The Commander-in-Chief Keeps Instructing His National Security Officials Not to Protect the Country

One of the most alarming passages in the Mueller Report describes how, in an effort to get Corey Lewandowski to convince Jeff Sessions to reverse his recusal in the Russian investigation, Trump suggested that Mueller could be limited to investigating future election hacks. (h/t to TC who has been emphasizing this passage)

During the June 19 meeting, Lewandowski recalled that, after some small talk, the President brought up Sessions and criticized his recusal from the Russia investigation.605 The President told Lewandowski that Sessions was weak and that if the President had known about the likelihood of recusal in advance, he would not have appointed Sessions.606 The President then asked Lewandowski to deliver a message to Sessions and said “write this down.” 607 This was the first time the President had asked Lewandowski to take dictation, and Lewandowski wrote as fast as possible to make sure he captured the content correctly.608 The President directed that Sessions should give a speech publicly announcing:

I know that I recused myself from certain things having to do with specific areas. But our POTUS . .. is being treated very unfairly. He shouldn’t have a Special Prosecutor/Counsel b/c he hasn’t done anything wrong. I was on the campaign w/ him for nine months, there were no Russians involved with him. I know it for a fact b/c I was there. He didn’t do anything wrong except he ran the greatest campaign in American history.609

The dictated message went on to state that Sessions would meet with the Special Counsel to limit his jurisdiction to future election interference:

Now a group of people want to subvert the Constitution of the United States. I am going to meet with the Special Prosecutor to explain this is very unfair and let the Special Prosecutor move forward with investigating election meddling for future elections so that nothing can happen in future elections.610

The President said that if Sessions delivered that statement he would be the “most popular guy in the country.”6 11 Lewandowski told the President he understood what the President wanted Sessions to do.612

In June 2017, the Commander-in-Chief of the United States suggested that the FBI should not investigate a historic cyberattack by an adversary on the United States. The investigation Trump was obstructing was not just of his own conduct, but also that of Russia.

That revelation puts two other events in dramatically different light.

First, recall that when Congress was considering bills to ensure election integrity last year, Trump pre-empted the effort with an Executive Order imposing a two step review, after the fact, to see if foreign adversaries had attempted to interfere in the election. First, ODNI does a report on the election, then he delivers it to other Executive Branch Officials. Then DHS Secretary and the Attorney General deliver a report based on that describing whether the effort to interfere had had a material effect. That report, too, just gets delivered to Executive Branch officials.

Section 1. (a) Not later than 45 days after the conclusion of a United States election, the Director of National Intelligence, in consultation with the heads of any other appropriate executive departments and agencies (agencies), shall conduct an assessment of any information indicating that a foreign government, or any person acting as an agent of or on behalf of a foreign government, has acted with the intent or purpose of interfering in that election. The assessment shall identify, to the maximum extent ascertainable, the nature of any foreign interference and any methods employed to execute it, the persons involved, and the foreign government or governments that authorized, directed, sponsored, or supported it. The Director of National Intelligence shall deliver this assessment and appropriate supporting information to the President, the Secretary of State, the Secretary of the Treasury, the Secretary of Defense, the Attorney General, and the Secretary of Homeland Security.

(b) Within 45 days of receiving the assessment and information described in section 1(a) of this order, the Attorney General and the Secretary of Homeland Security, in consultation with the heads of any other appropriate agencies and, as appropriate, State and local officials, shall deliver to the President, the Secretary of State, the Secretary of the Treasury, and the Secretary of Defense a report evaluating, with respect to the United States election that is the subject of the assessment described in section 1(a):

(i) the extent to which any foreign interference that targeted election infrastructure materially affected the security or integrity of that infrastructure, the tabulation of votes, or the timely transmission of election results; and

(ii) if any foreign interference involved activities targeting the infrastructure of, or pertaining to, a political organization, campaign, or candidate, the extent to which such activities materially affected the security or integrity of that infrastructure, including by unauthorized access to, disclosure or threatened disclosure of, or alteration or falsification of, information or data.

The report shall identify any material issues of fact with respect to these matters that the Attorney General and the Secretary of Homeland Security are unable to evaluate or reach agreement on at the time the report is submitted. The report shall also include updates and recommendations, when appropriate, regarding remedial actions to be taken by the United States Government, other than the sanctions described in sections 2 and 3 of this order.

Predictably, when the deadlines for these reports came due after the mid-term elections last year, the Trump Administration balked at sharing all this reporting with the Senate Intelligence Committee.

Then there’s this NYT report revealing that the Mick Mulvaney told DHS Secretary Kirstjen Nielsen not to involve the Commander-in-Chief in any effort to keep this country’s elections safe, which (the report implicitly suggests) made it far more difficult for Nielsen to make protecting elections a priority.

Ms. Nielsen left the Department of Homeland Security early this month after a tumultuous 16-month tenure and tensions with the White House. Officials said she had become increasingly concerned about Russia’s continued activity in the United States during and after the 2018 midterm elections — ranging from its search for new techniques to divide Americans using social media, to experiments by hackers, to rerouting internet traffic and infiltrating power grids.

But in a meeting this year, Mick Mulvaney, the White House chief of staff, made it clear that Mr. Trump still equated any public discussion of malign Russian election activity with questions about the legitimacy of his victory. According to one senior administration official, Mr. Mulvaney said it “wasn’t a great subject and should be kept below his level.”

Even though the Department of Homeland Security has primary responsibility for civilian cyberdefense, Ms. Nielsen eventually gave up on her effort to organize a White House meeting of cabinet secretaries to coordinate a strategy to protect next year’s elections.

[snip]

Ms. Nielsen grew so frustrated with White House reluctance to convene top-level officials to come up with a governmentwide strategy that she twice pulled together her own meetings of cabinet secretaries and agency heads. They included top Justice Department, F.B.I. and intelligence officials to chart a path forward, many of whom later periodically issued public warnings about indicators that Russia was both looking for new ways to interfere and experimenting with techniques in Ukraine and Europe.

[snip]

A second senior administration official said Ms. Nielsen began pushing after the November midterms for the governmentwide efforts to protect the 2020 elections, but only after it became increasingly clear that she had fallen out of Mr. Trump’s favor for not taking a harder line against immigration.

That official said Ms. Nielsen wanted to make election security a top priority at meetings of Mr. Trump’s principal national security aides, who resisted making it a focus of the discussions given that the 2020 vote was, at the time, nearly two years away.

Trump’s refusal to protect elections accompanies a de-emphasis — one enforced by John Bolton — on cybersecurity generally.

This is, quite literally, a case where the Commander-in-Chief is refusing to take the action necessary to protect the country from being attacked in the same way were most recently were attacked.

Update: Earlier this week Politico reported on the effects of a reorganization in Office of Management and Budget’s cybersecurity office before Mulvaney left OMB to become Chief of Staff.

Few Americans may have heard of the Office of the Federal Chief Information Officer, but the unit inside the Office of Management and Budget coordinates tech improvements across the government, helping agencies boost cybersecurity and manage technology and cybersecurity budgets that totaled $105 billion in the past fiscal year.

But many OFCIO employees are overwhelmed by unclear and changing priorities, while others are simply checked out or feeling increasingly marginalized, according to an internal February staff survey that POLITICO obtained, along with data from an annual governmentwide report and interviews with a current OMB employee, five former OFCIO employees and three former senior federal officials familiar with the office.

The unit is grappling with “high turnover,” “a lot of infighting,” a “crushing workload” and “inaction from leadership,” said the current employee, who — like others interviewed for this story — requested anonymity to discuss sensitive personnel matters.

“Things do slip through the cracks,” the OMB employee said. OFCIO’s guidance “impacts the long-term implementation strategy out in the agencies,” and if that’s lacking, there will be “a debilitating effect on overall cybersecurity in the long run,” the person said, adding that there was “real concern at the staff level that if this continues, something bad will happen and we won’t be ready for it.”

[snip]

“This organization looks like it’s in free fall,” said a former senior federal IT official who worked closely with the office.

[snip]

[A] November reorganization appeared to cause significant confusion and discontent among employees. It replaced a structure built around three core units — agency oversight, cybersecurity and policy development — with one centered on “workstreams” for activities such as cybersecurity risk and data strategy.

But the reorganization was “built on the fly” and poorly explained, said a former staffer. More than 80 percent of survey respondents said it was unclear how the reorganization improved office communication.

Adding to these woes is significant frustration with OFCIO’s senior leaders, especially Kent, a former Ernst & Young consultant who took over the office in March 2018 after the team went more than a year without a leader.

Kent, who lacks a cybersecurity or IT background, has fostered “a closed-door culture,” the current OMB employee said.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

Trump Administration Still Gaming Intelligence on Election Interference

Last month, I tracked a disturbing exchange between Dan Coats and Martin Heinrich regarding whether any of the efforts to tamper with this year’s election succeeded.

At the Global Threats hearing on January 29, Heinrich asked Coats whether the committee was going to get the results of the assessment of whether any of the tampering had had an effect. A week later, DOJ and DHS issued a report saying “no harm no foul.” Then 10 days later, the entire Senate Intelligence Committee wrote Coats a letter asking for DNI’s findings.

That troubling exchange took place against another one, revealed in a letter sent yesterday from Heinrich, Ron Wyden, and Kamala Harris.

On September 26, 2018, Trump mucked up a UN meeting by claiming, without evidence, that China was tampering in the 2018 midterms. The Democratic Senators apparently asked Dan Coats about it, and he issued a classified response on October 31. During the same Global Threat Hearing where Heinrich raised the general assessment in open session, the Senators raised the China accusation in the closed session. In response, Coats sent a letter on February 8, basically covering for Trump.

As early as August, during a press conference, I stated that Russia was not the only country that had an interest in trying to influence our domestic political environment and that we knew others had the capability and may be considering influence activities. On October 19, 2018 and again on November 5, 2018 my office, in conjunction with the Federal Bureau of Investigation, Department of Justice, and Department of Homeland Security, released public statements detailing ongoing campaigns by Russia, China, and other foreign actors, including Iran, to influence public sentiment and government policies and undermine democratic institutions.

But that’s not what the Senators were getting at in their request. In yesterday’s letter, they noted,

The October 31, 2018, letter includes important information about the 2018 elections, as well as the 2016 elections, which your February 8, 2019 letter did not address.

That is, there’s something — apparently about both the 2018 and the 2016 elections — that Coats is hiding, information that surely would embarrass Trump.

And Coats isn’t giving it to us.

Given that just Democratic Senators are on the request (unlike the earlier request), this one seems to amount to Coats running partisan interference to prevent Trump from being embarrassed. Which, if true, would mean that the head of the Intelligence Community is using classification to hide the fact that the President is making bullshit claims about our elections.

Dan Coats Still Refusing to Provide the Evidence that Russia Didn’t Affect the Election

Last month, I noted a troubling exchange between Martin Heinrich, Dan Coats, and Richard Burr in the Global Threats Hearing.

Martin Heinrich then asked Coats why ODNI had not shared the report on election tampering even with the Senate Intelligence Committee.

Heinrich: Director Coats, I want to come back to you for a moment. Your office issued a statement recently announcing that you had submitted the intelligence community’s report assessing the threats to the 2018 mid-term elections to the President and to appropriate Executive Agencies. Our committee has not seen this report. And despite committee requests following the election that the ODNI brief the committee on any identified threats, it took ODNI two months to get a simple oral briefing and no written assessment has yet been provided. Can you explain to me why we haven’t been kept more fully and currently informed about those Russian activities in the 2018–

Chairman Richard Burr interrupts to say that, in fact, he and Vice Chair Mark Warner have seen the report.

Burr: Before you respond, let me just acknowledge to the members that the Vice Chairman and I have both been briefed on the report and it’s my understanding that the report at some point will be available.

Coats then gives a lame excuse about the deadlines, 45 days, then 45 days.

Coats: The process that we’re going through are two 45 day periods, one for the IC to assess whether there was anything that resulted in a change of the vote or anything with machines, uh, what the influence efforts were and so forth. So we collected all of that, and the second 45 days — which we then provided to the Chairman and Vice Chairman. And the second 45 days is with DHS looking, and DOJ, looking at whether there’s information enough there to take — to determine what kind of response they might take. We’re waiting for that final information to come in.

After Coats dodges his question about sharing the report with the Committee, Heinrich then turns to Burr to figure out when they’re going to get the information. Burr at least hints that the Executive might try to withhold this report, but it hasn’t gotten to that yet.

Heinrich: So the rest of us can look forward — so the rest of us can then look forward to reading the report?

Coats: I think we will be informing the Chairman and the Vice Chairman of that, of their decisions.

Heinrich: That’s not what I asked. Will the rest of the Committee have access to that report, Mr. Chairman?

[pause]

Heinrich: Chairman Burr?

Burr; Well, let me say to members we’re sort of in unchartered ground. But I make the same commitment I always do, that anything that the Vice Chairman and myself are exposed to, we’ll make every request to open the aperture so that all members will be able to read I think it’s vitally important, especially on this one, we’re not to a point where we’ve been denied or we’re not to a point that negotiations need to start. So it’s my hope that, once the final 45-day window is up that is a report that will be made available, probably to members only.

Coming as it did in a hearing where it became clear that Trump’s spooks are helpless in keeping Trump from pursuing policies that damage the country, this exchange got very little attention. But it should!

DOJ missed its 45 day plus 45 day deadline of reporting whether any election tampering had had an effect. But just by one day. The day after their deadline, the Big Dick Toilet Salesman Matt Whitaker and serial liar Kirstjen Nielsen gave Trump a report claiming that any tampering had not had any impact on the election.

Although the specific conclusions within the joint report must remain classified, the Departments have concluded there is no evidence to date that any identified activities of a foreign government or foreign agent had a material impact on the integrity or security of election infrastructure or political/campaign infrastructure used in the 2018 midterm elections for the United States Congress. This finding was informed by a report prepared by the Office of the Director of National Intelligence (ODNI) pursuant to the same Executive Order and is consistent with what was indicated by the U.S. government after the 2018 elections.

While the report remains classified, its findings will help drive future efforts to protect election and political/campaign infrastructure from foreign interference.

Then, today, CyberComm boasted that that they had helped deter Russia during the midterms.

Senators from both political parties on Thursday praised the military’s cyber force for helping secure last year’s midterm elections, with one suggesting it was largely due to U.S. Cyber Command that the Russians failed to affect the 2018 vote.

“Would it be fair to say that it is not a coincidence that this election went off without a hitch and the fact that you were actively involved in the protection of very important infrastructure?” Sen. Mike Rounds (R-S.D.) asked Gen. Paul Nakasone, the command’s leader, at a hearing of the Senate Armed Services Committee.

Military officials have said new authorities, approved over the last year, enabled CyberCom to be more aggressive — and effective — in what they privately say was an apparent success. Nakasone, who also heads the National Security Agency, stopped short of saying it was CyberCom that made the difference, telling Rounds that safeguarding the election was the agencies’ “number-one priority.”

But ODNI is still not providing SSCI — the people who are supposed to see such evidence — proof. Heinrich wrote Dan Coats a letter, signed by every member of SSCI,

Your office a statement in December that you had submitted the Intelligence Committee’s report assessing threats to the 2018 elections to the president and appropriate executive agencies. This month, the acting Attorney General and the Secretary of Homeland Security announced they had submitted their joint report evaluating the impact of any foreign interference on election infrastructure for the infrastructure of political organizations during the midterm elections.

While the agencies provided brief unclassified summaries of the reports’ findings, the Select Committee on Intelligence has not been provided either report. We request that you provide to all Committee Members and cleared staff both classified reports required by EO 13848 as soon as possible. Those reports are necessary for the Committee to meet its mission and charter to conduct vigorous oversight over the intelligence and intelligence-related activities of the United States Government.

They’re clearly hiding something. The question is whether it’s that Trump didn’t try to prevent tampering, or that some of the efforts — included the known effort to hack Claire McCaskill — actually did have an effect.

 

45 Days Plus 45 Days: Is Trump Violating His Own Election Tampering Executive Order?

As I noted last week, along with all the issues on which Trump’s top spooks clearly disagreed with him at last week’s Worldwide Threat Assessment hearing, there was also a remarkable exchange regarding a report mandated by a Trump Executive Order on election interference last year. Effectively, it became clear that Director of National Intelligence doesn’t want to brief the Intelligence Committee on whether Russia interfered with last year’s election.

Martin Heinrich: Director Coats, I want to come back to you for a moment. Your office issued a statement recently announcing that you had submitted the intelligence community’s report assessing the threats to the 2018 mid-term elections to the President and to appropriate Executive Agencies. Our committee has not seen this report. And despite committee requests following the election that the ODNI brief the committee on any identified threats, it took ODNI two months to get a simple oral briefing and no written assessment has yet been provided. Can you explain to me why we haven’t been kept more fully and currently informed about those Russian activities in the 2018–

Richard Burr: Before you respond, let me just acknowledge to the members that the Vice Chairman and I have both been briefed on the report and it’s my understanding that the report at some point will be available.

Dan Coats: The process that we’re going through are two 45 day periods, one for the IC to assess whether there was anything that resulted in a change of the vote or anything with machines, uh, what the influence efforts were and so forth. So we collected all of that, and the second 45 days — which we then provided to the Chairman and Vice Chairman. And the second 45 days is with DHS looking, and DOJ, looking at whether there’s information enough there to take — to determine what kind of response they might take. We’re waiting for that final information to come in.

Heinrich: So the rest of us can look forward — so the rest of us can then look forward to reading the report?

Coats: I think we will be informing the Chairman and the Vice Chairman of that, of their decisions.

Heinrich: That’s not what I asked. Will the rest of the Committee have access to that report, Mr. Chairman?

[pause]

Heinrich: Chairman Burr?

Burr; Well, let me say to members we’re sort of in unchartered ground. But I make the same commitment I always do, that anything that the Vice Chairman and myself are exposed to, we’ll make every request to open the aperture so that all members will be able to read I think it’s vitally important, especially on this one, we’re not to a point where we’ve been denied or we’re not to a point that negotiations need to start. So it’s my hope that, once the final 45-day window is up that is a report that will be made available, probably to members only.

The reporting requirements come from this language:

Section 1. (a) Not later than 45 days after the conclusion of a United States election, the Director of National Intelligence, in consultation with the heads of any other appropriate executive departments and agencies (agencies), shall conduct an assessment of any information indicating that a foreign government, or any person acting as an agent of or on behalf of a foreign government, has acted with the intent or purpose of interfering in that election. The assessment shall identify, to the maximum extent ascertainable, the nature of any foreign interference and any methods employed to execute it, the persons involved, and the foreign government or governments that authorized, directed, sponsored, or supported it. The Director of National Intelligence shall deliver this assessment and appropriate supporting information to the President, the Secretary of State, the Secretary of the Treasury, the Secretary of Defense, the Attorney General, and the Secretary of Homeland Security.

(b) Within 45 days of receiving the assessment and information described in section 1(a) of this order, the Attorney General and the Secretary of Homeland Security, in consultation with the heads of any other appropriate agencies and, as appropriate, State and local officials, shall deliver to the President, the Secretary of State, the Secretary of the Treasury, and the Secretary of Defense a report evaluating, with respect to the United States election that is the subject of the assessment described in section 1(a):

(i) the extent to which any foreign interference that targeted election infrastructure materially affected the security or integrity of that infrastructure, the tabulation of votes, or the timely transmission of election results; and

(ii) if any foreign interference involved activities targeting the infrastructure of, or pertaining to, a political organization, campaign, or candidate, the extent to which such activities materially affected the security or integrity of that infrastructure, including by unauthorized access to, disclosure or threatened disclosure of, or alteration or falsification of, information or data.

The report shall identify any material issues of fact with respect to these matters that the Attorney General and the Secretary of Homeland Security are unable to evaluate or reach agreement on at the time the report is submitted. The report shall also include updates and recommendations, when appropriate, regarding remedial actions to be taken by the United States Government, other than the sanctions described in sections 2 and 3 of this order.

And if DOJ and Homeland Security do find someone tampered with the country, Trump’s own Executive Order requires harsh sanctions on the perpetrators.

Sec. 2. (a) All property and interests in property that are in the United States, that hereafter come within the United States, or that are or hereafter come within the possession or control of any United States person of the following persons are blocked and may not be transferred, paid, exported, withdrawn, or otherwise dealt in: any foreign person determined by the Secretary of the Treasury, in consultation with the Secretary of State, the Attorney General, and the Secretary of Homeland Security:

(i) to have directly or indirectly engaged in, sponsored, concealed, or otherwise been complicit in foreign interference in a United States election;

(ii) to have materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of, any activity described in subsection (a)(i) of this section or any person whose property and interests in property are blocked pursuant to this order; or

(iii) to be owned or controlled by, or to have acted or purported to act for or on behalf of, directly or indirectly, any person whose property or interests in property are blocked pursuant to this order.

The Executive Order was a transparent attempt to stave off similar language in the Intelligence Authorization last year.

Today is — by my count — the end of that second 45 day period (or 90 days total from the end of the election). So Trump’s Administration should be deciding today whether — just as one example — the Russian attempt to hack Claire McCaskill was more successful than she apparently knew and whether, according to his own Executive Order, Trump now has to impose sanctions on Russia for trying.

Last week’s report actually envisioned Russia attempting to manipulate data, which might explain the sensitivity around this report.

Russia’s social media efforts will continue to focus on aggravating social and racial tensions, undermining trust in authorities, and criticizing perceived anti-Russia politicians. Moscow may employ additional influence toolkits—such as spreading disinformation, conducting hack-and-leak operations, or manipulating data—in a more targeted fashion to influence US policy, actions, and elections.

Alternately, Trump’s Administration knows the Russians tried to help him again in the mid-term elections but doesn’t want to do what they’ve promised to do in response.

Update: Big Dick Toilet Salesman Matt Whitaker and DHS Secretary Kirstjen Nielsen say that Trump doesn’t have to sanction Russia for hacking Claire McCaskill and others last year because the report they won’t even share with the Senate Intelligence Committee says Russia’s tampering had no impact on the election.

Although the specific conclusions within the joint report must remain classified, the Departments have concluded there is no evidence to date that any identified activities of a foreign government or foreign agent had a material impact on the integrity or security of election infrastructure or political/campaign infrastructure used in the 2018 midterm elections for the United States Congress. This finding was informed by a report prepared by the Office of the Director of National Intelligence (ODNI) pursuant to the same Executive Order and is consistent with what was indicated by the U.S. government after the 2018 elections.

While the report remains classified, its findings will help drive future efforts to protect election and political/campaign infrastructure from foreign interference.

The Disinformation Campaign Targeting Mueller and the Delayed Briefing to SSCI on Russian Election Interference

A lot of people are reporting and misreporting details from this Mueller filing revealing that it had been the target of disinformation efforts starting in October.

1000 non-sensitive files leaked along with the file structure Mueller provided it with

To substantiate an argument that Concord Management should not be able to share with Yevgeniy Prigozhin the sensitive discovery that the government has shared with their trollish lawyers, Mueller revealed that on October 22, someone posted 1000 files turned over in discovery along with a bunch of other crap, partially nested within the file structure of the files turned over in discovery.

On October 22, 2018, the newly created Twitter account @HackingRedstone published the following tweet: “We’ve got access to the Special Counsel Mueller’s probe database as we hacked Russian server with info from the Russian troll case Concord LLC v. Mueller. You can view all the files Mueller had about the IRA and Russian collusion. Enjoy the reading!”1 The tweet also included a link to a webpage located on an online file-sharing portal. This webpage contained file folders with names and folder structures that are unique to the names and structures of materials (including tracking numbers assigned by the Special Counsel’s Office) produced by the government in discovery.2 The FBI’s initial review of the over 300,000 files from the website has found that the unique “hashtag” values of over 1,000 files on the website matched the hashtag values of files produced in discovery.3 Furthermore, the FBI’s ongoing review has found no evidence that U.S. government servers, including servers used by the Special Counsel’s Office, fell victim to any computer intrusion involving the discovery files.

1 On that same date, a reporter contacted the Special Counsel’s Office to advise that the reporter had received a direct message on Twitter from an individual who stated that they had received discovery material by hacking into a Russian legal company that had obtained discovery material from Reed Smith. The individual further stated that he or she was able to view and download the files from the Russian legal company’s database through a remote server.

2 For example, the file-sharing website contains a folder labeled “001-W773.” Within that folder was a folder labeled “Yahoo.” Within that folder was a folder labeled “return.” Within the “return” folder were several folders with the names of email addresses. In discovery in this case, the government produced a zip file named “Yahoo 773.” Within that zip file were search warrant returns for Yahoo email accounts. The names of the email accounts contained in that zip file were identical to the names of the email address folders within the “return” subfolder on the webpage. The webpage contained numerous other examples of similarities between the structure of the discovery and the names and structures of the file folders on the webpage. The file names and structure of the material produced by the government in discovery are not a matter of public record. At the same time, some folders contained within the Redstone Hacking release have naming conventions that do not appear in the government’s discovery production but appear to have been applied in the course of uploading the government’s production. For example, the “001- W773” folder appears within a folder labeled “REL001,” which is not a folder found within the government’s production. The naming convention of folder “REL001” suggests that the contents of the folder came from a production managed on Relativity, a software platform for managing document review. Neither the Special Counsel’s Office nor the U.S. Attorney’s Office used Relativity to produce discovery in this case. [my emphasis]

It sounds like Mueller’s office found out about it when being contacted by the journalist who had been alerted to the content on Twitter.

But before Mueller asked Concord’s trollish lawyers about it, the defense attorneys — citing media contacts they themselves had received — contacted prosecutors to offer a bullshit excuse about where the files came from.

On October 23, 2018, the day after the tweet quoted above, defense counsel contacted the government to advise that defense counsel had received media inquiries from journalists claiming they had been offered “hacked discovery materials from our case.” Defense counsel advised that the vendor hired by the defense reported no unauthorized access to the non-sensitive discovery. Defense counsel concluded, “I think it is a scam peddling the stuff that was hacked and dumped many years ago by Shaltai Boltai,” referencing a purported hack of Concord’s computer systems that occurred in approximately 2014. That hypothesis is not consistent with the fact that actual discovery materials from this case existed on the site, and that many of the file names and file structures on the webpage reflected file names and file structures from the discovery production in this case.

Without any hint of accusation against the defense attorneys (though this motion is accompanied by an ex parte one, so who knows if they offered further explanation there), Mueller notes any sharing of this information for disinformation purposes would violate the protective order in the case.

As stated previously, these facts establish a use of the non-sensitive discovery in this case in a manner inconsistent with the terms of the protective order. The order states that discovery may be used by defense counsel “solely in connection with the defense of this criminal case, and for no other purpose, and in connection with no other proceeding, without further order of this Court,” Dkt. No. 42-1, ¶ 1, and that “authorized persons shall not copy or reproduce the materials except in order to provide copies of the materials for use in connection with this case by defense counsel and authorized persons,” id. ¶ 3. The use of the file names and file structure of the discovery to create a webpage intended to discredit the investigation in this case described above shows that the discovery was reproduced for a purpose other than the defense of the case.

Update: Thursday evening, Mueller submitted another version of this clarifying that the @HackingRedstone tweets alerting journalists to the document dump were DMs, and so not public (or visible to the defense). The first public tweet publicizing the dump came on October 30, so even closer to the election.

Shortly after the government filed, defense counsel drew the government’s attention to the following sentence, which appears on page nine of the filing: “On October 22, 2018, the newly created Twitter account @HackingRedstone published the following tweet: ‘We’ve got access to the Special Counsel Mueller’s probe database as we hacked Russian server with info from the Russian troll case Concord LLC v. Mueller. You can view all the files Mueller had about the IRA and Russian collusion. Enjoy the reading!’” Defense counsel pointed out that this sentence could be read to suggest that the Twitter account broadcast a publicly-available “tweet” on October 22. In fact, the Twitter account @HackingRedstone began sending multiple private direct messages to members of the media promoting a link to the online file-sharing webpage using Twitter on October 22. The content of those direct messages was consistent with, but more expansive than, the quoted tweet to the general public, which was issued on October 30. By separate filing, the government will move to file under seal the text of the direct messages. The online file sharing webpage was publicly accessible at least starting on October 22.

I’m not sure it makes the defense response any more or less suspect. But it does tie the disinformation even more closely with the election.

The Mueller disinformation was part of a month-long election season campaign

This thread, from one of the journalists who was offered the information, put it all in context back on November 7, the day after the election.

The thread shows how the release of the Mueller-related files was part of a month-long effort to seed a claim that the Internet Research Agency had succeeded in affecting the election.

Update: This story provides more background.

Other signs of the ongoing investigation into Yevgeniy Prigozhin’s trolls

Given how the Mueller disinformation functioned as part of that month-long, election oriented campaign, I’m more interested in this passage from the Mueller investigation than that the investigation had been targeted. Mueller argues that they shouldn’t have to share the sensitive discovery with Yevgeniy Prigozhin because the sensitive discovery mentions uncharged individuals who are still trying to fuck with our elections.

First, the sensitive discovery identifies uncharged individuals and entities that the government believes are continuing to engage in operations that interfere with lawful U.S. government functions like those activities charged in the indictment.

To be sure, we knew the investigation into Prigozhin’s trolls was ongoing. On October 19, just days before these files got dropped, DOJ unsealed an EDVA complaint, which had been filed under seal on September 28, against Prigozhin’s accountant, Alekseevna Khusyaynova. Along with showing Prigozhin’s trolls responding to the original Internet Research Agency indictment last February, it showed IRA’s ongoing troll efforts through at least June of last year.

Then, in December, Concord insinuated that Mueller prosecutor Rush Atkinson had obtained information via the firewall counsel and taken an investigative step on that information back on August 30.

On August 23, 2018, in connection with a request (“Concord’s Request”) made pursuant to the Protective Order entered by the Court, Dkt. No. 42-1, Concord provided confidential information to Firewall Counsel. The Court was made aware of the nature of this information in the sealed portion of Concord’s Motion for Leave to Respond to the Government’s Supplemental Briefing Relating to Defendant’s Motion to Dismiss the Indictment, filed on October 22, 2018. Dkt. No. 70-4 (Concord’s “Motion for Leave”). Seven days after Concord’s Request, on August 30, 2018, Assistant Special Counsel L. Rush Atkinson took investigative action on the exact same information Concord provided to Firewall Counsel. Undersigned counsel learned about this on October 4, 2018, based on discovery provided by the Special Counsel’s Office. Immediately upon identifying this remarkable coincidence, on October 5, 2018, undersigned counsel requested an explanation from the Special Counsel’s Office, copying Firewall Counsel on the e-mail.

[snip]

Having received no further explanation or information from the government, undersigned counsel raised this issue with the Court in a filing made on October 22, 2018 in connection with the then-pending Motion to Dismiss. In response to questions from the Court, Firewall Counsel denied having any communication with the Special Counsel’s Office.

This was a bid to obtain live grand jury investigative information, one that failed earlier this month after Mueller explained under seal how his prosecutors had obtained this information and Dabney Friedrich denied the request.

What this filing, in conjunction with Josh Russell’s explanatory Twitter thread, reveals is that the Mueller disinformation effort was part of a disinformation campaign targeted at the election.

Dan Coats doesn’t want to share the report on Russian election tampering with SSCI

And I find that interesting because of a disturbing exchange in a very disturbing Global Threats hearing the other day. After getting both Director of National Intelligence Dan Coats and FBI Director Christopher Wray to offer excuses for White House decisions to given security risks like Jared Kushner security clearance, Martin Heinrich then asked Coats why ODNI had not shared the report on election tampering even with the Senate Intelligence Committee.

Heinrich: Director Coats, I want to come back to you for a moment. Your office issued a statement recently announcing that you had submitted the intelligence community’s report assessing the threats to the 2018 mid-term elections to the President and to appropriate Executive Agencies. Our committee has not seen this report. And despite committee requests following the election that the ODNI brief the committee on any identified threats, it took ODNI two months to get a simple oral briefing and no written assessment has yet been provided. Can you explain to me why we haven’t been kept more fully and currently informed about those Russian activities in the 2018–

Chairman Richard Burr interrupts to say that, in fact, he and Vice Chair Mark Warner have seen the report.

Burr: Before you respond, let me just acknowledge to the members that the Vice Chairman and I have both been briefed on the report and it’s my understanding that the report at some point will be available.

Coats then gives a lame excuse about the deadlines, 45 days, then 45 days.

Coats: The process that we’re going through are two 45 day periods, one for the IC to assess whether there was anything that resulted in a change of the vote or anything with machines, uh, what the influence efforts were and so forth. So we collected all of that, and the second 45 days — which we then provided to the Chairman and Vice Chairman. And the second 45 days is with DHS looking, and DOJ, looking at whether there’s information enough there to take — to determine what kind of response they might take. We’re waiting for that final information to come in.

After Coats dodges his question about sharing the report with the Committee, Heinrich then turns to Burr to figure out when they’re going to get the information. Burr at least hints that the Executive might try to withhold this report, but it hasn’t gotten to that yet.

Heinrich: So the rest of us can look forward — so the rest of us can then look forward to reading the report?

Coats: I think we will be informing the Chairman and the Vice Chairman of that, of their decisions.

Heinrich: That’s not what I asked. Will the rest of the Committee have access to that report, Mr. Chairman?

[pause]

Heinrich: Chairman Burr?

Burr; Well, let me say to members we’re sort of in unchartered ground. But I make the same commitment I always do, that anything that the Vice Chairman and myself are exposed to, we’ll make every request to open the aperture so that all members will be able to read I think it’s vitally important, especially on this one, we’re not to a point where we’ve been denied or we’re not to a point that negotiations need to start. So it’s my hope that, once the final 45-day window is up that is a report that will be made available, probably to members only.

Coming as it did in a hearing where it became clear that Trump’s spooks are helpless in keeping Trump from pursuing policies that damage the country, this exchange got very little attention. But it should!

The Executive Branch by law has to report certain things to the Intelligence Committees. This report was mandated by Executive Order under threat of legislation mandating it.

And while Coats’ comment about DOJ, “looking at whether there’s information enough there to take — to determine what kind of response they might take,” suggests part of the sensitivity about this report stems from a delay to provide DOJ time to decide whether they’ll take prosecutorial action against what they saw in the election, the suggestion that only members of the committee (not staffers and not other members of Congress) will ever get the final report, as well as the suggestion that Coats might even fight that, put this report on a level of sensitivity that matches covert actions, the most sensitive information that get shared with Congress.

Maybe the Russians did have an effect on the election?

In any case, going back to the Mueller disinformation effort, that feels like very familiar dick-wagging, an effort to make key entities in the US feel vulnerable to Russian compromise. Mueller sounds pretty sure it was not a successful compromise (that is, the data came from Concord’s lawyers, not Mueller).

But if the disinformation was part an effort to boast that Putin’s allies had successfully tampered with the vote — particularly if Russia really succeeded in doing so — it might explain why this report is being treated with the sensitivity of the torture or illegal spying program.

Update: I’ve corrected this to note that in the end the Intelligence Authorization did not mandate this report, as was originally intended; Trump staved that requirement off with an Executive Order. Still, that still makes this look like an attempt to avoid admitting to Congress that your buddy Putin continues to tamper in US elections.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

Dancing With Ms. AOC (and other weekend talk)

Apparently the ignorant bigot Trumpalos set things a little bit of Footloose is now some kind of slam on AOC. But it it is not. It is just stupid. Seriously, what kind of bigots go there? AOC is bigger and better than that, why are her detractors not?

As Ray Davies and the Kinks would say:

Don’t be afraid to come dancing,
It’s only natural.

And off we go.

Yep, dancing is real. it is awesome, and completely great and @AOC is the epitome of that.

I hope I am not too late for critical Mr. Gun Scribe, but I have been at the vet with my one of my dogs, Kiki. I know he will write 1000 words of bullshit about “his” dysfunctional Steelers. So be it.

At this point, let us talk about teams that are actually in the playoffs. And, no, that is neither the Stillers or the Cheese. Nor the local dope Cardinals.

As to games and teams that can and will happen, let us lead with the AFC.

On ESPN, the Colts are already leading the Texans by 7-0. I do not feel good with it,and will not bet one red cent on it, because Deshaun Watson is really special, but Captain Andrew Luck seems on a real roll.

Second game today is Squawks at Boys. Hard to take a second road team on a home turf, but I will do that. Yes, I know, I will die with my hat in my hand, okay. So be it, and just wait for the next predictions for Sunday!

As to that….And, no I do not feel good about this, but I will take Phil Rivers and the Bolts over the Ravens. Rivers is a WAY better QB than people give him credit for being. This is his opportunity to show it or blow it. I think show it, but need to see it.

The Philly Special will be in Chi Town, The Windy City. Khalid Mack is the anchor the Bears defense always relied on. The importance of his arrival to the Midway because Chucky Gruden was, and is, a total dope, cannot be underestimated. The Bears have been transformed. They were a team on the obvious upswing, and are now legitimate contenders.

Hell of a last game for an insanely good wildcard weekend.

After 14 Years, Conspiracy Artist Jerome Corsi Continues to Successfully Yank the Media’s Chain

Before I address Jerome Corsi’s latest success at playing the media, let me review my theory of why Mueller’s team is so interested in Corsi with respect to Stone (which they’ve been pursuing since March).

Jerome Corsi probably knew not just that WikiLeaks would release Podesta emails, but also what they contained

On October 6, 2016, Jerome Corsi renewed an attack on John Podesta first floated in a Peter Schweitzer and Steve Bannon report released on August 1 (and funded by Rebekah Mercer).

Hillary Clinton’s presidential campaign manager, John Podesta, was on the executive board of a client of the Panamanian law firm Mossack Fonseca, which is at the heart of the the Panama Papers investigation into massive global offshore money-laundering.

The company for which Podesta served as a board member, Joule, also received $35 million from a Putin-connected Russian government fund at the same time then-Secretary of State Hillary Clinton spearheaded the transfer of U.S. advanced technology, some with military uses, as part of her “reset” strategy with Russia, according to a report titled “From Russia With Money,” released in August by the Government Accountability Institute. “Clinton Cash” author Peter Schweizer is president of GAI, and Steve Bannon, the CEO of the Trump campaign, is a director.

The Russian entities that funneled money to Joule and its related companies, and ultimately to Podesta, include a controversial Russian investor with ties to the Russian government, Viktor Vekselberg, and his Renova Group, a Russian conglomerate with interests in oil, energy and telecommunication.

It was a remarkably prescient report! Just hours later, WikiLeaks would start releasing John Podesta’s emails, and would you know it?!?, starting on October 11, those emails included documents pertaining to Podesta’s efforts to unwind his relationship with Joule. He and Roger Stone both returned to that attack on October 13, after WikiLeaks had released those files. And on October 17, Corsi finally got around to a post linking the released files to (claim to) substantiate the attack.

While that’s in no way proof, it certainly seems to suggest that either Corsi or Stone not only had advanced warning that WikiLeaks would release Podesta emails, but knew that those emails would include documents pertaining to Joule.

As it happens, though, Corsi and Stone spoke about Joule back in August, probably on August 14, before Stone predicted that it’d soon be Podestas’ time in the barrel. Corsi explained that conversation in March 2017, at a time when Stone was pushing Randy Credico to back his explanations for the Podesta comment, this way:

On Aug. 14, 2016, the New York Times reported that a secret ledger in Ukraine listed cash payments for Paul Manafort, a consultant to the Ukraine’s former President Viktor F. Yanukovych.

When this article was published, I suggested to Roger Stone that the attack over Manafort’s ties to Russia needed to be countered.

My plan was to publicize the Government Accountability Institute’s report, “From Russia With Money,” that documented how Putin paid substantial sums of money to both Hillary Clinton and John Podesta.

Putin must have wanted Hillary to win in 2016, if only because Russian under-the-table cash payments to the Clintons and to Podesta would have made blackmailing her as president easy.

On Aug. 14, 2016, I began researching for Roger Stone a memo that I entitled “Podesta.”

Stone has explained whatever digital tracks and the timing of that conversation slightly differently, claiming first that it pertained to a reference to a Schweitzer piece, but probably currently relying on this piece.

If Stone and Corsi plotted on August 14 to return to the Joule attack after WikiLeaks released files on it, then that conversation would have shortly follow the trip to Italy in late July and early August that, according to Corsi, Mueller appears to believe is where Corsi learned about the Podesta emails.

But Corsi says — in spite of apparent emails in Mueller’s possession proving otherwise — he figured out WikiLeaks would release Podesta’s emails just by “forensic analysis.”

“I connect the dots,” he said. “I didn’t need any source to tell me.”

Corsi said he determined in August that WikiLeaks head Julian Assange had obtained Podesta’s emails and was likely to release them in October — and he said several emails he sent in the summer of 2016 would confirm that fact. But he said his awareness was simply a logical deduction, not inside information from WikiLeaks.

[snip]

Corsi said that he had “sources” who had given him 1,000 pages of information over the summer of 2016 on how the Democratic Party’s computers worked. He said he did a “forensic analysis” of those emails to infer that Podesta’s were missing from the batch.

“Whoever was in that server, had to have seen Podesta’s emails,” he said. “It was a guess, but it was a conclusion that Assange had Podesta’s emails. … He was going to release them in October. Assange always releases things strategically.”

Which brings us to where we are today. After twice getting the media all worked up over claims about plea deals, Corsi now says he is rejecting a plea deal on one count of perjury.

Matt Whitaker May Determine What Happens Next

It’s not just that Corsi has succeeded in yanking the media’s chain, twice setting off press tizzies closely covering the claims of a man whose job is getting the press to embrace elaborate lies. It’s that Corsi’s chain-yanking have occurred at key times in the Matt Whitaker era. Consider this timeline:

November 7: Trump fires Jeff Sessions and replaces him by the end of day with designated hatchet man Matt Whitaker

November 8: In hearing in Andrew Miller subpoena challenge, Michael Dreeben lays out what Mueller can do with and without Attorney General appointment, noting that subpoenaing a journalist requires AG approval

November 8: On his podcast, Corsi suggests something big is going down with Mueller

November 9: Corsi appears before the grand jury and doesn’t give the answer — regarding how he learned that WikiLeaks would release John Podesta’s emails — that prosecutors expected; they told him they were going to charge him with perjury

November 12: On his podcast, Corsi says he expects to be indicted; a huge media frenzy follows

November 13: The media frenzy continues until (he claims), moments before starting an MSNBC interview, his lawyer tells him to call it off

November 15: Trump tweet apparently reflects Corsi’s claim of prosecutors yelling at him to give specific testimony they seek

November 19: In supplemental filing in Miller case, Mueller says he retains full authority of US Attorney until and uniless appointing regulations get changed

November 23: Corsi goes to the WaPo (off the record), AP, and MSNBC (the latter two both on the record) to tell them he is in plea negotiations

November 26: Corsi announces he has been offered, but will reject, a plea deal to one count of perjury, accuses Mueller of Gestapo tactics, and claims he will file a complaint with Whitaker

I’ve been wondering since November 9 whether Whitaker and Mueller had differences of opinion about what should happen with Jerome Corsi. We don’t actually know, yet, what kind of role Whitaker has played in overseeing Mueller’s investigation yet, partly because it’s not clear whether he’d be read in before the conclusion of an ethics review that it’s not at all clear he would pass (he can refuse to recuse anyway, but that will pose risks to his law license).

Still, it seems likely that, going forward, Whitaker will have an opportunity to weigh in on what happens to Corsi. If Mueller decides, once Corsi refuses a plea deal, to charge Corsi with that lie and perhaps others (or a role in a larger conspiracy), Whitaker may have an opportunity to veto it. And DOJ would presumably treat Corsi, a clear propagandist, but one with prior ties to the President, as a journalist.

To be clear, Corsi would be charged for lies to the grand jury. Even assuming he claimed he did so to protect a source, he’d be in a different position than (say) when James Risen refused to say anything about a source. He’d have already lied.

Still, by treating Corsi with heightened First Amendment privileges, Whitaker could add layers of review to any new charges (again, assuming anything Corsi says is true).

Meanwhile, Corsi has told multiple outlets that he wants to accuse Mueller of advising Corsi to lie to FINRA about pleading guilty.

Corsi has also added a new twist to the saga, claiming that he plans to file a complaint with Acting Attorney General Matt Whitaker over Mueller’s team’s alleged recommendation that he keep his plea deal a secret from the Financial Industry Regulatory Authority (FINRA).

“FINRA requires by law that I immediately report anything that might affect my ability to hold securities licenses,” Corsi explained. “So I asked the special counsel’s team how they expected me to fulfill my legal obligation to FINRA if they want me to keep the plea deal a secret. And they said, ‘you don’t have to tell FINRA because this will all be under seal.’ So I told them I was going to file criminal charges against them with Whitaker, because they just advised me to commit a crime.” The special counsel’s office declined to comment.

By making claims that are probably bullshit and were probably made in front of his attorney, Corsi risks really screwing up his legal representation.

But all this is pretty obviously theater performed for two audience members: Donald Trump (who has already publicly responded) and Matt Whitaker (who believes in Bigfoot and time travel). So it may work!

Does Mueller need Corsi’s prosecution, or does he need his testimony?

Nevertheless, if Corsi serially lied to investigators, I would imagine Whitaker would eventually approve of charges against him.

But that may not be what Mueller wants (and Corsi may know that).

While it seems clear part of Corsi’s lies pertain to how he learned that WikiLeaks had and would release Podesta’s emails, Corsi told Nashsa Bertrand that the lie pertained to an email he sent to Roger Stone telling him to go see Assange.

Corsi told me that he emailed Stone in 2016 (he didn’t specify what month) telling him to “go see Assange”—an email that prosecutors showed him during an interview earlier this year that Corsi apparently had not voluntarily produced. “I couldn’t remember any of my 2016 emails,” Corsi said. “I hadn’t looked at them. So they let me amend my testimony, but now they want to charge me for the initial day [of my interview with prosecutors] when I said I didn’t remember that email. I won’t plead guilty to it.”

Corsi’s story doesn’t make sense — not least because if this really were about his original interview, it would be charged as False Statements, not Perjury — but if what Mueller needs is an account of Corsi’s August communications with Stone, then Corsi’s current stunt may actually achieve part of its objective.

Mueller probably doesn’t want to charge Corsi — and certainly not Corsi alone — because he’s such a gaslighter the trial will be a pain in the ass (and while he’s got a credible lawyer, he obviously doesn’t have any control over Corsi’s stunts). What Mueller probably wants is the testimony he needs to be able to charge Stone as part of a larger conspiracy.

The bigger question, though, is whether Mueller needs that testimony before he takes his next investigative steps.

Yevgeniy Prigozhin Continues to Troll Both Online and in the Courts

xkcd comic used under Creative Commons license — available online at https://imgs.xkcd.com/comics/free_speech.png

The trolls are engaging in lawfare again.

For some time, I’ve been fascinated by the way, particularly in the wake of the 2016 election tampering, Russians have engaged in lawfare to score political points against the US. There were the multiple lawsuits pertaining to the Steele dossier. There was Concord Management’s unexpected defense in the Internet Research Agency indictment. Last week, Yevgeniy Prigozhin’s trolls struck again, this time suing Facebook for deleting the account of Federal Agency of News on April 3, 2018.

I’m a bit mystified by this suit. It may be a moonshot bid to learn more about Mueller’s investigation and insinuate that Facebook is an agent of the US government. More likely, it may be as much about pressuring Facebook in Russia as it is about winning reinstatement on Facebook.

Another Prigozhin attempt to use lawfare to embarrass the US government (and their willing partner Facebook!)

As with Concord’s defense, Prigozhin has hired legit American lawyers for the lawfare. But unlike Concord’s defense, it’s not clear how seriously to take this effort. The suit complains, in significant part, that Facebook has deprived FAN of its First Amendment rights.

FAN’s publications and posts on Facebook were the exercise of its constitutionally protected freedom of speech to inform the general public of historical and current events in politics, entertainment and other areas of public interest.

Facebook violated FAN’s First Amendment rights by deleting the contents of FAN’s Facebook Page and blocking FAN’s access to its Facebook account.

Facebook took action against FAN in an effort to silence and deter FAN’s free speech.

Facebook violated FAN’s First Amendment rights solely on account of its and its members’ national origin.

As xkcd famously explained once, that’s not the way the First Amendment works. It only prevents the government from limiting speech. Facebook is a private company, and it can boot whatever users it sees fit. But FAN may be trying to do two things. First, by treating Facebook’s terms of service as a contract, it claims it fulfilled its side of the relationship, but Facebook nevertheless deleted its account.

FAN complied with the terms of the Contract by properly registering with Facebook, paying any fees that were due and complying with all applicable terms of service.

At no time did FAN violate the terms of the contract.

Despite its contractual obligation to provide FAN with access to Facebook. Facebook breached the contract by removing FAN’s Facebook account and blocking FAN’s content without a legitimate reason.

Then, by tying Facebook’s efforts to crack down on Russian trolls to US government efforts to respond to Russia’s 2016 operation, I suspect it is trying to argue that Facebook deleted FAN’s account as an agent of the US government, thereby amounting to a First Amendment violation. The very first section of the complaint’s Background description details, “Facebook and the United States Government Target Russian Websites.” Among other details to substantiate that effort, it cites:

  • The January 2017 Intelligence Community Assessment that described “a close Putin ally with ties to Russian intelligence” funding the Internet Research Agency
  • Former Facebook CISO Alex Stamos’ statements, which went overboard in trying to assure people they were hunting down all Russian influence operations, “even those with very weak signals of a connection and not associated with any known organized effort”
  • Mark Zuckerberg’s comments that Facebook was “actively working with the U.S. government on its ongoing investigations into Russian interference”

As the lawsuit lays out, when Facebook removed FAN’s account in April, both Stamos and Zuck said they were doing so solely because FAN was controlled by the Internet Research Association.

All that said, it’s still highly unlikely this will work. I’m not sure if any of the CA-specific complaints will either, but like I said, this is a moonshot.

Prigozhin’s corporate laundromat

To make the argument at all, of course, FAN has to dismiss the presumed and explicit reasons Facebook banned them, starting with the accusation that they’re tied to IRA. In part, that involves claiming that IRA was disbanded in 2016.

Upon information and belief, the IRA was liquidated on or about December 28, 2016.

It also describes the new digs FAN got in 2015, after cohabiting with IRA for a year.

At the time of FAN’s incorporation and until in or about the middle of 2015, FAN and the IRA were located in the same building at 55A Savushkina Street, Saint Petersburg, the Russian Federation, 197183.

In or about the beginning of 2015, FAN searched for new premises that would be more convenient for its business with regard to a larger space for the office premises. On July 1, 2015, FAN moved to a business center at 23J Krasnogvardeiskiy Lane, Saint Petersburg, 197342.

But it also involves denying claims made in the complaint against Elena Alekseevna Khusyaynova that was filed in September but not unsealed until October, events that post-dated Facebook’s banning of FAN by over five months. In that complaint, FBI Agent David Holt had alleged that FAN was one of the entities that helped obscure Project Lakhta’s disinformation efforts.

Beginning in or around mid-2014 and continuing to the present, Project Lakhta obscured its conduct by operating through a number of Russian entities, including Internet Research Agency LLC (“IRA”), Internet Research LLC, MediaSintez LLC, GlavSet LLC, MixInfo LLC, Azimut LLC, NovInfo LLC, Nevskiy News LLC (a/k/a “NevNov”), Economy Today LLC, National News LLC, Federal News Agency LLC (a/k/a “FAN”), and International News Agency (a/k/a “MAN”).

The complaint claims FAN has nothing to do with these efforts, in part by denying (correctly, by all public accounts) that Lakhta is a legal entity.

FAN has no knowledge of “Project Lakhta”. There is no known business or other organization in the Russian Federation that operates under such name. To the extent it is some sort of informal organization, FAN is unaware of its membership, goals or methods of operation.

FAN is not an entity within “Project Lakhta” and has no relationship with “Project Lakhta”, the IRA or GlavSet. To the contrary, FAN is a news gathering and dissemination organization. In that capacity, FAN gathers news from conventional sources and adheres to journalistic standards in its operations.

Denying any tie to IRA and Lakhta, however, also involves making claims about Khusyaynova that directly conflict with the claims in the complaint. Khusyaynova, the lawsuit claims, is FAN’s accountant, but that’s the only place she works.

Ms. Khusyaynova has been FAN’s chief accountant since at least August 2, 2016. As such, Ms. Khusyaynova has been involved in FAN’s day-to-day accounting operations, including the purchase of office equipment and furniture and payments for advertising or other business contracts as assigned by Mr. Zubarev in his capacity as the General Director of FAN.

As the Chief Accountant, Ms. Khusyaynova’s duties are akin to those of a bookkeeper in the United States. She is not an officer of FAN, does not exercise discretionary authority over the editorial content of FAN’s publications and is not aware of what stories are going to be published or not published.

To the best of FAN’s knowledge, Ms. Khusyaynova’s sole employment is with FAN. In fact, she has explicitly stated that FAN is her sole employer and that she does not provide any services to any other entity and denies any involvement with “Project Lakhta”.

FAN has no reason to believe that Ms. Khusyaynova or any of its employees were providing services to another entity, much less to an entity under the umbrella of “Project Lakhta”.

And it’s not just Khusyaynova about whom FAN must make claims that dispute those made by the US government. The complaint does the same of Aleksandra Yurievna Krylova, who was accused in the IRA indictment of planning and carrying out an intelligence gathering trip to the US in 2014.

Defendant ALEKSANDRA YURYEVNA KRYLOVA (Крылова Александра Юрьевна) worked for the ORGANIZATION from at least in or around September 2013 to at least in or around November 2014. By approximately April 2014, KRYLOVA served as director and was the ORGANIZATION’s third-highest ranking employee. In 2014, KRYLOVA traveled to the United States under false pretenses for the purpose of collecting intelligence to inform the ORGANIZATION’s operations.

[snip]

Only KRYLOVA and BOGACHEVA received visas, and from approximately June 4, 2014 through June 26, 2014, KRYLOVA and BOGACHEVA traveled in and around the United States, including stops in Nevada, California, New Mexico, Colorado, Illinois, Michigan, Louisiana, Texas, and New York to gather intelligence. After the trip, KRYLOVA and BURCHIK exchanged an intelligence report regarding the trip.

Here, the lawsuit has a bit more difficulty just dismissing ties. It admits that Krylova was the founder and first director of FAN, but in that passage of the lawsuit declines to mention when that was.

The founder and first General Director of FAN was Aleksandra Yurievna Krylova. The Special Counsel has alleged that Krylova was an employee of the IRA from in or around September 2013 to in or around November 2014. FAN has no knowledge of this allegation and therefore does not know if it is accurate or not.

But as the lawsuit admits elsewhere, FAN was incorporated on May 22, 2014.

On May 22, 2014, FAN was incorporated in order to satisfy public needs of Russian and foreign legal entities and individuals by way of gathering, transmitting and supplying domestic and international news reports and other publications of public interest.

So at the time Krylova traveled to the US (while hiding her true purpose, thereby committing visa fraud), she had just recently formed FAN.

All this is no big deal, the lawsuit suggests, because FAN doesn’t know anything about it and besides it has been a long time.

Anna Vitalyevna Botneva succeeded Krylova as General Director of FAN, on November 17, 2014, and on December 24, 2014, Krylova sold 100% of the company’s shares to Botneva.

[snip]

At the time of Ms. Krylova’s indictment, she had no connection with FAN for more than three years.

At the time of Krylova’s indictment, of course, she also had had no connection with IRA for the same length of time.

FAN is silent about how long Botneva ran the show and how long she remained the sole shareholder. What it does make clear is that Evgeniy Lvovich Zubarev — the guy who’s being fronted as a plaintiff and the one who presumably would be asked to claim to have ignorance of IRA’s ties to FAN and Khusyaynova’s day job — became the sole shareholder last year.

Since August 2, 2016, Evgeniy Lvovich Zubarev has been the General Director of FAN, and since April 5, 2017, he has been the sole shareholder of the company.

In preparation of the Concord Management challenge of the IRA indictment, Prigozhin got himself named the director, which would give him the opportunity to claim to need to review discovery. This feels like the opposite: the creation of a figurehead who can claim to be dumb and dissociated from Prigozhin’s other efforts.

I highly doubt this well get very far (in part, because FAN would have to provide better proof than it has provided that these things are true).

A set-up to claim Facebook is conducting influence operations in Russia

Which finally brings us to where I think this is going. A First Amendment claim here in the US is unlikely to get anywhere, though it does give Russian propagandists an opportunity to claim Russia is being deplatformed by American social media along with the Nazis and terrorists.

But how Russia will use this argument within Russia is another matter. The lawsuit describes its injury, in part, in terms of a loss of access in Russia.

As of October 2018, FAN is ranked among the Top 35 most visited websites in Russia by LiveInternet, one of the largest Russian internet blogging platforms; among the Top 20 by Mail.ru, a Russian internet company which reaches approximately 86% of Russian internet users per month; and among the Top 25 by Rambler, a Russian search engine and one of the biggest Russian web portals.

Many of FAN’s subscribers are also Facebook users who for at least the past four years were able to access FAN through Facebook and who did, in fact, access FAN through Facebook.

That is, FAN is making an argument that it has lost Russian readers, not just American ones, because of Facebook’s actions.

And, in the last line of the introduction, the lawsuit uses language that (I could imagine) Russia might use in the future to accuse Facebook of conducting its own influence operations.

Facebook seeks to dictate news content based upon its own political view point thereby attempting to influence the public media coverage of internal political events in the Russian Federation.

After laying out a claim that Facebook was acting as an agent of the US government in cutting off trolls, it ends with a suggestion that Facebook’s real goal here is to influence “internal political events” within Russia.

That, I suspect, is the real purpose of this effort, setting up a future attack against Facebook operating in Russia.

Big Dick Toilets and Sasquatch Dolls: Matt Whitaker’s Qualifications To Be Dog-Catcher

I’ve followed the burgeoning scandal that the guy Trump appointed to play hatchet man to Mueller’s investigation is totally unqualified to be Acting Attorney General. But I’ve already lost track of all the reasons why. So I’m going to try to keep a running list here.

This will be updated as new issues are identified.

Legal problems with the appointment

While Steve Vladeck says it’s legal, and Marty Lederman and Walter Dellinger find OLC’s analysis, concluding that Matt Whitaker’s appointment is legal, to be plausible, a number of commentators disagree. Those include:

These arguments include a mix of constitutional (Appointments Clause) and legal (Vacancies Reform Act and the purpose of DOJ).

Numerous people are already challenging his appointment, including the state of Maryland, three Democratic Senators, and a number of criminal defendants. Quinta Jurecic is collecting all the litigation documents for those challenges here.

Other legal problems

In addition to the Constitutional and legal problems he raises, Neal Katyal also argues that Whitaker cannot legally supervise Mueller’s investigation.

David Kris points out that because of the legal questions surrounding Whitaker’s appointment and the certainty that defendants will challenge it, his appointment will create a whole bunch of downstream problems for DOJ.

A company for which Whitaker served on the board is under investigation by the FBI and FTC. Though Whitaker was subpoenaed by the FTC, he blew off that subpoena. FOIAed records show that Whitaker kept pitching the company even after receiving complaints.

One report on Trump’s efforts to get DOJ to prosecute Hillary Clinton and Jim Comey describes Whitaker prepping discussions about what it was doing in response; he reportedly “did not seem to cross any line,” but it remains to be seen whether that’s true.

Whitaker got four donations amounting to $8,800 to his 2014 Senate run in 2018, after he had started as Sessions’ Chief of Staff, which may amount to a violation of the Hatch Act. Following a complaint from watchdog group American Oversight, the Office of Special Counsel (the DOJ office in charge of reviewing such violations, among other things) opened an investigation into this.

Bureaucratic problems

There may be problems with the way that Whitaker was appointed.

As numerous people have noted, Jeff Sessions did not date his resignation, raising questions about when his authority really passed to Whitaker. (OLC says Sessions resigned on November 7.) Democrats in the House are also suggesting they believe Sessions’ forced resignation counts as a firing, which changes the options Trump would have to replace him under the Vacancies Reform Act.

Chris Geidner has reported that the White House won’t say when Whitaker was formally appointed.

Because Mueller has sought an interview with John Kelly (indeed, he’s a leading candidate to be the Mystery Appellant challenging a subpoena or something else from Mueller), it may be problematic that he played a key role in firing Jeff Sessions.

Conflict problems

Whitaker has a potential conflict with regards to the Mueller investigation tied to his relationship with Sam Clovis, who was in charge of crafting Trump’s outreach to Russia. Whitaker served as Clovis’ campaign manager in 2014.

Then, in a series of appearances Whitaker used to draw Trump’s attention, he commented on the Mueller investigation or the underlying conflict.

In a USAT column on July 5, 2016 and then multiple appearances on July 6, Whitaker suggested Hillary should have been prosecuted, partly by criticizing Jim Comey for making the decision.

On September 30, 2016, Whitaker suggested that if Trump won, he should restart the investigation into Hillary.

On May 19, 2017, Whitaker dismissed the possibility that Trump had committed obstruction of justice by firing Comey.

In July 2017, Whitaker interviewed with Don McGahn to take on the role of legal attack dog discrediting the Mueller investigation.

On July 13, 2017, Whitaker defended Donald Trump Jr taking the June 9, 2016 Trump Tower meeting.

In a CNN interview on July 26, 2017, Whitaker described how you could defund the Special Counsel and thereby end his work.

I could see a scenario where Jeff Sessions is replaced, it would recess appointment and that attorney general doesn’t fire Bob Mueller but he just reduces his budget to so low that his investigations grinds to almost a halt.

On July 27, 2017, Whitaker said it would be a mistake to provide Mueller any further protection.

On August 4, 2017, Whitaker recommended an article that describes, “with a little planning he could install a true believer to a political position at DOJ—as a sleeper agent—and then (after easing out Sessions) elevate him or her to attorney general.”

On August 6, 2017, Whitaker used the Red Line comment Maggie and Mike teed up to describe Mueller pursuing Trump’s finances as improper.

On August 11, 2017, Whitaker suggested the investigation into Paul Manafort was outside the scope of Mueller’s appointment. In that same appearance, he suggested Mueller had engaged in prosecutorial misconduct.

On August 15, 2017, Whitaker said Mueller’s appointment was a little fishy.

On August 25, 2017, Whitaker suggested searching Manafort’s condo with a dozen agents was designed to intimidate him.

On August 30, 2017, Whitaker suggested Mueller’s investigation was politically motivated and was misusing resources that should be used elsewhere.

In spite of the fact that many of these would seem to pose conflicts that DOJ normally concludes would ethically prohibit Whitaker’s involvement in the Mueller investigation, both Trump and Whitaker appear to have known he would not recuse from the Mueller investigation even before he was appointed, though Trump has claimed (evidence to the contrary) that he didn’t talk to Whitaker about such things before he appointed him.

Financial problems

As noted by CREW when they released Whitaker’s financial disclosures, his disclosures got doctored (or “Kushnered,” as I’m now referring to serial attempts to belatedly fix glaring problems in official disclosures) four times after the time he was appointed AAG.

CREW has already filed a FOIA for those revisions.

What the records show is just as alarming.

The non-profit Whitaker worked at to, first, beat up Hillary Clinton and then audition to kill the Mueller investigation, Foundation for Accountability and Civic Trust, has obscure funding and genesis. It keeps changing its name. Whitaker’s salary, which went from $63,000 for part time work to $660,000 a year, made up most of its expenditures in the period before he became Sessions’ Chief of Staff. One of the guys listed as a director, James Crumley, claimed not to remember its existence. Another, Noah Wall, didn’t know he was listed as Director. While claiming to be non-partisan, it overwhelmingly attacked Democrats (and Hillary specifically), a possible violation of IRS regulations. As OpenSecrets notes, its funding comes from a black hole pass through, but the organization seems to have ties to other judiciary-related dark money groups.

The 14 companies in Iowa Whitaker worked for (reportedly, past tense) have never filed paperwork noting that, so on paper he still works for them.

In 2016, Whitaker abandoned a taxpayer-funded apartment rehabilitation project, defaulting on loans and hiding from creditors.

World Patent Marketing — the company the FBI is investigating — was totally fraudulent, pretending to help review patents without doing so. Among those the company defrauded are veterans. Among the things it marketed were Big Dick Toilets, Sasquatch dolls, and time travel.

Abuse as (or invoking past history as) US Attorney

Whitaker has already abused his position as a government prosecutor, both while serving and since.

In 2006, he prosecuted a Democratic politico, Matt McCoy and even paid an informant to incriminate him. The jury acquitted McCoy after deliberating for just 25 minutes.

Then, when serving on the advisory board for a World Patent Marketing, he threatened people who complained, including threatening them with legal retribution.

Temperament

Both on his legal views and his other beliefs, Whitaker has a temperament far outside the mainstream.

When running for Senate, Whitaker argued that judges should have a biblical view and said that Marbury v. Madison — the foundation of judicial review in this country — was among the worst Supreme Court decisions.

He was among the US Attorneys who imposed the harshest sentences in drug prosecutions.

Update: Since it has attracted a lot of attention, I owe this title in part to HowdyQuicksell, but the Dog Catcher accusation (which will probably ensure no DOJ spox will ever again return my calls) is my own.

Leo’s Lane: Balls and Strikes versus Checks and Balances

Last week, a group of Federalist Society members kicked off the annual meeting by announcing a new group, calling itself Checks and Balances, led by Kellyanne Conway’s spouse, George.

On its face, it’s not clear what function the group will have, aside from focusing even more attention on George and Kellyanne’s differing views on the President. I assume, however, the statement the 14 lawyers signed is meant to embarrass other conservative lawyers into remembering the principles they lay out in their statement.

We believe in the rule of law, the power of truth, the independence of the criminal justice system, the imperative of individual rights, and the necessity of civil discourse. We believe these principles apply regardless of the part of persons in power. We believe in a “a government of laws, not of men.”

We believe in the Constitution. We believe in free speech, a free press, separation of powers, and limited government. We have faith in the resiliency of the American experiment.

That said, I want to look at a few details of timing and intent.

The WaPo has an article that describes why some of the signers joined the group. Attacks on DOJ, Trump’s cultivation of racists, and attacks on the free press.

As to Conway, though, it focuses on the appointment of Matt Whitaker (though also includes Trump’s claim to want to end birthright citizenship).

Other members have pointed to Trump’s ouster of Jeff Sessions as attorney general and installation of Matthew G. Whitaker as acting attorney general.

Conway, the group organizer, said, “There wasn’t any one thing; it’s a long series of events that made me think that a group like this could do some good.”

Conway has authored a series of articles attacking Trump’s politics, most recently an opinion piece in the New York Times that called Whitaker’s appointment unconstitutional.

“It’s illegal. And it means that anything Mr. Whitaker does, or tries to do, in that position is invalid,” Conway wrote. He similarly called the president’s plan to end birthright citizenship unconstitutional.

That’s interesting given the role multiple NYT stories have described Federalist Society Executive Vice President Leonard Leo had in the hiring of Whitaker. After the NYT almost got Rod Rosenstein fired (probably relying at least in part on Whitaker as a source), it described Leo recommending Whitaker to be Sessions’ Chief of Staff back in 2017.

Leonard Leo, the influential head of the conservative legal organization the Federalist Society who has taken leaves from the role to periodically advise the president since the transition, recommended Mr. Whitaker for his job with Mr. Sessions, according to a person briefed on the job search.

[snip]

“He has the trust and confidence of any number of people within the Justice Department and within the law enforcement community, but also the White House,” Mr. Leo said of Mr. Whitaker.

Installing Whitaker as Chief of Staff last year is one of the reasons Whitaker’s appointment would be legal under the Vacancies Reform Act (though the appointment’s legality is still very much under debate), because it meant he had been in a senior position at DOJ long enough to qualify. And hyping Whitaker at that moment was a key step in prepping his installation after Sessions’ eventual firing.

NYT emphasized again, once Whitaker had been installed, Leo’s role in his installation.

At this point, let me take a detour. Most of the lawyers who signed onto Checks and Balances are thrilled with the way Trump has been packing the court with conservative judges. Which would mean, by extension, they’re thrilled with Leo’s role in the Administration (indeed, in all recent Republican administrations) for the way he has provided the Executive branch a steady supply of vetted conservatives to get approved for lifetime appointments. Conway himself has said Trump “deserves a tremendous amount of credit for that. I’ll be the first to clap my hands for it.”

Yet, in the NYT story on the group, Conway suggested that Republicans were so happy with Trump’s success in packing the courts that they overlooked other things like rule of law.

Mr. Conway, who has long been a member of and contributor to the Federalist Society, said he had nothing but admiration for its work. But he added that some conservative lawyers, pleased with Mr. Trump’s record on judicial nominations and deregulation, have been wary of criticizing him in other areas, as when he attacks the Justice Department and the news media.

“There’s a perception out there that conservative lawyers have essentially sold their souls for judges and regulatory reform,” Mr. Conway said. “We just want to be a voice speaking out, and to encourage others to speak out.”

In championing Whitaker, Leo has stepped beyond his traditional role — vetting and supporting judicial candidates — into a different one, which might either be judged as interfering in DOJ’s operations or, more alarmingly and accurately, helping the President (who has succeeded so well at packing the courts) undermine a criminal investigation into his own conduct.

Leonard Leo has stepped outside his lane. And George Conway, at least, is pushing back.

And that’s why I find Leo’s response to the group so interesting. He gave Axios a screed of bullet points talking about how offended he is by the move.

  • “I find the underlying premise of the group rather offensive,” Leo told me. “The idea that somehow they need to have this voice because conservatives are somehow afraid to talk about the rule of law during the Trump administration.”
  • “And my response to that is, no, people aren’t afraid, many people just don’t agree that there’s a constitutional crisis and don’t agree with the people who have signed up with this group.”

Several of those bullet point screeds focused on the Jeff Sessions’ firing.

  • “I measure a president’s sensitivity to the rule of law by his actions, not his off-the-cuff comments, tweets or statements. And the president has obviously had lots of criticisms about former Attorney General Sessions and about the department, but at the end of the day, he hasn’t acted upon those criticisms.
  • “He’s allowed the department to have an awful lot of freedom and independence. … He can say what he wants to say, but at the end of the day, words don’t threaten the rule of law, actions do. I’ve been to 48 countries around the world. I know a constitutional crisis, and I know what a rule of law crisis is. Lots of countries have them. This country doesn’t right now.”

Leo seems to be having fun playing DOJ kingmaker, on top of the great success he has had playing judicial kingmaker under Trump. But it seems at least some conservatives don’t believe that’s his role to play.

Update: I asked Conway about this and got a response after the post was published. He says this is not about Leo at all.

It’s a response to Trump and the need for conservative lawyers generally to say something about him. It’s got nothing to do with Leonard.

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