The Press Gets Utterly Snookered on the White House Rebranding of the Same Old Unrelenting Obstruction of Congressional Prerogatives

Yesterday, the White House sent a letter to Nancy Pelosi and just some of the Committee Chairs conducting parts of an impeachment inquiry into the President, purporting to refuse to participate in that impeachment inquiry. Since then, there has been a lot of shocked coverage about how intemperate the letter is, with particular focus on the fact that White House Counsel, Pat Cipollone, used to be considered a serious lawyer. There has been some attempt to analyze the letter as if it is a legal document and not instead the President’s rants packaged up in Times Roman and signed by one of his employees. A number of outlets have thrown entire reporting teams to do insipid horse race coverage of the letter, as if this is one giant game, maybe with nifty commercials on during halftime.

None I’ve seen have described the letter as what it is: an attempt to rebrand the same old outright obstruction that the White House has pursued since January.

The tell — for those teams of well-compensated journalists treating this as a factual document — might have been the addressees. While the letter got sent to Adam Schiff, Eliot Engel, and Elijah Cummings, it did not get sent to Jerry Nadler, who has been pursuing an impeachment inquiry of sorts since the Mueller Report came out. The White House knows Nadler is also part of the impeachment inquiry, because even as the White House was finalizing the letter, Trump’s DOJ was in DC Chief Judge Beryl Howell’s courtroom fighting a House Judiciary request for materials for the impeachment inquiry. In the hearing, DOJ literally argued that the Supreme Court’s 8-0 US v. Nixon was wrongly decided.

Howell picked up on that point by pressing DOJ to say whether then-U.S. District Court Chief Judge John Sirica was wrong in 1974 to let Congress access a detailed “road map” of the Watergate grand jury materials as it considered President Richard Nixon’s impeachment.

Shapiro argued that if the same Watergate road map arose today, there’d be a “different result” because the law has changed since 1974. She said the judge wouldn’t be able to do the same thing absent changes to the grand jury rules and statutes.

Howell sounded skeptical. “Wow. OK,” she replied.

DOJ also argued that Congress would have to pass a law to enshrine the principle that this binding Supreme Court precedent already made the law of the land.

In the HJC branch of the impeachment inquiry, the few credible claims made in yesterday’s letter — such as that Congress is conducting the inquiry in secret without the ability to cross-examine witnesses or have Executive Branch lawyers present — are proven utterly false. And with the claims made in yesterday’s hearing, the Executive demonstrated that they will obstruct even measured requests and negotiations for testimony.

The Trump White House obstructed normal Congressional oversight by absolutely refusing to cooperate.

The Trump White House obstructed an impeachment inquiry focused on requests and voluntary participation.

The Trump White House obstructed an impeachment inquiry where subpoenas were filed.

The Trump White House obstructed an impeachment inquiry relying on whistleblowers who aren’t parties to the White House omertà.

The Trump White House obstructed what numerous judges have made clear are reasonable requests from a co-equal branch of government.

Nothing in the White House’s conduct changed yesterday. Not a single thing. And any journalist who treats this as a new development should trade in her notebooks or maybe move to covering football where such reporting is appropriate.

It is, however, a rebranding of the same old unrelenting obstruction, an effort to relaunch the same policy of unremitting obstruction under an even more intransigent and extreme marketing pitch.

And that — the need to rebrand the same old obstruction — might be worthy topic of news coverage. Why the White House feels the need to scream louder and pound the table more aggressively is a subject for reporting. But to cover it, you’d go to people like Mitt Romney and Susan Collins, who already seem to be preparing to explain votes against the President. You even go to people like Lindsey Graham, who is doing ridiculous things to sustain Rudy Giuliani’s hoaxes in the Senate Judiciary Committee — but who has condemned the principle of making the country dramatically less safe for whimsical personal benefit in Syria. Or you go to Richard Burr, who quietly released a report making it clear Russia took affirmative efforts to elect Trump in 2016.

This week, Trump looked at the first few Republicans getting weak in the knees and his response was to double down on the same old policies, while rolling out a campaign trying to persuade those weak-kneed members of Congress who are contemplating the import of our Constitution not to do so.

The President’s former lawyer testified earlier this year, under oath, that this has always been a branding opportunity to Donald Trump.

Donald Trump is a man who ran for office to make his brand great, not to make our country great. He had no desire or intention to lead this nation – only to market himself and to build his wealth and power. Mr. Trump would often say, this campaign was going to be the “greatest infomercial in political history.”

His latest attempt to cajole Republican loyalty is no different. It’s just a rebranding of the same intransigence. Treating it as anything but a rebranding is organized forgetting of what has taken place for the last nine months, and journalists should know better.

Trump Specifically Ensured Republicans Wouldn’t Know about His Extortion

Kurt Volker’s prepared testimony from yesterday has been released. It is very unconvincing in several places, particularly read in conjunction with his texts that makes it clear there was a quid pro quo tied to security assistance and aid. Most charitably, it reads like the narrative of someone whose intentions were good, but in denial about his actions in service of an ultimate outcome — the continued provision of aid to Ukraine.

As is well documented, I had long supported lifting the ban on lethal defensive assistance to Ukraine, advocated for the supply of javelin anti-tank systems, advocated for an increase in U.S. assistance, and urged other nations to provide more assistance as well.

The issue of a hold placed on security assistance to Ukraine also came up during this same time I was connecting Mr. Yermak and Mayor Giuliani. I did not perceive these issues to be linked in any way.

On July 18, I was informed that at an interagency (sub-PCC) meeting, OMB had said that there was a hold being placed on Congressional Notifications about security assistance to Ukraine. No reason was given.

A higher level interagency meeting (PCC) was then scheduled to take place to discuss the issue on July 23. I met in advance with the individual who would represent the State Department at that meeting, Assistant Secretary of State for Pol-Mil Affairs, R. Clarke Cooper. I stressed how important it was to keep the security assistance moving – for Ukraine’s self-defense, deterrence of further Russian aggression, as a symbol of our bilateral support for Ukraine, and as part of having a strong position going into any negotiations with Russia. He fully agreed and intended to represent that position at the PCC meeting. I also had separate conversations with the Pentagon and NSC staff to reiterate the same position.

I was told later that there was no outcome from the PCC meeting. That said, I was not overly concerned about the development because I believed the decision would ultimately be reversed. Everything from the force of law to the unanimous position of the House, Senate, Pentagon, State Department, and NSC staff argued for going forward, and I knew it would just be a matter of time.

As well, Volker avoids admitting this was partly about inventing dirt on Joe Biden by treating the possibility of election interference as credible, without any basis (and it’s clear he conducted this projection repeatedly in real time).

Concerning the allegations, I stressed that no one in the new team governing Ukraine had anything to do with anything that may have happened in 2016 or before – they were making TV shows at the time. Mr. Lutsenko, however, would remain in place until a new government was seated in a month or more. It was important to reach out and provide strong U.S. support for President-elect Zelenskyy.

I also said at that July 19 meeting that it is not credible to me that former Vice President Biden would have been influenced in anyway by financial or personal motives in carrying out his duties as Vice President. A different issue is whether some individual Ukrainians may have attempted to influence the 2016 election or thought they could buy influence: that is at least plausible, given Ukraine’s reputation for corruption. But the accusation that Vice President Biden acted inappropriately did not seem at all credible to me.

But the key new detail in Volker’s statement, beyond what we already knew, is confirmation that not only did OMB freeze assistance to Ukraine, but it also froze notifications about security assistance to Congress, effectively hiding the fact that Trump was using the aid authorized by Congress to extort election assistance from Ukraine.

On July 18, I was informed that at an interagency (sub-PCC) meeting, OMB had said that there was a hold being placed on Congressional Notifications about security assistance to Ukraine. No reason was given.

Withholding the aid is something Republicans were on the record opposing. Indeed, Mitch McConnell claims (credibly or not) that even he was not informed that Trump was withholding the aid to extort campaign assistance.

Senate Majority Leader Mitch McConnell (R-Ky.) said he was not provided an explanation for why the Trump administration held up aid to Ukraine when he pressed senior officials on the matter over the summer.

“I was not given an explanation,” McConnell told reporters Tuesday as the congressional furor grew over President Trump’s interactions with Ukrainian President Volodymyr Zelensky.

McConnell said he spoke to Secretary of Defense Mark Esper and Secretary of State Mike Pompeo twice about the matter without receiving clarification for the delay in $391 million in aid to Ukraine.

“I was very actively involved in advocating [for] the aid. I talked to the secretary of Defense, the secretary of State once,” he said.

“The good news was it finally happened,” he added, noting the administration finally released the aid. “I have no idea what precipitated the delay.”

Whatever other story Republicans want to tell to excuse this behavior (and, as I said, McConnell’s claim here reads like CYA), Republicans should be furious that, first, Trump ignored the stated will of Congress on something they all claimed to care about and, second, that Trump’s OMB very specifically froze them out of notice they were entitled to have, as Congress.

Again, this scandal is not just about Trump demanding that other countries help him get reelected. It’s also about Trump defying the will of Congress to obtain leverage to extort that aid. Now we know that he even deliberately kept Congress in the dark about what he was doing.

Republicans surely will continue to excuse this behavior. But by doing so, they are utterly emasculating the prerogatives of Congress to do so.

Update: Multiple sources suggest that by August 31, Ron Johnson knew why aid was being held up, and by September 12, McConnell and James Inhofe did too.

Trump Is Being Impeached for Harming America to Extort Campaign Help

There’s a narrative solidifying among journalists that Democrats are conducting an impeachment inquiry (at least as it pertains to Ukraine) into whether Trump solicited foreign help for an election.

Even setting aside that on the call with Volodymyr Zelensky, Trump first asked Ukraine’s president to provide “evidence” backing Russian disinformation about the last election, foreign election assistance is not (all) Trump is being impeached for. Trump is being impeached for pursuing US policies that serve to coerce his foreign partners into helping him win the 2020 election.

His demand that China start an investigation into the Bidens was separated from his assertion that “if they don’t do what we want, we have tremendous power” by less than 30 seconds.

We’re looking at a lot of things. China’s coming in next week. We’re going to have a meeting with them. We’ll see. But we’re doing very well. Some of the, uh, numbers are being affected by all of the nonsense, all of the politics going on in this country, but the Democrats, I call them the do-nothing Democrats because they do nothing for this country. They don’t care about this country. But, uh, the numbers really are looking very good going into the future. So we’ll see. I have a lot of options on China. But if they don’t do what we want, we have tremendous power.

[comment on how he wants Zelensky to investigate the Bidens]

And by the way, likewise, China should start an investigation into the Bidens. Because what happened in China is just about as bad as what happened with uh, with Ukraine.

And a key part of the whistleblower’s complaint is that,

On 18 July, an Office of Management and Budget (OMB) official informed Departments and Agencies that the President “earlier that month” had issued instructions to suspend all U.S. security assistance to Ukraine. Neither OMB nor the NSC staff knew why this instruction had been issued. During interagency meetings on 23 July and 26 July, OMB officials again stated explicitly that the instruction to suspend this assistance had come directly from the President, but they still were unaware of a policy rationale. As of early August, I heard from U.S. officials that some Ukrainian officials were aware that U.S. aid might be in jeopardy, but I do not know how or when they learned of it.

Trump held up the money, which had been appropriated by Congress, overruling John Bolton’s and some other national security advisors’ counsel (which may be why Bolton was excluded from the call), as well as that of some Republican Senators. At least some of the Ukrainians in the loop claimed to be blindsided by the freeze and talked about how the freeze made Ukraine more vulnerable vis a vis Russia. Trump restored the aid only after Congress forced him to, even as the whistleblower complaint was breaking.

In short, Trump was defying Congress’ orders, and his excuses (that he was trying to get Ukraine to work on corruption) don’t hold up.

Trump has a lot of leeway to set the foreign policy of the US (but not in defiance of Congressional budgetary guidance). But he has come very close to suggesting that he is setting the foreign policy priorities of the country in such a way as to get leverage over other countries to help him politically.

And DOJ, when receiving this whistleblower complaint, did not review whether this amounts to extortion or bribery, the latter of which is specifically enumerated as an offense demanding impeachment in the Constitution.

This is what impeachment is about: Trump is considering inflicting more damage on farmers and manufacturers and this summer helped an adversary (admittedly the one who helped him get elected the last time), all in an effort to coerce help from foreign leaders.

Update: Fox just obtained encrypted texts showing that temporary Ambassador to Ukraine William Brockenbrough Taylor Jr. said “it’s crazy to withhold security assistance for help with a political campaign,” which would appear to make the intent clear.

Bill Barr Risks becoming Joseph Mifsud’s New Coffee Boy

Yesterday, the Daily Beast provided details about what Bill Barr was doing in Italy on the trip to dig up dirt first confirmed by the WaPo. According to DB, Barr and John Durham went to Italy on short notice (that is, even as the Ukraine scandal he is personally implicated in was breaking) to watch a videotaped deposition by Joseph Mifsud.

Barr was in Rome on an under-the-radar mission that was only planned a few days in advance. An official with the embassy confirmed to The Daily Beast that they had to scramble to accommodate Barr’s sudden arrival. He had been in Italy before, but not with such a clear motive. Barr and Durham are looking into the events that led to Robert Mueller’s Russia investigation, and suddenly all roads were leading to Rome.

The Daily Beast has learned that Barr and Durham were especially interested in what the Italian secret service knew about Joseph Mifsud, the erstwhile professor from Malta who had allegedly promised then-candidate Donald Trump’s campaign aide George Papadopoulos he could deliver Russian “dirt” on Hillary Clinton. The Italian justice ministry’s public records show that Mifsud had applied for police protection in Italy after disappearing from Link University, where he worked and, in doing so, had given a taped deposition to explain just why people might want to harm him.

A source in the Italian Ministry of Justice, speaking on the condition of anonymity, told The Daily Beast that Barr and Durham were played the tape. A second source within the Italian government also confirmed to The Daily Beast that Barr and Durham were shown other evidence the Italians had on Mifsud.

There are a ton of reasons why this trip is batshit crazy. For one, Barr is placing himself in the role of a line Special Agent, someone without the requisite expertise chasing off to watch taped depositions while he should be running DOJ. For another (as I’ll show in more detail later), Barr is literally just chasing conspiracy theories sown by sworn liar George Papadopoulos, conspiracy theories which fabulist John Solomon (and his obvious sources named Rudy Giuliani and some Russian and Ukrainian oligarchs including Oleg Deripaska) has both fed and magnified. That Barr is doing it as he becomes personally embroiled in a scandal which could implicate him criminally suggests he and Trump may be trying to beat the clock, produce results before the shit really hits the fan.

But what’s most remarkable about the trip is the Attorney General of the United States went out on this goose chase without first ensuring he’d get what he was promised.

There’s a principle often aired when discussing Trump’s failed diplomacy with North Korea. You don’t send out the Principal for a meeting before getting certain commitments that advance your own goals. Trump should not have met with Kim Jong-Un without first getting concessions, because by doing so he took away several things of value (such as conferring credibility on the world stage) that Kim was most interested in.

The same is true here. The Attorney General should never run off to do the work of an FBI line Special Agent. But he certainly shouldn’t do so unless he was getting what he was really after.

And Billy Barr just flew to Italy without getting what he was really looking for.

Handily, for this scandal, Papadopoulos and Solomon and Chuck Ross have been ready scribes for the script that Trump and Billy Barr are supposed to be following. It’s all out in the open.

The Attorney General’s voyage to Italy got set in motion last fall when Ross published two stories relying on Mifsud’s “attorney” Stephen Roh (who himself has close ties to Russia). The first, dated September 10, reported that Mifsud was alive and well hiding in Italy. The second, published October 24, was explicitly a set-up for George Papadopoulos’ testimony before the joint OGR/HJC investigation into the Russian investigation. It included comments from Roh alleging that Mifsud was not a Russian asset, but was instead a Western one. Ross included those comments almost as a side note, even though the comments make what would normally be big news.

Roh told TheDCNF this week that Mifsud claimed in their previous meetings that he was working under the direction of the FBI when he made contact with Papadopoulos. He also claims that Mifsud told him that he was ordered to stay out of the public spotlight until the conclusion of special counsel Robert Mueller’s investigation.

“Prof Mifsud explained that he is and was always a trusted cooperator of Western Intelligence services,” Roh said on Oct. 20.

“Prof Mifsud explained to us that he agreed not to speak, not to give interviews and to hide until the [Mueller] Investigation is terminated,” said Roh, who added that Mifsud claimed that he was being assisted by a London law firm in his discussions with the Mueller team.

The claims, if true, would be bombshell developments in the Russiagate saga. But TheDCNF was not able to independently verify Roh’s claims. The special counsel’s office declined comment.

While some of Roh’s claims about Mifsud would seem to support Papadopoulos’s theories, Roh has also said that Mifsud denies Papadopoulos’s allegation that he mentioned Clinton emails during their April 2016 meeting. Roh has asserted that Papadopoulos was working as an “agent provocateur” for a Western spy agency.

The next day, Papadopoulos — cued by Zachary Somers, then Majority Counsel for Bob Goodlatte — pointed to the Daily Caller piece as the basis for his belief that Joseph Mifsud was actually western intelligence.

Q Okay. So, and Mifsud, he presented himself as what? Who did he tell you he was?

A So looking back in my memory of this person, this is a mid-50’s person, describes himself as a former diplomat who is connected to the world, essentially. I remember he was even telling me that, you know, the Vietnamese prime minister is a good friend of mine. I mean, you have to understand this is the type of personality he was portraying himself as.

And, you know, I guess I took the bait because, you know, usually somebody who — at least in Washington, when somebody portrays themselves in a specific way and has credentials to back it, you believe them. But that’s how he portrayed himself. And then I can’t remember exactly the next thing that happened until he decided to introduce me to Putin’s fake niece in London, which we later found out is some sort of student. But I could get into those details of how that all started. Q And what’s your — just to kind of jump way ahead, what’s your current understanding of who Mifsud is?

A My current understanding?

Q Yeah. A You know, I don’t want to espouse conspiracy theories because, you know, it’s horrifying to really think that they might be true, but just yesterday, there was a report in the Daily Caller from his own lawyer that he was working with the FBI when he approached me. And when he was working me, I guess — I don’t know if that’s a fact, and I’m not saying it’s a fact — I’m just relaying what the Daily Caller reported yesterday, with Chuck Ross, and it stated in a categorical fashion that Stephan Roh, who is Joseph Mifsud’s, I believe his President’s counsel, or PR person, said that Mifsud was never a Russian agent.

In fact, he’s a tremendous friend of western intelligence, which makes sense considering I met him at a western spying school in Rome. And all his interactions — this is just me trying to repeat the report, these are not my words — and when he met with me, he was working as some sort of asset of the FBI. I don’t know if that’s true or not. I’m just reporting what my current understanding is of this individual based on reports from journalists.

As I’ll show, this was not the only time Papadopoulos did this in a deposition that was supposed to air what Papadopoulos knew, personally. His testimony served to validate conspiracy theories planted in right wing propaganda outlets.

In May Devin Nunes, in the guise of raising counterintelligence concerns about the number of high level people (including Boris Johnson, who would not be Prime Minister of the UK right now without dodgy financing of Leave) who had interacted with Mifsud, wrote a letter airing Roh’s claims and information that otherwise has been sourced from Roh, wrote Mike Pompeo, Paul Nakasone, Gina Haspel, and Chris Wray claiming Mueller misrepresented Mifsud.

Alternatively, if Mifsud is not in fact a counterintelligence threat, then that would cast doubt on the Special Counsel’s fundamental description of him and his activities, and raise questions about the veracity of the Special Counsel’s statements and affirmations. It should be noted that the Special Counsel declined to charge Mifsud with any crime even though, to justify seeking a prison sentence for Papadopoulos, the Special Counsel claimed Papadopoulos’ untruthful testimony “undermined investigators’ ability to challenge the Professor [Mifsud] or potentially detain or arrest him while he was still in the United States.” Furthermore, it’s still a mystery how the FBI knew to ask Papadopoulos specifically about Hillary Clinton’s emails, on multiple occasions throughout 2016-17 before having interviewed Mifsud, if the FBI hadn’t already somehow received this information directly or indirectly from Mifsud himself.

Obviously, Nunes’ “concerns” are rank bullshit. The tip from Australia was sufficient to raise question about the emails. And Mueller didn’t charge a bunch of other suspected foreign assets (some even in the US), which is how counterintelligence works. But Nunes’ letter sufficed to make this an official request.

Apparently, then, Stephen Roh shared a transcript of a deposition with some Republicans in Congress and Solomon. That, and more cues from Republicans, Roh, Papadopoulos, and who knows who else, got laundered through a Solomon story full of obvious misrepresentations (one that irks me, for example, is his use of a February 2017 email Mifsud sent following up on his FBI interview to claim Mifsud exchanged emails with the FBI, as if that substantiated an otherwise independent relationship with the Bureau). The news hook of the story is that John Durham wanted to interview Mifsud. But if he couldn’t do that, Solomon dutifully reported, Durham would like to “review a recorded deposition” he gave to Roh.

An investigator told Swiss attorney Stephan Roh that Durham’s team wanted to interview Mifsud, or at the very least review a recorded deposition the professor gave in summer 2018 about his role in the drama involving Donald Trump, Russia and the 2016 election.

The contact, confirmed by multiple sources and contemporaneous email, sent an unmistakable message: Durham, the U.S. attorney handpicked by Attorney General William Barr to determine whether the FBI committed abuses during the Russia investigation, is taking a second look at one of the noteworthy figures and the conclusions of former special counsel Robert Mueller’s final report.

Solomon went on to claim — and the frothy right believes it as scripture now — that if Durham would just interview Mifsud, he would learn that the whole Papadopoulos story was actually a set-up by Western intelligence agencies seeking to frame George Papadopoulos and Donald Trump.

Roh told me the information he is preparing to share with Durham’s team from his client will accentuate those concerns.

Mifsud was a “longtime cooperator of western intel” who was asked specifically by his contacts at Link University in Rome and the London Center of International Law Practice (LCILP) — two academic groups with ties to Western diplomacy and intelligence — to meet with Papadopoulos at a dinner in Rome in mid-March 2016, Roh told me.

A May 2019 letter from Nunes to U.S. intelligence officials corroborates some of Roh’s account, revealing photos showing that the FBI conducted training at Link in fall 2016 and that Mifsud and other Link officials met regularly with world leaders, including Boris Johnson, elected today as Britain’s new prime minister.

A few days after the March dinner, Roh added, Mifsud received instructions from Link superiors to “put Papadopoulos in contact with Russians,” including a think tank figure named Ivan Timofeev and a woman he was instructed to identify to Papadopoulos as Vladimir Putin’s niece.

Mifsud knew the woman was not the Russian president’s niece but, rather, a student who was involved with both the Link and LCILP campuses, and the professor believed there was an effort underway to determine whether Papadopoulos was an “agent provocateur” seeking foreign contacts, Roh said.

The evidence, he told me, “clearly indicates that this was not only a surveillance op but a more sophisticated intel operation” in which Mifsud became involved.

The point is, though, that the ask was an interview, at which Barr and Durham (and, if they had brought experienced interrogators, which the DB does not report they did) would be able to test Mifsud’s credibility. Sitting in a secure room and watching a deposition (without experts there to test the provenance of the deposition video, no less) was not the ask and provides no way to obtain what would really be necessary.

But Barr didn’t demand that, and he didn’t get that. Instead, he allowed himself to be lured into a dark room in Italy to watch something — possibly without anyone with the relevant counterintelligence expertise to help him understand it — that provides very little useful information to test Mifsud’s claims. That puts the Attorney General in an incredibly vulnerable position (even beyond being implicated in covering up the President’s extortion to get such access), because he not only has traded away a lot of leverage to get what he would actually need to test this information, but he has already met a suspected Russian asset on the asset’s terms.

A lot of what Papadopoulos has done over the last three years was downright idiotic. But he has the excuse of being stupid, untrained, venal, and overly ambitious.

Billy Barr has no excuses for doing something that is even stupider than much of what Papadopoulos did. And yet he did just that.

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

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

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

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

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

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

But Powell seemed to be saying she had the letter.

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

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

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

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

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

This post relies on these documents:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Rudy Giuliani wants to frame Alexandra Chalupa

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

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

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

GIULIANI: Let’s get on to the point…

STEPHANOPOULOS: Well, this was in the phone call.

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

STEPHANOPOULOS: When did they first come to you?

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

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

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

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

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

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

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

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

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

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

But that’s not the CrowdStrike tie.

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

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

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

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

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

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

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

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

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

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

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

That’s just part of what Trump is after.

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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