Why Republicans Launched the GSA Email Attack Now

I think most people are missing the significance of why the Republicans launched their attack on the GSA over the weekend (this post is a summary of what we know, with updates).

That’s true, in part, because people are misunderstanding what the Trump for America team recently learned. It’s not — as many have claimed — that they only recently learned Mueller had emails beyond what TFA had turned over to Congress and through that to Mueller. As Axios reported, “Trump officials discovered Mueller had the emails when his prosecutors used them as the basis for questions to witnesses, the sources said.” That is, Mueller has been asking questions based off these emails for months.

The timing of this complaint — not the complaint itself — is key

What TFA only discovered last week, according to their letter, at least, is how Mueller obtained them — by asking, just like prosecutors reviewing government communications in the course of investigating possible violations of the Espionage Act always do, especially if the subjects of the investigation have access to classified documents.

We discovered the unauthorized disclosures by the GSA on December 12 and 13, 2017. When we learned that the Special Counsel’s Office had received certain laptops and cell phones containing privileged materials, we initially raised our concerns with Brandon Van Grack in the Special Counsel’s Office on December 12, 2017. Mr. Van Grack confirmed that the Special Counsel’s Office had obtained certain laptops, cell phones, and at least one iPad from the GSA – but he assured us that the Special Counsel’s investigation did not recover any emails or other relevant data from that hardware. During this exchange, Mr. Van Grack failed to disclose the critical fact that undercut the importance of his representations, namely, that the Special Counsel’s Office had simultaneously received from the GSA tens of thousands of emails, including a very significant volume of privileged material, and that the Special Counsel’s Office was actively using those materials without any notice to TFA.1 Mr. Van Grack also declined to inform us of the identities of the 13 individuals whose materials were at issue.

The government has great leeway to access government communications, as Peter Strzok, the former counterintelligence FBI Agent who just had his own communications leaked and then released to the world, would probably be all too happy to tell you. All the more so given allegations that files went missing from the Transition SCIF, just as Jared Kushner was talking about back channel communications with the Russians.

So what’s new is not that Mueller had the emails (about which no one has complained before). But that he obtained the email inboxes of 13 people, including Jared, from GSA without letting the Transition do their own review of what to turn over.

Trump’s team may face obstruction charges

As I made clear here, it appears that one reason the Trump people are so angry is that Mueller has probably caught them failing to turn over emails that are absolutely material to the investigation, such as KT McFarland’s “Thrown election” email. Whoever did these document reviews may now be exposed to obstruction charges for withholding such material, which in turn would give Mueller leverage over them for their own further cooperation.

[Update: I should have said, withholding emails will only be a problem if the Transition was otherwise obligated (say, by subpoena) to turn them over. Mueller did subpoena the campaign for a similar set of emails; but since he didn’t need to from GSA, he may not have here.]

Mueller has far more damning information on Jared than Trump’s folks expected

Just as importantly, Axios explicitly said the emails include Jared Kushner’s emails (indeed, given his public claims about how many people he spoke to during the transition, I wouldn’t be surprised if his was the email box that had 7,000 emails).

As I have shown, Jared has been approaching disclosure issues (at least with Congress) very narrowly, ignoring clear requests to turn over his discussions about the topic of the investigation, and not just with the targets of it. If Mueller obtained all his emails, he’d have those “about” emails that Jared purposely and contemptuously has withheld from others.

We know that Jared is a key interim Mueller target here (and Abbe Lowell’s search for a crisis communications firm to help sure suggests Jared’s defense team knows that too). We know he felt the need to explain how he went from responding to a personalized Vladimir Putin congratulatory email on November 9 to asking Dmitri Simes for Sergei Kislyak’s name.

Take, for example, the public statement prepared for testimony to congressional committees by the president’s son-in-law and adviser Jared Kushner. There, he revealed that on the day after the election, in response to a congratulatory email from Russian President Vladimir Putin, he asked the publisher of The National Interest, Dimitri Simes, for the name of Russia’s ambassador to the United States. “On November 9, the day after the election, I could not even remember the name of the Russian ambassador,” Kushner claimed. “When the campaign received an email purporting to be an official note of congratulations from President Putin, I was asked how we could verify it was real. To do so, I thought the best way would be to ask the only contact I recalled meeting from the Russian government, which was the ambassador I had met months earlier, so I sent an email asking Mr. Simes, ‘What is the name of the Russian ambassador?’”

We also know that Mueller’s team has expressed some skepticism about Kushner’s previous public claims — and I would bet money this includes that email.

CNN recently reported, however, that in an interview conducted in the weeks before Flynn’s plea deal, “Mueller’s team asked Kushner to clear up some questions he was asked by lawmakers and details that emerged through media reports.” So Mueller’s team may now have doubts about the explanation Kushner offered for his interest in speaking with Kislyak as one of the first things he did after his father-in-law got elected.

If Mueller has all Jared’s emails and those emails disclose far more about the negotiations with all foreign powers conducted during the transition (including with Bibi Netanyahu on settlements, but obviously also with Russia), and Trump’s people recognize those emails expose Jared to serious charges, then of course they’re going to complain now, as the expectation that Mueller might soon indict Kushner grows.

Mueller has an outline of places where Trump was personally involved

Most importantly, consider what those morons laid out: they want to claim that these emails from the transition period — emails they insist were not government emails — are protected by Executive Privilege.

The legal claim is ridiculous; as I and far smarter people have noted, you don’t get Executive Privilege until you become the actual Executive on inauguration day.

But that they made the claim is telling (and really fucking stupid).

Because that tells us which emails Trump officials believe involve communications directly with Trump. The KT McFarland email, which we know was written from Mar-a-Lago, is a case in point. Did they withhold that because they believe it reflects a conversation with Trump? If so, then we know that Trump was personally involved in the orders to Mike Flynn to ask the Russians to hold off on retaliating for Obama’s sanctions. It might even mean that the language attributed to McFarland — about Russia being the key that unlocks doors, efforts to “discredit[] Trump’s victory by saying it was due to Russian interference, “thrown elections,” and Obama boxing Trump in — is actually Trump’s own language. Indeed, it does sound like stuff he says all the time.

And given that the emails include “speculation about vulnerabilities of Trump nominees, strategizing about press statements, and policy planning on everything from war to taxes,” it might even reflect Trump’s own explanations of why — for example — he couldn’t nominate Flynn to be CIA Director because of his ties to Russia and Turkey.

In the wake of his plea agreement, Flynn’s surrogate made it clear that Trump ordered him to carry out certain actions, especially with Russia. That’s likely a big reason why, in the wake of the Flynn plea, Trump’s people are now squawking that Mueller obtained these emails, emails that may lay out those orders.

Heck. These emails might even reflect Trump ordering Flynn to lie about his outreach to Russia.

Maybe that’s why Trump’s aides have promised to demand Mueller return the emails in question.

All of which is to say, there are things about these emails that explain why this attack is coming now, beyond just a generalized effort to discredit Mueller. The attack is designed to discredit specific avenues of investigation Mueller clearly has in hand. And those avenues reveal far more about the seriousness of the investigation than anything Ty Cobb is willing to claim to appease the President.

That said, the attack is probably too little, too late.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

35 replies
  1. Butchie says:

    Every canidate is briefed by multiple agencies about foreign and domestic Interlopers and what to do if the canidate’s staff thinks something is amiss. Yet not one of these people had the balls to stand up and be AMERICAN. One phone call. That’s all it took. One call. The trumpist org could have come out looking like heroes. Coulda played the we stopped a foreign adversary we’re the heroes card, forever. Yet they did not. Every single American deserves to know why they didn’t do the easiest most basic thing in that situation. Whether or not every single American wants to know.

  2. pseudonymous in nc says:

    So: when did the penny start to drop that the OSC had access to emails that had been withheld, and how many interviews were already racked up by then? That collective understanding only comes from working out that a line of questioning could only arise from withheld documents, and knowing that witnesses had been sent in to testify assuming that certain emails hadn’t been handed over.

    It could be as early as September, but I suppose it’s a gradual process, like the first reel of a horror movie.

    Finally, does the crime-fraud exception kick in if there was a subpoena for documents and Mueller’s team suspects that lawyers were instructed to spike things in review. Or is that going to resolve itself as litigation over not-quite-executive privilege, where Gorsuch will ultimately declare that the president-elect is like a fetus and therefore has more rights than the mother actual president?

    • emptywheel says:

      I suspect Mueller may have been withholding some of what he had there, too, given that they bitched that they couldn’t get a list of all the identities of the people whose emails were turned over.

      Mr. Van Grack also declined to inform us of the identities of the 13 individuals whose materials were at issue.

      Betcha there was someone who was the key aide, who saw and coordinated everything, but who wasn’t obvious on the org chart, and they’re trying to figure out if that person’s email got turned over.

      • pseudonymous in nc says:

        Yeah, maybe just somebody who routinely got cc:d on everything even if they’re not active participants in conversations, which happens a lot in small orgs without formal hierarchies for information-sharing. We’ve all been there: you end up on the thread, you ignore the thread, next thing you know federal investigators want your email because you didn’t ask to be taken off the thread. (That feels like a Hope Hicks-y kind of role.)

        In passing: the NYT only named four of the six people to whom KTMcF forwarded the “thrown election” email. Perhaps one of the other two was the NYT’s source and was not pleased to find themselves in the shit about it?

      • earlofhuntingdon says:

        The stupid, it burns.  McGahn should have been the first lawyer to tell these bozos that their GSA-based comms were not confidential in the context of a formal government investigation.

        As I think EW suggested, there might be a link there to Kushner’s very odd desire to ask for secure access to US-based telecomms for Russian security/diplomatic personnel so that he could talk to the Kremlin – as a private citizen – without his own government knowing what he or the other party said.  One of many red flags waved by this administration, so many, in fact, they could decorate a Fourth of July parade with them.

        • Peterr says:

          I would not be surprised at all to discover that McGahn DID tell them exactly that, and Team Trump blew him off. “Yeah, yeah, you’ve covered your backside with all that boilerplate. Why be such a downer about things, though? We’re in charge now!!!”

          If so, he would not be the first lawyer whose client(s) did not listen to him.

        • greengiant says:

          “decorate a May Day parade with them”,

          Cohen is Trump’s pit bull lawyer so could McGahn have been out of the loop on the need to hide crimes?  This story is already stale in the news cycle. Team Trump is still giving room to Mueller to “not much to see here just move along”. Pretty boring to see such a production of lies in all aspects and then when called on them the critics are the “bullies”.

        • KM says:

          Not that stupid.  They did have Richard Beckler installed as General Counsel of GSA so he could protect TFA’s control over what material got released to the FBI.

  3. KM says:

    “As Axios reported, ‘Trump officials discovered Mueller had the emails when his prosecutors used them as the basis for questions to witnesses, the sources said.’ That is, Mueller has been asking questions based off these emails for months.”

    But as I asked in the previous thread: shouldn’t we be sceptical about relying on the word of Mike Allen’s “transition team sources”?

  4. orionATL says:

    does this remind anyone of a similar, but mirror image, controversy set up by republican congressmen determined to undermine a democratic candidates presidential candidacy?

    need i remind the world that these republican paragons of public records virtue are claiming a right to wipe a storage disk, or to pick-and-chose what to retain/make avaialable, or some right-of-refusal in order to censure their written communications, or otherwise make those communications unavailable to the media and gov’t officials?

    and this in a situation where serious damage to national security and possible criminal behavior are a strong possibility rather than in the situation where there were only trivial technical legal breeches with which those congressional republicans tried to entrap secretary clinton.

  5. Bay State Librul says:

    Marcie, excellent reporting
    If your first book was The Anatomy of Deceit, what would you call this clusterfuck?

  6. Chris Brad says:

    “…so I sent an email asking Mr. Simes, ‘What is the name of the Russian ambassador?’”  to me suggests that there are connecting emails that were not turned over to Congress or Mueller, and Kushner needed a cover story for why he was emailing Simes and/or Kislyak.  Why would any of us need to send an email to anyone to simply find out the name of the Russian Ambassador?  One area for trouble is that those emails which he originally did NOT turn over are now in the SC’s possession.

    • earlofhuntingdon says:

      Maybe Kushner, like his father-in-law, has yet to learn about Wikipedia.  Odd, given his apparent familiarity with WikiLeaks.

  7. earlofhuntingdon says:

    I find it surprising that Kushner and Trump do not already have private “crisis management” advisers. I suppose we should also be happy that they know so little about how government works, despite years in NYC attempting to corrupt it for their profitable ends. Happy, too, that they are contemptuous of what they don’t know and of people who could help them fill that gap.

    Mr. Mueller, however, knows a lot and happily employs those who know more than he does. He would have analyzed Fitzgerald’s investigation and prosecution of Libby. His team will be meticulous in its investigation – everything they touch would be litigated by competent defense counsel – and in any prosecution(s). The downside for these guys is likely to great – and their willingness to bunk with Bubba so low – that plea deals are the most likely outcomes. Mueller’s plea deals are likely to as tightly constructed as everything else he builds, with nasty teeth for those who abuse them.

    Team Trump is in for a rough ride. And they all know how the Don doesn’t like to be upset, a trait that didn’t work out so well for Sonny. I wonder how comfortable Mike Pence feels sitting on the back of Donald’s tiger.

    • Peterr says:

      I find it surprising that Kushner and Trump do not already have private “crisis management” advisers.

      Lanny Davis vouches for Cobb’s crisis management chops, even as he gives him some advice:

      So, Mr. Cobb, your greatest challenge isn’t understanding how to do effective crisis management. Your big problem, as I understand it, is to convince your client, the president of the United States, to set the example and commit to a policy of complete transparency about everything Russian in the earliest days of his presidential campaign — starting with himself.  And that may mean putting himself at risk. So be it.  It’s coming out anyway, to repeat my mantra, which became the sub-title of my White House memoir regarding the truth: “Tell It Early, Tell It All, Tell It Yourself.”

      [snip]

      So, Mr. Cobb, while we have never met, I hear you are a very good lawyer and know something about crisis management. And I know you will need to learn to have a thick skin in your new job — especially within the White House and among the president’s friends, not just the White House press corps.  (I also know your relative was one of the great baseball players of all time, but not known for being beloved by other baseball players, especially when he slid into second base with his spikes held high.)

      My advice: if your client, President Trump, isn’t ready to back you with the only strategy that can possibly work – the subtitle of my White House memoir about the truth: “Tell It Early, Tell It All, Tell It yourself” — then your job will be difficult, emotionally draining, and I am quite certain, unsuccessful.

      That’s harsh. If Lanny Davis says “sorry, you’re toast*,” that pretty much seals the deal.

      ____

      * Pimping his own book — twice! plus one more time in the “about the author” blurb at the end — while saying this is such a Lanny move. He doesn’t miss a trick. Or a dollar.

  8. katewillette says:

    Good effing god.

    “When the campaign received an email purporting to be an official note of congratulations from President Putin, I was asked how we could verify it was real. To do so, I thought the best way would be to ask the only contact I recalled meeting from the Russian government, which was the ambassador I had met months earlier, so I sent an email asking Mr. Simes, ‘What is the name of the Russian ambassador?’”

    I almost cannot process that.

    Jared Kushner told the committee that he thought the BEST WAY to verify that someone who had emailed him was really working for Putin was to ask that emailer THE SUPER TRICKY QUESTION of what the Russian ambassador’s name was?

    Like, with a straight face he said those words and nobody laughed at him?

    • SpaceLifeForm says:

      Does not know the google thing.

      But he already had the email address for Dimitri Simes?

      Does not compute.

  9. harpie says:

    TRUMP TRANSITION OFFICIALS WAIVED PRIVACY RIGHTS, PER GOVERNMENT MEMO; Brian Beutler;12/18/17 
    Brian Beutler‏Verified account @brianbeutler  52 minutes ago [about 2:40pm ET]

    Realized this weekend I’d been sitting on the MOU between Trump and GSA for over a year. Got it last December, pursuant to a totally unrelated FOIA. Leave it to a criminal investigation of the president to jog your memory.

  10. earlofhuntingdon says:

    OT, but Atlanta airport was without power so long, I wondered why airports need power, even the busiest in the world. Why not good ole flag semaphore? Tower to planes on the runway; a couple of guys each at the ends of the runway; a couple along the taxiways. Done deal. Not so good at night or in the rain, but you know, needs must. And who needs bridges not to fall down or roads without sinkholes and potholes? We could always get there from here by hopping a train….

    After I-5 (the principal artery for Washington’s biggest cities Seattle, Tacoma and the state capital, Olympia), and the tracks are clear, the bridge and roadways are repaired, the ambulances empty, the scores of police cars and emergency vehicles move along, and the people are mourned or helped to recuperate (there’s that health care thingy again), more people should be asking more questions about the priorities in Washington – and demanding answers.

    After Bob Corker stops doing the jig about saving a million here and a million there on his way to retirement, maybe he’ll have a comment besides, “How did that get in there?”

    • NorskieFlamethrower says:

      Thanx Earl and I would like to reinforce your thoughts and hopes about a “great awakening” happening right here in the USofA. I’ve lived in Wisconsin for 38 years and have observed and fought the good fight against the Koch brothers’ purchase of this state over the last 15 years. This month the state senator from my district on the gold coast of west central Wisconsin announced her acceptance of the head of the state Agriculture Department. She leaves what has been a solid, safe seat for the last 17 years and it appears that recent polling in this congressional district as well as a number of other congressional districts in the state has stimulated a flight for cover of many long time fascist hacks.  My wife and I have been workin’ with Our Revolution since last December and my wife has been very involved with Forward Action and Indivisable. I can report that progressive resistance organizing outside of the rump Democratic Party has taken all the political air out of this state and particularly this part of the state. The biggest obstacle to completely retaking our political lives from the Kochs is what is left of the old Clinton party structure but I guess the neo-liberals shrunk the Democratic Party in this state to such a size that it leaves a lotta room for us rubes and riff-raff. Something is happening across this country particularly north of the Mason-Dixon Line and I don’t think that even military intervention can stop it. Namaste

      • SpaceLifeForm says:

        “a flight for cover of many long time fascist hacks”

        Who knew there were swamps to drain in western wisconsin? /s

        I believe that explains the panic in DC too and the attacks on FBI. Last Thursday WSJ editorial [2017-12-14] insinuating that FBI interferred in 2016 elections took the cake.

        Lets hope the Mason-Dixon line can be moved south soon, as in off-shore.

  11. Rapier says:

    I’m ashamed to join the thumb twiddling crowd but Muller moving before Christmas is hurtling toward the time where it seems like it would be a mistake,and the week after, before New Years, not much better.

  12. wayoutwest says:

    I hope no one was injured from all this sandbagging around GI Mueller and his fellow travelers at the FBI.

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