biden’s lawyers found the Penn Biden documents and interviewed the people who packed the documents
  • Based on those interviews, they told DOJ other documents would only be at Penn Biden
  • Without telling DOJ (though after they learned that DOJ had started to investigate), “and not because of any new information,” they decided to check that premise by looking at the boxes in Biden’s garage
  • On December 20, they told DOJ about the documents marked classified in the garage
  • They then decided to search other office areas, this time telling DOJ they were doing so
  • When, on January 11, they found a page with classification marks inside one of those office areas, they stopped their searches; FBI would find 5 more pages when they came to secure that single page

But look at this timeline with other dates added:

  • Biden’s lawyers found the Penn Biden documents and interviewed the people who packed the documents
  • November 4: NARA told DOJ about the classified documents
  • November 9: FBI started its assessment
  • November 14: Garland appointed John Lausch
  • Based on Biden’s lawyers’ interviews of those who packed Biden’s boxes, they told DOJ other documents would only be at Penn Biden
  • Lausch interviewed some of the people who packed the boxes
  • Without telling DOJ, “and not because of any new information,” Biden’s lawyers decided to check that premise by looking at the boxes in the garage
  • On December 20, they told DOJ about the documents marked classified in the garage
  • On January 5, Lausch recommended Garland appoint a Special Counsel
  • At some point not IDed in Savage’s story, Biden’s lawyers decided to search other office areas, this time telling DOJ they were doing so
  • On January 11, they told DOJ about another classified page, possibly inside an office, then stopped their searches
  • On January 21, FBI did a thorough search of Biden’s Wilmington home and found 6 additional documents

Biden’s lawyers probably didn’t decide to do further searches until after Lausch started interviewing people. Already, if I were DOJ, I would want to know whether Biden consulted with the people being interviewed, and based on that, realized they needed to do further searches.

But we still don’t know two other things. Savage describes the second space in Biden’s home, which heretofore had been described as the room adjacent to the garage, as “several work and storage areas inside the living area of the house.” Which is to say, we still don’t know whether the January 11 document was found inside a storage space or an office, where documents would be used rather than just stored. Or rather, John Lausch knows that, Savage’s sources know that, but we don’t.

We also don’t know if Biden found out that Garland was going to appoint a full Special Counsel and only then decided to search the interior of the home.

Something led Biden’s lawyers to take more seriously the possibility that documents weren’t just stored at Biden’s home, but used there. And while this all still could be lawyers stepping on their own toes as they try to be helpful, even just based on what we know, from DOJ’s perspective, that toe-stepping would be indistinguishable from Biden’s lawyers responding to learning things they should have been told from the start, which is different from — but not that different from — Trump moving boxes to prevent Evan Corcoran from finding classified documents.

One more detail that is actually fairly damning. Savage describes that the documents at Penn Biden were copies; the originals are stored at the Archives.

One set was believed to be material that might be useful to Mr. Biden for his post-vice-presidential career in public life or teaching, like his speeches and unclassified policy memos about topics he was interested in. Those materials were initially shipped to two transition offices and then on to his office at the Penn Biden Center when it opened in 2018. (The National Archives and Records Administration would keep original copies of the official records.)

If Biden’s office sent originals of the classified documents found at Penn Biden to NARA, it makes their inclusion in documents sent to the policy office far less attributable to a mistake.

Biden’s lawyers have been feeding the press a story about how cooperative they’ve been. But so did Trump’s lawyers. Trump’s story was far more obviously bullshit — in part for the way they spun a claim that by adding a lock to Trump’s storage room, they had made it secure.

Though this line about the Biden search — offered up as proof of extreme cooperation — gets close to lock-on-door levels of spinning.

[T]he Biden legal team invited the F.B.I. to also search every room in the residence — including bathrooms, bedrooms and the utility room, the people said.

There are still key parts of Biden’s story that aren’t being explained, most importantly whether the documents discovered this month inside Biden’s house were discovered in storage or in an actively-used office. If DOJ knows that the difference between the two would be critical information for the public to know, then this story would only further degrade confidence in Biden’s lawyer on the part of DOJ.

This is not about the reliability of lawyers like Bauer. Rather, it’s about whether Biden’s lawyers got information at the start they needed. But if they did not, it means that DOJ can’t just trust, but must verify, everything Biden’s lawyers tell them.


Why Trump’s Lawyer, Evan Corcoran, Says Joe Biden Couldn’t Violate 18 USC 1924

My Twitter feed continues to be inundated by a bunch of experts on the latest talking point telling me why Joe Biden violated the law.

He may have. We don’t know the circumstances surrounding the documents found at his home. Based on what we know, it’s far less likely that Biden broke the law than Trump. But we don’t know.

Virtually all those parroting the latest talking point are misunderstanding the likely law in question — 18 USC 793e, the same law in question with Trump — and how classification works with a former President or Vice President.

Maybe I’ll get into that at more length in days ahead, but for now, I wanted to lay out what Trump, in the voice of his lawyer Evan Corcoran, says about whether Biden could be charged.

Corcoran addressed many of the questions my Twitter experts have shared in a letter sent to Jay Bratt, DOJ’s head of counterintelligence, last May.

First, Trump — in the voice of Corcoran — says if a former President (a Vice President is also a Constitutional Officer) has voluntarily returned documents to the Archives, there should be no leaks about it.

There have been public reports about an investigation by DOJ into Presidential Records purportedly marked as classified among materials that were once in the White House and unknowingly included among the boxes brought to Mar-a-Lago by the movers. It is important to emphasize that when a request was made for the documents by the National Archives and Records Administration (NARA), President Trump readily and voluntarily agreed to their transfer to NARA. The communications regarding the transfer of boxes to NARA were friendly, open, and straightforward. President Trump voluntarily ordered that the boxes be provided to NARA. No legal objection was asserted about the transfer. No concerns were raised about the contents of the boxes. It was a voluntary and open process. Unfortunately, the good faith demonstrated by President Trump was not matched once the boxes arrived at NARA. Leaks followed. And, once DOJ got involved, the leaks continued. Leaks about any investigation are concerning. Leaks about an investigation that involve the residence of a former President who is still active on the national political scene are particularly troubling.

So Trump, in the voice of Corcoran, should be outraged that CBS broke this story before the White House or Attorney General revealed it.

Corcoran says that those vested with constitutionally-based authority to classify and declassify documents have unfettered authority to declassify documents, an argument that Trump still pretends he hasn’t waived both before at least three courts, SDFL, the 11th Circuit, and SCOTUS.

(1) A President Has Absolute Authority To Declassify Documents.

Under the U.S. Constitution, the President is vested with the highest level of authority when it comes to the classification and declassification of documents. See U.S. Const., Art. II, § 2 (“The President [is] Commander in Chief of the Army and Navy of the United States[.]”). His constitutionally-based authority regarding the classification and declassification of documents is unfettered. See Navy v. Egan, 484 U.S. 518, 527 (1988) (“[The President’s] authority to classify and control access to information bearing on national security … flows primarily from this constitutional investment of power in the President and exists quite apart from any explicit congressional grant.”).

Now, in reality, the authority of the President is not entirely unfettered. As we discussed last fall, nuclear documents require additional people to declassify.

But here’s the thing: There’s good reason to believe that the Vice President has the same authority to declassify documents that the President does.

To the extent that classification is constitutionally tied to Article II authority, it is governed by Executive Order. The Executive Order that governed classification for the entirety of the Trump Administration, and still governs classification, treats the Vice President on par with the President. The EO that governs classified information gives the Vice President the same original classification authority it gives the President, which is where the authority to declassify comes from.

(a) The authority to classify information originally may be exercised only by:

(1) the President and the Vice President;

The language on post-tenure access (which Trump later invoked in arguments before the 11th Circuit) also applies to the Vice President in the same way as the President.

(a) The requirement in section 4.1(a)(3) of this order that access to classified information may be granted only to individuals who have a need-to-know the information may be waived for persons who:

[snip]

(3) served as President or Vice President.

(b) Waivers under this section may be granted only if the agency head or senior agency official of the originating agency:

(1) determines in writing that access is consistent with the interest of the national security;
(2) takes appropriate steps to protect classified information from unauthorized disclosure or compromise, and ensures that the information is safeguarded in a manner consistent with this order; and
(3) limits the access granted to former Presidential appointees or designees and Vice Presidential appointees or designees to items that the person originated, reviewed, signed, or received while serving as a Presidential or Vice Presidential appointee or designee.

Biden could access stuff from when he was Vice President, but he’d have to do so at the Archives and get a waiver first (a waiver that Biden had after his term but Trump, because of a decision by Biden, did not).

Now, to be clear, none of this has been tested. Much of this language is a legacy of changes in a prior EO that Dick Cheney oversaw in March 2003, which were key in the Valerie Plame investigation.

Some of that is covered in this post I did in 2017, in which I asserted that Mike Pence had declassification authority.

But the fact of the matter is that Joe Biden could say, if he were ever charged, that his understanding is that his authority to classify and declassify as Vice President was the same as the President’s, and over the entire four years of the Trump Administration, Trump did nothing with his unfettered authority to change that (nor has Biden since).

In reality, Trump didn’t declassify these documents, nor did Biden. Trump has now waived his opportunity to claim he declassified these documents legally repeatedly. (Biden could have legally declassified them when he found them; instead he returned them to the Archives.)

But there’s good reason to believe that Corcoran’s arguments about Trump — for the little they’re worth — would apply equally to Biden as to Trump, thanks, in part, to Dick Cheney.

How about them apples, huh?

By far the most interesting argument Corcoran makes, though, is that the statute that most Twitter experts think is at issue, 18 USC 1924, cannot apply to the President, because the President — like the Vice President — is not an “officer” appointed by the President.

(2) Presidential Actions Involving Classified Documents Are Not Subject To Criminal Sanction.

Any attempt to impose criminal liability on a President or former President that involves his actions with respect to documents marked classified would implicate grave constitutional separation-of-powers issues. Beyond that, the primary criminal statute that governs the unauthorized removal and retention of classified documents or material does not apply to the President. That statute provides, in pertinent part, as follows:

Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than five years, or both. 18 U.S.C. § 1924(a).

An element of this offense, which the government must prove beyond a reasonable doubt, is that the accused is “an officer, employee, contractor, or consultant of the United States.” The President is none of these. See Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 497-98 (2010) (citing U.S. Const., Art. II,§ 2, cl. 2) (“The people do not vote for the ‘Officers of the United States.”‘); see also Melcher v. Fed. Open Mkt. Comm., 644 F. Supp. 510, 518-19 (D.D.C. 1986), aff’d, 836 F.2d 561 (D.C. Cir. 1987) (“[a]n officer of the United States can only be appointed by the President, by and with the advice and consent of the Senate, or by a court of law, or the head of a department. A person who does not derive his position from one of these sources is not an officer of the United States in the sense of the Constitution.”). Thus, the statute does not apply to acts by a President. [my emphasis]

Corcoran made what could be a grave error with this legal analysis, which I’ll get to, but it’s not necessarily in his read about Constitutional officers.

In fact, DOJ seems to agree with Corcoran that Trump’s actions — taking classified documents home at the end of his term and keeping them — are not covered by this law. It was not among the crimes for which they had demonstrated probable cause on Trump’s search warrant affidavit.

It may be DOJ believes that because they agree with Corcoran, that Constitutional Officers who are elected directly by voters are not subject to this law.

It may also be that they believe that because it is routine for Presidents and Vice Presidents, when leaving office, to remove their papers from their official residences and offices and then sort through the stuff they have to send to the Archives. A CNN report describes that Biden, like Trump, didn’t wrap up his office until the last minute (though for different reasons — Trump didn’t because he was still trying to cling to power, whereas Biden didn’t because he was still working). The result was the same, though: the process was rushed and disorderly.

That is, it is possible that the removal of documents at the end of an Administration is not, per se, considered criminal because of how White Houses transition.

Whatever it is, there is nothing about the known fact set about Biden that would make this law apply to Biden if it did not with Trump. Both are believed to have retained stuff they took with them when they left their offices in a hurry.

If 18 USC 1924 cannot apply to Trump, like Evan Corcoran said, then it cannot apply to Biden.

I said, above, that Corcoran may have made a grave error in his analysis. That’s because he didn’t consider whether 18 USC 793, the law we know is under investigation, could apply to a former President (or Vice President). And that appears to have led him to give Trump really bad advice, allowing him to refuse to give back classified documents when asked.

That is a crime.

Taking classified documents unknowingly is probably not a crime, especially for a President or Vice President. Refusing to give them back may well be. That’s the question before Jack Smith, as well as the obstruction question. That’s probably the question before Robert Hur.

How about them apples, huh?

There’s one more interesting thing Corcoran said in his letter. He demanded that DOJ adhere to the White House contact policies that were routinely violated under the Trump Administration.

(3) DOJ Must Be Insulated From Political Influence. According to the Inspector General of DOJ, one of the top challenges facing the Department is the public perception that DOJ is influenced by politics. The report found that “[o]ne important strategy that can build public trust in the Department is to ensure adherence to policies and procedures designed to protect DOJ from accusations of political influence or partial application of the law.” See https://oig.justice.gov/reports/top-management-and-performance-challengesfacing-depatiment-justice-2021 (last visited May 25, 2022). We request that DOJ adhere to longstanding policies and procedures regarding communications between DOJ and the White House regarding pending investigative matters which are designed to prevent political influence in DOJ decision-making.

He’s not wrong that those contact policies should be upheld. And whatever else you think about Merrick Garland’s decision to appoint for John Lausch and then Robert Hur to investigate this, the necessity to uphold contact policies, to which Garland has (as far as is public) adhered to rigorously, is a really good reason to appoint a Special Counsel (and, for that matter, for the White House to be very reserved about its public comments). Trump’s favorite way of violating the contact policy was to Tweet something that would, fairly routinely, be followed almost immediately by DOJ taking action, including on criminal cases (most notably with Roger Stone’s).

Indeed, Biden’s people have said that one reason they have not issued more public comments was in an attempt to avoid even appearing to influence the process.

They should revert to that stance, in my opinion, and point to Evan Corcoran’s letter as authority to do so.

Evan Corcoran said a lot of things. He’s not a national security expert though, so if I were Biden, I wouldn’t rely on it.

But we should be able to rely on his argument that Trump doesn’t think that Biden should be charged, at least not with 18 USC 1924.


Kash Patel Wants the Insurrection Protection Committee to Investigate Why Robert Hur Tried to Protect Past Ongoing Investigations

Matt Taibbi (aka MattyDickPics) and Kash Patel are whining about the Nunes Memo again.

As you’ll recall, in the first year of the Trump Administration, Patel wrote a misleading memo for Devin Nunes purporting that the entire Russian investigation stemmed from the Steele dossier.  When the Carter Page IG Report and FISA applications were released, it became clear how Patel spun the facts. In this post I cataloged what both Nunes and Adam Schiff, in his counterpart to the Nunes memo, got wrong.

But it’s not the Nunes Memo itself that Taibbi and Patel are whining about. They’re complaining about the circumstances of its release five years ago.

Taibbi made it the subject of his latest Twitter Files propaganda thread and related Substack — the latter of which, astoundingly, says the public has to rely on the attributions of cloud companies, something Taibbi has always refused to do when discussing the GRU attribution of the 2016 hacks targeting Democratic targets. “It’s over, you nitwits. It’s time to stow the Mueller votive candles, cop to the coverage pileup created by years of errors, and start the reconciliation process,” Taibbi says, in appealing to precisely the kind of evidence he himself has refused to credit for more than six years. I dealt with both in this thread, but the important takeaway is that Taibbi doesn’t even manage to get facts that both the Daily Beast and I were able to cover in real time, including the fact that Republicans, too, were making unsupported claims based on the Dashboard’s reporting and Russian trolls were part of — just not the biggest part — of the campaign.

[A] knowledgeable source says that Twitter’s internal analysis has thus far found that authentic American accounts, and not Russian imposters or automated bots, are driving #ReleaseTheMemo. There are no preliminary indications that the Twitter activity either driving the hashtag or engaging with it is either predominantly Russian.

In short, according to this source, who would not speak to The Daily Beast for attribution, the retweets are coming from inside the country.

The source pointed to influential American users on the right, including Donald Trump Jr., with his 2.49 million followers, pushing the hashtag forward. It’s become a favorite of far-right Republican congressmen, including Steve King, who claimed the still-secret memo shows the FBI was behaving “worse than Watergate” in one viral tweet. Mark Meadows called it an “absolutely shocking” display of “FISA abuses,” referring to a counterintelligence process.

Rules of Engagement

There are reasons for skepticism about both the source’s claim and Alliance for Securing Democracy’s contrary findings.

Russian influence accounts did, in fact, send an outsize number of tweets about #ReleaseTheMemo—simply not enough for those accounts to reach the top of Twitter’s internal analysis.

Meanwhile, Kash Patel is outraged that Merrick Garland picked Robert Hur as Special Counsel to investigate Biden’s mishandling of classified documents because, when and after serving as a top aide to Rod Rosenstein in the early days of the Russian investigation, he opposed release of the memo.

This guy Hur needs to be the first one subpoenaed by the new Special Select Committee under Jim Jordan’s authority on the weaponization of government and do you want to know why? Because Hur — we have the receipts, Steve, and we’re going to release them later — was sending communications to the Justice Department and Rod Rosenstein’s crew arguing against the release of the Nunes memo. Saying that it would bastardize and destroy the United States national security apparatus. This guy is a swamp monster of the Tier One level, he’s a government gangster, he’s now in charge of the continued crime scene cover-up, which is why the first congressional subpoena that has to go out for the weaponization of government subcommittee is against Hur.

Remember, this committee was modified during the period when key insurrectionists were refusing to vote for Kevin McCarthy to include language authorizing the committee to investigate why the Executive Branch is permitted to conduct criminal investigations of US citizens.

the expansive role of article II authority vested in the executive branch to collect information on or otherwise investigate citizens of the United States, including ongoing criminal investigations;

It may be the intent to interfere in ongoing investigations into people like Scott Perry and Paul Gosar (who changed their votes on McCarthy later in the week, as these changes were being made) and Jordan (who will have great leeway to direct the direction of this committee). But Jordan may be surprised when he discovers that Merrick Garland will enforce the long-standing DOJ policies about providing Congress access to ongoing investigations that Jeff Sessions and Matt Whitaker and Bill Barr did not. Indeed, some precedents from the Russia investigation legally prohibit the sharing of this information with Congress.

But Kash’s complaint (back atcha with the rap gangsta alliteration, Kash!) is a bellybutton moment in which he attempts to villainize Hur’s past commitment to those long-standing DOJ (and intelligence community, including the NSA that conduct much FISA surveillance) policies. Consider the things the memo revealed, many of which had never before been released publicly.

  • Details about the dates and approvals for four FISA orders
  • Financial details involving private individuals, including US citizens
  • Contents of the FISA memo (but not their true context)
  • A reference to a Mike Isikoff article that appeared in the Carter Page applications; Kash was outraged when his own public article was included in the warrant affidavit targeting Trump
  • Details from a Confidential Human Source file
  • Misrepresentations about both Bruce Ohr and his spouse, the latter of whom was a private citizen whose work was shared with the FBI as part of the effort to vet the dossier
  • Direct communications with the President-elect the likes of which Trump claimed were covered by Executive Privilege in the Mueller investigation
  • False claims about the texts between Peter Strzok and Lisa Page that are currently the subject of two Privacy Act lawsuits; even aside from the privacy implications, at the time it was virtually unprecedented for texts between FBI officials to be released, even in criminal discovery (and many of these released, including some misrepresented in the memo, pertained to work matters unrelated to the Russian investigation)

In other words, Kash Patel wants to investigate Hur’s comments, made either at the time he was the key overseer of the Mueller investigation or during a transition period as he awaited confirmation to be US Attorney, advocating that DOJ protect informants, FISA materials, details about private citizens, and work texts between FBI officials.

The very first thing Kash wants the Insurrection Protection Committee to investigate is why, five years ago, a senior DOJ official advocated following long-standing DOJ policy.


House January 6 Committee: Introductory Material to the Final Report

[NB: check the byline, thanks. /~Rayne]

This is a working post and thread dedicated to the introductory material of the final report prepared by the House Select Committee to Investigate the January 6th Attack on the United States Capitol.

Under the terms of its authorization, the House January 6 committee’s 18-month investigation into the attack on the U.S. Capitol must culminate in a report, specifically:

… issue a final report to the House containing such findings, conclusions, and recommendations for corrective measures described in subsection (c) as it may deem necessary. …

The report is not yet complete; after it has been submitted the committee will disband within 30 days.

More content will follow here shortly.

~ ~ ~

Please take all unrelated content to one of the most recent threads related to Twitter.


Matty Taibbi’s Dick Pics

Apparently, Elon Musk decided that the best person to disclose what he promised would show, “what really happened with the Hunter Biden story suppression by Twitter” was Matt Taibbi, someone who — by his own admission (an admission on which he has apparently flip-flopped) — apologized for Russia’s invasion of Ukraine because he was, “so fixated on Western misbehavior that I didn’t bother to take [the] possibility [of Russian invasion] seriously enough.”

Reverse chauvinism, Taibbi called it.

Taibbi’s own apologies for Russia didn’t just start with the Russian imperialism and war crimes, however.

He was long a critic of what he called “RussiaGate” based on the tried and true tactic of treating the Steele dossier and Alfa Bank allegations — and not the legal verdicts that confirmed Trump’s National Security Advisor, campaign manager, Coffee Boy, personal lawyer, and rat-fucker all lied to hide the true nature of their Russian ties — as the primary substance of the case. Taibbi scolded others about shoddy reporting even while he adhered to the Single Server fallacy that not only assumed all the hacked material came from just one server, but ignored the hack of Amazon Web Services content and abundant other evidence attributing the hacks to Russia from other cloud companies. Then there was the time Taibbi tried to smack down on claims that Maria Butina used sex to entice targets, in which he made error after error, all without allowing his false claims to be disrupted by consulting the actual primary sources.

That’s the guy Elmo decided would be a credible voice to tell us what happened with the “Hunter Biden” “laptop” story.

That matters because, as Andy Stepanian explained last night, Twitter had advance warning of a Russian information operation targeting Hunter Biden during the summer of 2020, months before the release of the “Hunter Biden” “laptop.”

Matt Taibbi is either woefully misinformed about this or cynically lying. How do I know? Because I attended two meetings with Twitter representatives in July and August 2020 wherein the Hunter Biden story was discussed within the larger framework of election integrity.

Matt Taibbi’s analysis has myriad problems but the biggest problem is his failure to underscore what initially prompted twitter staff to designate the content in the Post story as “stolen” or “hacked” material. This came from conversations with law enforcement in summer of 2020.

During the election integrity meetings I was present for little was known about how the material would eventually be published. I recall one spokesperson suggesting the Hunter Biden content may publish via “something like wordpress” or “wikileaks-styled” website.

This is the contact with FBI that Twitter and Facebook had about Hunter Biden in 2020, not any immediate response to the Post story. It’s almost certainly what Mark Zuckerberg was referring to in a Joe Rogan interview that has been misrepresented in the aftermath.

Taibbi, the self-described reverse chauvinist, describes any Hunter Biden-specific warnings as general — mentioning neither Hunter Biden nor Russia — and omits the timing.

Perhaps Elmo didn’t give Taibbi this important earlier context. Perhaps it’s Elmo’s fault that his hand-picked Russian apologist left out the specific details of the warning — that they included Hunter Biden and preceded the NYPost story by months — that are necessary context to the stupid decisions Twitter made. But the silence about those details is anything but “what really happened.”

And note Taibbi’s conclusion: There was no government involvement in the laptop story.

Assuming Taibbi were a credible reporter, that should end it. Game over.

Stupid moderation decisions, but not stupid moderation decisions done as a result of pressure from the government.

Taibbi has debunked the conspiracy theory the frothy right has been chasing for months.

Curiously, Taibbi concludes there was no government interference in the story even while he showed proof of a government surrogate pressuring Twitter about its (stupid) moderation decisions on the laptop story.

Taibbi was so deep in his conspiracy theories he didn’t realize that that — a surrogate of the sitting President demanding that Twitter give his campaign advance notice of their content moderation decisions — is closer to a First Amendment violation than suppressing the Post story, no matter how stupid Twitter’s decision was. To be clear: it’s not a First Amendment violation, but kudos to Taibbi for getting closer than all the frothy Republicans have to finding proof of inappropriate pressure.

It came from Trump.

In fact, Taibbi admits that Twitter was honoring requests from the White House, as well as the private entity of the Joe Biden campaign, for takedowns using the content moderation tools.

Taibbi claims that he’s concerned about First Amendment implications of the government pressuring Twitter about content. And then … he ignores the evidence he presents about (what is probably shorthand for) the Trump White House pressuring Twitter about content. Let’s see those specifics, Matty!

Or rather he excuses it, using the old charade of campaign donations which show what a small portion of Twitter employees spend.

And Taibbi’s other claims of bias are just as problematic. In one Tweet, Tweet 30, Taibbi claims that Ro Khanna was the only Democratic official he could find that expressed concern about the Post takedown.

Three Tweets later, Tweet 33, Taibbi describes an emailed report from a research firm polling the response of congressional offices, including Democrat Judy Chu’s, describing that both Democrats, plural, and Republicans “were angry,” which sure seems like Taibbi missed at least one Democrat besides Khanna expressing concern.

Ro Khanna, incidentally, was the leading recipient of donations from Twitter employees in 2022, almost 10% of the total, so to the extent Twitter employees disproportionately donate to Democrats, they’re funding Taibbi’s chosen voice of the First Amendment problems with Twitter’s decision.

The most telling part of Taibbi’s screed, however, is his complaint that when private entity “the Biden team” asked for some take-downs, Twitter obliged.

What Taibbi is complaining about is the way in which Twitter, the entity, always proved most responsive to high level requests.

He seems to think that damns pre-Elmo Twitter, when if anything, Elmo’s moderation decisions have far more dramatically reflected the whims of those with personal access, starting with Andy Ngo, who has personally gotten a bunch of anti-fascists banned from Twitter. If you have a problem with arbitrary, personalized moderation decisions, Elmo is the last guy you should be fronting for.

But there’s an even bigger problem with Taibbi’s smoking gun, the primary evidence he presents that the Biden crowd got special treatment of any kind.

As numerous people have laid out — most notably Free Beacon reporter Andrew Kerr — a number of these takedown requests were of dick pics and other personal porn, a celebrity kind of revenge porn. Others were of Hunter Biden smoking crack — at least a violation of law. But none so far identified pertain to allegations of influence peddling.

Tabbi’s smoking gun amounts to takedown requests of stolen dick pics, precisely the kind of thing that content moderation should be responsive to.

“Handled,” Elmo responded with glee about proof that his predecessors had seen fit to remove leaked porn and dick pics.

That Matty Taibbi, of all people!, would shift subjects, after debunking the conspiracy theory of government pressure that started all this, to dick pics is fairly stunning. That’s because Taibbi is famously thin-skinned when people on Twitter talk about his own — unlike the Hunter Biden pictures, voluntarily exposed — dick exploits from when he lived in Russia. Every time someone on Twitter discusses what a misogynist slime Taibbi was in his Moscow days, he, suspected sock-puppets, and a few persistent Taibbi defenders show up to complain that people on Twitter are talking about what Taibbi did with his dick while under the influence overseas (or to claim it was all, even the misogynistic language, make-believe).

Taibbi was always a poor choice for an exposé based on primary sources.

But Taibbi is a particularly bad surrogate for Elmo to pick to complain about the takedowns of stolen dick pics.

Yet that, in episode one of what Elmo and Taibbi promise will be a series, is the best they’ve got.

“Handled.”

Update: Matty Dick Pics wouldn’t tell his subscribers what conditions he had to agree to to peddle Elmo’s complaints about dick pics.

What I can say is that in exchange for the opportunity to cover a unique and explosive story, I had to agree to certain conditions.

Update: Tim Miller shreds the whole fiasco.

While normal humans who denied Republicans their red wave were enjoying an epic sports weekend, an insular community of MAGA activists and online contrarians led by the world’s richest man (for now) were getting riled up about a cache of leaked emails revealing that the former actor James Woods and Chinese troll accounts were not allowed to post ill-gotten photos of Hunter Biden’s hog on a private company’s microblogging platform 25 months ago.

Now if you are one of the normals—someone who would never think about posting another person’s penis on your social media account; has no desire to see politicians’ kids’ penises when scrolling social media; doesn’t understand why there are other people out there who care one way or another about the moderation policies surrounding stolen penis photos; or can’t even figure out what it is that I’m talking about—then this might seem like a gratuitous matter for an article. Sadly, it is not.

Because among Republican members of Congress, leading conservative media commentators, contrarian substackers, conservative tech bros, and friends of Donald Trump, the ability to post Hunter Biden’s cock shots on Twitter is the number-one issue in America this weekend. They believe that if they are not allowed to post porno, our constitutional republic may be in jeopardy.

I truly, truly wish I were joking.

[snip]

Right-wing commentator Buck Sexton (real name), said this was a “bright red line violation” and that Biden should be IMPEACHED for it. Rep. James Comer (R-TN) was on Fox promising that everyone at Twitter involved with this would be brought before the House Oversight committee. Rep. Billy Long retweeted several MAGA influencers praising Elon for, among other things, “exposing corruption at the highest levels of society” (Projection Alert). Meanwhile Kari Lake hype man Pizzagate Jack Posobiec declared this the “biggest story in modern presidential election history,” claimed that “we can never go back to the country we were before this moment,” and donned this “a digital insurrection.”

In reality, all they really had was a digital erection.

Copyright © 2023 emptywheel. All rights reserved.
Originally Posted @ https://www.emptywheel.net/2016-presidential-election/