Mueller Tells Guy Who Legally Can’t Be a Target That He’s Not a Target, Perhaps in a Bid to Make Him Legally Targetable

The WaPo has a fascinating report describing that Robert Mueller informed Trump’s lawyers “in early March” that he doesn’t consider Trump a target in his investigation. That news made Trump even more determined to sit for an interview with Mueller, a decision which some of Trump’s less appropriate lawyers seem to have supported. That’s what led John Dowd to quit on March 22 (which would presumably have been two weeks or so later).

John Dowd, Trump’s top attorney dealing with the Mueller probe, resigned last month amid disputes about strategy and frustration that the president ignored his advice to refuse the special counsel’s request for an interview, according to a Trump friend.

Of course, as many people have pointed out, a sitting President can’t be indicted. NYCSouthpaw pointed to the appropriate section of the US Attorney’s Manual, which states that, “A ‘target’ is a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant.”

If Trump, as President, can’t be indicted, then he can’t be a putative defendant. So he’ll never be a target so long as he remains President. Dowd is likely the only lawyer on Trump’s team who has enough defense experience to understand that this should offer the President zero assurance at all.

He left when the other, ill-suited attorneys refused to believe him on this point.

Which is why the other main thrust of the story is so interesting. Mueller has also indicated that Mueller wants to start writing his report on obstruction — according to Robert Costa, with the intent of finishing it by June or July, just before Congress breaks for August recess, the official start of campaign season — with plans for a second report on the election conspiracy to follow.

The special counsel also told Trump’s lawyers that he is preparing a report about the president’s actions while in office and potential obstruction of justice, according to two people with knowledge of the conversations.

Mueller reiterated the need to interview Trump — both to understand whether he had any corrupt intent to thwart the Russia investigation and to complete this portion of his probe, the people said.

[snip]

Mueller’s investigators have indicated to the president’s legal team that they are considering writing reports on their findings in stages — with the first report focused on the obstruction issue, according to two people briefed on the discussions.

Under special counsel regulations, Mueller is required to report his conclusions confidentially to Deputy Attorney General Rod J. Rosenstein, who has the authority to decide whether to release the information publicly.

“They’ve said they want to write a report on this — to answer the public’s questions — and they need the president’s interview as the last step,” one person familiar with the discussions said of Mueller’s team.

Trump’s attorneys expect the president would also face questions about what he knew about any contacts by his associates with Russian officials and emissaries in 2016, several White House advisers said. The president’s allies believe a second report detailing the special counsel’s findings on Russia’s interference would be issued later.

That leads us to the question of how a report that Rod Rosenstein has authority to quash could be assured of “answering the public’s questions.” One option is Mueller could propose charges he knows Rosenstein won’t — or can’t — approve, which guarantees that the Chairs and Ranking Members of the Judiciary Committees (currently, Bob Goodlatte, who is retiring, Jerry Nadler, Chuck Grassley, and Dianne Feinstein, who faces a real challenge this year) will get at least a summary.

Mueller could trigger a reporting requirement in the special counsel regulations under which the attorney general must inform “the Chairman and Ranking Minority Member of the Judiciary Committees of each House of Congress” — both parties, in other words — at the end of the special counsel’s investigation, of any instance in which the attorney general vetoed a proposed action. Simply by proposing to indict Trump, Mueller could ensure that Congress gets the word. But this would be of only limited scope: instead of an evidence dump, it need only be a “brief notification, with an outline of the actions and the reasons for them.”

Alternately, Mueller could recommend impeachment, but Rosenstein would be bound by grand jury secrecy rules.

If Mueller believes he has information that could warrant impeachment, he could weave it into a narrative like the Starr Report. But even if Rosenstein wanted to make the report public, he would be limited by Federal Rule of Criminal Procedure 6(e), which imposes strict limits on the disclosure of grand jury materials. This rule, which has the force of law, is intended to preserve the integrity of grand jury investigations and encourage witnesses to testify fully and frankly. Rosenstein could, if he chose, issue a redacted report that conveys the gist of Mueller’s findings.

While the election conspiracy has involved grand jury subpoenas (to people like Sam Nunberg and Ted Malloch, most recently), the obstruction investigation into Trump has involved (as far as I remember) entirely voluntary interviews and mostly, if not entirely, voluntarily produced evidence. So whereas for the larger investigation, Rosenstein will face this limit (but not if the targets — like Roger Stone — are indicted), he may not here.

All of which is to say we may be looking at a public report saying that Trump should be impeached just as Republicans attempt to keep Congress.

Even as some of Mueller’s 17+ prosecutors write that up (by my estimate, only Watergate prosecutor James Quarles has been working the Trump obstruction full time), the rest will continue to roll out evidence — possibly in the form of very inflammatory indictments — of what Trump was trying to obstruct.

Effectively, I think Mueller is giving the GOP Congress a choice. They impeach Trump on the less inflammatory stuff,which will remove all threat of firing and/or pardons to threaten the investigation, not to mention make Trump eligible to be a target for the actual election conspiracy he tried to cover up. Or after they fail to hold the House while explaining why they’re covering up for Trump’s cover up, they will face a more serious inquiry relating to Trump’s involvement in the election conspiracy.

The Timing of Mark Warner’s PseudoScandal Texts

By now, you’ve heard about Fox News’ scoop that Mark Warner made efforts last year to obtain testimony from two key figures in the Senate Intelligence Committee investigation into Russia’s involvement in the 2016 election via DC fixer Adam Waldman: Christopher Steele and Oleg Deripaska. (In my opinion, the news buried at the bottom of the story that Deripaska agreed to provide testimony if he could get immunity, but did not get it, is far more interesting than the rest of this, but I’m not a Fox News editor.)

“We have so much to discuss u need to be careful but we can help our country,” Warner texted the lobbyist, Adam Waldman, on March 22, 2017.

“I’m in,” Waldman, whose firm has ties to Hillary Clinton, texted back to Warner.

The story also includes this paragraph, which also has gotten less attention.

Warner began texting with Waldman in February 2017 about the possibility of helping to broker a deal with the Justice Department to get the WikiLeaks founder Julian Assange to the United States to potentially face criminal charges. That went nowhere, though a Warner aide told Fox News that the senator shared his previously undisclosed private conversations about WikiLeaks with the FBI.

Interestingly, the Fox story relies on texts that Warner and Richard Burr jointly requested in June (targeting Waldman’s phone, not Warner’s, apparently), and then turned over to the committee in October. I look forward to seeing how the notoriously anti-leak Burr deals with the apparent leak of committee sensitive materials to the right wing press.

Even while the story links to texts from SSCI, it comes a week after a woman duped the famously paranoid Julian Assange into exchanging texts with her fake Sean Hannity account promising news on Mark Warner.

[Dell] Gilliam, a technical writer from Texas, was bored with the flu when she created @SeanHannity__ early Saturday morning. The Fox News host’s real account was temporarily deleted after cryptically tweeting the phrase “Form Submission 1649 | #Hannity” on Friday night. Twitter said the account had been “briefly compromised,” according to a statement provided to The Daily Beast, and was back up on Sunday morning.

[snip]

Just minutes after @SeanHannity disappeared, several accounts quickly sprung up posing as the real Hannity, shouting from Twitter exile. None were as successful as Gilliam’s @SeanHannity__ account, which has since amassed over 24,000 followers.

Gilliam then used her newfound prominence to direct message Assange as Hannity within hours.

“I can’t believe this is happening. I mean… I can. It’s crazy. Nothing can be put past people,” Gilliam, posing as Hannity, wrote to Assange. “I’m exhausted from the whole night. What about you, though? You doing ok?”

“I’m happy as long as there is a fight!” Assange responded.

Gilliam reassured Assange that she, or Hannity, was also “definitely up for a fight” and set up a call for 9:30 a.m. Eastern, about six hours later.

“You can send me messages on other channels,” said Assange, the second reference to “other channels” he made since their conversation began.

“Have some news about Warner.”

With that in mind, I want to look at the timing of some security issues last year.

While the texts turned over to Congress date to February 14, the conversation pertaining to Steele started around March 22. That puts it not long after news of a massive hack involving T-Mobile, first reported March 16.

An unusual amount of highly suspicious cellphone activity in the Washington, D.C., region is fueling concerns that a rogue entity is surveying the communications of numerous individuals, likely including U.S. government officials and foreign diplomats, according to documents viewed by the Washington Free Beacon and conversations with security insiders.

A large spike in suspicious activity on a major U.S. cellular carrier has raised red flags in the Department of Homeland Security and prompted concerns that cellphones in the region are being tracked. Such activity could allow pernicious actors to clone devices and other mobile equipment used by civilians and government insiders, according to information obtained by the Free Beacon.

It remains unclear who is behind the attacks, but the sophistication and amount of time indicates it could be a foreign nation, sources said.

I would hope to hell that former cell company mogul and current Ranking Member on the Senate Intelligence Committee running an important counterintelligence investigation Mark Warner would be aware of the security problems with mobile phones. But what do I know? [Update: Not much. Looking more closely it looks like he was using Signal.] In the last several months we’ve learned that FBI’s investigators discuss the even more sensitive aspects of the more important side of counterintelligence investigation on SMS texts on their Samsung cell phones.

¯\_(ツ)_/¯

But who knows what Waldman (who apparently chats a lot with spies, mobbed up Russian oligarchs, and — as Mike Pompeo deemed Wikileaks — non-state hostile intelligence services) knows about cell phone security?

In any case, the day before that was reported publicly, Ron Wyden and Ted Lieu sent a letter to John Kelly (who, as a reminder, in spite of or because he ran DHS for a while, had his own cell phone compromised), stating in part,

We are also concerned that the government has not adequately considered the counterintelligence threat posed by SS7-enabled surveillance.

[snip]

What resources has DHS allocated to identifying and addressing SS7-related threats? Are these resources sufficient to protect U.S. government officials and the private sector.

If the government started considering such issues in March, they might have gotten around to discovering what kinds of problems were created by the T-Mobile hack in June, when Warner and Burr moved to get the texts for SSCI.

In any case, at around that point in time, APT 28 (one of the entities blamed for hacking the DNC the previous year) started a phishing campaign targeting the Senate’s email server.

Beginning in June 2017, phishing sites were set up mimicking the ADFS (Active Directory Federation Services) of the U.S. Senate. By looking at the digital fingerprints of these phishing sites and comparing them with a large data set that spans almost five years, we can uniquely relate them to a couple of Pawn Storm incidents in 2016 and 2017. The real ADFS server of the U.S. Senate is not reachable on the open internet, however phishing of users’ credentials on an ADFS server that is behind a firewall still makes sense. In case an actor already has a foothold in an organization after compromising one user account, credential phishing could help him get closer to high profile users of interest.

Reporting at the time suggested this was an effort in advance of the 2018 election (which aside from minimizing the damage Russia might do in the interim, ignores the fact that staffers are ostensibly prohibited from using Senate resources for election related activities). But it always seemed to me it would more profitably target policy.

Or, maybe the only reasonable work Congress is doing to investigate the Russians?

Whether there’s a connection between these two compromises last year or not, and Julian Assange, and this Mark Warner story, it’s clear that DC remains ill-prepared to address the counterintelligence problems they’re faced with.

image_print