Is Bill Barr Already Feeding Sidney Powell So-Called Evidence Trump Coerces?

The WaPo confirms what was becoming obvious: The Attorney General of the United States is spending his days flying around the world collecting claims that Trump has coerced from foreign governments. It reports that Barr has already had conversations similar to those Trump seeded with Ukraine with the UK, Italy, and Australia.

Barr has already made overtures to British intelligence officials, and last week the attorney general traveled to Italy, where he and Durham met senior Italian government officials and Barr asked the Italians to assist Durham, according to one person familiar with the matter, who spoke on the condition of anonymity to discuss a sensitive issue. It was not Barr’s first trip to Italy to meet intelligence officials, the person said. The Trump administration has made similar requests of Australia, said people who discussed the interactions on the condition of anonymity because they involve an ongoing investigation and sensitive talks between governments.

In a recent phone call, Trump urged Australian Prime Minister Scott Morrison to provide assistance to the ongoing Justice Department inquiry, the people said. Trump made the request at Barr’s urging, they said.

I raise all this because of something Sidney Powell said on September 10. At the status hearing for her client, Mike Flynn, she said that they had a letter from the British Embassy that “undoes the whole Steele dossier debacle.”

It was an interesting claim for several reasons. Most notably, the only references to Powell’s client in the Steele dossier simply repeat public claims about Flynn’s paid trip to an RT gala in 2015. That is, it’s totally irrelevant to the question of Flynn’s guilt on the charges he pled to or even the counterintelligence investigation into her client. Even if DOJ had such a record, it’d not be discoverable under Brady.

But Powell seemed to be saying she had the letter.

That raises the possibility that Bill Barr is not — as he claims — collecting “evidence” for a John Durham investigation into the start of the Russian investigation, but is instead (or also) collecting evidence he can share with those prosecuted by Mueller to help them undermine their guilty pleas and or convictions (which would raise interesting questions about Roger Stone’s focus on Crowdstrike, given that’s included in Trump’s list of propaganda he wants to extort from foreign countries).

Mind you, Powell could be lying or unclear about this document–she has been caught in both multiple times so far before Emmet Sullivan. But this claim — which was surprising to me at the time — raises real questions about whether Barr is using coerced evidence to undermine his own DOJ.

Update: I think I have the timing of this letter wrong. I think it was sent under Obama, not recently. 

Bill Barr’s OLC Treated His Implication in the Whistleblower Complaint as Top Secret

Because I was on my epic road trip with June Bug the Terrorist Foster Dog, I’m just now reading some of the documents underlying the whistleblower complaint closely. Doing so makes it clear that Bill Barr’s DOJ (specifically, the Office of Legal Counsel) treated his implication by the whistleblower as Top Secret, even though the White House considered the fact only Secret.

This post relies on these documents:

  • The TELCON of the Trump-Zelensky call, treated throughout as Secret/NoForn
  • The unclassified whistleblower complaint with classified appendix, the latter of which has one paragraph marked Top Secret, one redacted, and other paragraphs marked Secret
  • ICIG Michael Atkinson’s letter to Director of National Intelligence Joseph Maguire; the letter itself, four paragraphs, and one footnote are marked Top Secret and something redacted (probably NOFORN), with a longer classification mark as a whole
  • The first version of the OLC memo dated September 3 deeming this not urgent; the memo itself, eight paragraphs of it, and three footnotes are marked Top Secret and something redacted (probably NOFORN), with a longer classification mark as a whole
  • The official version of the OLC memo dated September 3 currently available on DOJ’s website; it explains that after the underlying documents were declassified, it was released as an unclassified memo
  • A September 24 version of the OLC memo, described in the currently official September 3 one as an “unclassified version”

Here’s the editor’s note that describes why there are three versions of the OLC memo:

Editor’s Note: This memorandum was originally issued in classified form on September 3, 2019. An unclassified version was signed on September 24, 2019, and publicly released in slip-opinion form on September 25, 2019. That unclassified version avoided references to certain details that remained classified at the time it was signed. After the underlying documents were themselves declassified, the September 3 memorandum was declassified in its entirety and publicly released on September 26, 2019.

That suggests we can compare either September 3 version of the OLC memo with the September 24 one to identify what OLC itself (the name of the person who classified the memo is classified) claimed to be classified on September 3.

The ICIG letter makes clear that Atkinson had not yet read the TELCON when he wrote his letter. The whistleblower letter doesn’t say whether or not he read the TELCON (I’m using “he” to refer to the whistleblower because that’s the pronoun the NYT used). He explains that he believes all classified information in the letter is in his enclosure. He also reiterates that marking the information included in his unclassified letter with classification marks would,

violate EO 13526, Part I, Section 1.7, which states: “In no case shall information be classified, continue to be maintained as classified, or fail to be declassified in order to: (1) conceal violations of law, inefficiency, or administrative error; [or] (2) prevent embarrassment to a person, organization, or agency.”

Among the information the whistleblower included in his unclassified letter is that Trump:

[S]ought to pressure the Ukrainian leader to take actions to help the President’s 2020 reelection bid. According to the White House officials who had direct knowledge of the call, the President pressured Mr. Zelenskyy to, inter alia:

  • initiate or continue an investigation into the activities of former Vice President Joseph Biden and his son, Hunter Biden;
  • assist in purportedly uncovering that allegations of Russian interference in the 2016 U.S. presidential election originated in Ukraine, with a specific request that the Ukrainian leader locate and turn over servers used by the Democratic National Committee (DNC) and examined by the U.S. cyber security firm Crowdstrike, which initially reported that Russian hackers had penetrated the DNC’s networks in 2016; and
  • meet or speak with two people the President named explicitly as his personal envoys on these matters, Mr. Giuliani and Attorney General Barr, to whom the President referred multiple times in tandem.

The ICIG letter marks the paragraph describing that part of the complaint as Top Secret, though it doesn’t include the specific allegations naming Rudy and Barr, It describes the gist of the complaint this way:

Here, the Complainant’s Letter alleged, among other things, that the President of the United States, in a telephone call with Ukrainian Volodymyr Zelenskyy on July 25, 2019, “sought to pressure the Ukrainian leader to take actions to help the President’s 2020 reelection bid.”

But DOJ did see the TELCON of the call. Therefore, they would have known that the White House — the original classification authority for the content of the call — had deemed the entire thing Secret/NOFORN. Nothing in it was deemed Top Secret.

Among the things removed from paragraphs marked Top Secret in the September 24 memo are:

  • The date of the call
  • Zelenskyy’s identity and country
  • Approximately a dozen officials had listened in
  • A description of Trump pressuring Zelenskyy
  • The reference to election assistance
  • The citations to the ICIG letter
  • The references to Rudy and Barr
  • The ICIG deemed the complaint credible but did not conduct legal analysis on whether this was solicitation of a campaign contribution
  • OMB had cut off security assistance to Ukraine*
  • White House officials had moved the TELCON to the covert server*

The whistleblower treated the placement of the TELCON onto the covert server as Top Secret and the OMB detail as Secret, since neither of those appear in the TELCON marked Secret those are both properly treated by OLC as classified (though OLC bumped up the OMB detail to Top Secret).

But given that OLC took this language out of a paragraph that it marked Top Secret for its unclassified version, it must be treating this information as Top Secret.

The complainant alleged that he or she had heard reports from White House officials that in the course of a routine diplomatic communication between President Trump and Ukrainian President Volodymyr Zelenskyy, President Trump had “sought to pressure the Ukrainian leader to take actions to help the President’s 2020 reelection bid.” ICIG Letter at 3 (quoting the complainant’s letter). Specifically, the complainant allegedly heard that the President had requested that the Ukrainian government investigate the activities of one of the President’s potential political rivals, former Vice President Joseph Biden, and his son, Hunter Biden. The complainant also allegedly heard that the President had requested Ukrainian assistance in investigating whether Russian interference in the 2016 U.S. presidential election originated in Ukraine, and that Ukrainian investigators meet with the President’s personal lawyer, Rudolph Giuliani, as well as Attorney General William Barr regarding these matters.

In other words, DOJ, after having reviewed a White House document that treated this information as Secret, instead bumped up the classification of it to Top Secret, including the detail that the Attorney General himself was implicated in the attempt to frame the President’s opponents.

It’s not just the White House that was abusing the classification system in an attempt to cover up what really happened here. It was also DOJ.

The CIA Affiliation of the Whistleblower Isn’t the Key, It’s CIA General Counsel’s Role in a Cover-Up

The second paragraph of the NYT story that identified that the Ukraine whistleblower as a CIA employee describes the CIA’s General Counsel, Courtney Simmons Elwood, telling first the White House and then DOJ about the complaint.

The officer first shared information about potential abuse of power and a White House cover-up with the C.I.A.’s top lawyer through an anonymous process, some of the people said. The lawyer shared the officer’s concerns with White House and Justice Department officials, following policy.

Starting on paragraph 15, the NYT provides more details about how and why Elwood responded to a whistleblower complaint by running to the people who were implicated by it (and note, it says this was proper, as it may well have been — I’m not saying Elwood has legal exposure here).

The week after the call, the officer delivered a somewhat broad accusation anonymously to the C.I.A.’s general counsel, Courtney Simmons Elwood, according to multiple people familiar with the events. The initial allegations reported only that serious questions existed about a phone call between Mr. Trump and a foreign leader.

As required by government policy, Ms. Elwood had to assess whether a “reasonable basis” for the accusation existed. During the preliminary inquiry, Ms. Elwood and a career C.I.A. lawyer learned that multiple people had raised concerns about Mr. Trump’s call.

Ms. Elwood also called John A. Eisenberg, a deputy White House counsel and her counterpart at the National Security Council, according to three people familiar with the matter. He was already aware of vague concerns about the call.

Ms. Elwood, Mr. Eisenberg and their deputies spoke multiple times the following week. They decided that the accusations had a reasonable basis.

Mr. Eisenberg and Ms. Elwood both spoke on Aug. 14 to John Demers, the head of the Justice Department’s national security division, according to three people familiar with the discussion. Ms. Elwood did not pass on the name of the C.I.A. officer, which she did not know because his concerns were submitted anonymously.

The next day, Mr. Demers went to the White House to read the transcript of the call and assess whether to alert other senior law enforcement officials. The deputy attorney general, Jeffrey A. Rosen, and Brian A. Benczkowski, the head of the department’s criminal division, were soon looped in, according to two administration officials.

Department officials began to discuss the accusations and whether and how to follow up, and Attorney General William P. Barr learned of the allegations around that time, according to a person familiar with the matter.

A CNN story provided the detail that NYT (and AP) missed: when and how Barr learned he was implicated personally.

Demers went to the White House to review the transcript of the call on August 15. His office then alerted other senior Justice officials that Barr was mentioned on the call.

Since they NYT story came out, a lot of people have attacked it for revealing where the whistleblower worked. Dean Baquet claimed they did so to lend credibility to the story, a thoroughly ridiculous explanation (especially in the wake of the transcript release, which made it clear the complaint was corroborated by the White House’s own record of the call).

What is, instead, the important detail is that everything Elwood did in the wake of receiving the report, whether intentionally or not, not only served a cover-up, but also put the whistleblower at heightened risk. We may not know the ID of the whistleblower, but the White House, which now includes all the former Devin Nunes aides who were so critical to blowing up the Russian investigation in 2017, would have been able to identify who was seconded to the White House as soon as Elwood brought the complaint to the White House. And Elwood is, in significant part, responsible for that. So it’s not the whistleblower’s affiliation, but Elwood’s, that’s important, and Elwood’s alone identifies where the whistleblower works (and did, for the White House, over a month ago).

The really important part of this story — which is clarified when adding the CNN detail that Demers and Brian Benczkowski and Jeffrey Rosen knew their boss was directly implicated when they decided to scope the prosecutorial analysis very narrowly, completely ignoring the kind of quid pro quo that the Constitution explicitly names as a reason to impeach the President — is that those implicated had the opportunity to cover-up the investigation even before the whistleblower filed his formal complaint. And once he did that, DOJ did things (may have felt forced to) that tried to further suppress their earlier decisions, most notably by getting an OLC opinion that ruled the proper resolution of the complaint — which OLC deemed not to be urgent because it ignored that Bill Barr, the State Department, and those who hid the communications on the covert server were also implicated, and by association Barr’s efforts to feed intelligence into John Durham’s investigation — was to have people at FBI reporting to Bill Barr investigate. Whether the implication of those others makes this an IC complaint (the most obvious way it does is in the abuse of classification authority to hide the transcript) is a matter requiring analysis, analysis that Bill Barr’s direct report, Steven Engel, did not do.

And that’s the point (or should have been): The NYT named a number the people who may be involved in this cover-up: John Eisenberg, John Demers, Brian Benczkowski, Jeffrey Rosen, and CIA General Counsel Courtney Simmons Elwood. Elwood is the one who first approached the problem in such a way that a cover-up would be possible.

Yes, by relaying that detail, the NYT told all of us that the whistleblower is a CIA employee. But the people involved in the cover-up, and the firebreathers at NSC, already knew that.

[Some of] Where Trump Wants to Go with the Server in Ukraine Story

As I emphasized in this post, before Trump pushed Volodymyr Zelensky to frame Hunter Biden, he first pressed Ukraine’s president to “get to the bottom” of the “what happened with this whole situation with Ukraine.”

The President: I would like you to do us a favor though because our country has been through a lot and Ukraine knows a lot about it. I would like you to find out what happened with this whole situation with Ukraine, they say Crowdstrike … I guess you have one of your wealthy people… The server, they say Ukraine has it. There are a lot of things that went on, the whole situation. I think you are surrounding yourself with some of the same people. I would like to have the Attorney General call you or your people and I would like you to get to the bottom of it. As you saw yesterday, that whole nonsense ended with a very poor performance by a man named Robert Mueller, an incompetent performance, but they say a lot of it started with Ukraine. Whatever you can do, it’s very important that you do it if that’s possible.

Contrary to virtually all the coverage on this, there is reason to believe that Bill Barr can get information from Ukraine that will feed the disinformation about the Russian operation. Trump has obviously been told — and not just by Rudy Giuliani (as Tom Bossert believes) — to ask for this, but some of this is probably part of the disinformation that Russia built in to the operation.

Rudy Giuliani wants to frame Alexandra Chalupa

This morning, Rudy Giuliani explained that he wants to know who in Ukraine provided information damning to Trump during the 2016 campaign.

GIULIANI: I have never peddled it. Have you ever hear me talk about Crowdstrike? I’ve never peddled it. Tom Bossert doesn’t know what he’s talking about. I have never engaged in any theory that the Ukrainians did the hacking. In fact, when this was first presented to me, I pretty clearly understood the Ukrainians didn’t do the hacking, but that doesn’t mean Ukraine didn’t do anything, and this is where Bossert…

STEPHANOPOULOS: So, why does the president keep repeating it?

GIULIANI: Let’s get on to the point…

STEPHANOPOULOS: Well, this was in the phone call.

GIULIANI: I agree with Bossert on one thing, it’s clear: there’s no evidence the Ukrainians did it. I never pursued any evidence and he’s created a red herring. What the president is talking about is, however, there is a load of evidence that the Ukrainians created false information, that they were asked by the Obama White House to do it in January of 2016, information he’s never bothered to go read. There are affidavits that have been out there for five months that none of you have listened to about how there’s a Ukrainian court finding that a particular individual illegally gave the Clinton campaign information. No one wants to investigate that. Nobody cared about it. It’s a court opinion in the Ukraine. The Ukrainians came to me. I didn’t go to them. The Ukrainians came to me and said…

STEPHANOPOULOS: When did they first come to you?

GIULIANI: November of 2016, they first came to me. And they said, we have shocking evidence that the collusion that they claim happened in Russia, which didn’t happen, happened in the Ukraine, and it happened with Hillary Clinton. George Soros was behind it. George Soros’ company was funding it.

This is an effort to frame Alexandra Chalupa, who while working as a DNC consultant in 2016 raised alarms about Paul Manafort. This is an effort that Trump has pursued since 2017 in part with a story first floated to (!!) Ken Vogel, an effort that key propagandist John Solomon was pursuing in May. Remember, too, that Chalupa was hacked separately in 2016, and believed she was being followed.

Peter Smith’s operation may have asked for help from a hacker in Ukraine

But per the transcript, this is not about Rudy, it’s about Barr. And even leaving Rudy’s antics aside, there is more that Trump may be after.

First, a fairly minor point, but possibly important. According to Charles Johnson, he advised Peter Smith to reach out to Weev for help finding Hillary’s deleted emails.

Johnson said he also suggested that Smith get in touch with Andrew Auernheimer, a hacker who goes by the alias “Weev” and has collaborated with Johnson in the past. Auernheimer—who was released from federal prison in 2014 after having a conviction for fraud and hacking offenses vacated and subsequently moved to Ukraine—declined to say whether Smith contacted him, citing conditions of his employment that bar him from speaking to the press.

At the time (and still, as far as I know), Weev was living in Ukraine. The Mueller Report says that his investigators never found evidence that Smith or Barbara Ledeen (or Erik Prince or Mike Flynn, who were also key players in this effort) ever contacted Russian hackers.

Smith drafted multiple emails stating or intimating that he was in contact with Russian hackers. For example, in one such email, Smith claimed that, in August 2016, KLS Research had organized meetings with parties who had access to the deleted Clinton emails, including parties with “ties and affiliations to Russia.”286 The investigation did not identify evidence that any such meetings occurred. Associates and security experts who worked with Smith on the initiative did not believe that Smith was in contact with Russian hackers and were aware of no such connection.287 The investigation did not establish that Smith was in contact with Russian hackers or that Smith, Ledeen, or other individuals in touch with the Trump Campaign ultimately obtained the deleted Clinton emails.

Weev is a hacker, but not Russian. So if Smith had reached out to Weev — and if Weev had given him any reason for optimism in finding the emails or even the alleged emails that Ledeen obtained — it might explain why Trump would believe there was information in Ukraine that would help him.

CrowdStrike once claimed its certainty on Russian attribution related to a problematic report on Ukraine

But that’s not the CrowdStrike tie.

At least part of the CrowdStrike tie — and what Zelensky actually could feed to Trump — pertains to a report they did in December 2016. They concluded that one of the same tools that was used in the DNC hack had been covertly distributed to Ukrainian artillery units, which (CrowdStrike claimed) led to catastrophic losses in the Ukranian armed forces. When the report came out — amid the December 2016 frenzy as President Obama tried to figure out what to do with Russia given the Trump win — CrowdStrike co-founder Dmitri Alperovitch pitched it as further proof that GRU had hacked the DNC. In other words, according to CrowdStrike, their high confidence on the DNC attribution was tied to their analysis of the Ukrainian malware.

In a now deleted post, infosec researcher Jeffrey Carr raised several problems with the CrowdStrike report. He correctly noted that CrowdStrike vastly overstated the losses to the Ukranian troops, which both an outside analyst and then the Ukranian Defense Ministry corrected. CrowdStrike has since updated its report, correcting the claim about Ukrainian losses, but standing by its analysis that GRU planted this malware as a way to target Ukrainian troops.

Carr also claimed to know of two instances — one, another security company, and the other, a Ukrainian hacker — where the tool was found in the wild.

Crowdstrike, along with FireEye and other cybersecurity companies, have long propagated the claim that Fancy Bear and all of its affiliated monikers (APT28, Sednit, Sofacy, Strontium, Tsar Team, Pawn Storm, etc.) were the exclusive developers and users of X-Agent. We now know that is false.

ESET was able to obtain the complete source code for X-Agent (aka Xagent) for the Linux OS with a compilation date of July 2015. [5]

A hacker known as RUH8 aka Sean Townsend with the Ukrainian Cyber Alliance has informed me that he has also obtained the source code for X-Agent Linux. [11]

Carr argued that since CrowdStrike’s attribution of the DNC hack assumed that only GRU had access to that tool, their attribution claim could no longer be trusted. At the time I deemed Carr’s objections to be worthwhile, but not fatal for the CrowdStrike claim. It was, however, damning for CrowdStrike’s public crowing about attribution of the DNC hack.

Since that time, the denialist crowd has elaborated on theories about CrowdStrike, which BuzzFeed gets just parts of here. Something that will be very critical moving forward but which BuzzFeed did not include, is that the president of CrowdStrike, Shawn Henry, is the guy who (while he was still at FBI) ran the FBI informant who infiltrated Anonymous, Sabu. Because the FBI reportedly permitted Sabu to direct Antisec to hack other countries as a false flag, the denialist theory goes, Henry and CrowdStrike must be willing to launch false flags for their existing clients. [See update below, which makes it clear FBI did not direct this.] The reason I say this will be important going forward is that these events are likely being reexamined as we speak in the grand jury that has subpoenaed both Chelsea Manning and Jeremy Hammond.

So Trump has an incentive to damage not just CrowdStrike’s 2016 reports on GRU, but also CrowdStrike generally. In 2017, Ukraine wanted to rebut the CrowdStrike claim because it made it look bad to Ukranian citizens. But if Trump gives Zelensky reason to revisit the issue, they might up the ante, and claim that CrowdStrike’s claims did damage to Ukraine.

I also suspect Trump may have been cued to push the theory that the GRU tool in question may, indeed, have been readily available and could have been used against the DNC by someone else, perhaps trying to frame Russia.

As I’ve noted, the GRU indictment and Mueller Report list 30 other named sources of evidence implicating the GRU in the hack. That list doesn’t include Dutch hackers at AIVD, which provided information (presumably to the Intelligence Community generally, including the FBI). And it doesn’t include NSA, which Bossert suggested today attributed the hack without anything from CrowdStrike. In other words, undermining the CrowdStrike claims would do nothing to undermine the overall attribution to Russia (though it could be useful for Stone if it came out before his November 5 trial, as the four warrants tied to his false statements relied on CrowdStrike). But it would certainly feed the disinformation effort that has already focused on CrowdStrike.

That’s just part of what Trump is after.

Update: Dell Cameron, who’s one of the experts on this topic, says that public accounts significantly overstate how closely Sabu was being handled at this time. Nevertheless, the perception that FBI (and Henry) encouraged Sabu’s attacks is out there and forms a basis for the claim that CrowdStrike would engage in a false flag attack. Here’s the chatlog showing some of this activity. Hammond got to the Brazilian target by himself.

Bill Barr’s (Claimed) Surprise about Being in the Zelensky Transcript Is Irrelevant To His (Non) Recusal

Bill Barr continues to excel at placing carefully worded self-exonerations in the press. Consider this AP story, purportedly telling how helpless little Billy Barr has been put in an uncomfortable situation because Trump treats him the same way he does Rudy Giuliani, as his personal lawyer. You wouldn’t know, from reading it, that Barr is one of the most powerful cabinet members in government, and fairly unique among Trump’s appointees for the breadth of governmental experience he has.

Much of the story describes Barr as the passive object things happen to, not as the agent of his own circumstances. The AP describes him finding himself in a political firestorm and coming under scrutiny rather than acting in scandalous ways that merit such scrutiny.

As Washington plunges into impeachment, Attorney General William Barr finds himself engulfed in the political firestorm, facing questions about his role in President Donald Trump’s outreach to Ukraine and the administration’s attempts to keep a whistleblower complaint from Congress.

[snip]

Barr has come under the scrutiny of congressional Democrats who have accused him of acting on Trump’s personal behalf more than for the justice system. Democrats have also called on Barr to step aside from decisions on the Ukraine matter.

The article does affirmatively say what Barr (claims he) has not done. He has not spoken with Trump about Biden and he has not spoken to Rudy about anything related to Ukraine (which is, notably, different than saying he hasn’t hasn’t had inappropriate conversations with the President’s personal lawyer).

Barr has not spoken with Trump about investigating Biden or Biden’s son Hunter, and Trump has not asked Barr to contact Ukranian officials about the matter, the department said. Barr has also not spoken with Giuliani about anything related to Ukraine, officials have said.

As for Barr’s affirmative actions, they are (like the descriptions of what he did not do) always couched in claims made by some anonymous source. The department — not a named person in the department — “insists” that Barr wasn’t aware of the call until some vague point in mid-August.

The department insists Barr wasn’t made aware of the call with Zelenskiy until at least mid-August.

The money quote, the one everyone is tweeting about, is from someone identifiably close enough to Barr to know he was “surprised and angry” but who claims not to be authorized to speak “publicly.”

When Barr did learn of that call a few weeks later, he was “surprised and angry” to discover he had been lumped in with Giuliani, a person familiar with Barr’s thinking told The Associated Press. This person was not authorized to speak about the matter publicly and spoke on condition of anonymity.

So, too, are the sources for the really important claims that tell us everything we don’t need to know pertaining to recusal. A person (likely the same one) not authorized to speak “publicly,” says the Department of Justice first learned of the call when CIA General Counsel Courtney Simmons Elwood brought the complaint to National Security Division head John Demers (as described in detail by the NYT). Other DOJ lawyers learned about the complaint after the whistleblower filed a complaint with the Intelligence Community Inspector General.

The Justice Department was first made aware of Trump’s call when a CIA lawyer mentioned the complaint from the unidentified CIA officer on Aug. 14, said a person familiar with the matter who wasn’t authorized to discuss the matter publicly and spoke anonymously. Some Justice Department lawyers learned about the accusations after the whistleblower filed a complaint with the intelligence community’s internal watchdog.

The watchdog later raised concerns that Trump may have violated campaign finance law. The Justice Department said there was no crime and closed the matter.

Note what’s not described in that passage, or anywhere else in the story? Precisely when Bill Barr himself learned about the substance of the complaint. When Bill Barr himself learned he was named in the transcript. It does not matter at all whether Bill Barr was surprised to hear the President roping him into framing his opponent’s son (though we should not believe he was surprised until the Attorney General says that publicly himself, preferably under oath). It does not matter when Demers learned of the substance of the complaint, it matters when Barr did, and whether it preceded other actions he took.

What matters is whether Barr learned he was named in the transcript before the DOJ made the decision there was no crime there. What matters is whether Barr knew he was implicated before making the decision not to recuse in advance of a prosecutorial decision made while lacking all the facts. What matters is whether Barr knew he was named in the transcript before getting an OLC opinion justifying withholding the complaint. (h/t F for the last point)

The AP story doesn’t tell us that. Instead, it tells us everything we don’t need to know.

As Democrats Entertain a Ukraine-Only Impeachment, Jack Goldsmith Lays Out Import of Impeaching for Clemency Abuse

As June Bug the Terrorist Foster Dog and I drove the last leg of our epic road trip over the last few days, I listened to Jack Goldsmith’s book on his stepfather, Chuckie O’Brien, In Hoffa’s Shadow: A Stepfather, a Disappearance in Detroit, and My Search for the Truth.

It’s a fascinating book I’m pondering how to write about: Imagine a book written by a top surveillance lawyer describing how he learned things his beloved stepfather was lying about by reading old FBI transcripts of wiretaps targeted at top mobsters.

The entire point of the book is to exonerate O’Brien of any role in Jimmy Hoffa’s murder, and it fairly convincingly does that. As Goldsmith describes, the FBI admitted privately to him that they belatedly realized his father couldn’t have had a role in Hoffa’s disappearance, but because the FBI is the FBI, they refused to state that in an official letter (though it was Barb McQuade, then as Detroit’s US Attorney, who made the final call).

But in Goldsmith’s effort to exonerate his step-father on the Hoffa murder, he implicates him in a shit-ton of other crimes … including being the bagman for a $1 million bribe to Richard Nixon so he would commute Hoffa’s sentence for jury tampering (which Chuckie was also a key player in). Here’s how Goldsmith describes O’Brien’s claims about the payoff.

Chuckie nonetheless insists there was a payoff. And he says he was the delivery boy.

Chuckie told me that in early December 1971, he received a telephone call in Detroit from Fitzsimmons’s secretary, Annie. “Mr. Fitzsimmons would like to see you,” she said. Chuckie got on the next plane, flew to Washington, and went straight to Hoffa’s former office at the foot of Capitol Hill. After small talk, Fitzsimmons got to the point. “He’s coming home, and it’s going to cost this much,” Fitzsimmons whispered to Chuckie, raising his right index finger to indicate $1 million. “There will be a package here tomorrow that I want you to pick up and deliver.”

The following afternoon, Annie called Chuckie, who was staying at a hotel adjacent to the Teamsters headquarters near the Capitol building. “Mr. Fitzsimmons asked me to tell you that you left your briefcase in his office,” she said. Chuckie had not left anything in Fitzsimmons’s office, but he quickly went there. Fitzsimmons was not around, but Annie pointed Chuckie to a leather litigation bag next to Fitzsimmons’s desk—a “big, heavy old-fashioned briefcase,” as Chuckie described it. Chuckie picked up the bag, and Annie handed him an envelope. Inside the envelope was a piece of paper with “Madison Hotel, 7 p.m.” and a room number written on it.

It was about 5:00 p.m., and Chuckie took the bag to his hotel room. He had delivered dozens of packages during the past two decades, no questions asked, mostly for Hoffa, sometimes for Giacalone, and very occasionally for Fitzsimmons. But this time was different. Chuckie knew of the strain between Fitzsimmons and Hoffa. He wasn’t sure what game Fitzsimmons was playing, especially since Hoffa had not at this point discussed a payoff with him. Chuckie was anxious about what he was getting into. And so he did something he had never done before: he opened the bag.

“I wanted to see what was in the briefcase,” Chuckie told me. “I didn’t trust these motherfuckers. I needed to look; it could have been ten pounds of cocaine in there and the next thing I know a guy is putting a handcuff on me.”

What Chuckie saw was neatly stacked and tightly wrapped piles of one-hundred-dollar bills. He closed the bag without counting the money.

The Madison Hotel, where Chuckie was supposed to deliver the bag, was two miles away, six blocks north of the White House. It “was a very famous hotel” in the early seventies, a place where “political big wheels” and “foreign dignitaries” stayed, Chuckie told me. At about 6:45 p.m., Chuckie took a taxi to the Madison, went to the designated floor, walked to the room (he doesn’t remember the number), and knocked on the door. A man opened the door from darkness. Chuckie stepped in one or two feet. He sensed that the room was a suite, but could not tell for sure.

“Here it is,” Chuckie said, and handed over the bag.

“Thank you,” said the man. Chuckie turned and left. That was it. The whole transaction, from the time he left his hotel to the delivery on the top floor of the Madison, took less than twenty minutes. The actual drop was over in seconds.

If O’Brien is telling the truth, it means that in addition to locking in Teamster support for 1972, Nixon got a chunk of money for the election (just as Trump just hit up Wayne LaPierre for fundraising support in exchange for killing gun control).

Goldsmith’s step-father claims that the money for the payoff came directly from Hoffa — but he either didn’t know or wouldn’t say whom he delivered it to.

“Where did the money come from?” I asked. “From the Old Man,” Chuckie answered. “Through Allen Dorfman. It was the Old Man’s money. Dorfman had a lot of his money. Fitz wouldn’t give you a dime if you were dying.”

[snip]

“Did Fitz tell you who you were delivering the bag to?” I asked. “No. I took the fucking briefcase to where it’s supposed to go, I never asked any questions. You never ask, Jack.”

This is something that John Mitchell lied about to prosecutors, just as the stories of Rudy Giuliani and Jay Sekulow regarding the pardons they’ve negotiated with Russian investigation witnesses don’t hold up.

Since that time, presidential abuses of pardons have only gotten worse. Say what you will about the Marc Rich pardon (and I agree it was ridiculous), both Poppy Bush (Cap Weinberger) and W (Scooter Libby) provided clemency to witnesses to silence them about actions of the Bush men. Bill Barr was a key player in the Poppy pardons, and he seems all too willing to repeat the favor for Trump.

Until Congress makes reining in the abuse of executive clemency a priority, the claim that no one is above the law will be a pathetic joke. Plus, there are at least allegations that Trump’s effort to dig up Ukrainian dirt stemmed from an effort to make pardoning Paul Manafort easier. And the Ukraine corruption involves someone — Rudy — who was intimately involving in bribing witnesses with pardons in the past.

More generally, any decision to narrowly craft impeachment would be catastrophically stupid, not least because other impeachable acts — such as Trump’s treatment of migrants — will be far more motivating to Democratic voters than Ukraine. But to leave off Trump’s abuse of the pardon power would be a historic failure.

The Intelligence Issues the House Intelligence Committee Largely Ignored

I watched or listened to most of the House Intelligence Committee hearing with Acting Director of National Intelligence Joseph Maguire this morning. And because both sides (with the very limited exception of Will Hurd) failed to raise the issues regarding the whistleblower complaint that go to the core of Maguire’s own equities, he was largely able to dodge the difficult issues.

Maguire’s own actions implicate whether IC whistleblowers will believe credible complaints will be treated appropriately. As Democrats noted, his first actions when he received a complaint implicating the President and the Attorney General were to refer to lawyers reporting directly to the President and the Attorney General. Maguire even pretended that Bill Barr’s role in this was not a significant part of the complaint to dismiss the worthlessness of referring this complaint to Bill Barr to investigate.

But there were three other key issues Maguire should not have been able to dodge.

First is the allegation that Trump moved the summary of this call to the covert communications system to hide the improper nature of the call. The whistleblower complaint said that this is not the first time the White House has done so. This is a clear abuse of the legal status of covert operations dictated by the National Security Act, something for which Maguire has direct responsibility. Covert operations must be communicated, by law, to at least the Gang of Eight in Congress. That Trump has politicized and misused this system discredits a core means of accountability for the White House, on Maguire’s job directly oversees. And yet he wasn’t asked how Trump’s actions undermine the legally mandated system of covert communications.

Then there’s the fact that Trump is premising policy decisions not on the best intelligence, but instead on how he can derive personal benefit from them. His doing so is a core abuse of presidential power. But — as I noted this morning — it also robs American citizens of the benefits the entire intelligence system is supposed to ensure. Maguire admittedly cannot force the President to make the right decisions. But the repercussions of premising policy decisions on personal gain for the national security of the US should be a concern of Maguire’s. That wasn’t mentioned either.

Finally, there’s the allegation that someone without clearance and entirely outside of the intelligence community was being asked to share and act on classified information derived from the intelligence community. Maguire at one point claimed that Trump can do whatever he wants with his personal lawyer and that such discussions would be privileged (after, at another point, dodging a question because he’s not a lawyer). That’s the height of absurdity. Rudy’s pursuit of policy actions has nothing to do with his role as Trump’s personal lawyer. And as the DOJ IG complaint against Jim Comey makes clear, sharing even retroactively confidential information with your personal lawyers — as Comey was scolded for doing — is not permissible. Yes, it’s true that as President Trump can declassify anything he wants (though Comey was original classification authority for the information he shared with his own lawyers), but others in the IC cannot share information with an uncleared person without formal declassification, or they risk their own legal troubles.

None of this came up in substantive fashion in today’s hearing by the people who are supposed to oversee the intelligence community.

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

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

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

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

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

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

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

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

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

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

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

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

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

How Roger Stone’s Trial Relates to the Ukraine Scandal

The White House released the readout from one (but not all) of the calls involved in the whistleblower complaint. It shows that before Trump asked Volodymyr Zelensky for help framing Joe Biden, he first asked Zelensky for help attacking Crowdstrike.

The President: I would like you to do us a favor though because our country has been through a lot and Ukraine knows a lot about it. I would like you to find out what happened with this whole situation with Ukraine, they say Crowdstrike … I guess you have one of your wealthy people… The server, they say Ukraine has.it. There are a lot. of things that went on, the whole situation. I think you are surrounding yourself with some of the same people. I . would like to have the Attorney General call you or your people and I would like you to get to the bottom of it. As you saw yesterday, that whole nonsense ended with a very poor performance by a man named Robert Mueller, an incompetent performance, but they say a lot of it started with Ukraine. Whatever you can do, it’s very important that you do it if that’s possible.

As with the sections involving the request on Biden, this one includes ellipses, hiding part of Trump’s ask. Also like those sections, this one suggests Bill Barr is involved in his improper request.

A request about Crowdstrike more directly addresses matters of intelligence — the attribution of the 2016 operation to Russia — than an effort to frame Joe Biden.

And this Crowdstrike request is what ties the call obviously to the timing — the day after the Mueller testimony gave Trump the belief he had weathered the Russian investigation.

Only, Trump is not clear of the impact of the Mueller investigation. On the contrary, if all goes on schedule, prosecutors will present abundant evidence of what even Mark Meadows calls “collusion,” the campaign’s effort to optimize the WikiLeaks releases, in Roger Stone’s November trial. As I have noted, in addition to Steve Bannon and Erik Prince, the trial will talk about Stone’s texts and calls to four different Donald Trump phone numbers, as well as his aides and bodyguard, Keith Schiller. (This screen cap comes from a list of stipulated phone numbers and emails that has since been sealed.)

The Stone trial (if it goes forward–I still have my doubts) will show that Trump was personally involved in these efforts and got repeated updates directly from Stone.

And a key strand of Stone’s defense is to question the Crowdstrike findings on the hack. Stone has been pursuing this effort for months — it’s what almost got him jailed under his gag. And while Amy Berman Jackson ruled twice this week against Stone getting any further Crowdstrike reports (once in an opinion denying Stone’s efforts to get unredacted Crowdstrike reports as moot since the government doesn’t have them, and once today in his pre-trial hearing when she deemed the remaining unredacted passages to pertain to ongoing Democratic cybersecurity protections and so unrelated to what Stone wants them for), Stone still has several redacted Crowdstrike reports from discovery.

Stone’s defense has focused entirely on discrediting the evidence that Trump partnered with a hostile country to get elected (which presumably is part of his effort to get a pardon). If he can support that effort by releasing currently private Crowdstrike reports he will do so.

Today’s pre-trial hearing — where ABJ also ruled that Stone won’t be able to question the underlying Russian investigation — may have mooted the effort to tie Ukrainian disinformation to Stone’s own disinformation effort. But the two efforts are linked efforts by Trump to deny his own role in “colluding” with Russia.

Judge Trenga’s Bijan Kian Decision May Hurt, Not Help, Mike Flynn

As expected, Judge Anthony Trenga has overturned the conviction of Mike Flynn’s former partner, Bijan Kian. Trenga has long expressed doubts about the way the government charged this case. And when Flynn reneged on a part of his plea colloquy, it made him useless as a witness but — following a ruling from Trenga — did not make his statements available as a co-conspirator.

While a lot of people are seeing this (accompanied by the news that Vin Weber and Tony Podesta won’t be charged) as a blow for DOJ’s new FARA prosecution practice, I think Trenga’s opinion has greater repercussions for 18 USC 951 prosecutions than it does for FARA, because he finds (convincingly) that Congress intended the standards for the former to be significantly higher than for the latter.

That said, a central part of Trenga’s ruling derived from his decisions regarding Flynn’s role in this and was, in part, a result of Flynn’s decision to renege on his plea colloquy. Because the government couldn’t call him to testify but neither could rely on his statements as a co-conspirator, it made the most important evidence fairly useless at trial.

There was no competent evidence from which the jury could find that Alptekin acted as the type of “intermediary” the Government contends. In fact, the only evidence of any association between Alptekin and the Turkish government in connection with FIG’s retention is reflected in the hearsay statements of Alptekin to Rafiekian, which were admitted not as proof of Alptekin’s relationship or role relative to Turkey, but solely as evidence of what Alptekin told Rafiekian. Accordingly, the jury had no evidence of what Alptekin’s actual relationship or role was relative to the Turkish government, and because of that absence of evidence could not find for its purposes in deciding the case that Alptekin was, in fact, operation as an agent, alter ego, representative, “cut-out”, or any other type of “intermediary” for the Turkish government.”

That’s not the only basis for Trenga overturning the conviction. He also points to Alptekin’s disappointment with what FIG delivered to support a ruling that FIG was not working at the direction of Turkey (as required under 951 but not FARA). But the Flynn head fake is a key part of this.

So while a bunch of Flynn frothers who ignore all the very public ways that Sidney Powell’s claims about Flynn’s prosecution are horseshit are celebrating this decision, unless Emmet Sullivan finds any of Powell’s claims persuasive, this decision is likely to hurt Flynn. The government has already said they’re going to write a new sentencing memo, and this opinion will provide compelling reason to argue that Flynn ultimately did not cooperate.

Trenga’s decision is, given the facts of the case, quite compelling. But that says nothing about what Sullivan’s decision in upcoming months will be.

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