The Trump Toadies Who Are Worried about Being Unmasked

Last week, Zoe Tillman noted this FOIA lawsuit from attorney Gene Schaerr, working on behalf of someone who wants to remain anonymous “at present,” suing to obtain records on the unmasking of Trump campaign and transition officials. The thing is, Shaerr isn’t just asking for unmasking records generally.

The odd collection of people being FOIAed

He’s asking for unmasking records pertaining to a really curious group of people:

  1. Steve Bannon
  2. Rep. Lou Barletta
  3. Rep. Marsha Blackburn
  4. Florida Attorney General Pam Bondi
  5. Rep. Chris Collins
  6. Rep. Tom Marino
  7. Rebekah Mercer
  8. Steven Mnuchin
  9. Rep. Devin Nunes
  10. Reince Priebus
  11. Anthony Scaramucci
  12. Peter Thiel
  13. Donald Trump Jr.
  14. Eric Trump
  15. Ivanka Trump
  16. Jared Kushner
  17. Rep. Sean Duffy
  18. Rep. Trey Gowdy
  19. Rep. Dennis Ross
  20. Pastor Darrell C. Scott
  21. Kiron Skinner

Some of these would be obvious, of course: Trump’s spawn, Bannon, Priebus, and Mnuchin. I’m really interested to see Rebekah Mercer (especially given the more we learn on Cambridge Analytica). Mooch is there. The litigious Peter Thiel is there (making him at least a reasonable candidate to be paying for this lawsuit, except for reasons I lay out below).

Mike Flynn, the one person we know to have been unmasked, is not in there (which is particularly odd given all the efforts to find some way to unring Flynn’s guilty plea, though that came after this FOIA was filed).

Then there are the eight members of Congress (in addition to the corrupt FL AG, Pam Bondi, who helped Trump out of a legal pinch in FL after Trump gave her a donation).

Lou Barletta, who’s a loud opponent of “illegal immigration,” a member of the Homeland Security Committee, and who, not long after this FOIA was first filed, prepared a challenge to PA’s Bob Casey in the Senate last year.

Marsha Blackburn, who works on a number of data issues in Congress, and is running to replace Bob Corker as TN Senator. Blackburn worked closely with Tom Marino to shield pharma and pill mills from DEA reach.

Chris Collins from upstate NY. His most interesting committee assignment is on Energy and Commerce, though he has worked on broadband issues.

Tom Marino, former US Attorney for Pennsyltucky who is on the Judiciary Committee. Trump tried to make him the Drug Czar, until it became clear he had pushed through a bill that hurt DEA’s ability to combat the opioid epidemic.

Devin Nunes, whose efforts to undermine the Mueller investigation have been epic, and who first manufactured the unmasking scandal. He’d be a great candidate to be Schaerr’s client, except he would probably just leak this information, which he has already seen.

Sean Duffy, a WI congressman who is chair of the investigations subcommittee of the Financial Services committee, and has been an opponent of CFPB.

Trey Gowdy took over as Chair of the Oversight Committee last year and also serves on the Judiciary and Intelligence Committees. Because of those appointments, even without being designated by Devin Nunes to take the lead on the Mueller pushback, he would have already had the most visibility on the Mueller investigation. But because Nunes put him in charge of actually looking at the intelligence, he is the single Republican who has seen the bulk of the Mueller investigative materials. During Nunes week, he announces his retirement suddenly, and has warned about the seriousness of the Mueller investigation, and he just gave a crazy interview to Fox News (which I’ll return to).

Dennis Ross, from FL, serves on the Financial Services committee.

On top of the Republicans, the list includes two of the few African Americans (with David Clarke, Omarosa, and Tim Scott) who supported Trump.  Darrell Scott was head of a Michael Cohen invented diversity group hastily put together in April 2016. Kiron Skinner is a legit scholar of Reagan who teaches at Carnegie Mellon and has a bunch of other appointments.

As I said, aside from the big obvious players, this list is a curious collection. Of note, however, four people on it should have a sound understanding of how NSA spying and FISA work: Thiel, Nunes, Gowdy, and Marino. But (again aside from the big players), the international ties of most of these people (Thiel and Skinner are big exceptions) are not readily apparent.

The whack understanding of FISA laid out on the complaint

I’m interested in the FISA knowledge of some people named in this list because of the crazy depiction of FISA that the complaint lays out.

The complaint highlights two departments of NSA, claiming they’re the ones that deal with improper use of intelligence (but does not include the Inspector General).

On information and belief, at least two departments within the NSA handle complaints regarding the improper use of intelligence. These departments are known publicly by the codes “S12,” a code name apparently referring to the agency’s Information Sharing Services authority, and “SV,” a code name apparently referring to the agency’s Oversight and Compliance authority.

As part of the FOIA to NSA, Schaerr asked for anything submitted to these departments.

All reports made to S12 and SV regarding improper dissemination of any individual listed in Question 2, above. See National Security Agency, United States Signals Intelligence Directive 18, § 7.5 (January 25, 2011).

That’s an oddly specific request, unless whoever is behind this request knows there are reports there.

That might suggest Nunes, Gowdy, or Marino is behind the request. But then consider how unbelievably wrong the complaint gets FISA.

After introducing FISA, it turns exclusively to Section 702, which is odd because the unmasking pseudo-scandal has thus far been based off the unmasking of individual orders.

Plaintiff’s requests in this case concern the Defendants’ use of the Foreign Intelligence Surveillance Act of 1978 (FISA).1 Section 702 of FISA (“Section 702”) empowers the Attorney General and the Director of National Intelligence to jointly authorize “the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.” 50 U.S.C. § 1881a(a) (emphasis added). Section 702 expressly forbids use of this surveillance process to target persons who are either “United States persons” or located “inside the United States.” Id. at 1881a(b).

The complaint then makes three utterly false statements about how labor is divided between the FBI, NSA, and CIA.

14. The FBI collects data on outgoing communications, i.e., from persons in the United States to persons outside the United States.

15. The NSA collects data on incoming communications, i.e., from persons outside the United States to persons inside the United States.

16. The CIA, like the FBI and NSA, analyzes the information that comes from the FBI’s and NSA’s data collection. Unlike the other agencies, the CIA uses the information to engage in international intelligence operations.

The FBI collects on domestic targets, which can include incoming and outgoing comms, plus anything domestic (such as Sergey Kislyak’s calls across town to Mike Flynn; update — the December 29 calls would have been from DC to Dominican Republic, where Flynn was vacationing). The NSA likewise collects incoming and outgoing comms, as well as stuff that takes place entirely overseas (though very little of the latter is done under 702). Both the other agencies, in addition to CIA, use FISA information to engage in international intelligence operations.

The complaint then claims, in contradiction to a bunch of public information, that minimization equates to completely anonymizing US person data.

Section 702 also requires that foreign intelligence surveillance be conducted consistently with “minimization procedures.” Id. § 1881a(e)(1). These procedures are designed to “minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons,” but in a manner still “consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information.” Id. § 1801(h)(1). As relevant here, minimization procedures must be designed to ensure the anonymity of United States persons who may be incidentally surveilled. Id. § 1801(h)(1), (2).

This comment comes immediately after a paragraph on finished intelligence reports, so this may be an incorrect statement of what masking is.

It then makes a claim about how data gets circulated that entirely ignores the sharing of raw data under 702, and further makes claims relying on this article that aren’t actually supported by the article (admittedly, the article doesn’t describe the sharing of raw data, but its focus in primarily on traditional FISA).

Generally, original raw intelligence is not circulated to other agencies; instead, intelligence reports are created and circulated internally. See, e.g., Gregory Korte, What is ‘unmasking?’ How intelligence agencies treat U.S. citizens, USA Today, (Apr. 4, 2017; 2:14 p.m.), 2017/04/04/ what-unmasking-how-intelligence-agencies-treat-us-citizens/100026368. In the process of summarizing the intelligence, agencies exclude the names of U.S. citizens from the reports, referring to them instead with identifiers like “U.S. Person 1.” Id.

The complaint then describes what sounds like a muddle of upstream collection and back door searches, but gets both wrong.

The NSA also has the ability to search the internet data it collects by entering the name of an individual into a database search tool. This process is known as “upstreaming” and has the effect of creating additional raw intelligence that may contain the names of American persons. Such intelligence is also subject to the usual masking requirements and procedures.

This is wrong because upstream collection uses selectors, not names, whereas back door searches, which can use a name, are done by all three agencies. Such intelligence would not necessarily be masked at FBI if it made it into an investigative report.

The complaint then points to that godawful Circa report that itself muddles the difference between 702 and 704/705b to claim that they were upstream violations during the campaign cycle.

News reports—as well as a declassified Foreign Intelligence Surveillance Court (FISC) opinion—also note that some Americans had their names upstreamed, in violation of internal policies, during the 2016 election cycle, which the opinion described as a “serious Fourth Amendment issue.” See Declassified FISC Court opinion at 19-20, available at; Circa News, Obama intel agency secretly conducted illegal searches on Americans for years, May 23, 2017),

The violations in question, while serious, actually involve back door searches on upstream collection, and to the extent the searches were done on 704/705b targets, would only have happened were there an individualized FISA order against one of the named people (in fact, NSA’s back door searches on US persons are generally limited to people with individualized orders, those who may be targets of a foreign power, or urgent searches following a terrorist attack or similar situation).

In short, it’s a remarkable garble of how FISA really works. That doesn’t exclude Nunes’ involvement (I would hope both Marino and Gowdy have a better understanding of FISA than this, but don’t guarantee it). But it seems to be an attempt to declassify stuff it knows about, even while it exhibits a remarkable misunderstanding of what it’s talking about.

So why are all these Trump toadies worried about being unmasked

All of which brings me to the puzzle: what the hell is his anonymous client up to? Why is the client concerned about this specific selection of transition officials, but not (say) Mike Flynn?

Update: Laura Rozen notes that this list is the list provided here, except with this chunk taken out, and with some weird alpha order going on.


33 replies
  1. obsessed says:

    Wow – four new characters in the drama for me.

    Rep. Sean Duffy
    Rep. Dennis Ross
    Pastor Darrell C. Scott
    Kiron Skinner

  2. greengiant says:

    So Schaerr is a “conservative” then this appears to be some kind of proactive defense strategy or political theater.

  3. cfost says:

    Per paragraph 17 of the document: who at State would have been receiving the FBI, NSA and CIA reports mentioned by plaintiff? Trying to determine if this could be significant, or is it just fishing?

  4. sdemetri says:

    Could Peter Thiel’s inclusion have something to do with Palantir and it’s government contracts, not to mention it’s association with CA in the Brexit voter influencing kerfuffle?

    “To anyone concerned about surveillance, Palantir is practically now a trigger word. The data-mining firm has contracts with governments all over the world – including GCHQ and the NSA. It’s owned by Peter Thiel, the billionaire co-founder of PayPal and major investor in Facebook, who became Silicon Valley’s first vocal supporter of Trump.”

    • Rayne says:

      That’s an excellent question. I’ve long wondered how Palantir was going to bite us, it’s been dormant in the media for too long.

  5. cfost says:

    1. We have “a client involved in the Trump presidential campaign and transition.” Actually, that could mean anything. Insider or wannabe? Who knows?
    2. This client has been trying to get this info since 13July2017. No luck. Doesn’t sound like an insider.
    3. Actually, since their staff did most of the work on the Russia investigation, it is plausible to me that any of these members of Congress could lack understanding of FISA.
    4. Most interesting, though, is the urgency. Almost as if someone wants info for a narrative in time for the midterms.
    5. Or it could just be Sekulow.

  6. Frank Probst says:

    Dumb question about how legal representation works:  The document says that Gene Schaerr is the Plaintiff, who is representing, well, someone, and then goes on to say that “Plaintiff” made numerous requests for information starting in July 2017.  Does this mean that Gene Schaerr was already on board himself at that time, and that he was the one making all of the requests?  Or can “Plaintiff” refer to the anonymous someone, and that they were making the requests, and that when Gene Schaerr came on board later to represent the anonymous someone, he also became “Plaintiff”?

    • bmaz says:

      Basically the named plaintiff is the plaintiff. In this case, a quick scan gives no indication “Plaintiff” does not refer to him. That said, it specifies he is working for an unidentified Trumpian.

      Also, Hi Frank!

    • Bob Conyers says:

      Also, this may just be a coincidence due to the incestuous nature of the right’s culture warriors, but Schaerr’s partner at Schaerr-Duncan is Kyle Duncan, who has strong ties to Rebekah Mercer. Duncan was previously the lead counsel for the Becket Fund, which argued the Hobby Lobby case and got a ton of money from the Mercers.

      Duncan has been nominated for a federal judgeship, so it’s certainly possible he handed this job off to Schaerr.

      Of course, the Mercers give a ton to money to other legal action groups, and Duncan is certainly not the only option they would have, so like I said this may just be coincidence.

      It’s definitely the case that Schaerr-Duncan has deep ties to the religious right, though, so I would think that would rule out people like Priebus, Kushner and the Trump kids. This is not a firm with any significant FISA or FOIA knowledge and they’re not someone you would normally hire for this kind of work.

      • Rayne says:

        You know of any possible links to Kochs? With OPEC and Iran (and Russia) playing oil production levels to keep Kochs from expanding their fracking, and knowing Kushner, Flynn and others on the transition team were playing with both financing and future income streams from the Middle East, I’ve wondered if Kochs would try to break the lock on the oil market.

        • Bob Conyers says:

          I’m just looking at the client list of Schaerr-Duncan, and they lean very heavily to the culture warrior side, with some corporate work thrown in.

          There is some overlap with the Kochs, but I didn’t see any obvious top level concerns. My guess is that it’s more likely a Rebekah Mercer connection than Kochs – I suspect if they want something, they’re not going to mess around with people like this, but she is the type to be swayed by ideological purity over competence. And again, there could be another culture warrior on that list who is behind it, or even a culture warrior off the list who is worried about which listed person might be pressured to cooperate – who knows, Pence or Carson might be trying to catch a rat?

          Someone else suggested Sekulow as the real driver, and he’s also a good guess, considering his Jews for Jesus background and legal work on the fundamentalist agenda overlaps what Schaerr-Duncan do.

  7. Mark says:

    Out of the eight House reps on the FOIA request list, six voted to reauthorize FISA Section 702 this year:

    • Barletta
    • Collins
    • Marino
    • Nunes
    • Gowdy
    • Ross

    Getting the details right on FISA and processes like minimization is important to you as a subject for research and investigation. The House reps I listed have different interests. What matters most to them is to use their legal power and authority against their political opponents. They understand FISA Section 702 well enough and they’re all for using it to advance their own goals. To do that they need to carve out an exemption for themselves.

  8. SpaceLifeForm says:

    ”Utterly false statements’

    I believe that will be sorted out in court. (intentional)

    How many on the list have never been outside out of US?

    Betcha 12333 is involved.

  9. SpaceLifeForm says:

    “whereas back door searches, which can use a name, are done by all three agencies.”

    Objection.  Assumes facts not in evidence.

    Think another number.   Greater than three.

  10. TomA says:

    This could be preparation for a class action suite alleging improper (or illegal) conduct on the part of various IC entities. If so, then they likely already have inside information guiding them. My guess is that IC abuse of process and protocols is much worse than commonly known and will only be constrained if someone pushes back. Most serious crime happens in the shadows, and the IC is as dark as it gets.

    • SpaceLifeForm says:

      No fucking way class action. Absolutely no fucking way.

      The class would have to be the citizens of the US.

      What could be the result? Free FB *and* free Twitter?

      No. The citizens of the US need to get off of their lazy asses, start paying attention, and vote appropriately.

      That is the proper class action.

  11. jharp says:

    I must say that I really have to put my thinking cap on to digest your posts.

    And your posts are excellent. And the exercise in thinking is good for me as I enter my 6th decade.

    Thank you.

    • TheraP says:

      I’ve been thinking about this comment since last night.  Thinking of myself as “within a specific decade” made me feel really old!  I had to stop and think – and concluded I must face that I’m a third of the way through my 8th decade.  So, if you find it hard to follow and swallow these posts, imagine me.  I just hope I can keep up for the next few decades or at least find my way here and feel the cognitive wheels trying to turn.

      I’m sure I’m in far better shape than the Sadist in Chief, however, though a couple years older and hopefully far, far wiser.  And way, way, way (near the vanishing point) less entangled in the deeds of greed.

      Hang in there, fellow travelers! Let us hope Marcy is truly blessed with longliving genes – especially in the neuron dept.

  12. Rayne says:

    My gut tells me some of the people on the list are red herrings — they are tests against which they are measuring the accuracy of other reports.

    My gut also tells me the real aim is to find out what information they have on Mnuchin and Kushner.

    • earlofhuntingdon says:

      The request does have the earmarks of an Agatha Christie fan: ask about information on a random, but somehow linked group, while having one or two targets in mind.  A.B.C.

  13. Peterr says:

    On information and belief, at least two departments within the NSA handle complaints regarding the improper use of intelligence. These departments are known publicly by the codes “S12,” a code name apparently referring to the agency’s Information Sharing Services authority, and “SV,” a code name apparently referring to the agency’s Oversight and Compliance authority.

    Honestly, this reads like it was written by someone who doesn’t understand that every DC agency has its own internal acronyms. They have a certain logic to insiders, and are used as a kind of shorthand. These NSA identifiers for offices within their organization aren’t “codes” and “code names” to hide their purpose from prying eyes — they’re just the NSA’s dialect of the ordinary language of the DC bureaucracy.

    Marc Ambinder has a useful piece at the Atlantic (circa 2013, so may be out of date due to later reorganization efforts) that lays out the broad outlines of the various parts of the NSA. Offices with “S” as the opening of their designation are under the Signals Intelligence Directorate, “Q” is the Security and Counterintelligence Directorate, “R” is the Research Directorate, etc.

    I think some lawyer — or some lawyer’s client — has been reading too many spy novels.

    ETA: Note that the military has a similar shorthand for its various command staff functions: G1 is personnel, G2 is intelligence, G3 is operations, etc. It’s not a code, but shorthand.

    • SpaceLifeForm says:

      Note NSA is under the DOD umbrella.

      S12 (sharing), SV (oversight and compliance) points to 12333.

      Do you think ’12’ is coincidence?

  14. lefty665 says:

    Could this be the names of people in “incidental collection” Susan Rice unmasked? Less those we already know about?

    “White House lawyers last month discovered that the former national security adviser Susan Rice requested the identities of U.S. persons in raw intelligence reports on dozens of occasions that connect to the Donald Trump transition and campaign, according to U.S. officials familiar with the matter. Lake further reports that Rice’s pattern of requesting unmasking was discovered by Trump National Security Council staffer Ezra Cohen-Watnick, whom The New York Times reported last week was one of Nunes’s sources. Cohen-Watnick informed the White House Counsel’s office, Lake reports.”

    Cohen-Watnick would have the inside knowledge that would explain the peculiar specificity of the list.

  15. pseudonymous in nc says:

    “it seems to be an attempt to declassify stuff it knows about, even while it exhibits a remarkable misunderstanding of what it’s talking about.”

    It feels Nunes-y (given that it cites him by name a couple of times) even if the suit itself is garbled about FISA, and Schaerr is a culture-warrior attorney.

    Given that the transition used that GSA-managed email server that was made available to Mueller’s team, is it a backdoor way to see whether that server was being surveilled (because Flynn and possibly Papadopoulos were using transition email) before the formal FBI criminal requests came through in 2017? That seems outside of FISA’s domain, but [shrug].

  16. SpaceLifeForm says:

    Wondering if the Laura Rozen exception list is a list of people that are known to be previously unmasked.

    It sure looks like she put it together via cut-and-paste from some other list.

    In a hurry maybe, and maybe from an e-mail.

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