July 13, 2020 / by 

 

Reggie Walton Seems Interested Revealing Some of Mueller’s Referrals

I made at least one error in this post. I surmised, based on the exemptions DOJ had claimed in a reprocessed version of the Mueller Report released last month, that there might be ongoing investigations into Rudy Giuliani’s grifters reflected in it.

But the sentencing of George Nader a week later reminded me that it cannot be the case that DOJ did a full reprocessing of the Mueller Report. Warrants made it clear that Nader’s prosecution for child porn — which developed into a prosecution for sexually abusing a boy — was a referral from the Mueller team.

Yet the reprocessed Mueller Report continues to redact all the referrals in Appendix D not previously unsealed (that is, all but the Michael Cohen and Greg Craig ones), including one that must be the Nader prosecution, under b7A redactions signaling an ongoing investigation, quite possibly this one.

The Nader referral, because it was prosecuted, should not be redacted under any exemption. Well before this reprocessing, Nader’s prosecution was public (meaning the privacy exemptions are improper), and by the time of this reprocessing, his conviction had been entered, so was no longer ongoing.

The reprocessing did change two Stone-related referrals to the same privacy exemption used for most other referrals — b(6)/b(7)(C-4) instead of b(6)/b(7)(C-3). (These are the newly reprocessed redactions; compare with pages 240-241 of the initial FOIA release.)

The change from C-3 to C-4 signifies that the person involved was only mentioned in the report, but that category is unrelated to whether or not the person remains under a separate investigation. But all referrals still use the b7(A) exemption, even though we know at least one — that of George Nader — is no longer ongoing.

That’s a very complicated way of saying that we can be certain DOJ is claiming some of these referrals are ongoing investigations even though no investigation is ongoing, whether because — like Nader — the investigation has been completed, because the investigation was properly closed, or because Billy Barr intervened and improperly closed them (as might be the case for investigations known to be targeting Erik Prince and Jared Kushner).

And that’s why some filings this week in this lawsuit are so interesting.

A month ago, Judge Reggie Walton, after having reviewed an unredacted copy of the Mueller Report, canceled a public status conference and instead scheduled an ex parte hearing on July 20 at which DOJ would have to answer his questions about the redactions.

Knowing that it would have to answer Walton’s questions, yet claiming to respond to an earlier BuzzFeed/EPIC filing, DOJ offered up that it was preparing to reissue the report in light of the completion of the Roger Stone prosecution. It released that copy — the one that claims at least one investigation that has been completed is ongoing — on June 19.

Which brings us to this week. On Monday, Judge Walton ordered the government to answer questions he raised in an Excel spreadsheet addressing the redactions.

To accord the Department knowledge of the questions that the Court has regarding some of the redactions prior to the ex parte hearing, the Court has prepared an Excel spreadsheet that catalogues these questions, which is attached as Exhibit A to this Order. 1 To the extent that the Department is able to respond to the Court’s questions in writing, it is hereby

ORDERED that, on or before July 14, 2020, at 5:00 p.m., the Department shall file2 under seal its responses to the Court’s questions by completing Column G of Exhibit A. 3

SO ORDERED this 6th day of July, 2020.

1 Exhibit A will be issued under seal and will remain under seal unless otherwise ordered by this Court.

2 The Department shall coordinate with chambers regarding the delivery of a hard copy of its submission.

3 The Court will advise the Department as to whether the Department’s written explanations obviate the need for the ex parte hearing currently scheduled for July 20, 2020.

Judge Walton gave DOJ just over a week to answer the questions.

Yesterday, DOJ asked for more time. DOJ described that they needed to consult with other entities to respond to Walton’s questions, and explained that they had not yet gotten answers from some of the “entities” they needed to hear from.

The Department has been diligently working to comply with the Court’s Order. That work has involved consultations with numerous Department components, including the Office of Information Privacy, the National Security Division, the Federal Bureau of Investigation, and U.S. Attorney’s Offices. However, the Department requires one additional week—until 5:00 PM on July 21, 2020—to coordinate and provide responses to all of the Court’s questions. This additional time is necessary because the majority of Court’s inquiries concerning the redactions require the Department to consult with various entities with equities in the information at issue, both within and outside the Department. The Department has received information from some, but not all, of the entities. Once the Department has completed its consultation with these entities, the Department needs time to compile information received from those entities into a detailed response that addresses all of the Court’s questions. Those entities then need time to review the compiled draft responses before the responses are filed under seal with the Court.2 The Department’s goal with this process is to ensure fulsome responses to the Court’s questions that would obviate the need for a hearing. [my emphasis]

This paragraph is fairly dense, but two things are worth noting. First, after describing “Department components” it would need to consult, the filing then notes that the entities with which DOJ must consult aren’t all inside the Department. This reference may be innocent. After all, any investigations into Russians or other foreigners might implicate foreign intelligence agencies, and Treasury has an ongoing sanctions process working against Oleg Deripaska, another possible referral. So those non-departmental entities could be CIA, NSA, and Treasury, among others.

Or, those non-departmental entities could be the White House.

There has already been abundant evidence that DOJ is consulting with the White House on its response to the BuzzFeed/EPIC FOIA (or at least deferring to their goals), particularly with regards to the 302 releases. Perhaps they’re doing so in the guise of honoring executive privilege claims that Trump never claimed during the investigation. But particularly if this involves hiding details about the investigation into Don Jr and/or Jared, it would be particularly abusive here.

Meanwhile, the reference to US Attorney’s Offices, plural, strongly suggests that these questions get into b7(A) redactions, because the primary reason to need to ask US Attorney’s Offices about these redactions is if they’re investigating or prosecuting cases.

We know of Mueller referrals to, at least, DC, SDNY, and EDVA. The GRU indictment was sent back to WDPA, where it started. And there were reports that investigations into Jared, Tom Barrack, and Elliot Broidy were in EDNY (though it’s unclear which of those, if any, were referrals from Mueller).

That doesn’t necessarily mean these consultations are about unknown referrals. But a footnote to the DOJ filing strongly suggests they are.

2 Although “the question in FOIA cases is typically whether an agency improperly withheld documents at the time that it processed a FOIA request,” in the interest of saving resources and promoting efficiency, if the Department determines during its review that there no longer exists a basis for a redaction, the Department plans to indicate as such in its response to the Court’s questions, withdraw the redaction, and reprocess the Report with the redaction lifted at the appropriate time. ACLU v. Dep’t of Justice, 640 F. App’x 9, 13 (D.C. Cir. 2016) (unpublished); see also Bonner v. Dep’t of State, 928 F.2d 1148, 1152 (D.C. Cir. 1991) (“To require an agency to adjust or modify its FOIA responses based on post-response occurrences could create an endless cycle of judicially mandated reprocessing.”). The Report was originally processed in spring 2019. A basis may no longer exist for a redaction if, for example, material was redacted concerning a prosecution that had been ongoing at the time of the redaction that has now been completed. See Citizens for Responsibility & Ethics in Wash. v. Dep’t of Justice, 746 F.3d 1082, 1097 (D.C. Cir. 2014) (stating that because a “proceeding must remain pending at the time of our decision,” an agency’s “reliance on Exemption 7(A) may become outdated when the proceeding at issue comes to a close”).[my emphasis]

DOJ directly addresses b7(A) redactions, claiming that if the investigation was ongoing when it originally did the FOIA review, it is not in violation of FOIA if it hasn’t since released the information (the filing is silent on the reprocessing done last month).

Mind you, DOJ will argue that all of these redactions are still proper under privacy protections. But on that point, DOJ (and Billy Barr personally) has outright lied publicly, claiming that these redactions only protect tangential third parties and not people like the President’s son or son-in-law.

Having looked at Walton’s questions, DOJ directly addressed redactions that originally protected ongoing investigations and contacted more than one US Attorney’s Office for consultations. That says he may consider ordering DOJ to release information about investigations that were started but did not end in prosecution.

Which makes the delay more interesting. It may be totally innocent, the slow pace of bureaucracy, particularly as offices still recover from COVID shut-downs. But one US Attorney’s Office of interest has undergone a sudden change of leadership between the time Judge Walton asked for this information and the time DOJ will respond. Last night, Billy Barr swapped EDNY US Attorney Richard Donoghue with PDAAG Seth DuCharme. While Barr has shown trust in both (he put Donoghue in charge of reviewing Ukraine related allegations), DuCharme has been one of the people who has orchestrated his efforts to undermine the Russian investigation. Whatever answers DOJ provides to Walton, then, will be answers that Barr’s newly appointed flunky will oversee. That’s by no means the most suspicious part of DuCharme’s appointment, but it is something DuCharme will review in his first week on the job.

DOJ may successfully argue that all of this should remain redacted for privacy reasons. And, with the possible exception of an Erik Prince referral, if they’re disclosed as closed investigations, it would not necessarily indicate whether they were closed through more Barr interference. But it certainly suggests Walton may be thinking that some of this should be public.


Credico Feared Stone Would Go to Prison; Corsi’s Lawyer Fears He Would Not

As you heard, last night Donald Trump commuted the sentence of his rat-fucker.

There’s a lot to say about whether Trump will succeed in his effort to thwart the investigation into himself. I guess I know how I’ll be spending the remaining 12 days of my quarantine: considering just that question.

I’d like to start by pointing to a curious dynamic: Randy Credico, who played a key public role in Stone’s trial and who destroyed the cover story Stone had started crafting as early as 2016, feared that Stone would go to prison and Stone’s thuggish racist buddies would harass him or worse in retaliation.

Minutes before the actual commutation, by contrast, the “lawyer” for Jerome Corsi, Larry Klayman, wrote a post arguing that Trump shouldn’t pardon Stone, in part because Stone is so guilty…

Roger Stone, contrary to the spin that is peddled by his surrogates at Fox News and elsewhere, was justly convicted of seven felony counts of perjury, witness tampering and obstruction of justice. I know because I sat in the courtroom listening and observing during his two-week trial, while the pundits seeking to gain political favor with the president by supporting his supposed friend Stone did not. Regardless of whether the judge, Amy Berman Jackson, or the jury foreperson, was biased against Stone, the hard fact of life is that Stone’s lawyers, who could have themselves been indicted for providing false information to Congress on their client’s behalf, did not present one witness, repeat, one witness, including Stone himself, in defense of the prosecutors’ case in chief.

Though Stone sat at counsel’s table frequently smirking and smiling during the trial, the bottom line is that regardless of any bias, the now-convicted felon had no defense. This in a nutshell is why he does not want a new trial, even in another forum outside of Washington, D.C., because he was convicted by his own words and deeds.

… And in part because Stone came after Credico and Klayman.

While you have done many good things in office, you need independent voters in Florida, Michigan, Pennsylvania, Wisconsin, Ohio and other so-called swing states to win reelection, so don’t blow it with a pardon for Roger Stone. He is not worth it! Believe me, I know. And, if you want to see why, just pick up a copy of my autobiography, “Whores: Why and How I Came to Fight the Establishment!” which chronicles my personal experience with this self-styled Mafia admirer and dirty trickster.

Or go on the Pacer court internet system and find the defamation complaints in Florida and elsewhere that I have been forced to file against him for my brave client Dr. Corsi and me, whom Stone smeared with disgusting slander and libel because he feared that Corsi would testify against him in his criminal trial – something Jerry never wanted to do.

Admittedly, Klayman is selling a book. Maybe that’s all there is to this.

But, as I laid out here, the real dispute between Corsi and Stone has to do with whether Corsi told the truth when he told Mueller’s prosecutors and the grand jury that an August 31, 2016 report he wrote on John Podesta was done to provide Stone a cover story for his “time in a barrel” tweet about Podesta.

Corsi himself told a lot of lies to prosecutors. But he’s willing to confront Stone — and Trump — to insist that that testimony was true.

Randy Credico, who has no fucking clue what Roger Stone did, but who played a significant part in getting him convicted, feared that Roger Stone would go to prison. But Corsi’s team, who has a much better sense what Stone did yet played little part in getting Stone convicted, feared Stone would not go to prison.


Trump Prepares to Do Something Even Billy Barr Has Said Might Be Obstruction

Update: Trump did, indeed, commute Stone’s sentence. Kayleigh McEnany put out a ridiculous press release here.

According to just about every major outlet (here’s Fox’s story), Trump will use his clemency power — possibly tonight — to keep Roger Stone out of prison, preventing him from spending even one day in prison for lying to Congress about how he tried to optimize the release of emails stolen by Russia and intimidating witnesses (most notably, but not only, Randy Credico) to adhere to Stone’s false cover story.

That Trump was willing to let Paulie Manafort do time, but not Stone, is a testament to how much more damning Stone’s honest testimony against Trump would be.

Trump will presumably commute Stone’s sentence, rather than pardon him, so Stone doesn’t lose his Fifth Amendment privileges that will allow him to avoid testifying about his calls with Trump. Trump is a dummy on most things, but not bribing people to cover up for his own crimes. Plus, he is personally familiar with how George Bush bought Scooter Libby’s silence with a commutation, given that Trump finally got around to pardoning Libby.

While every outlet is reporting on this imminent (presumed) commutation, virtually none are reporting that it will be an act of obstruction, Trump’s payoff for Stone’s lies about what he did.

Stone invented an elaborate story, post-dating the time when he made efforts to optimize the WikiLeaks releases by months, and attributing those efforts to someone he knew had no ties with Julian Assange or anyone else involved in the hack-and-leak. Stone threatened Randy Credico to adhere to that story, his thuggish friends gave Credico real reason to worry about his safety (concerns that continue today), and even hired a PI to find out where Credico moved after he went underground to continue the pressure.

The government has alleged that Stone knew and was coordinating what was coming even before the leak was publicly announced (their public evidence for that is sketchy, however). The government has further pointed to something for which there is abundant evidence: that in return for optimized publication, Assange was promised a pardon, a pardon that Stone tried to deliver from days after the election until early 2018, well after the Vault 7 releases made such a pardon untenable.

Plus, we know that Trump’s personal involvement in the optimization of the WikiLeaks releases is one topic that Trump lied to Mueller about (though not as brazenly as he lied about the Russian Trump Tower deal).

No lesser authority than Billy Barr has said that this kind of clemency might be obstruction of justice. He said as much three times during his confirmation hearing.

Patrick Leahy, specifically invoking Barr’s sanction of the Caspar Weinberger pardon that squelched the Iran-Contra investigation, asked Barr about pardons.

Leahy: Do you believe a president could lawfully issue a pardon in exchange for the recipient’s promise to not incriminate him?

Barr: No, that would be a crime.

Then, in this exchange from Amy Klobuchar, it appeared to take Barr several questions before he realized she knew more about the evidence than he did, and started couching his answers.

Klobuchar: You wrote on page one that a President persuading a person to commit perjury would be obstruction. Is that right?

Barr: [Pause] Yes. Any person who persuades another —

Klobuchar: Okay. You also said that a President or any person convincing a witness to change testimony would be obstruction. Is that right?

Barr: Yes.

Klobuchar: And on page two, you said that a President deliberately impairing the integrity or availability of evidence would be an obstruction. Is that correct?

Barr: Yes.

Klobuchar: OK. And so what if a President told a witness not to cooperate with an investigation or hinted at a pardon?

Barr: I’d have to now the specifics facts, I’d have to know the specific facts.

Klobuchar: OK. And you wrote on page one that if a President knowingly destroys or alters evidence, that would be obstruction?

Barr: Yes.

Klobuchar: OK. So what if a President drafted a misleading statement to conceal the purpose of a meeting. Would that be obstruction?

Barr: Again, I’d have to know the specifics.

Shortly after that exchange, Lindsey Graham tried to clarify the issue, asking the pardon question at a more basic level, coaching another not to testify, as Trump has done on Twitter repeatedly.

Lindsey: So if there was some reason to believe that the President tried to coach somebody not to testify or testify falsely, that could be obstruction of justice?

Barr: Yes, under that, under an obstruction statute, yes.

Lindsey: So if there’s some evidence that the President tried to conceal evidence? That would be obstruction of justice, potentially?

Barr: [nods]

Admittedly, by the third exchange, both Lindsey and Barr were hedging far more carefully about the set of facts.

But on three different occasions during his confirmation hearing, Barr made some kind of statement that said floating pardons for false testimony would be a crime.

And unlike Barr’s effort to erase Mike Flynn’s serial betrayal of the country, the Attorney General has admitted that Roger Stone’s was a “righteous” prosecution, even if only to prevent a rebellion on the part of DC federal prosecutors. Barr at least publicly disputes Trump’s claim that this was a witch hunt.

Trump is going to keep Roger Stone out of prison to ensure his silence.

That’s obstruction. And yet, almost no one is reporting on the crime in progress.


Sidney Powell Proves She (and Everyone Else, including Timothy Shea) Was Wrong about the Logan Act

Sidney Powell has released the next set of documents that Jeffrey Jensen has been serially feeding her and through her the frothy right.

They prove that the entire premise of DOJ’s Motion to Dismiss the Flynn prosecution — and everything Powell has been spewing for a year — is wrong.

That’s because the Timothy Shea Motion to Dismiss claims that FBI seized on the Logan Act as a reason — the sole reason — to extend the investigation into Mike Flynn.

The FBI had in their possession transcripts of the relevant calls. See Ex. 5 at 3; Ex. 13 at 3, FBI FD-302, Interview of Peter Strzok, July 19, 2017 (Date of Entry: Aug. 22, 2017). Believing that the counterintelligence investigation of Mr. Flynn was to be closed, FBI leadership (“the 7th Floor”) determined to continue its investigation of Mr. Flynn on the basis of these calls, and considered opening a new criminal investigation based solely on a potential violation of the Logan Act, 18 U.S.C. § 953. See Ex. 3 at 2-3; Ex. 7 at 1-2; Ex. 8 at 1-5, FBI Emails RE: Logan Act Jan. 4, 2017.

Indeed, Shea’s memo claimed there was no criminal purpose to interview Flynn.

Notably, at this time FBI did not open a criminal investigation based on Mr. Flynn’s calls with Mr. Kislyak predicated on the Logan Act. See Ex. 7 at 1-2.4 See Ex. 3 at 2-3; Ex. 4 at 1-2; Ex. 5 at 9. The FBI never attempted to open a new investigation of Mr. Flynn on these grounds. Mr. Flynn’s communications with the Russian ambassador implicated no crime. This is apparent from the FBI’s rush to revive its old investigation rather than open and justify a new one, see Ex. 7 at 1-2, as well as its ongoing inability to espouse a consistent justification for its probe in conversations with DOJ leadership, See Ex. 3 at 5. In fact, Deputy Attorney General Yates thought that the FBI leadership “morphed” between describing the investigation into Mr. Flynn as a “counterintelligence” or a “criminal” investigation. Id.

But notes from Tashina Gauhar recording a January 25 meeting on the interview confirm what I had laid out: the purpose of the interview was to assess whether Flynn had a clandestine or agency relationship with Russia — that is, whether he was an Agent of Russia, which is a crime under 18 USC 951, the crime the original investigation into Flynn was predicated on and the crime the investigation continued to be predicated on, even as other potential crimes — including but not limited to the Logan Act — got added.

Importantly, Gauhar recorded the conclusion of that meeting, which adds context to another of the claims Powell has made for the last year. She described how from a CI perspective, FBI “did not think [Flynn was an] Agent, but need to verify.” From a criminal perspective, FBI was “not willing to say at this point, now.” And from a view of compromise, FBI discussed defensive briefings (though it’s not sure whether for the White House or Flynn).

In a draft timeline, someone translated this into the conclusion that FBI “did not believe General Flynn was acting as an agent of Russia,” but without the clear caveat that Gaushar recorded, that the FBI needed to verify whether that initial conclusion was true.

Viewed in context, this conclusion only reinforces the clear evidence that the FBI was investigating whether Flynn was a foreign agent (for Russia, in addition to what would become clear included Turkey), because this was the initial conclusion the FBI offered in a meeting the day after the interview reporting on their findings. But the entire record also makes it clear that FBI would continue to investigate that claim, whereupon they found more damning information against Flynn.

You may now dismiss every single claim about the Logan Act’s import in the investigation into Mike Flynn, as that was (transparently) all just gaslighting.

Furthermore, you can dismiss the claims about doctored 302s, because Gauhar’s notes directly map the final 302s, including the assertion that Flynn denied the substance of his calls both on Israel and sanctions.

In her filing misrepresenting what the notes say, Powell complains that the agents claimed Flynn first denied than admitted the number of calls; Gauhar only records the former, though it’s not even clear what the context is (that is, whether the question was about the number of calls on December 29 and 31, or the frequency of calls over the course of the Transition). In any case, that wasn’t a charged lie.

Gauhar even succinctly described, in real time, what the FBI had concluded: Flynn’s answers were false, but he appeared to believe them.

The FBI would develop, over time, additional reasons to know that Flynn had deliberately lied, most notably proof that the Transition team had discussed sanctions with him before the Kislyak call, making it clear Flynn had lied when he claimed he didn’t know about the sanctions at the time of his calls with Kislyak. Worse still, Flynn would ultimately admit that he created a cover email to hide what he had discussed in real time.

On January 25, it was reasonable to take Flynn’s demeanor and conclude he didn’t think he was lying. But not after you came across the record showing that he planned to cover up the calls as soon as they were made, even before the leaks gave reason for him to lie publicly.

Finally, Sidney Powell’s own filing totally undermines the government motion to dismiss in one other way. Powell asserts that the documents newly disclosed to her were “known to at least ten people at the highest levels” of DOJ and FBI.

These documents both corroborate information provided by others previously and provide new information known to at least ten people at the highest levels of the Department of Justice and the FBI.

Shea’s Motion to Dismiss was premised on a false claim that these facts weren’t known to the highest levels of DOJ. That insinuation has always been obviously false. But now Powell has made it clear she agrees. Which, if the DC Circuit reviews the Mandamus petition en banc (as a filing today staying the order suggests they’re likely to do), may be an important detail if Judge Emmet Sullivan ever gets to review how DOJ came to flip-flop on prison time for Flynn if they had all this information when they recommended prison time.


June Bug Goes to Ireland

June Bug the Terrorist FosterEx Dog and I moved to Ireland today.

We followed Mr. EW by about three weeks, enough time for us to close out the house and for him to get through Ireland’s mandatory two-week quarantine. We intend to stay in Ireland for the indefinite future.

We moved for personal reasons, the two most important having to do with Mr. EW (who has family in Ireland). Those reasons got us 95% of the way to deciding to move.

But that was shortly before armed insurgents streamed into Lansing MI, incited, in part, by the President, trying to undermine sound public health guidelines. It was before a series of increasingly brazen moves on the part of the Administration to undermine rule of law. It was before the Administration and allied governors took affirmative steps to make the coronavirus worse. It was before the President deliberately stoked racism in an effort to divide the country.

We’re not leaving to get away from America. But having made the decision to move, it offers some distance to realize all the things that have become part of an increasingly dysfunctional America — of which Trump is as much symptom as cause — that we’ll leave behind.

Having made the decision, the last few weeks have felt like a rush to get out before a great wave overcame us and submerged us before we moved, most notably European travel restrictions on anyone from the United States, but also the resurgence of COVID itself. Recently, the EU agreed to open travel, but specifically exclude those states — like the US — that have failed to control the spread of COVID, and Ireland is expected to pass new guidelines in coming days that may make flights from the US less frequent. I felt flying on a flight with 40 passengers was an acceptable risk, but such a flight might be too dangerous in the days ahead.

I will be quarantining for 14 days, spending my time between a bedroom and office while Mr. EW shows June Bug the new neighborhood (he took the above picture). Under EU rules, June Bug no longer has a month-long quarantine, she just has paperwork to prove that she’s not bringing diseases that are prevalent in the US but not Ireland. Just us humans have to quarantine now. June Bug’s paperwork — and not the process of getting June Bug into a crate for the trip — proved to be the biggest recent hurdle.

As the fog of the move clears during the quarantine, I hope to catch up on things I’ve noted in passing (though still have a bunch of family things and move-related work to focus on). I don’t expect things at emptywheel to change significantly, but will let you know of administrative details that may change slightly.

Parts of my family, mostly of Irish descent, have been in the US since the famine, arriving in the US between 180 and 117 years ago. Today, during another natural disaster exacerbated by misgovernment, I moved back.


The Growing WikiLeaks Conspiracy [Indictment]

I want to revisit the superseding Julian Assange indictment with a view to unpacking how the conspiracy charges work in it. Alexa O’Brien and Dell Cameron — both experts on some of the acts described in the indictment — have written really useful pieces on the indictment that don’t, however, fully account for the way DOJ built the charges around two conspiracy charges, one a conspiracy to obtain and disclose national defense information (18 USC 793(g)) and one a conspiracy to commit computer intrusions (18 USC 371). While commenters are right to argue that the Espionage Act related charges risk criminalizing journalism, the CFAA conspiracy charge — particularly as expanded in this superseding indictment — does nothing unusual in charging the conspiracy.

As background to what the government has to do to prove a conspiracy, see this Elizabeth de la Vega thread from 2018. As she notes,

  • A conspiracy needs not succeed
  • Co-conspirators don’t have to explicitly agree
  • Conspiracies can have more than one object
  • But all co-conspirators have to agree on one object of the conspiracy
  • Co-conspirators can use multiple means to carry out the conspiracy
  • Co-conspirators don’t have to know what all the other conspirators are doing
  • Once someone is found to have knowingly joined a conspiracy, he is responsible for all acts of other co-conspirators
  • Statements of any co-conspirator made to further the conspiracy may be introduced into evidence against any other co-conspirator
  • Overt acts taken in furtherance of a conspiracy need not be illegal

Conspiracy charges are a powerful way for the government to charge groups of people (and also a way to charge crimes without showing all the evidence for them). But that’s true whenever it is used, not just against Assange. So if this associative kind of guilt bothers you (often with justification), your problem is with the law and precedents, not with the treatment of Assange.

For the moment, there are two key takeaways from de la Vega’s list: to prove Assange guilty of conspiring to hack various victims, the government only needs to show that he entered into an agreement to break US law and took overt acts to advance that conspiracy.

Here’s how the government presented the elements of this very same hacking conspiracy in Jeremy Hammond’s change of plea hearing (though Assange is charged with conspiring to violate four different CFAA charges, so the conspiracy is larger than what Hammond pled guilty to).

The crime of conspiracy, which is what he’s charged with, the elements are that there existed an agreement or implicit understanding between two or more people to violate a law of the United States, that the defendant knowingly and willingly joined that agreement, and that any one member of the conspiracy committed at least one overt act in the Southern District of New York. And the object of the conspiracy here is computer hacking to obtain information in violation of 18 U.S.C. 1030(a)(2)(A).

The elements of that offense are that, without authorization, members of the conspiracy agreed to intentionally access a computer, that they obtained information  from a protected computer, and that the value of the information obtained was greater than $5,000.

With regard to venue, I believe that defendant said that, I believe he did say that information was intentionally uploaded to a server located in the Southern District of New York.

The venue for Assange is different — EDVA rather than SDNY. The venue would be uncontroversial in any case, given that the Chelsea Manning-related leaks tie to the Pentagon and so EDVA. That said, when the US government extradites someone from overseas, they get venue wherever the person first enters the US (which is why EDNY, where JFK is located, has a lot of interesting precedents tied to foreigners violating US law). The indictment against Assange notes repeatedly that Assange “will be first brought to the Eastern District of Virginia,” so they plan on obtaining venue in EDVA, with all its harsh precedents on the Espionage Act, by landing him there if and when they get him, on top of the venue they’d already get via the leaks themselves.

Thus, so long as the government can prove that Assange entered into an agreement with co-conspirators to commit illegal hacks, then the government will have plenty of evidence to prove that the conspiracy happened, not least because co-conspirators Chelsea Manning, Jeremy Hammond, and Sabu pled guilty to them. Sigurdur Thordarsson (Siggi) is another key co-conspirator; the reason the government refers to him as “Teenager,” is to signal he was part of the conspiracy while explaining whey he wasn’t prosecuted for it (because he was a minor). The government also refers to Daniel Domscheit-Berg (WLA-2), Jake Appelbaum (WLA-3), and Sarah Harrison (WLA-4) in a way that treats them as co-conspirators; it’s unclear whether that numbering system starts at 2 because it treats Assange as WLA-1 or whether there’s some unnamed conspirator who will be added in the future.

The indictment alleges Assange entered into an agreement to commit CFAA in a number of ways:

  • Agreeing to help Manning crack a password on the same day Manning said the Gitmo detainee briefs were “all [she] really have got left” and Assange said, “curious eyes never run dry in my experience” (¶¶18-21)
  • Asking Siggi to hack Iceland (¶36)
  • Asking David House to decrypt a file stolen from Iceland before going on to hire him (¶44)
  • Agreeing that Siggi should meet with Gnosis, which included getting Laurelei and Kayla to agree to hack for WikiLeaks (¶¶48-49)
  • Publicly stating a link with LulzSec in June 2011 (¶62)
  • Validating Siggi’s outreach to Topiary, in which Siggi said, “WikiLeaks cannot publicly be taking down websites, but we might give a suggestion of something or something similar, if that’s acceptable to LulzSec” (¶¶63-64)
  • Cooperating with Jeremy Hammond, as reflected in Hammond’s statements to Sabu (¶70)
  • Providing Hammond a script to search the emails hacked from Stratfor (¶72)
  • Responding to a Sabu request for targets first by saying they could not do that “for the obvious legal reasons” but then suggesting a target (¶73)
  • Providing Sabu a script for searching emails (¶75)

The reason (one reason, anyway, I suspect there are a bunch more) that — as Cameron notes — the indictment doesn’t describe the earlier parts of the Stratfor hack is because they don’t matter at all to proving Assange was part of the conspiracy. The indictment provides evidence Assange agreed to enter into a conspiracy with LulzSec long before the hack and further evidence he remained actively involved as Hammond tried to exploit it.

Cameron’s piece is inconsistent, as well, when it attributes the hack to Hyrriiya but then claims that Sabu initiated the crime. Neither ultimately matters in the Assange conspiracy indictment, because — to the extent that Hyrriiya’s letter taking credit can be believed without corroboration — he laid out the basis for a conspiracy in the letter in any case, and he, too, would be a member of the conspiracy and that letter, if it could be validated, would be admissible.

As de la Vega described, once someone joins a conspiracy, that person becomes implicated in the acts of all the others in the conspiracy, whether or not one knows about those other acts. Assange agreed to enter into a conspiracy before and after the actual hack of Stratfor, so he’s on the hook for it.

Finally, given that the contemporaneous statements of all the co-conspirators would be admissible, concerns about the credibility of Siggi or any lack of cooperation from Manning and Hammond are less serious than they might otherwise be.

That principle of conspiracies — that once someone joins the conspiracy he is on the hook for everything else — is why (as O’Brien notes), the Espionage abetting charges all take place after the March 8 agreement to help hack a password. Before that, DOJ might be thinking, Assange might be playing a typical role of a publisher, publishing classified information provided to him, but after that, they seem to be arguing, he was part of the crime. An awful lot hangs on that agreement to crack a password (remember, a conspiracy doesn’t need to be successful to be charged), which is the main thing that distinguishes the Manning-related charges from journalism. But the government may be planning to tie WikiLeaks’ targeting of Iceland — which was not charged as a Manning-related crime but which involves conspiring to hack materials related to materials that Manning provided — with the Espionage charges.

As I’ve repeatedly argued, though, this dual structure — one conspiracy to hack, and another to steal National Defense Information from the US — sets up the Vault 7 leak perfectly, the charge that for some reason WikiLeaks associates want no tie to. The government will show, among other things, that even after WikiLeaks published the Vault 7 files, WikiLeaks published Joshua Schulte’s blogs, in which he attempted to provide details of the skills he deployed at CIA. The government will likewise show that Schulte, in attempting, from prison, to convince others to leak, fits into their theory that WikiLeaks was recruiting others to leak.

That’s one of many reasons why I expect Vault 7 to eventually be added to this indictment. Thus far, the government has obtained two indictments just as statutes of limitation might toll on the overt acts (the first being the agreement to crack a password, and the second to be the recruiting efforts five years ago). So I wouldn’t be surprised if, in April of next year, the government supersedes this again to include Vault 7, including some of the same charges (such as exposing the identities of covert officers) we already see in this indictment.

The real question, however, is if the government includes Russians as co-conspirators in a future superseding indictment. There were Russians in the chat rooms behind the Stratfor hack. And the existing conspiracy to hack charge is the same charge (though with slightly different counts) as two of the charges against the GRU officers who hacked the Democrats in 2016. Plus, there are repeated references in the Schulte trial about outreach to Russia (these references are quite ambiguous, but I hope to explain why that might be in the nearish future); I had heard about that outreach before it was publicly disclosed.

When the government made its last ditch attempt to get Hammond to testify before the grand jury, according to Hammond’s account, they twice claimed to Hammond that Assange was a Russian spy. And when he asked why Assange wasn’t charged in the 2016 hack-and-leak, the prosecutor appears to have suggested the extradition would take a long time, which might mean they could add those charges in a superseding indictment.

If the government eventually argues that Russians were part of this conspiracy from very early on, then the charges will look very different if and when Assange gets extradited.


The Statue Donald Trump Has Overturned

I apologize for my scarcity over the last week. I’ve got a bunch of personal things going on — I expect to be fairly scarce for the next week or so yet.

Thanks to Rayne, bmaz, and Ed for picking up the slack.

I’m having a particularly hard time with our nation’s celebration this year. It’s not just the things Trump is doing. It’s not just the many visible signs of where we’ve fallen short of the ideals our nation aspires to (though I double down on the idea that a Trump Effect, in which he makes things that have long been a problem visible, may serve us if and when we recover from his presidency).

This year, I’m wondering, myself, if I could have done anything more to serve the ideals of this country.

The same things that have kept me from writing saved me from watching yet another race-baiting speech from the President last night.

That said, I couldn’t help but observe, amid the coverage of his claim to be protecting the nation’s statues honoring dead racists rather than human beings facing a deadly disease, that there actually is a,

better place to celebrate America’s independence than beneath this magnificent, incredible majestic mountain and monument to the greatest Americans who have ever lived.

Sure, Washington, Jefferson, and Lincoln are key (and flawed) figures who have guided our country.

But the more obvious statue symbolizing our nation is the one sitting in New York harbor, the female figuring inviting your tired, your poor, Your huddled masses yearning to breathe free to be part of the great experiment that is our country, the one that welcomed so many immigrants who became key contributors to our nation.

It is that idea, the idea that any person, no matter how humble, can join this nation that has been so powerful an idea, when when he have fallen short from delivering on that dream.

And yet there was zero chance that Trump would have given a speech with that great female figure behind him, in the city he has fled (in part to hide his financial state). There’s no chance Trump would pay tribute to the abstract idea of freedom. There’s no chance Trump would risk a speech in a Blue State.

There’s sure as hell no chance that Trump would do anything to recognize how immigrants are the strength of this country.

Long before protestors started overturning statues honoring traitors to the United States, Trump overturned an ideal. He might well have held the Statue of Liberty underwater, shaking her violently as she drowned.

Donald Trump wants to run against those who’ve dared overturn those statues to traitors.

And yet he has betrayed the statue that better symbolizes what this country might be.


The Government Argues that Edward Snowden Is a Recruiting Tool

As I noted in my post on the superseding indictment against Julian Assange, the government stretched the timeline of the Conspiracy to Hack count to 2015 by describing how WikiLeaks helped Edward Snowden flee to Russia. DOJ seems to be conceiving of WikiLeaks’ role in helping Snowden as part of a continuing conspiracy designed to recruit more leakers.

Let me make clear from the onset: I am not endorsing this view, I am observing where I believe DOJ not only intends to head with this, but has already headed with it.

Using Snowden as a recruitment tool

After laying out how Chelsea Manning obtained and leaked files that were listed in the WikiLeaks Most Wanted list (the Iraq Rules of Engagement and Gitmo files, explicitly, and large databases more generally; here’s one version of the list as entered into evidence at Manning’s trial), then describing Assange’s links to LulzSec, the superseding Assange indictment lays out WikiLeaks’ overt post-leak ties and claimed ties to Edward Snowden.

83. In June 2013, media outlets reported that Edward J. Snowden had leaked numerous documents taken from the NSA and was located in Hong Kong. Later that month, an arrest warrant was issued in the United States District Court for the Eastern District of Virginia, for the arrest of Snowden, on charges involving the theft of information from the United States government.

84. To encourage leakers and hackers to provide stolen materials to WikiLeaks in the future, ASSANGE and others at WikiLeaks openly displayed their attempts to assist Snowden in evading arrest.

85. In June 2013, a WikiLeaks association [Sarah Harrison, described as WLA-4 in the indictment] traveled with Snowden from Hong Kong to Moscow.

86. On December 31, 2013, at the annual conference of the Chaos Computer Club (“CCC”) in Germany, ASSANGE, [Jacob Appelbaum] and [Harrison] gave a presentation titled “Sysadmins of the World, Unite! A Call to Resistance.” On its website, the CCC promoted the presentation by writing, “[t]here has never been a higher demand for a politically-engaged hackerdom” and that ASSANGE and [Appelbaum] would “discuss what needs to be done if we re going to win.” ASSANGE told the audience that “the famous leaks that WikiLeaks has done or the recent Edward Snowden revelations” showed that “it was possible now for even a single system administrator to … not merely wreck[] or disabl[e] [organizations] … but rather shift[] information from an information apartheid system … into the knowledge commons.” ASSANGE exhorted the audience to join the CIA in order to steal and provide information to WikiLeaks, stating, “I’m not saying doing join the CIA; no, go and join the CIA. Go in there, go into the ballpark and get the ball and bring it out.”

87. At the same presentation, in responding to the audience’s question as to what they could do, [Appelbaum] said “Edward Snowden did not save himself. … Specifically for source protection [Harrison] took actions to protect [Snowden] … [i]f we can succeed in saving Edward Snowden’s life and to keep him free, then the next Edward Snowden will have that to look forward to. And if look also to what has happened to Chelsea Manning, we see additionally that Snowden has clearly learned….”

The following section describes how, “ASSANGE and WikiLeaks Continue to Recruit,” including two more paragraphs about the Most Wanted Leaks:

89. On May 15, 2015, WikiLeaks tweeted a request for nominations for the 2015 “Most Wanted Leaks” list, and as an example, linked to one of the posts of a “Most Wanted Leaks” list from 2009 that remained on WikiLeaks’s website.

[snip]

92. In June 2015, to continue to encourage individuals to hack into computers and/or illegaly obtain and disclose classified information to WikiLeaks, WikiLeaks maintained on its website a list of “The Most Wanted Leaks of 2009,” which stated that documents or materials nominated to the list must “[b]e likely to have political, diplomatic, ethical or historical impact on release … and be plausibly obtainable to a well-motivated insider or outsider,” and must be “described in enough detail so that … a visiting outsider not already familiar with the material or its subject matter may be able to quickly locate it, and will be motivated to do so.”

Effectively, Snowden is included in this indictment not because the government is alleging any ties between Snowden and WikiLeaks in advance of his leaks (Snowden’s own book lays out reasons to think there was more contact between him and Appelbaum than is publicly known, but the superseding Assange indictment makes no mention of any contacts before Snowden’s first publications), but because WikiLeaks used their success at helping Snowden to flee as a recruiting pitch.

Snowden admits Harrison got involved to optimize his fate

This is something that Snowden lays out in his book. First, he addresses insinuations that Assange only helped Snowden out of selfish reasons.

People have long ascribed selfish motives to Assange’s desire to give me aid, but I believe he was genuinely invested in one thing above all—helping me evade capture. That doing so involved tweaking the US government was just a bonus for him, an ancillary benefit, not the goal. It’s true that Assange can be self-interested and vain, moody, and even bullying—after a sharp disagreement just a month after our first, text-based conversation, I never communicated with him again—but he also sincerely conceives of himself as a fighter in a historic battle for the public’s right to know, a battle he will do anything to win. It’s for this reason that I regard it as too reductive to interpret his assistance as merely an instance of scheming or self-promotion. More important to him, I believe, was the opportunity to establish a counterexample to the case of the organization’s most famous source, US Army Private Chelsea Manning, whose thirty-five-year prison sentence was historically unprecedented and a monstrous deterrent to whistleblowers everywhere. Though I never was, and never would be, a source for Assange, my situation gave him a chance to right a wrong. There was nothing he could have done to save Manning, but he seemed, through Sarah, determined to do everything he could to save me.

This passage is written to suggest Snowden believed these things at the time, describing what “seemed” to be true at the time. But it’s impossible to separate it from Appelbaum’s explicit comparison of Manning and Snowden at CCC in December 2013.

Snowden then describes what he thinks Harrison’s motive was.

By her own account, she was motivated to support me out of loyalty to her conscience more than to the ideological demands of her employer. Certainly her politics seemed shaped less by Assange’s feral opposition to central power than by her own conviction that too much of what passed for contemporary journalism served government interests rather than challenged them.

Again, this is written to suggest Snowden believed it at the time, though it’s likely what he has come to believe since.

Then Snowden describes believing, at that time, that Harrison might ask for something in exchange for her help — some endorsement of WikiLeaks or something.

As we hurtled to the airport, as we checked in, as we cleared passport control for the first of what should have been three flights, I kept waiting for her to ask me for something—anything, even just for me to make a statement on Assange’s, or the organization’s, behalf. But she never did, although she did cheerfully share her opinion that I was a fool for trusting media conglomerates to fairly guard the gate between the public and the truth. For that instance of straight talk, and for many others, I’ll always admire Sarah’s honesty.

Finally, though, Snowden describes — once the plane entered into Chinese airspace and so narratively at a time when there was no escaping whatever fate WikiLeaks had helped him pursue — asking Harrison why she was helping. He describes that she provided a version of the story that WikiLeaks would offer that December in Germany: WikiLeaks needed to be able to provide a better outcome than the one that Manning suffered.

It was only once we’d entered Chinese airspace that I realized I wouldn’t be able to get any rest until I asked Sarah this question explicitly: “Why are you helping me?” She flattened out her voice, as if trying to tamp down her passions, and told me that she wanted me to have a better outcome. She never said better than what outcome or whose, and I could only take that answer as a sign of her discretion and respect.

Whatever has been filtered through time and (novelist-assisted) narrative, Snowden effectively says the same thing the superseding indictment does: Assange and Harrison went to great lengths to help Snowden get out of Hong Kong to make it easier to encourage others to leak or hack documents to share with WikiLeaks. I wouldn’t be surprised if these excerpts from Snowden’s book show up in any Assange trial, if it ever happens.

Snowden’s own attempt to optimize outcomes

Curiously, Snowden did not say anything in his book about his own efforts to optimize his outcome, which is probably the most interesting new information in Bart Gellman’s new book, Dark Mirror (the book is a useful summary of some of the most important Snowden disclosures and a chilling description of how aggressively he and Askhan Soltani were targeted by foreign governments as they were reporting the stories). WaPo included the incident in an excerpt, though the excerpt below is from the book.

Early on in the process, Snowden had asked Gellman to publish the first PRISM document with a key, without specifying what key it was. When WaPo’s editors asked why Gellman’s source wanted them to publish a key, Gellman finally asked.

After meeting with the Post editors, I remembered that I could do an elementary check of the signature on my own. The result was disappointing. I was slow to grasp what it implied.

gpg –verify PRISM.pptx.sig PRISM.pptx

gpg: Signature made Mon May 20 14:31:57 2013 EDT

using RSA key ID ⬛⬛⬛⬛⬛⬛⬛⬛

gpg: Good signature from “Verax”

Now I knew that Snowden, using his Verax alter ego, had signed the PowerPoint file himself. If I published the signature, all it would prove to a tech-savvy few was that a pseudonymous source had vouched for his own leak. What good would that do anyone?

In the Saturday night email, Snowden spelled it out. He had chosen to risk his freedom, he wrote, but he was not resigned to life in prison or worse. He preferred to set an example for “an entire class of potential whistleblowers” who might follow his lead. Ordinary citizens would not take impossible risks. They had to have some hope for a happy ending.

To effect this, I intend to apply for asylum (preferably somewhere with strong Internet and press freedoms, e.g. Iceland, though the strength of the reaction will determine how choosy I can be). Given how tightly the U.S. surveils diplomatic outposts (I should know, I used to work in our U.N. spying shop), I cannot risk this until you have already gone to press, as it would immediately tip our hand. It would also be futile without proof of my claims—they’d have me committed—and I have no desire to provide raw source material to a foreign government. Post publication, the source document and cryptographic signature will allow me to immediately substantiate both the truth of my claim and the danger I am in without having to give anything up. . . . Give me the bottom line: when do you expect to go to print?

Alarm gave way to vertigo. I forced myself to reread the passage slowly. Snowden planned to seek the protection of a foreign government. He would canvass diplomatic posts on an island under Chinese sovereign control. He might not have very good choices. The signature’s purpose, its only purpose, was to help him through the gates.

How could I have missed this? Poitras and I did not need the signature to know who sent us the PRISM file. Snowden wanted to prove his role in the story to someone else. That thought had never occurred to me. Confidential sources, in my experience, did not implicate themselves—irrevocably, mathematically—in a classified leak. As soon as Snowden laid it out, the strategic logic was obvious. If we did as he asked, Snowden could demonstrate that our copy of the NSA document came from him. His plea for asylum would assert a “well-founded fear of being persecuted” for an act of political dissent. The U.S. government would maintain that Snowden’s actions were criminal, not political. Under international law each nation could make that judgment for itself. The fulcrum of Snowden’s entire plan was the signature file, a few hundred characters of cryptographic text, about the length of this paragraph. And I was the one he expected to place it online for his use.

Gellman, Poitras, and the Post recognized this would make them complicit in Snowden’s flight and go beyond any journalistic role.

After some advice from WaPo’s lawyers, Gellman made it clear to Snowden he could not publish the key (and would not have, in any case, because the slide deck included information on legitimate targets he and the WaPo had no intent of publishing).

We hated the replies we sent to Snowden on May 26. We had lawyered up and it showed. “You were clear with me and I want to be equally clear with you,” I wrote. “There are a number of unwarranted assumptions in your email. My intentions and objectives are purely journalistic, and I will not tie them or time them to any other goal.” I was working hard and intended to publish, but “I cannot give you the bottom line you want.”

This led Snowden to withdraw his offer of exclusivity which — as Gellman tells the story — is what led Snowden to renew his efforts to work with Glenn Greenwald. The aftermath of that decision led to a very interesting spat between Gellman and Greenwald — to read that, you should buy the book.

To be clear, I don’t blame Snowden for planning his first releases in such a way as to optimize the chances he wouldn’t spend the rest of his life in prison. But his silence on the topic in his own account, even while he adopted the WikiLeaks line about their goal of optimizing his outcome, raises questions about any link between Harrison’s plans and Snowden’s.

The government is using Snowden as inspiration in other cases

The superseding Assange indictment is the first place I know of where the government has specifically argued that WikiLeaks’ assistance to Snowden amounted to part of a criminal conspiracy (though it is totally unsurprising and I argued that it was clear the government was going there based on what they had argued in the Joshua Schulte case).

But it’s not the first place they have argued a tie between Snowden as inspiration and further leaks.

The indictment for Daniel Everette Hale, the guy accused of sharing documents on the drone program with Jeremy Scahill, makes it clear how Hale’s relationship with Scahill blossomed just as the Snowden leaks were coming out (and this detail makes it clear he’s the one referred to in Citizenfour as another source coming forward).

15. On or about June 9, 2013, the Reporter sent HALE an email with a link to an article about Edward Snowden in an online publication. That same day. Hale texted a friend that the previous night he had been hanging out with journalists who were focused on his story. Hale wrote that the evening’s events might provide him with “life long connections with people who publish work like this.”

Hale launched a fairly aggressive (and if it weren’t in EDVA, potentially an interesting) challenge to the Espionage Act charges against him. It included (but was not limited to) a Constitutional motion to dismiss as well as a motion to dismiss for selective prosecution. After his first motions, however, both the government’s response and Hale’s reply on selective prosecution were (and remain, nine months later) sealed.

But Hale’s reply on the Constitutional motion to dismiss was not sealed. In it, he makes reference to what remains sealed in the selective prosecution filings. That reference makes it clear that the government described searching for leakers who had been inspired “by a specific individual” who — given the mention of Snowden in Hale’s indictment — has to be Snowden.

Moreover, as argued in more detail in Defendant’s Reply in support of his Motion to Dismiss for Selective or Vindictive Prosecution (filed provisionally as classified), it appears that arbitrary enforcement – one of the risks of a vague criminal prohibition – is exactly what occurred here. Specifically, the FBI repeatedly characterized its investigation in this case as an attempt to identify leakers who had been “inspired” by a specific individual – one whose activity was designed to criticize the government by shedding light on perceived illegalities on the part of the Intelligence Community. In approximately the same timeframe, other leakers reportedly divulged classified information to make the government look good – by, for example, unlawfully divulging classified information about the search for Osama Bin Laden to the makers of the film Zero Dark Thirty, resulting in two separate Inspector General investigations.3 Yet the investigation in this case was not described as a search for leakers generally, or as a search for leakers who tried to glorify the work of the Intelligence Community. Rather, it was described as a search for those who disclosed classified information because they had been “inspired” to divulge improprieties in the intelligence community.

Hale argued, then, that the only reason he got prosecuted after some delay was because the FBI had a theory about Snowden’s role in inspiring further leaks.

Judge Liam O’Grady denied both those motions (and most of Hale’s other motions), though without further reference to Snowden as an inspiration. But I’m fairly sure this is not the only case where they’re making this argument.


Billy Barr’s OLC Declinations

The NYT reported yesterday that, in a bid to retroactively exonerate the President, Billy Barr pursued ways to overturn the campaign finance conviction of Michael Cohen.

But Mr. Barr spent weeks in the spring of 2019 questioning the prosecutors over their decision to charge Mr. Cohen with violating campaign finance laws, according to people briefed on the matter.

As part of that effort, Barr got the Office of Legal Counsel to write a memo (though not a formal opinion) about the applicability of criminal campaign finance law to efforts to squelch public information.

At one point during the discussions, Mr. Barr instructed Justice Department officials in Washington to draft a memo outlining legal arguments that could have raised questions about Mr. Cohen’s conviction and undercut similar prosecutions in the future, according to the people briefed on the matter.

[snip]

The New York Times reported previously that Mr. Barr had questioned the legal theory of the campaign finance charges against Mr. Cohen, but it was not known that the attorney general went so far as to ask for the draft memo or had raised his concerns more than once.

The memo, written by the Justice Department’s Office of Legal Counsel, addressed the Southern District’s somewhat novel use of campaign finance laws to charge Mr. Cohen. Before Mr. Cohen’s guilty plea, the only person known to face criminal charges for payments meant to keep negative information buried during a political campaign was the former senator and Democratic presidential candidate John Edwards, who was not convicted.

Mr. Barr argued, among other things, that such cases might be better suited to civil resolutions by the Federal Election Commission than to criminal prosecutions, according to people with knowledge of the discussions.

Mr. Cohen, who reported to prison in May 2019, was recently released on furlough and is currently serving his sentence at his Manhattan home, after citing health concerns related to the coronavirus.

There is no indication that the Justice Department planned to issue a formal opinion on the campaign finances charges. Such a step, if taken, might have raised questions about the validity of the case against Mr. Cohen and affected any future effort to investigate Mr. Trump or others in his circle for similar conduct.

The news that Barr got OLC involved in criminal charging matters has repercussions on several other levels.

First, it means that potentially before Mueller finished his report, OLC would have established new ground on campaign finance crimes. That’s important because two of the declinations in the Mueller Report involve Trump’s acceptance of campaign dirt from foreigners — both the people at the June 9 meeting, and Roger Stone’s apparent optimization of the WikiLeaks releases. While that’s a different application of campaign finance (and not one that’s a clear cut case), OLC’s involvement on one application before the Mueller Report release opens the possibility that Steve Engel similarly weighed in on another, with direction from Barr about what they should decide.

Add in the fact that Engel, along with PDAG Ed O’Callaghan, did the analysis behind Barr’s decision to decline to prosecute Trump for obstruction of justice. It would be inappropriate for OLC to make a prosecutorial decision in any case, all the more so given that OLC has an opinion saying that no one DOJ should be making such decisions at all. Now add in the fact that Engel must have weighed in during the weeks leading up to this decision about campaign finance issues.

It’s now widely agreed (though was always clear from the public record) that Trump lied in his responses to Mueller about his conversations with Roger Stone about WikiLeaks. And his hints that Stone would be pardoned are one of his most obstructive acts. Effectively, then, Engel would be playing both sides of the prosecutorial decision, setting the rules and then applying them, which isn’t how justice is supposed to work.

Finally, consider that the Stone prosecutors were prepared to introduce Stone’s lies to HPSCI about coordinating with Trump on his campaign efforts as 404(b) evidence (effectively to show that his lies were systematic). That Stone was coordinating (he kept asking Rick Gates for lists, which should have been purchased from the campaign, and he asked Steve Bannon to get him funding from Rebekah Mercer during the period when Bannon was running the campaign) would seem to be a campaign finance issue. This is another matter that OLC’s review of campaign finance may have implicated.

It’s not just that Barr went out of his way to make it legal for outsides to pay to suppress bad news, but it’s that he’s secretly rewriting campaign finance law in ways that may have wider implications. And by doing so, Barr may have limited other prosecutorial decisions implicating Trump.


Sidney Powell’s Great Time Machine of Electoral Gaslighting

On January 4, 2017 at 9:43 AM, FBI lawyer Lisa Page emailed her boss, FBI General Counsel James Baker a citation for the Logan Act, referencing some prior discussion in the subject line: “Code section at question.”

Shortly thereafter, Peter Strzok emailed Page the text of the law, as well as a link to a Congressional Research Service report on the Logan Act. In it, he noted that the legislative history of the Logan Act did not deal with incoming officials (which might suggest that, contrary to all reporting, he was skeptical about its application). Page thanked Strzok, and then she sent the text of the law, but not the other discussion, to someone else.

Later that afternoon, Strzok started messaging FBI agents involved in the Flynn prosecution, asking them to hold open the Flynn investigation, noting that, “7th floor involved.”

The next day, representatives from the Intelligence Community briefed Obama on the Intelligence Community Assessment on Russian hacking. After the briefing, several people stayed behind to discuss the Flynn conversations with Sergey Kislyak. National Security Advisor Susan Rice described the meeting this way in a February 2018 letter sent to SJC.

… an important national security discussion between President Obama and the FBI Director and the Deputy Attorney General. President Obama and his national security team were justifiably concerned about potential risks to the Nation’s security from sharing highly classified information about Russia with certain members of the Trump transition team, particularly Lt. Gen. Michael Flynn.

In light of concerning communications between members of the Trump team and Russian officials, before and after the election, President Obama, on behalf of his national security team, appropriately sought the FBI and the Department of Justice’s guidance on this subject.

Rice’s memo to the file, written before FBI had interviewed Mike Flynn about his calls with Sergey Kislyak, described that President Obama, Jim Comey, Deputy Attorney General Sally Yates, Joe Biden, and herself attended the meeting. She recorded that Obama first instructed FBI (as he apparently already had) to do things normally.

President Obama began the conversation by stressing his continued commitment to ensuring that every aspect of this issue is handled by the Intelligence and law enforcement communities “by the book”. The President stressed that he is not asking about, initiating or instructing anything from a law enforcement perspective. He reiterated that our law enforcement team needs to proceed as it normally would by the book.

Rice describes how Obama then asked whether there was any reason not to share information with Trump’s incoming team.

From a national security perspective, however, President Obama said he wants to be sure that, as we engage with the incoming team, we are mindful to ascertain if there is any reason that we cannot share information fully as it relates to Russia.

Jim Comey responded with an ambivalent answer, stating that the FBI had not yet found Flynn to be sharing classified information, but observing that the sheer number of contacts between Kislyak and Flynn was abnormal. Comey stated that “potentially,” NSC should not share classified information with Flynn.

Director Comey affirmed that he is proceeding “by the book” as it relates to law enforcement. From a national security perspective, Comey said he does have some concerns that incoming NSA Flynn is speaking frequently with Russian Ambassador Kislyak. Comey said that it could be an issue as it relates to sharing sensitive information. President Obama asked if Comey was saying that the NSC should not pass sensitive information related to Russia to Flynn. Comey replied, “potentially.” He added he that he has not indication thus far that Flynn has passed classified information to Kislyak, but he noted that “the level of communication is unusual.”

On June 23, Mike Flynn prosecutor Jocelyn Ballantine sent Sidney Powell a “page of notes [] taken by former Deputy Assistant Director Peter Strzok.” She described that the page was undated, but that “we believe that the notes were taken in early January 2017, possibly between January 3 and January 5.”

The notes record a meeting that — like the meeting Rice described — was attended by Obama, Jim Comey, Sally Yates, Joe Biden, and Susan Rice.

At the meeting, Obama told Comey to, “Make sure you [look at?] things — have the right people on it,” an instruction telling the FBI to conduct the investigation normally. Then, Obama asked, “Is there anything I shouldn’t be telling transition team?” Comey responded, though his response is unclear: “Flynn > Kislyak calls but appear legit.” Certainly, however, Comey’s response involves some kind of comment on Flynn’s calls with Kislyak. Parts of the discussion before and after this exchange are redacted, with no redaction marks explaining the basis for doing so (though a Bates stamp makes it clear that Mueller’s team had this document, so it is in no way “new” to DOJ).

When Sidney Powell released the notes, she asserted that the notes were, “believed to be of January 4,” which is not what DOJ told her (they said the notes could be January 3, 4, or 5).

Strzok’s notes believed to be of January 4, 2017, reveal that former President Obama, James Comey, Sally Yates, Joe Biden, and apparently Susan Rice discussed the transcripts of Flynn’s calls and how to proceed against him.

Powell presents this meeting as new news, even though we’ve known about the meeting since Chuck Grassley made a stink about it to help her client in early 2018 (ten months before her client reallocuted his guilty plea). She did so, in part, to call attention to the comment from Joe Biden apparently raising the Logan Act, then repeated, falsely, that the investigation that had been since August 2016, was then in early January, and would be during his January 24, 2017 interview significantly focused on 18 USC 951, was only investigating the Logan Act.

According to Strzok’s notes, it appears that Vice President Biden personally raised the idea of the Logan Act. That became an admitted pretext to investigate General Flynn

According to Powell’s narrative, then, Biden mentioned the Logan Act on January 4, which led the FBI to start investigating it the next morning. According to Powell’s narrative, then, Biden is responsible for what she falsely claims was the pretext under which her client was interviewed.

To believe that, however, you’d have to believe there were two meetings, both with the same attendees, in both of which Obama first directed the FBI Director to conduct the Flynn investigation normally, and then asked whether he should be cautious about sharing sensitive information with the Trump team. In both meetings, you’d have to believe, Comey provided an ambivalent answer. You’d have to further believe that such an exchange was so concerning to Susan Rice that she would document it on her last day in office, but document only the second instance of such an exchange, not the first one.

Now, perhaps there’s some reason Jeffrey Jensen and Jocelyn Ballantine profess uncertainty about when Strzok took these notes. Or perhaps DOJ, which has politicized this process so much already, would like to claim uncertainty so as to suggest that Joe Biden raised the Logan Act before the FBI did, while they’re also falsely claiming that Flynn was interviewed only for the Logan Act.

But the simplest explanation for these notes is that the guy who played a key role in investigating the Russian side of the operation seconded Comey for the ICA briefing (he had done at least one earlier briefing at the White House, in September 2016), and then, when everyone stayed behind to address Flynn — an investigation Strzok was in the management chain on — he remained as Comey’s second and took notes of the same exchange that Susan Rice memorialized 15 days later. [See below: Strzok was not at the meeting in question, which would suggest these notes came even longer after the Logan Act had been raised at FBI.]

Which would likewise mean that DOJ, on the eve of a hearing on how DOJ is politicizing everything, fed Sidney Powell with a document she could misrepresent (as she has virtually everything that DOJ has fed her), and have numerous Republicans HJC members similarly misrepresent, all to turn this into a campaign issue.

Ah, well. Now that DOJ has declassified comments (almost certainly covered by Executive Privilege) in which Biden said he had seen nothing like what Flynn had done in the 10 years he was on the Senate Intelligence Committee (Biden was on the Committee during Reagan’s crimes), reporters can ask him how unprecedented it is for the incoming National Security Advisor to be wooed by a hostile power’s Ambassador during the transition.

Update: Glenn Kessler says Strzok’s lawyer says Stzrok wasn’t at this meeting, which makes the conspiracy around it even crazier.

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Originally Posted @ https://www.emptywheel.net/author/emptywheel/