Carter Page Did Not Need to be a Spy to be Targeted Under FISA

The NYT has a story that explains something I was wondering about over the weekend: how the Nunes memo could be used — as it reportedly is being used — to justify a Trump bid to fire Rod Rosenstein. Shortly after he was confirmed, NYT reveals, Rosenstein approved the renewal application for the FISA order targeting Carter Page.

A secret, highly contentious Republican memo reveals that Deputy Attorney General Rod J. Rosenstein approved an application to extend surveillance of a former Trump campaign associate shortly after taking office last spring, according to three people familiar with it.

[snip]

[I]n their efforts to discredit the inquiry, Republicans could potentially use Mr. Rosenstein’s decision to approve the renewal to suggest that he failed to properly vet a highly sensitive application for a warrant to spy on Mr. Page, who served as a Trump foreign policy adviser until September 2016.

The news is interesting for several reasons. First, it provides more granularity for the timing of the surveillance targeted at Page.

American law enforcement officials began conducting surveillance on him in the fall of 2016, shortly after he left the campaign. It is unclear what they learned about Mr. Page between then and when they sought the order’s renewal roughly six months later. It is also unknown whether the surveillance court granted the extension.

The renewal effort came in the late spring, sometime after the Senate confirmed Mr. Rosenstein as the Justice Department’s No. 2 official in late April. Around that time, following Mr. Trump’s firing of James B. Comey as F.B.I. director in May, Mr. Rosenstein appointed Mr. Mueller, a former head of the bureau, to take over the department’s Russia investigation.

Rosenstein was sworn in on April 26. He appointed Mueller on May 17. If we take that window as the timeframe for the reapplication date, it would date the prior authorization (orders targeting US persons last 90 days) to roughly January 26 through February 17, and the fall one to October 26 to November 17 time frame. The later you get in that initial time period, the closer you get to the time when Page would have been planning a follow-up visit to Russia in December.

Glenn Simpson describes Christopher Steele’s second meeting with the FBI, in Rome, about his dossier as occurring sometime in September. So there was perhaps a month between the time Steele provided information on Page and the time the FBI obtained the new order targeting Page.

On top of what the NYT says about Democratic complaints about this memo, there are other reasons to believe this is bogus. Even on 702 — but especially on FISA — the retasking process requires the government to show it obtained new information during the prior surveillance period, meaning the application Rosenstein signed would have been the second to do so.

Plus, there’s one more point.

To be targeted FBI had to provide proof that Page was an agent of a foreign power.

The renewal shows that the Justice Department under President Trump saw reason to believe that the associate, Carter Page, was acting as a Russian agent.

[snip]

To obtain the warrant involving Mr. Page, the government needed to show probable cause that he was acting as an agent of Russia.

But that does not actually entail proving that he, himself, is spying on the US. An American may be targeted as an agent of a foreign power if he knowingly aids or abets someone involved in clandestine intelligence gathering that may involve a violation of criminal statutes.

(A) knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States;

(B) pursuant to the direction of an intelligence service or network of a foreign power, knowingly engages in any other clandestine intelligence activities for or on behalf of such foreign power, which activities involve or are about to involve a violation of the criminal statutes of the United States;

[snip]

(E) knowingly aids or abets any person in the conduct of activities described in subparagraph (A), (B), or (C) or knowingly conspires with any person to engage in activities described in subparagraph (A), (B), or (C).

That’s the standard that — given that Page had been warned by FBI in 2013 that he was being recruited — might be fairly easily within reach for Page. I suspect we’ll eventually learn (after whatever brouhaha ensues) that FBI claimed Page was either aiding or abetting Russian spies, or conspiring with them, not that he was a spy himself. But that’s a distinction that may be lost on Republicans trying to politicize this.

There’s one more thing (one I don’t expect applies here but is worth pointing out in any case). The government can target any facility an agent of a foreign power uses, whether or not the agent owns it.

(B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power

This is how the government got to do a scan of all Yahoo’s users, because the targeted foreign power was using Yahoo mail, generally, and the specific signature searched on identified the people as targets.

Two more points. Trey Gowdy reviewed the underlying intelligence to the memo  that is now being used to target Rosenstein, he’s telling colleagues to stop pressuring Mueller in part because Mueller is pursuing a counterintelligence component (precisely the kind of thing targeted with FISA!) that will explain what really happened in 2016.

Gowdy said there are “two components” to the purview of Mueller’s investigation.

“There is a criminal component. But there’s also a counterintelligence component that no one ever talks about because it’s not sexy and interesting. But he’s also going to tell us definitively what Russia tried to do in 2016,” Gowdy said. “So the last time you and I were together, I told my Republican colleagues, leave him the hell alone, and that’s still my advice.”

Gowdy is one of about six members of Congress who has seen the most sensitive materials in Mueller’s case. It’s really bizarre that he’s saying the GOP needs to back off Mueller because of his CI focus when they’re likely misunderstanding how FISA is used in CI.

Finally, remember that nothing that Mueller is known to have done is identifiably fruit from this Carter Page order. Even with Manafort — who was also reportedly targeted in a FISA order — Mueller has not given FISA notice to suggest he’s relying on anything derived from FISA (though such notice is always suspect).

So even if he dossier is dodgy, it may be that Mueller is pursuing his case such that he avoids any taint from it.

Update: I keep forgetting, but something that happened with Carter Page may well have been abusive, but it’s not what the Republicans are (as far as the public reporting goes) focusing on. It’s a sign that they’re dummies who don’t understand what they purportedly oversee that they haven’t figured this out. I’m not going to lay it out here — because those leading this hoax just reauthorized the practice in any case — but I have written it up elsewhere.

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.

87 replies
  1. orionATL says:

    quoth gowdy:

    ““There is a criminal component. But there’s also a counterintelligence component that no one ever talks about because it’s not sexy and interesting. But he’s also going to tell us definitively what Russia tried to do in 2016,” Gowdy said. “So the last time you and I were together, I told my Republican colleagues, leave him the hell alone, and that’s still my advice.”… ”

    now isn’t that something. the old republican benghazi sham-congressional-investigation partisan is talking about what i hope is the heart of mueller’s investigation – counter intelligence about just what the russian fbi AND russian military intelligence (strategically important to them i’m guessing) were up to in the good old u.s. of a in 2015 and ’16. and what they’ ve been up to in europe (poland, hungary), which, as any smart media analyst will tell you these days, is the result of european union economic failure and the weakness of liberal democracy, never, never, ever, ever an end effect of exploitation by russian intelligence operations.

    speaking as a democratic partisan, this is all the more reason democratic congressmen and other leaders ought to be shouting “betrayal of american national security to protect a president who may have betrayed it” from every op ed and teevee interview. but don’t hold your breath. democrats don’t do loud, ugly public fights with republicans – they just quietly bury their dead and hunch down for the next on slaught on another public issue.

    not that it matters much, but peter strzok was said to be one of the best of fbi’s counterintelligence guys.

    • Trip says:

      Gowdy is all over the place. Attempting to look ‘neutral’ while being highly partisan:
      Trey Gowdy: It may not be in Trump’s best interest to talk to Robert Mueller because Democrats won’t be a ‘fair jury’
      http://www.washingtonexaminer.com/trey-gowdy-it-may-not-be-in-trumps-best-interest-to-talk-to-robert-mueller-because-democrats-wont-be-a-fair-jury/article/2647324

      He is pretending that Democrats have some enormous control of the government or that they are ‘the jury’. I want him to talk to Mueller, but I don’t want him to talk to Mueller, because of the Democrats. This way he can pretend he’s completely fine with Mueller doing his job, while actually fearing Mueller doing his job, because of a potential reaction to it. He has perfected the art of talking out of both sides of his mouth, in one sitting.

      As far as Page, who knows? He has illustrated the most bonkers public displays with his interviews.
      It’s hard to tell if he has had any involvement in any kind of conspiracy, or if he is simply a certifiable space cadet or a tad nutty.

      Gowdy keeps arguing that the FBI knows what’s in the memo, but if items are excerpted without context, the FBI may see that as problematic, in that it is creating a narrative, versus a comprehensive collection of steps.  On the other hand, maybe the collection was questionable. However, I haven’t seen any evidence that proves Rosenstein is some super secret Democratic party operative, intentionally and purposefully looking to boot Trump from office. I suppose that they might want to argue that Rosenstein is incompetent, like the rest of the Trump hires?

    • Avattoir says:

      “betrayal of american national security to protect a president who may have betrayed it”

      I can just about get most of it on a hat, but the font size means we’re gonna need legislation for mandatory special lenses.

  2. orionATL says:

    i read the nytimes story on rosenstein earlier this morning and started to boil. this was fandos, goldman and lafraniere doing the familiar old nytimes dance around reality in order to maintain the purity of its reputation for “fair and balanced”. this type of coverage of likely incompetence, mendacity, and cover-up reminds me of nytimes coverage of democrat and republican presidential candidates in 2016. how could or can the shabby old gray lady fail so badly to talk about the political reality in front of their faces – in this most recent case of its purblindness, the attack on rosenstein serving to lead to his removal then mueller’s to keep republican presidential illegality hidden.

    “mr. trump has long been mistrustful of mr. rosenstein, the justice departartment’s number 2 official,… ”

    but

    “it is difficult to judge whether the republican’s criticism of the surveillance have merit have merit…”

    and if they do have some small merit with regard to fisa warrants does that negate or vitiate in any way the times obligation to tell the public the larger story of what the republican party’s trump-savers are up to?

    and that important counter-intelligence” angle”? forget it.

    • Trip says:

      The other day, they (NYT) were disingenuously giving Trump’s tax cuts credit for worldwide economic growth, Front Page, above the fold. Commenters were like, “Wut?”.

      • orionATL says:

        thanks. i missed that but am not surprised.

        a good first step? all their editors involved on every story, up to and including managing editor, need to be listed with the article. if you touched it, it belongs to you too.

        • Trip says:

          It wasn’t the focal point of the article, but in one of the first sentences as in, paraphrased, the international economic growth is attributed to such and such and Trump tax cuts. The lead in gives credit, and there it stays in the reader’s mind.

  3. pseudonymous in nc says:

    Let’s go back to the oddest bit of Gowdy’s exchange with Page from the HPSCI transcript:

    MR GOWDY: Other than the Bureau, have you been interviewed or talked with any other law enforcement entities?

    MR PAGE: I have spoken — do you — I’m not. I’m sorry. [REDACTED]

    MR GOWDY: I hope not. I don’t think so.

    MR PAGE: Okay.

    MR GOWDY: [REDACTED]

    MR PAGE: Yeah, well, I know there’s kind of overlap on this.

    MR GOWDY: I hope not. You’re telling us something we don’t know.

    MR PAGE: Well, I’m learning a lot about some of the gray areas which have been–

    MR GOWDY: All right. [REDACTED] [REDACTED] the FBI would be the only law enforcement entity that you have spoken with?

    In May last year, Page told Chris Hayes that he’d been invited to Langley from time to time to offer “insights”, which may be him being him, and it may not.

    It’s notable that Mueller’s public work so far has not gone anywhere near Page, who reportedly testified in front of the full grand jury rather than arranging an interview with investigators under pre-arranged conditions. It’s hard to believe that International Man of Derpy Mystery represents an entirely blind alley for the investigation, but maybe it’s all CI stuff.

    • Trip says:

      I’ve been back and forth contemplating if Page is actually a long time intel asset, who might be getting cover for that role. But then he seems so flaky, so it’s hard to imagine.

      • orionATL says:

        can you imagine his reports back? lacunae wouldn’t even begin to describe them :)

        “we got another report from page, boss.”

        “oh god, call the translators and let’s see if we can piece it together.”

      • lefty665 says:

        Considering CIA’s long history of exploiting chumps and infatuation with humint, that may be closer than we think. Carter Page, PhD from the Maxwell Smart school for secret agents. Junior and Jared may have been taking correspondence courses there for their new roles as international movers and shakers too. They failed the exam in Veselnitskaya’s class on bait and switch.

          • lefty665 says:

            You’d have thought that Assange would have passed Tweet 101 in a breeze, but he’s been leading a sheltered life. We might be surprised at who has had difficulty at the Maxwell Smart SfSA.

            • Trip says:

              I’m surprised that he would think twitter is the best place to pass  dirt on his opponents, in the first place. If anyone should know about hacking and then release of info….

              • lefty665 says:

                Exactly. Cabin Fever maybe? Or perhaps no one around to give him a refresher that drugs & alcohol and keyboards don’t mix. He may have self applied the lesson.

                We get new examples of Maxwell Smart SfSA fails every day. Is this a great country or what?

                • Trip says:

                  Or, he’s out in the open with his real motivation at this point? It seems like such a rookie mistake; drugs or alcohol notwithstanding. What a fall from grace, dying on the hill that is Hannity.  Hannity, the veritable cartoon of cable news.

          • greengiant says:

            Fake News 101,  if it is too good to be true it is.  Remember the congressional staff leak email date kerfuffle that even reached here. There are all manner of “parody” accounts some now deleted just for lulZ.  Note the real twitter account name is obscured in the article.

            • Trip says:

              I do not remember the congressional staff leak email date kerfuffle, I’ll have to look it up. I do recall the Gorilla TV network, though.

              However, Assange did, by his own admission, reach out to junior, advising him about his emails, etc. That’s beyond the ‘neutral observer’ position. So I’ll give it 50/50 real/fake news.

    • earlofhuntingdon says:

      Page is vicious, obtuse and just smart enough to get into trouble (but not out of it).  He seems to have as much self-knowledge as Trump, with whose campaign he maintained some connection.  The mix would make him a prime candidate for targeting by a foreign intelligence service (and his own).  I would characterize his testimony before a GJ, instead of an interview, as a demonstration of his resistance to Mueller and loyalty to the One.

    • SpaceLifeForm says:

      Sounds like Page was thinking (or misthinking) during the Gowdy questions that [insert non-FBI TLA here] is LE, albeit briefly until Gowdy could steer.

      Almost like Gowdy did not want Page to mention something.

    • earlofhuntingdon says:

      The questionable PhD aside, Page shares many of Trump’s characteristics and the Don only likes the bits of reality that mirror his Greatness.

      • orionATL says:

        at the very least trump and page share inarticulateness of a very high order – astounding actually in the case of our president.

      • earlofhuntingdon says:

        Page failed in his first two attempts at the required oral examinations for his dissertation.  He received a third viva, with a new set of reviewers (which he passed), because he whined loudly and often about being discriminated against because his views were outside the supposed liberal mainstream.  (The reviewers for his first two orals say they failed him because he didn’t know his subject.)  The argument is commonly used by the hard right in this country.

        UCL would have wanted to seem fair.  It has to make decisions about degrees for marginal students every year.  Students have devoted three years or more to a PhD and paid whopping fees to get as far as an oral exam.  And it makes a bundle from non-EU graduate students, which are charged Ivy League-level fees.  But the undertone in the reporting about Page’s degree implied that he had some juice, he used it, and got his degree.

        Occam’s razor suggests the squeaky wheel inched through to get a pass.  But if juice helped Page get it, it would be consistent with much else about him.  The question is, whose juice.

      • Avattoir says:

        Originally from St. Louis Park in Minneapolis, which includes Elmer Township and Elmer proper, I see him as an Elmer PhD.

    • SpaceLifeForm says:

      Pizza Place Manager (PPM): Here, deliver this pizza to 123 Main St.

      Page: Got it boss

      Many minutes later…
      PPM answers phone

      PPM: What? You never got your pizza?
      PPM: We will send you two pizzas, on the house

      Minutes later, Page walks in

      PPM: What the hell happened? The customer just called wanting to know where their pizza is!

      Page: Got lost. I ate the pizza

      PPM: Got lost?

      Page: Somehow

      PPM: It’s a self-driving car! You’re fired.

  4. earlofhuntingdon says:

    If Page left the Trump campaign in September 2016 – in the final stretch of the campaign – it suggests Carter wasn’t appreciated much, had become a rude embarrassment or the campaign wanted him to do things and the needed to be able to deny having him do them.  All seem credible, all could apply simultaneously.  The Don’s protestations to the contrary, he is running a ship of fools.

    Why, then, would Rosenstein’s renewing a FISA warrant on him in early 2017 be seen by Trump as an unreasonable, continuing threat?  That is, unless Page had still relevant secrets that could imperil the Don. Why would it not be technically easy for Rosenstein to justify his action regarding someone who had already been of direct concern to the FBI for nearly four years?

    Separately, the Dems should prepare to be more articulate and forceful in supporting Mueller.  Their not so loyal opposition will inevitably try to bury him, and much of the rule of law along with him, all in the name of protecting Dear Leader as a proxy for continuing Republican misrule.

    • Trip says:

      The plan isn’t to bury Mueller. It’s a crusade to bury everyone *around* Mueller. Therefore, through no fault of Mueller, the FBI work product of investigation is corrupted, including Rosenstein’s part. They’re working to macerate the investigation from the inside out. With the body obliterated, the head is useless.

      • Trip says:

        The best point of attack, IMHO, is going after the motives and incentives of the individuals involved, rather than establishing blanket support of the FBI no matter what (remember Giuliani’s squad?).  The GOP seems to have no problem with ad hominem attacks, while the Democrats are appallingly polite in response. This isn’t a simple story about Trump, but an entire party looking to obfuscate, in order to meet demands of benefactors, who then reward them handsomely. Trump mentioned bonuses after the tax cuts. Well, yeah, Paul Ryan got a $500kK (Large K for koch) bonus for his work. Keeping Mueller from spoiling the windfall is at the core. Who knows who the rest of the benefactors are, but alone, this demonstrates that the shadow gov’t has come out from behind the great curtain of Oz.

  5. John Forde says:

    Does all intelligence field work require precision? Gathering intel requires fidelity and CP would suck at that. But might there be some utility in an asset emitting ambiguous messages?
    Long ago in the TV business a fellow producer told me, “All of our subjects have more guts than brains”.

    • Rayne says:

      Utility — the perfect word here. His eagerness and his appearance of ineptitude make him both likely and unlikely as a ‘mule’.

      What’s bothered me about Page is that he was cautioned in 2013 wrt recruiting, yet he continued bumbling on as if he’d never been warned. I don’t know why he wasn’t subjected to more scrutiny as soon as he joined Trump’s campaign because of his previous involvement with Evgeny Buryakov and the other two Russian spies circa 2013.

  6. Rugger9 says:

    Mueller’s lack of use of these Page and dossier details points to something I have noted for some time, which is that not using these sources as the foundation for his cases minimizes the opportunities for successful appeals.

    With that said, Carter Page is not going to be as useful even as a blabbermouth name-dropping asshat than Manafort or Flynn (who apparently sent some more docs over to the OSC) to Mueller.

  7. earlofhuntingdon says:

    The Trump coup continues.  Andrew McCabe is out as the FBI number two.  After Director Chris Wray vehemently defended him and promised McCabe could stay until March 18, to get his pension and arrange an orderly retirement and succession.  The probability is that Wray caved.  McCabe will have turned in his badge, gun and keys by close of business today.  (Presumably, he’ll be on terminal leave until March 18, so that he does get his full pension.  (Trump, the cruel, passive-aggressive, might try to deny him that.)  I imagine the field offices are none too pleased.

    One more domino, one more witness to Comey’s encounters with Trump, gone.  What else will be going with him?

    • Rugger9 says:

      Not really gone, and I would argue this is not good news for the palace because exactly what leverage does it have over McCabe now?  Only the venal holdback of the earned retirement money, and I’m sure a couple of lawyers have already dropped cards off with McCabe to represent him if he needs to litigate.  I also would think someone would hire the guy if that was needed.  This was not really news except for the timing.  If he had terminal leave, he’d take it.  Who will replace him is the better question since IIRC it is not a position that requires Senate consent.

      So, Andrew McCabe is now completely free to speak with Mueller, and even if the shredders are going full tilt I suspect that the necessary information is already in Mueller’s hands as the palace lackeys slam the proverbial barn door as several horses gallop off to freedom.  Mueller can interview him in a SCIF if necessary, so clearances aren’t going to be a problem.

      Will Wray roll over for the Kaiser?  I’d say it is less likely as time goes on and the insults, attacks, obstruction evidence and indictments pile up.  I would guess Wray will understand the gig is up and it’s time to save himself, like McGahn appears to have done.

      • earlofhuntingdon says:

        The terminal leave arrangement should protect McCabe’s retirement.  McCabe’s ability to cooperate with Mueller should not be any different than it was, but he will have less access to information.  Hopefully, McCabe will end up in a good post-government job; there is much precedent for it.

        The idea that this is not news would be a surprise to the FBI field offices.

        Wray’s credibility will take a big hit with the rank and file, after his supposed recent public defense of McCabe.  No Director would voluntarily do this to his number two, when he had already announced a March 18th retirement date. Morale is a big deal at the Bureau, and it has taken a lot of hits lately.

        The best face one could put on this is that McCabe and Wray agreed on terminal leave provisions to cover his early retirement.  Sessions and Rosenstein would have agreed because it would relieve some of the pressure on them from the White House.  It would relieve McCabe of the daily shit being thrown at him by Trump and his supporters. Trump might grumpily accept it, but he would have preferred to have someone fire him in as ugly a way as possible, while gutting his pension.

        • earlofhuntingdon says:

          Technically, if my last paragraph is close to what happened, this is an employment arrangement within the Bureau’s discretion, not requiring formal DoJ or presidential approval.  The political effects of such high-level staff changes (who leaves, who replaces them) are always relevant to the DoJ and usually the White House.  In this case, Donald would have taken a personal interest.  It is possible Wray was working in McCabe’s interest, as well as his own.

        • SpaceLifeForm says:

          “The idea that this is not news would be a surprise to the FBI field offices.”

          Pretty certain I knew of this 2-3 weeks ago.
          So, do not believe FBI folks are surprised.

          But Faux Noise is sure spinning this story.

      • bmaz says:

        So, Andrew McCabe is now completely free to speak with Mueller

        Yeah, that is a far more complicated thing than you think. McCabe may be, and may not be. Depends on whether voluntary, by GJ subpoena, and what exemptions are claimed by the Trump WH. There is not a simple answer.

    • earlofhuntingdon says:

      Sarah Sanders claims to know about McCabe only what’s in press reports.  El Presidente was “not part of this decision-making process” about McCabe’s departure.  “Who will rid me of this deputy director at the FBI?” doesn’t qualify, I guess.  Sanders’ lying doesn’t get any better; her tone, pitch and loudness are often direct indicators of her lying.

      This president has been trying to get rid of McCabe  and other witnesses to his encounters with Comey since he fired Comey.  Sessions has been fully behind him, and the FBI reports to him.  I’m looking forward to more of the “full transparency” Ms. Sanders keeps saying this president supports.  I’m also looking forward to hearing about the laundry list of people whose admirable stories Trump will recite tomorrow – if the cue cards are held high enough and the names are spelled phonetically – but who have nothing to do with Donald Trump or his White House.  Is that called changing the subject?

      • Rugger9 says:

        I would say your analysis about how this was Wray’s sellout compromise is sound, but like Rove (as a force for evil), McCabe and the other jettisoned officials are going to be more trouble for the palace out of government than in (in these case as a force for truth).   There is not much the Kaiser can do to them except threaten various and sundry litigation which then looks a lot like witness tampering.

      • earlofhuntingdon says:

        `
        If Wray and McCabe agreed an early handover, six weeks or so, via a terminal leave process, it would solve a lot of short-term problems for McCabe, Wray, Rosenstein, Sessions, as well as allow Wray to hire his own deputy.  (Until Trump burps on another Big Mac and gets hot and bothered again.)  For once, I can believe Sarah Sanders that Trump was not involved in this until it was in the bag.  Trump would have wanted to nix any deal that was good for McCabe.

        If the MSM believes that McCabe’s departure will help the FBI get out of the spotlight, and be less an object of derision for Trump, they are likely to be sorely disappointed. As long as the FBI has authority to investigate crimes Trump, his family and organization might have been involved in, the FBI will always be in Trumps’ crosshairs.

        • earlofhuntingdon says:

          The option I ignored was that Wray forced McCabe into early retirement; the full-pension-saving terminal leave was the consolation prize, the price for it possibly a Trumpian NDA.  For a guy about to retire in six weeks, that would be an offer he could not refuse.  (And the NDA wouldn’t constrain Mueller.)

          That arrangement fits better with the Trump culture: the firing, the needless cruelty.  The soft landing does not fit, but it avoids a morale sapping law suit over unlawful dismissal of a decorated civil servant.  It also allows both sides to claim victory.

    • Avattoir says:

      I don’t get the same from that NYT story as you seem to.

      I have a relative who followed much this same formula for ‘early’ retirement from her federal job. She was xx months short of absolute entitlement to full retirement benefits, when an urgent personal matter arose. She then applied on what was eventually accepted as a “timely” basis for “early” retirement, using (from what I gathered was) something like a kitchen sink approach: throwing in all sorts of earned unused convertiable job-related entitlements, including vacation, sick leave, unused family emergency leave, plus her previous service in another (arguably-related) agency. Her application was considered over a period of weeks not months (which running time factored into the calculation), then was granted.

      Anyone who’s been in or around federal government service, whether in the ‘permanent’ bureaucracy or under contract, knows this is a common phenomenon for some period following any election where one party’s candidate beats out the incumbent’s party’s candidate. And, certainly, more time has passed since anyone in McCabe’s position could reasonably have read the tea leaves here, than is necessary to obtain the bureaucratic rulings to bring about this result.

      It’s definitely not an unfair reading that McCabe may have been chased out his job EARLY for reasons of partisan politics or shenanigans, and that certainly could amount to a BAD thing, in this case it looks like it’s being over-read.

      The broader take – purely political spin – is that this is undoubtedly going to end up being retail marketed as some ‘leaving in disgrace’ b.s., aimed at blunting McCabe’s cred as a witness in the Comey firing.

      But gosh sakes, that’s an awful lot of ammo wasted taking out a minor piece of secondary corroborative evidence that IN MOST TRIALS never even comes up.

      • bmaz says:

        Dollars to donuts, that is exactly right.

        McCabe reached a point where he had enough accrued credits to get him to the desired exit date, and said fuck it, I am gone with that caveat.

      • earlofhuntingdon says:

        No doubt, Trump supporters will consider this a firing, with a view to tarring future testimony by McCabe as coming from the perennial corporate pariah, “a disgruntled former employee”.  Mueller, too, in Trump’s eyes, is a disgruntled former club member and a pariah who might expose his rapacious management.

        There’s ample evidence that the president unfairly chased out a career FBI employee and senior manager, whose independence and presence irritated and threatened him.  There’s ample evidence that Trump imagines that a firing or its equivalent to be the end of the episode, cue commercial, at the White House he considers a studio.

        Others will consider this to have been Wray trying to be fair to McCabe, to more quickly hire his own deputy and keep FBI morale from falling further, to avoid Trump attempting to have McCabe fired before the next six weeks pass, and to manage a self-destructive boss.

        I don’t consider the McCabe story to be minor.  It is representative and, therefore, persuasive beyond its facts.  It is one more link in the long chain that Mr. Trump – Marley fashion – is weaving about himself and which Mr. Mueller may one day pull on.

        • Avattoir says:

          I’m not arguing with any of that, but I do want to reiterate what a feckless storm in a theoretical teacup is, all this apparent effort to discredit the senior FBI officers Comey reportedly spoke to in sharing details about his “disturbing” meeting with POTUS Trump.

          So, envision a hearing – trial, impeachment, Congressional fact-finding hearing, whatever, so long as whatever it is gets run according to the Rule of Law, including the laws of evidence and admissibility.

          Comey gets on the stand and relates the conversation had between he and Trump alone, presumably consistent with what he’s already testified to before Congress.

          Trial counsel opposing Comey now has a choice to make:

          1. Let it go, effectively leaving alone Comey’s version of what all was said to be found true; or

          2. Attack Comey’s credibility, to the purpose of making Comey out to be a liar, or at least to create room for whoever’s judging what are the facts to doubt the accuracy of Comey’s recollection.

          IF (big IF) opposing counsel goes for option 2, then that triggers at least 2 things that we know of that are capable of bolstering Comey’s credibility (including accuracy of his recall):

          A. His notes as keyed in immediately or very shortly after the meeting, either way at the earliest reasonable opportunity, which at the very least Comey will be allowed to refer to in order to “refresh his recall”, and at most that will be marked by the presiding judge as an exhibit, either for “identification” in the event that it appears the attack might be pressed further by opposing counsel, or

          as a full documentary exhibit, if the judge rules that the issue of Comey’s credibility (again, including his accuracy of recall), has been sufficiently pressed that marking it as such is justified AND some combination of Comey’s verbatim testimony and the state of his recall has caused the court to conclude that the notes pretty much AMOUNTS to Comey’s recall.

          B. Depending on the context (including when conversations took place),  statements Comey made to folks who weren’t present at the mw POTUS but which were made to third parties, particularly third parties about whom it might be fairly said that it would be part of their duties to receive such statements, and particularly if it were considered at all available as fair ball to challenge Comey for NOT informing those folks. That could cover up to all of the (apparently) 6 other senior FBI officers Comey spoke to about his mw POTUS.

          But there’s big big peril in opposing counsel heading down this path. If opposing counsel is ruled to have challenged Comey on the “collateral” issue of whether he spoke with others and what he said to them, then and ONLY then will it become open to the government to tender the testimony of those six, or however so many of them are covered by the judge’s ruling.

          Now, ask yourself WHY opposing counsel would ever launch such a full-out challenge given:

          o1. all the conflicting PUBLIC statements (including tweets) that Trump has made about that meeting;

          02. the vast treasure-trove of transcripts of past cases where Trump’s been questioned under oath as to his memory;

          03. Trump himself has no notes or roughly contemporaneous statements to third parties that HE can raise;

          04.  it’s entirely possible – even likely – that Trump would proceed, as he always does, to call Comey a liar, claim That’s not accurate, then put up a smokescreen of what “I probably said” or “might have said”; concede he can’t recall any specifics; effectively conceded he can’t even put forward any credible generalities; say, So what if I did?; and along with all that, make some new inane, dismissive, contemptuous statements along the way.

          Point being: opposing counsel, indeed even the mostly substandard sewer rats Trump’s prone to putting up as his legal representatives, would, left to their own choice, never even dream of going down this nightmare road.

          SO! At most, what’s going on with the public attacks on McCabe & the other 5 of the Comey 6 is a Trial By Media, one what will never, ever, reflect what actually will take place in a formal setting such as a courtroom or Senate trial on articles of impeachment.

          But HEY! I’ve only done this sort of thing for the better part of four decades, and even experienced attorneys can disagree. If I’m wrong on any of this, I’d be delighted to learn how (always willing to learn new things)

          • greengiant says:

            I suspect Comey would be attacked at “trial” for other incidents such as his May 2017 mind freeze at best when asked about Weiner’s laptop. Then Clapper was lying all the time to protect methods so what do I know will happen.

            • earlofhuntingdon says:

              Trump won’t go near a court until he leaves office, or until the Dems retake both houses of Congress and develop a stomach for impeachment.  The Goopers will protect him in order to protect themselves.  It’s about retaining power, not accountability.

              Establishment Dems won’t be a lot more eager to talk impeachment and trial, even if they control both houses.  A lot of their money comes from the same places the Goopers get theirs.  And they would be loath to establish a precedent for Goopers to follow, even if the facts are not similar.

              Trump’s family, his associates and companies are at risk if Mueller’s team can make solid cases against them.  For Trump, that would be as dangerous as himself being in the dock.

            • bmaz says:

              Green giant – Attacking Comey in this manner only reinforces that his collateral evidence gets admitted. Pretty sure this was Avatoir’s point.

          • bmaz says:

            No, I think it would actually be pretty straightforward to get Comey’s contemporaneous notes in with a sufficient foundation laid by Comey.

      • lefty665 says:

        They were facing incoming every day. The day McCabe had enough accrued leave to bridge him to his retirement date was magic. Leaving then stopped the pain and allowed both the Bureau and McCabe a graceful exit. McCabe had something like 22 years with the FBI. Unless he had other Federal service to get him to the magic 30 years even “full retirement” will be less than the full boat.

        McCabe was marked from the moment Trump learned McAuliffe’s foundation gave his wife a cool half million to run for the Virginia State Senate. McCabe may find a retirement job on McAuliffe’s campaign for the Democratic nomination in ’20. Don’t believe the Macker wants Robbie Mook back, his last gig did not end well.

        • greengiant says:

          Lefty,  just a small correction,   some FBI are required to retire at age 50 just like local police and fire, ( albeit not deputy directors).  I suspect McCabe had the full ride already vested since it only required 20 years and per Wikipedia McCabe was in the field and on the FBI SWAT team.

    • TGuerrant says:

      Wray’s replacing McCabe with David Bowditch.  Trump continues his mile-long slide down the razor blade and into the vat of aftershave.

  8. Rugger9 says:

    Well, this only bolsters the obstruction case against the Kaiser.  Keep in mind that obstruction applies when it is attempted, success is not required.  Conspiracy occurs when someone is asked to do the dirty work like when McGahn was [allegedly] told to fire Mueller which I would guess is why he’s trying to say he wouldn’t do it.

    The timeline is here according to TPM, noting that they are using facts not in dispute:

    https://talkingpointsmemo.com/muckraker/evidence-mueller-possible-obstruction-case-against-trump

    • Avattoir says:

      [sigh] No, that’s not when “conspiracy occurs”.

      And I’m sure not convinced it “bolsters” anything at all.

      • Rugger9 says:

        When, precisely, does it occur if not when plans are made to commit a crime? How about the AF1 memo? This is why I think McGahn is trying to distance himself from the attempt to fire Mueller, because he thinks it could be seen as conspiracy.

        If it were just about attorney-client privilege he’d be able to say nothing, and yet he did not. Given how aggressively the palace has been claiming privilege for all sorts of discussions, the fact that McGahn couldn’t make this work within that strategy means something.
         

        • Avattoir says:

          FCOL, there are major even encyclopedic series on what’s entailed in law by the term “conspiracy”. For you to suggest it can all be reduced to being on the back of post-it note is naive in the extreme.

          But here’s where everyone I know who teaches this subject, including me, starts: the word itself, conspiracy, derives from the Latin, conspire, meaning, to breath together.

          It’s not enough for 2 or more to speak ABOUT doing a crime, they must have agreed to COMMIT that crime, even if they got not further in their agreement than saying they have one.

          Since generally speaking people don’t leave long itemized accounts of their conspiratorial agreements lying about, commonly, ie. almost invariably, the prosecution will be on the look-out for calling evidence of actual things done by one or more of them which EVIDENCE the  EXISTENCE of their conspiracy. Those things could be crimes, but really don’t need to be: for example, a conspiracy to rob a bank by employing guns to at least threaten will mean guns are needed, but the guns acquired to fulfill that part of the agreement may well be acquired lawfully, that is, stand alone not by criminal means. Thus, for example, an otherwise legal act in obtaining firearms becomes illegal when considered IN THE CONTEXT of  the illegal conspiratorial agreement.

          OTOH, I can be some Joker of an ingenious plot-planner, my mind hopping like toad with potential conspiracies, but if no one ever agrees to join in any of my plans, whether that agreement is evidenced by words spoken or written or by acts inconsistent with any other reasonable conclusion but that they joined in agreement, there ain’t no conspiracy.

          The above is not remotely a fully realized expiation on criminal conspiracy. It’s not even a scratching of the veneer. And if you a really want to be at all functional in this sort of discussion, you’ve got a lot of reading and work and thinking left to do.

          I’m not saying it’s rocket surgery – AFAICT, it’s not necessary to be even especially bright to grasp all the nuances & possibilities & twists & turns involved in grabbing out at the idea of “conspiracy”. Very probably nothing more is required than a hell of a lot of reading (tho I’d have trouble seeing how it would do anything but help to have had some experience in litigating them). But it ain’t easy or quick.

          • Rugger9 says:

            All fine and good, but you’re trying to tell me that even the Air Force One discussion doesn’t fit.  How then is any police organization able to prosecute RICO cases?  How about the information Mueller is 1) known to have including GP’s wire and the transition emails, 2) likely to have from the FBI and interviews of witnesses, noting that these witnesses (i.e. GP and Sessions) aren’t always announced when interviewed, 3) the “evidence” tossed out by the palace that in some cases points directly to engaging in an active obstruction of the investigation (which isn’t apparently a crime for you), and 4) the stuff Mueller can extract by subpoena about communications.

            The point is, it may not be as hard as you think unless you know exactly what Mueller has, and you do not.  All of the evidence to this point shows that Mueller is holding some pretty high “trump cards” (sorry), given how quickly some of the witnesses have changed their mind, like Gates apparently has.

            • Avattoir says:

              I have this recollection of responding to a comment on an earlier thread at this website raising RICO, to the effect that ‘some’ commenters don’t seem to have even a fingernail’s grasp on what RICO is or does. Was that to one of yours?

              RICO didn’t invent criminal conspiracy. The concept has been around for centuries. It derives from the idea of joint criminal enterprises (which may, or may not, involve conspiracy). Other English-speaking England-following Rule of Law nations have prosecuted criminal conspiracies as such for anywhere from decades to centuries, and still do, all without their legislatures having passed into law any equivalent of RICO.

              For whatever reasons, you seem inclined to force your own over-broad over- generalizations, at best only part-understood (at worst, not at all) into quite specific things you don’t know anything about.

              This one’s a hoot: “it may not be as hard as you think … you do not [know]”. True! Neither. Do. You. The difference is, I know what that means.

               

  9. Watson says:

    Although they were initially scornful of Colin Kaepernick and the Black Lives Matter folks, Trump enthusiasts have seen the light and now acknowledge the problem of pernicious bias in law enforcement.

    Accordingly, Mr. Trump has asked his supporters to ‘take a knee’ in protest during the national anthem at the upcoming Super Bowl.

    • SpaceLifeForm says:

      Ted, you owe me a beer.
      No, I take that back.
      I owe you a case for making your point funny.

      Ted Lieu tweet:
      https://mobile.twitter.com/tedlieu/status/958063395265241089

      As a Member of the House Judiciary Committee, I read the partisan, classified Nunes House Intel memo. I can’t talk about it. However, here’s an analogy.

      Remember Geraldo Rivera and the infamous Mystery of Al Capone’s Vaults? It’s like that, but Geraldo Rivera has more integrity.

  10. SpaceLifeForm says:

    Apparently, Wray reviewed the Nunes memo yesterday. Whether that has any effect on the vote tonight remains to be seen.

    https://www.politico.com/story/2018/01/29/trey-gowdy-devin-nunes-fbi-classified-memo-374688

    House intelligence committee Chairman Devin Nunes met with FBI Director Chris Wray on Sunday to show him a classified memo that alleges misconduct by senior officials at the bureau, after a fellow GOP lawmaker lobbied him to share the document’s contents, two people familiar with the meeting said Monday.

    The people said Rep. Trey Gowdy (R-S.C.) had urged Nunes to share the memo with both Wray and Deputy Attorney General Rod Rosenstein, though Rosenstein has yet to see it.

  11. Bay State Librul says:

    Charlie, my Charlie Pierce, ex sports writer, and native of Worcester, Ma believes that Trump will fire Mueller.

    I do too.

    The Con Man is nuts and he has “nothing to lose”

     

    • earlofhuntingdon says:

      I see from Digby that Trump was livid that, having fired Comey when he was out of town, Comey was allowed to reboard his government plane to return home.  Trump must have hoped he would be forced to hitch-hike back to DC from Los Angeles, to make his embarrassment complete.

      Trump called McCabe to complain about a free flight for a former government worker.  This from the man whose billionaire cabinet members thinks such things are a family benefit.  McCabe said he hadn’t authorized it, but would have if asked. Trump then played Rick Blaine to McCabe’s Victor Laszlo, telling him to “Ask your wife” – about how it feels to be a loser. 

      The president is a debased man child. He shouldn’t be allowed out or away from Harvey Weinstein’s boardroom without adult supervision. He is not normal. This is not normal.

      • earlofhuntingdon says:

        Almost too bad that McCabe was too professional, too much a gentleman and a decorated civil servant to tell Trump to “Ask your wife” how she feels being married to a serial adulterer.  Nice symmetry, but that would be as childish and self-destructive as the Don.

    • Rugger9 says:

      http://www.esquire.com/news-politics/politics/a15917140/will-trump-fire-mueller/

      This is the link, and Pierce as usual nails it.  We all understand that the Kaiser thinks Mueller is going to have to go once he crossed the red lines of family (Jared interview, etc.) and money (follow-up on Manafort, etc.) but he needs a reason so he doesn’t get blamed by himself (that would require courage, and our Kaiser is a coward).   That’s what the Rosenstein memo did for Comey and it would have worked too until Lester Holt interviewed the Kaiser to confirm what he had told the Russians.

      So, when Mueller is fired, will there be a s%^$tstorm or will it be just “Trump being Trump” normalization?  Given that 5 companies own something like 90% of the media outlets and the editors decide what runs, I do not think there will be much publicity of the protests that will hit the streets.  Look how the Women’s March was ignored in favor of the Right to Life last week for what I expect to see in the MSM, so we will have to use the Internet to bypass the censorship.

      • earlofhuntingdon says:

        Red line for Trump, sure.  He will try to claim it’s a matter of principle, about protecting family, like a mafia thing.  Its’ rare, however, for an investigative target to choose what a prosecutor can investigate.

        Trump’s supposed red-line is absurd.  Dissecting personal financial and tax histories and those of  family companies is critical to a minimally competent investigation.  Those are the very places where financial improprieties are hidden: routine aggressive tax positions and tax fraud, bribery and other illegal payments, money laundering, the lot.  If they occurred, this is where evidence for them will come from.

        This is a red-line for Trump because he’s afraid there’s a lot for Mueller to find, and what he finds could topple Trump’s administration, it could topple his business empire.  To protect against that, the fight will be no holds barred.  The Dems had better prepare for a little political warfare.  So far, they are acting like Neville Chamberlain on the way to Munich.

    • Avattoir says:

      I like Charlie, a lot. The title of his best-known book, “Idiot America: …”, belies how graceful is the writing inside. And he might be right; but he’s not saying anything any of us couldn’t say, nor does he have any particular insight here.

      Over the decades of what I call my “career”, I’ve seen a number of cases like that of McCabe, many handled just as badly in their own special ways. Remember Shirley Sherrod? She wasn’t alone: the Obama administration was well-known for being way over-eager to cut down tall poppies (tho, of course, in an effort to AVOID drama, not feed it).  But most of them were handled without big public notice. Indeed, the McCabe move-out could have been handled far more quietly – except that’s not the way of this mob boss president.

      McCabe’s been a Trump target most of the last year; yet, he made it to retirement. This story provides a handy narrative framework for our newsertainment media to play up (which matters to Trump’s PR instincts). But as irresistably attractive as that appears, it doesn’t necessarily connect to Trump warming up to set a series of fires to take out Rosenstein to get at Mueller. In the end, it’s a senior civil servant a president wanted out, who then took early retirement – normally the most pedestrian of Washington D.C. stories.

       

      • Rugger9 says:

        The Sherrod case was something of a facepalm by the Obama Dept of Ag, following on the more successful (for the GOP, who didn’t like their voter registration) ACORN hatcheting, and was followed much later by the failed attempt to take down Planned Parenthood.  Ms. Sherrod did get my approvalin spirit for telling Vilsack to stuff it when he tried to undo his blunder.

        Perhaps the best way to look at these is the demonizing of someone or some organization that is in opposition to what the GOP wants done in order to neuter them.  This is the plan for the GOP since this time they are in it to their eyeballs, such as DeSantis from FL that used the hacked data to win his election.

        The normally routine retirement of a number 2 and the apparent selection of Bowdich (number 3) signals to me that the FBI still is not going to do exactly what the Kaiser wants, but I do not know enough about Bowdich to say if he is sympathetic to the palace.

  12. Trip says:

    What consequences would the Democrats suffer if they release their memo anyway? I mean, aren’t we way past the point of sanity, following protocols, long standing government customs or traditions of courtesy between parties, and the appropriate route of procedures, anyway? What’s the worst that could happen if they did?

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