How Don McGahn Distracted the NYTimes from the Subpoenas Known To Be Problematic

The NYT just published a story that buried incredibly important details about the HPSCI subpoena in paragraphs 18 and 19.

In that case, the leak investigation appeared to have been primarily focused on Michael Bahar, then a staffer on the House Intelligence Committee. People close to Jeff Sessions and Rod J. Rosenstein, the top two Justice Department officials at the time, have said that neither knew that prosecutors had sought data about the accounts of lawmakers for that investigation.

It remains murky whether agents were pursuing a theory that Mr. Bahar had leaked on his own or whether they suspected him of talking to reporters with the approval of the lawmakers. Either way, it appears they were unable to prove their suspicions that he was the source of any unauthorized disclosures; the case has been closed and no charges were brought.

The details back a hypothesis that I and others have raised about the 2018 subpoena that obtained Adam Schiff’s call records: that Schiff wasn’t targeted at all, but instead someone else — here, Michael Bahar — was the target.

That means that the initial subpoena may have been more stupid — not adequately targeted given the scope of the investigation — than scandalous. It also means that the focus should remain on Bill Barr’s renewed focus on those records in 2020, particularly whether or not he used Schiff records that should have been sealed to investigate a key member of Congress.

But that’s not how the NYT is spending its time. Instead, they are spending 17 paragraphs admitting that they have no idea whether a subpoena obtained by an EDVA grand jury for Don McGahn’s records on February 23, 2018 is newsworthy or not.

They report that Apple got the subpoena for McGahn, implying but not reporting clearly that all Apple provided was subscriber information.

Apple told Donald F. McGahn II, the White House counsel to former President Donald J. Trump, last month that the Justice Department had subpoenaed information about an account that belonged to him in February 2018, and that the government barred the company from telling him at the time, according to two people briefed on the matter.

Mr. McGahn’s wife received a similar notice from Apple, said one of the people, who spoke on the condition of anonymity to discuss a sensitive matter.

It is not clear what F.B.I. agents were scrutinizing, nor whether Mr. McGahn was their specific focus. In investigations, agents sometimes compile a large list of phone numbers and email addresses that were in contact with a subject, and seek to identify all those people by using subpoenas to communications companies for any account information like names, computer addresses and credit card numbers associated with them.

They assume, with no evidence, that the subpoena was obtained because McGahn was Trump’s White House counsel.

Still, the disclosure that agents secretly collected data of a sitting White House counsel is striking as it comes amid a political backlash to revelations about Trump-era seizures of data of reporters and Democrats in Congress for leak investigations. The president’s top lawyer is also a chief point of contact between the White House and the Justice Department.

They then go tick off one after another possible explanation:

  • The Manafort tax investigation, which was conducted in DC, and was completed in, and therefore would have been disclosed in, 2018
  • A tirade Trump launched about McGahn involving a potential leak that would have been investigated in DC
  • The totally unrelated HPSCI subpoena, which also was investigated in DC

They don’t consider a much more likely explanation, especially since Mueller is known to have identified at least three SuperPACs that were coordinating with the Trump campaign, including at least two that were headquartered in VA, but did not pursue charges relating to potential illegal coordination himself. That possibility is that prosecutors were appropriately investigating why the former FEC chairman was letting Trump’s 2016 campaign coordinate with so many supposedly independent PACs, particularly given his knowledge that Trump and Michael Cohen had been investigated for campaign finance laws in 2011, before then FEC Chair Don McGahn bailed them out for it. There’s no evidence Mueller’s investigators asked McGahn about this, even though Roger Stone’s coordination with Steve Bannon and Rick Gates was a subject of considerable interest to Mueller (in part because it implicated the Mercers).

That’s just one possible explanation, but unlike all the speculation included in the NYT story not focusing on Barr’s resuscitation of the HPSCI leak, might actually involve a grand jury in VA.

Until there’s some sense of what this subpoena was, there’s zero reason to assume it’s newsworthy or in any way focused on something McGahn had done as White House Counsel.

One of the only pieces of genuine “news” that came out of McGahn’s testimony the other day is he confessed to being a source for a story that was obviously sourced to someone close to him that nevertheless claimed he, personally, had not responded to requests for comment. “McGahn did not respond to requests for comment.” The man knows how to make journalists run around like puppies chasing his shiny objects.

And what the NYT just did was take their focus away from subpoenas there’s good reason to believe are newsworthy to instead speculate wildly about one that may not be.

39 replies
  1. P J Evans says:

    I get the impression that NYT has forgotten how to do actual reporting: they’d rather reprint press releases and stolen blog posts.

    • subtropolis says:

      Are you not aware that NYT broke the HPSCI subpoenas story? That, and a great number of others.

        • subtropolis says:

          Their record of breaking important stories regarding the crime-wave of the Trump years is impressive. Belittling that as “press releases and stolen blog posts” is ridiculous.

        • BobCon says:

          A great example of how that works at the Times is to look at the Trump tax fraud story.

          Two desks at the Times did great work in bringing the story into the light — Investigations and NY State. It was great, thorough work, and they were able to establish something pretty remarkable — they unequivocably used the definition of criminal fraud.

          The flip side is the reaction of another desk — the Politics beat. Their reporting either ignored or minimalized what their colleagues established and stuck their necks out from a professional standpoint to put into print against a notorious litigous subject.

          The whole sick crew from then Politics editor Patrick Healy to Peter Baker, Maggie Haberman, and the author of this piece, Michael Schmidt, effectively memory holed the entire issue. Instead of working from the baseline irrefutably established *by their own colleagues* that Trump was a criminal, albeit one saved by the statute of limitations, everything they wrote about ethical issues of Trump and his defenders took it as unknown. Charges leveled by critics on Trump’s financial dealings were treated by the Politics side of the Times as either unproven or partisanship.

          The stovepiping by the Politics desk is especially bad when considering how much prominence they are given by the top editors and management at the Times. You might excuse the Arts desk for not including all facets of previous reporting by the Metro desk when they write about an actor from NYC.

          But the selective, extreme bias by the NY Times Politics desk is a disgrace, and the role of top management in feeding it is terrible.

    • BobCon says:

      It’s worth noting that it’s not the NY Times in the abstract that wrote this. Michael Schmidt is the lead reporter, and his record on understanding significant points and doing any reporting beyond quoting participants is…. well, you know. He’s not as much of an axe grinding hack as Ken Vogel, or as much of a cheesy repeater of whatever he sees on the Teevee as Jeremy Peters, but that’s not saying much.

  2. Rugger9 says:

    I think a more simple solution would be that given the NYT’s continuing slanting of the coverage toward anti-D themes, this is another example of the NYT’s top management helping out their friends. Twice might be a coincidence, but this is every damn time.

    • Leoghann says:

      In the past six years, NYT has carried their both-sides-ism to the point that they’ll give almost any amount of extremism an equal voice. It’s almost “Fair and Balanced.”

  3. subtropolis says:

    I don’t understand the complaint here. McGahn’s subpoena may be unrelated to HPSCI but it’s nonetheless newsworthy, imho. Even if it were predicated upon a legitimate investigation unrelated to his term as WH Counsel.

    • BobCon says:

      The answer is at the end of the piece:

      “The man knows how to make journalists run around like puppies chasing his shiny objects.

      And what the NYT just did was take their focus away from subpoenas there’s good reason to believe are newsworthy to instead speculate wildly about one that may not be.”

      They don’t write about everything, they curate based on the input of a limited number of people they consider worth the ink. McGahn is pushing this angle, possibly in concert with someone else, and it’s worth asking why, as well as why the Times (Schmidt in particular) is helping.

      • Rugger9 says:

        Nothing makes it into the “Grey Lady” without the blessing of the editors. That’s where the housecleaning needs to be done.

        • BobCon says:

          The institution (they’re not alone, of course) rejects any serious analysis and synthesis, and has left it almost entirely to their sources. The approach infects the editorial level in terms of hiring, assignments, the whole deal.

          It gets particularly absurd when the politics desk ignores the reporting of others at the Times — their colleagues will establish without doubt what is happening with climate, or related to Rayne’s post today, race and history, but the politics desk will accept GOP framing that truth and facts as reported by NY Times colleagues doesn’t exist.What matters is bending over backwards to give bad faith actors the chance to spin.

        • P J Evans says:

          It’s worth reading, IMO.
          (The company I worked at held that retired employees could be called back if necessary – and some were, that I know of, when there was a Big Push in 2011, due to accidents elsewhere. I don’t know if there’s an age limit on that, but…if they really needed me, I’d go.)

        • Rugger9 says:

          If the threshold of jurisdiction can be solved (and it’s murky even here) then I’m all-in. I would observe that Lt Gen Flynn has done just about as much as anyone could do to make himself a test case. For that reason alone the government should oblige him to make him pay some legal bills.

      • subtropolis says:

        That’s nonsense. If anything, this new revelation only increases the public’s interest of wth was going on at Trump’s DoJ.

        How dare they provide even more evidence of secret subpoenas?! This seems like knee-jerk hating on the NYT. I just cannot see what the complaint is about.

        • emptywheel says:

          Grand jury subpoenas are secret!

          That’s not newsworthy, nor is there an ounce of information that the McGahn subpoena in any way shape or form relates to the others or could provide insight into them.

    • emptywheel says:

      Why? THUS FAR the only thing it indicates is that he and his wife know someone who was under investigation but no longer is. We know he knows a lot of criminals, so that is unsurprising.

    • earlofhuntingdon says:

      But is it newsworthy in the way the NYT treated it, by burying what may be of most interest in seventeen paragraphs of irrelevant speculation?

      What would be newsworthy is if there were evidentiary meat on the bones connecting Trump’s illegal coordination between his campaign and superpacs. For one thing, it’s illegal. For another, he’ll do it in 2022 and 2024, if for no other reason than to grift off the hundreds of millions he might raise by staying in the news and nominally in the running.

  4. d4v1d says:

    All this spying ordered by a ‘man’ who whined constantly that Obama spied on him. (Would we be better off if he had?)

    • Leoghann says:

      Just one more example of the principle, when dealing with the GOP since the Tea Party, “every accusation is actually a confession.”

    • P J Evans says:

      If he was talking with someone on a watch list before he was inaugurated, likely he was recorded.

  5. John Paul Jones says:

    The answer is here:

    “Still, the disclosure that agents secretly collected data of a sitting White House counsel is striking as it comes amid a political backlash to revelations about Trump-era seizures of data of reporters and Democrats in Congress for leak investigations.”

    About as pure an example of both-sides-ism as you are likely to see. Holy cow! The other side were subject to data-mining subpoenas too. I guess it’s not so bad as we thought if BOTH SIDES were targetted.

    • Ben Soares says:

      BINGO ! Hammer meet nail, and sales go up, and ring the bell. It’s the Carnival we live in …

      Newspapers are guaranteeing their demise. I think Roger Stone once said ” News reporters tend to be LAZY.” lol

      They will be vanquished by the truthtellers of the world, truth is laborious …ask the Marcy Wheeler’s of the world.

      [FYI, your duplicate comment which wasn’t a reply was moved to Trash. Let me know with a reply here if the other should be restored and this one deleted. /~Rayne]

    • Savage Librarian says:

      Yeah, it sounds like what aboutism. What a waste of readers’ time. Such a shame that editors encourage that kind of behavior.

      As Marcy suggests, FEC might come into play relative to this story. Maybe it relates to the woman in this story:

      “Top FEC Official’s Undisclosed Ties to Trump Raise Concerns Over Agency Neutrality” – Mike Spies and Jake Pearson, 10/28/20

      “A top Federal Election Commission official, whose division regulates campaign cash, has shown support for President Trump and has close ties to his 2016 campaign attorney, Don McGahn. Experts said the actions raise questions about impartiality.”

  6. WilliamOckham says:

    Under the Stored Communications Act, basic subscriber information includes:

    (A) name;
    (B) address;
    (C) local and long distance telephone connection records, or records of session times and durations;
    (D) length of service (including start date) and types of service utilized;
    (E) telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address (temporarily assigned network addresses would include IP numbers); and
    (F) means and source of payment for such service (including any credit card or bank account number).

    Has anyone asked the telecom carriers if they got subpoenaed for these numbers? I’m very curious as to why Apple got subpoenaed in the leak case.

    • Rayne says:

      Thanks for the link.

      The spokesman said Demers originally expected to leave his job on Jan. 20, when President Joe Biden was sworn into office.

      But Demers agreed to remain in his post for several months at the repeated requests of the department’s current leadership. Demers for months has told superiors he would leave when his children’s summer break began.

      Bold mine. Hmm…who is this “current leadership” and why would they have needed Demers instead of the next person in line? Interesting.

      • bmaz says:

        Because they trust him and because they thought he would assist in reclaiming the DOJ. There is nothing suspicious about this I can see.

      • emptywheel says:

        He has ties to both Lisa Monaco and John Carlin–basically three of the existing NSD heads.

  7. Fred Zimmerman says:

    I don’t understand why you can write ten paragraphs about this story without spending 7 or 8 on the person who is apparently the subject of the injury, Michael Behar. There appears to be a gentleman’s agreement that staffers who are friendly sources should not be the subject of rigorous investigation by the press. To put it mildly, this seems inconsistent.

  8. mospeck says:
    “By Elena Chernenko Ms. Chernenko is a special correspondent for Kommersant, an”””independent””” newspaper in russia” (former radio broadcast host for the russian government’s radio broadcasting service voice of russia; triple quotes mine). Here her v informative NYT op-ed informs of highly respected Levada polling org informings that vlad at 60% popularity !! vetted by the spooks at Freedom House, so you know it’s AOK, and not fly by night.

    Those good old NYT Eds. publish this, bylining bought and paid for kremlin stoogettes like “Elena Chernenko (@ElenaChernenko) is special correspondent for Kommersant and a member of the executive board of the PIR Center, an “””independent””” nongovernmental organization in Moscow.” (triple quotes mine) Just more fair and balanced NYT with their vast world, business, tech, science, arts, style, food, travel..sections. Maybe they could start new pravda section and make elena the ed. for fair and balanced informings of ongoings goingon in russia.

    You know surprisingly doing the three card monte is not so difficult . With tips from our uncle who got out back in 69 we learned it when we were kids after watching George C Scott work its magic as Mordecai in The Flim Flam Man (movie’s on youtube if you want to sharpen up your monte to amaze your friends and make them into satisfied stoonts)

    • bmaz says:

      So, your posit is that the NYT is flim flam and kompromat?

      By the way, The Film Flam Man is a seriously great film, and Scott outstanding. One of the more underrated truly great actors ever in film history.

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