A Letter For Rod Rosenstein To Remember

Before there were internet “memes” there were still plays in words that conveyed huge situations beyond the mere words. One was “A Night To Remember”. Yes, even before the famous movie (and before the sappy and stupid “Titanic” decades later), it was an earlier book about the Titanic disaster. There are daily shipwrecks as significant as that now in the Age of Trump.

Today, specifically, we have the issue of a Titanic level shipwreck President crashing the country out of pettiness and ignorance like the United States has never ostensibly seen in its history.

Yesterday on Twitter, I noted that there was a telling omission in the supposed “justification” memo Rod Rosenstein penned and Trump initially claimed to rely on as basis for firing Comey:

This morning, in what I can only describe as an admirable mea culpa statement that I think will long be remembered, in a good way, Ben Wittes called for Rosenstein to go.

In the end, Trump was able to make set piece out of Rosenstein, because Rosenstein let himself be used as a set piece. And there’s an important lesson in that for the many honorable men and women with pending appointments and nominations to serve in senior levels of the Justice Department—or who are considering accepting such appointments. It took Donald Trump only two weeks to put Rosenstein, a figure of sterling reputation, in the position of choosing between continued service and behaving honorably—and it took only two days after that for the President to announce that Rosenstein’s memo, after all, was nothing more than a Potemkin village designed as a facade on Trump’s predecided outcome.

Do you really want this to be you? Do you really think Trump will not leave your reputation as so much roadkill on the highway after enlisting you in sliming someone else a week or two after you take office?

The lesson here is that these are not honorable people, and they will do their best to drag you down to their level. They will often succeed.

Here we are, and, thankfully, people in and around the Third Branch, especially in the all important Southern District of New York region (from which Comey has come and gone), are fighting back and speaking out with shouts that are from far more than the cheap seats people like me occupy.

Without further adieu, a letter from SDNY luminaries:

May 12, 2017

Rod J. Rosenstein, Esq.
Deputy Attorney General of the United States
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530-0001

Dear Mr. Deputy Attorney General:

We, the undersigned, are former United States Attorneys and Assistant United States Attorneys for the Southern District of New York. In view of the recent termination of James Comey as Director of the Federal Bureau of Investigation, we are writing to request that you appoint a special counsel to oversee the FBI’s continuing investigation of Russian interference with the 2016 Presidential election and related matters. This letter is addressed to you rather than the Attorney General since he has recused himself from this matter.

As you know, Jim has had a long and distinguished career with the Department of Justice, beginning with his appointment as an Assistant United States Attorney in the Southern District of New York serving under United States Attorneys Rudolph Giuliani, Benito Romano and Otto Obermaier from 1987 through 1993. He returned to the Southern District of New York in 2002 when he was appointed the United States Attorney and served in that capacity until he was confirmed as Deputy Attorney General in 2003. Most of us came to know Jim when he worked in the Southern District of New York. Many of us know him personally. All of us respect him as a highly professional and ethical person who has devoted more than 20 years of his life to public service.

While we do not all necessarily agree with the manner in which he dealt with the conclusion of the Hillary Clinton email investigation, we sincerely believe that his abrupt and belated termination for this conduct, occurring months later and on the heels of his public testimony about his oversight of the investigation of Russian interference with the 2016 presidential election, has the appearance – if not the reality – of interfering with that investigation. Even if this investigation continues unabated, there is a substantial risk that the American people will not have confidence in its results, no matter who is appointed to succeed him, given that the Director of the FBI serves at the pleasure of the President. We believe it is critical in the present political climate and clearly in the public’s interest that this investigation be directed by a truly independent, non-partisan prosecutor who is independent of the Department of Justice, as is contemplated by 28 C.F.R. §600.1.

We are Republicans, Democrats and independents. Most importantly, we are proud alumni and alumnae of the Department of Justice. We do not suggest that you or any other members of the Department of Justice or a newly appointed Director of the FBI would not conduct yourselves properly, but the gravity of this investigation requires that even the appearance of political involvement in this investigation be avoided. As former prosecutors, we believe the only solution in the present circumstances would be to appoint a Special Counsel pursuant to 28 C.F.R. §600.1, and we urge you to take that course.

Respectfully submitted,

Jonathan S. Abernethy Elkan Abramowitz Richard F. Albert
Marcus A. Asner Martin J. Auerbach Miriam Baer
Thomas H. Baer Kerri Martin Bartlett Maria Barton
Andrew Bauer Bernard W. Bell Richard Ben-Veniste
Neil S. Binder Laura Gossfield Birger Ira H. Block
Suzanne Jaffe Bloom Barry A. Bohrer Daniel H. Bookin
Jane E. Booth Katharine Bostick Laurie E. Brecher
David M. Brodsky Stacey Mortiz Brodsky William Bronnermn
Jennifer K. Brown Marshall A. Camp Bennett Capers
Michael Q. Carey Neil S. Cartusciello Sarah Chapman
Robert J. Cleary Brian D. Coad Glenn C. Colton
William Craco Nelson W. Cunningham Constance Cushman
Frederick T. Davis John M. Desmarais Rhea Dignam
Gregory L. Diskant Philip L. Douglas Sean Eskovitz
Jesse T. Fardella Meir Feder Ira M. Feinberg
Michael S. Feldberg Steven D. Feldman Edward T. Ferguson
David Finn Eric P. Fisher Sharon E. Frase
Steven I. Froot Maria T. Galeno Catherine Gallo
Robert Garcia Kay K. Gardiner Ronald L. Garnett
Scott Gilbert Barbara S. Gillers Mark Godsey
Joshua A. Goldberg James A. Goldston Mark P. Goodman
George I. Gordon Sheila Gowan Stuart GraBois
Paul R. Grand Helen Gredd Bruce Green
Marc L. Greenwald Jamie Gregg James G. Greilsheimer
Jane Bloom Grise Nicole Gueron Barbara Guss
Steven M. Haber Jonathan Halpern David Hammer
Jeffrey Harris Mark D. Harris Roger J. Hawke
Steven P. Heineman Mark R. Hellerer William Hibsher
Jay Holtmeier John R. Horan Patricia M. Hynes
Linda Imes Douglas Jensen James Kainen
Eugene Kaplan Steven M. Kaplan William C. Komaroff
David Koenigsberg Cynthia Kouril Mary Ellen Kris
Stephen Kurzman Nicole LaBarbera Kerry Lawrence
Sherry Leiwant Jane A. Levine Annmarie Levins
Raymond A. Levites Donna H. Lieberman Jon Liebman
Sarah E. Light Jon Lindsey Robin A. Linsenmayer
Edward J.M. Little Mary Shannon Little Walter Loughlin
Daniel Margolis Walter Mack Kathy S. Marks
Mark E. Matthews Marvin S. Mayell Sharon L. McCarthy
James J. McGuire Joan McPhee Christine Meding
Paul K. Milmed Judith L. Mogul David E. Montgomery
Lynn Neils Peter Neiman Rosemary Nidiry
Tai H. Park Robert M. Pennoyer Elliott R. Peters
Michael Pinnisi Robert Plotz Henry Putzel
T. Gorman Reilly Emily Reisbaum Peter Rient
Roland G. Riopelle Michael A. Rogoff Benito Romano
Amy Rothstein Thomas C. Rubin Daniel S. Ruzumna
Robert W. Sadowski Elliot G. Sagor Peter Salerno
Joseph F. Savage John F. Savarese Edward Scarvalone
Kenneth I. Schacter Frederick Schaffer Gideon A. Schor
Julian Schreibman Wendy Schwartz Linda Severin
David Siegal Marjorie A. Silver Paul H. Silverman
Charles Simon Carolyn L. Simpson David Sipiora
Dietrich L. Snell Peter Sobol Ira Lee Sorkin
David W. Spears Katherine Stanton Franklin H. Stone
Richard M. Strassberg Howard S. Sussman Erika Thomas
Richard Toder Timothy J. Treanor Paula Tuffin
Peter Vigeland David Wales Max Wild
Samuel J. Wilson Elaine Wood Paulette Wunsch
Thomas Zaccaro Ellen Zimiles
cc: Jefferson B. Sessions III, Esq.
Attorney General of the United States

This letter reflects the signers’ personal views, not of the U.S. Attorney’s Office for the Southern District of New York, the U.S. Department of Justice, or any other government agency.

But it is STRONG. And it is hard to not love it completely. It is raw, and it is real. Nobody asks defense attorneys to sign these missives, nor would anybody give them credit for having done so, were they asked.

This letter, however, is from the elite of the elite prosecutors, with SDNY historic names attached to it (and sometimes significant family names you may not notice), and there are a LOT of them. Almost wonder who did “not” sign on to it?

So, what does it mean?

A LOT. If you know how District level US Attorney offices run, but especially the hallowed ground in SDNY, then you know just how unusual and remarkable is this collective letter.

Think I mentioned “stunning” earlier. It is all that.

Why? Because the problem in the US is here, and it is now. It is bigger than Red versus Blue. It is bigger than Me versus You. It is bigger than all that. There is a fracture in the very machinery governance itself runs on.

The clockworks of governance are buggered. “We are Republicans, Democrats and independents.” And we all deserve better than the orange narcissist piloting the nation into an iceberg.

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.

The Last USA: Dana Boente Is the Best Short Term Solution

In the wake of the Comey firing, particularly given the way Deputy Attorney General Rod Rosenstein let himself serve as a pawn, many people have renewed their call for “a special prosecutor.” In the short term, however, I believe Dana Boente — that is, the status quo — is a better solution.

As a reminder, Dana Boente is the US Attorney of Eastern District of VA. With Rosenstein’s confirmation as DAG, Boente is the last remaining confirmed US Attorney in the United States. Boente’s office is overseeing at least two parts of the Russian investigation: the generalized investigation into Wikileaks, and the investigation into Trump’s campaign. The latter investigation recently issued subpoenas to Mike Flynn associates. There are reportedly parts of the investigation in three other places: some work being done in Main Justice, as well a a team investigating Guccifer 2.0/Shadow Brokers in San Francisco, and a team investigating the Russian hackers in Pittsburgh.

But the bulk of what people think of as “the Russian investigation” — the investigation into Trump’s cronies — is happening in EDVA, overseen by The Last USA.

In addition to reporting up to Rosenstein as DAG and Rosenstein as Acting AG for the Russian investigation, Boente just took over as Acting Assistant Attorney General for National Security Division — the office that reviews things like FISA orders. That means Boente — for better and worse — has more authority, on several levels, than a “Special Counsel” would have.

First, note I use the term “Special Counsel,” not “Special Prosecutor.” Ken Starr was a Special Prosecutor, but in the wake of his fiasco and given persistent questions about the constitutionality of having someone who was totally independent from the structure of DOJ prosecuting people, Congress got rid of the provision supporting Special Prosecutors.

So if Rod Rosenstein wanted to appoint someone “independent” to oversee the Russian investigation, he’d have to use the Special Counsel provision.

While I think it is permissible to hire someone from outside of DOJ to do that job (so it is possible he could call up corporate lawyer Pat Fitzgerald for his third ride on the Special Counsel merry-go-round to, in dramatic fashion, save the investigation undercut by the firing of his good friend Jim Comey), in practice the recent Special Counsel appointments (the UndieBomb 2.0 leak investigation, the StuxNet leak investigation, the John Kiriakou prosecution, the Torture investigation, and the Plame investigation) have all been DOJ prosecutors, either US Attorneys (in all but one case) or an Assistant USA Attorney, in the case of John Durham’s whitewash of torture. Plus, while Fitz is still well-loved at DOJ and FBI as far as I know, if Rosenstein appointed him, I bet Trump would fire him within minutes because he’s sure as hell not going to be “loyal.” And because of Fitz’ past gunning hard for Cheney and Bush, many Republicans might not put up much of a stink there.

If Rosenstein were to adhere to the practice of naming existing DOJ prosecutors, though, it’d mean he’d be choosing between Boente, The Last USA, or an AUSA (perhaps one of the ones who recently reported to him in MD). In both cases, the Special Counsel would report to Rosenstein for AG approvals (as Pat Fitz reported to Jim Comey for the Plame case).

You can see quickly why Boente is the preferable option. First, there’s no reason to believe he isn’t pursuing the investigation (both investigations, into Wikileaks and Trump’s associates) with real vigor. He is a hard ass prosecutor and if that’s what you want that’s what you’d get. His grand jury pool is likely to be full of people with national security backgrounds or at least a predisposition to be hawks.

But — for better and worse — Boente actually has more power than a Special Counsel would have (and more power than Fitz had for the Plame investigation), because he is also in charge of NSD, doing things like approving FISA orders on suspected Russian agents. I think there are problems with that, particularly in the case of a possible Wikileaks prosecution. But if you want concentrated power, Boente is a better option than any AUSA. With the added benefit that he’s The Last USA, which commands some real respect.

Sure. If next week Trump calls Boente to dinner and demands his loyalty on threat of firing, this may change. But the same logic that people are using with a Special Counsel (that if Trump fired that person, maybe then Republicans in Congress would want something more independent) holds for Boente. Firing The Last USA ought to be as incendiary as firing an AUSA, assuming anything will be.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

The Tuesday Night Massacre

As you may have heard, President Trump has just fired FBI Director James Comey.

This is truly Nixonian Saturday Night Massacre level action.

Trump previously ran on, indeed got elected on, and likely only on, the scurrilous rogue comments of Jim Comey starting with the rogue July 5, 2016 press conference where Comey went off all rails on DOJ and PIN protocols. Here is the New York Times original report:

Mr. Comey’s dismissal was a stunning development for a president that benefited from the F.B.I. investigation of the Democratic nominee during the 2016 campaign. Separately, the F.B.I. also is investigating whether members of the Trump campaign colluded with Russia to influence the election.

The abrupt firing raised questions over whether Mr. Trump was trying to influence the Russia investigation. But he said he was following recommendations from the Justice Department, which criticized how Mr. Comey concluded the investigation into Mrs. Clinton.

Trump actually saluted Comey for this at one point. What a micro-moment self serving, not to mention narcissistic jerk.

If anybody in the world thought that that Trump is not as craven and against the Constitutional form of government we all were born and raised on, let that no longer be a question.

And if the media cannot get their heads out of their asses and realize the danger is NOT just to their First Amendment rights, but to the core of our republic and democracy, then they too should go the way of the dodo bird.

The foundations of this cowardly play were always there if you followed the ever changing voice and words of Donald Trump regarding the Clinton email issue and how the Department of Justice handled it.

If you thought this point, and/or Comey was the one only voice that could not be fired or silenced, you are sadly mistaken.

This blog has never, and I am being kind across my writings, Marcy’s and those of our departed friend Mary, been a friend of Jim Comey. He has long, and more presently, been an uneven and self serving voice mostly interested in preservation and enhancement of his own voice and position. Comey has been preternaturally successful at this.

That said, tonight I will be in Comey’s camp. I await what my friends at Lawfare and some others may have to say regarding the Tuesday Night Massacre.

Because this is a day that should live bright for a very long time.

People glibly talk about the “Resistance”. How naive. The battle is now, and has been joined in full by a cabal that makes Nixon look like a piker. The place is here. The time is now.

The temporal fact that it is Comey that tipped a scale of justice is immaterial. It has happened.

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.

One Takeaway from the Five Takeaways from the Comey Hearing: Election 2016 Continues to Suffocate Oversight

The Senate Judiciary Committee had an oversight hearing with Jim Comey yesterday, which I live-tweeted in great depth. As you can imagine, most of the questions pertained either to Comey’s handing of the Hillary investigation and/or to the investigation into Russian interference in the election. So much so that The Hill, in its “Five Takeaways from Comey’s testimony,” described only things that had to do with the election:

  • Comey isn’t sorry (but he was “mildly nauseous” that his conduct may have affected the outcome)
  • Emotions over the election are still raw
  • Comey explains DOJ dynamic: “I hope someday you’ll understand”
  • The FBI may be investigating internal leaks
  • Trump, Clinton investigations are dominating FBI oversight

The Hill’s description of that third bullet doesn’t even include the “news” from Comey’s statement: that there is some still-classified detail, in addition to Loretta Lynch’s tarmac meeting with Bill Clinton and the intercepted Hillary aide email saying Lynch would make sure nothing happened with the investigation, that led Comey to believe he had to take the lead on the non-indictment in July.

I struggled as we got closer to the end of it with the — a number things had gone on, some of which I can’t talk about yet, that made me worry that the department leadership could not credibly complete the investigation and declined prosecution without grievous damage to the American people’s confidence in the — in the justice system.

As I said, it is true that most questions pertained to Hillary’s emails or Russia. Still, reports like this, read primarily by people on the Hill, has the effect of self-fulfilling prophecy by obscuring what little real oversight happened. So here’s my list of five pieces of actual oversight that happened.

Neither Grassley nor Feinstein understand how FISA back door searches work

While they primarily focused on the import of reauthorizing Section 702 (and pretended that there were no interim options between clean reauthorization and a lapse), SJC Chair Chuck Grassley and SJC Ranking Member Dianne Feinstein both said things that made it clear they didn’t understand how FISA back door searches work.

At one point, in a discussion of the leaks about Mike Flynn’s conversation with Sergey Kislyak, Grassley tried to suggest that only a few people at FBI would have access to the unmasked identity in those intercepts.

There are several senior FBI officials who would’ve had access to the classified information that was leaked, including yourself and the deputy director.

He appeared unaware that as soon as the FBI started focusing on either Kislyak or Flynn, a back door search on the FISA content would return those conversations in unmasked form, which would mean a significant number of FBI Agents (and anyone else on that task force) would have access to the information that was leaked.

Likewise, at one point Feinstein was leading Comey through a discussion of why they needed to have easy back door access to communication content collected without a warrant (so we don’t stovepipe anything, Comey said), she said, “so you are not unmasking the data,” as if data obtained through a back door search would be masked, which genuinely (and rightly) confused Comey.

FEINSTEIN: So you are not masking the data — unmasking the data?

COMEY: I’m not sure what that means in this context.

It’s raw data. It would not be masked. That Feinstein, who has been a chief overseer of this program for the entire time back door searches were permitted doesn’t know this, that she repeatedly led the effort to defeat efforts to close the back door loophole, and that she doesn’t know what it means that this is raw data is unbelievably damning.

Incidentally, as part of the exchange wit Feinstein, Comey said the FISA data sits in a cloud type environment.

Comey claims the government doesn’t need the foreign government certificate except to target spies

Several hours into the hearing, Mike Lee asked some questions about surveillance. In particular, he asked if the targeting certificates for 702 ever targeted someone abroad for purposes unrelated to national security. Comey seemingly listed off the certificates we do have — foreign government, counterterrorism, and counterproliferation, noting that cyber gets worked into other ones.

LEE: Yes. Let’s talk about Section 702, for a minute. Section 702 of the Foreign Intelligence Surveillance Amendments Act authorizes the surveillance, the use of U.S. signals surveillance equipment to obtain foreign intelligence information.

The definition includes information that is directly related to national security, but it also includes quote, “information that is relevant to the foreign affairs of the United States,” close quote, regardless of whether that foreign affairs related information is relevant to a national security threat. To your knowledge, has the attorney general or has the DNI ever used Section 702 to target individuals abroad in a situation unrelated to a national security threat?

COMEY: Not that I’m aware of. I think — I could be wrong, but I don’t think so, I think it’s confined to counterterrorism to espionage, to counter proliferation. And — those — those are the buckets. I was going to say cyber but cyber is fits within…

He said they don’t need any FG information except that which targets diplomats and spies.

LEE: Right. So if Section 702 were narrowed to exclude such information, to exclude information that is relevant to foreign affairs, but not relevant to a national security threat, would that mean that the government would be able to obtain the information it needs in order to protect national security?

COMEY: Would seem so logically. I mean to me, the value of 702 is — is exactly that, where the rubber hits the road in the national security context, especially counterterrorism, counter proliferation.

I assume that Comey said this because the FBI doesn’t get all the other FG-collected stuff in raw form and so isn’t as aware that it exists. I assume that CIA and NSA, which presumably use this raw data far more than FBI, will find a way to push back on this claim.

But for now, we have the FBI Director stating that we could limit 702 collection to national security functions, a limitation that was defeated in 2008.

Comey says FBI only needs top level URLs for ECTR searches

In another exchange, Lee asked Comey about the FBI’s continued push to be able to get Electronic Communication Transaction Records. Specifically, he noted that being able to get URLs means being able to find out what someone was reading.

In response, Comey said he thought they could only get the top-level URL.

After some confusion that revealed Comey’s lie about the exclusion of ECTRs from NSLs being just a typo, Comey said FBI did not need any more than the top domain, and Lee answered that the current bill would permit more than that.

LEE: Yes. Based on the legislation that I’ve reviewed, it’s not my recollection that that is the case. Now, what — what I’ve been told is that — it would not necessarily be the policy of the government to use it, to go to that level of granularity. But that the language itself would allow it, is that inconsistent with your understanding?

COMEY: It is and my understanding is we — we’re not looking for that authority.

LEE: You don’t want that authority…

(CROSSTALK)

COMEY: That’s my understanding. What — what we’d like is, the functional equivalent of the dialing information, where you — the address you e-mailed to or the — or the webpage you went to, not where you went within it.

This exchange should be useful for limiting any ECTR provision gets rushed through to what FBI claims it needs.

The publication of (US) intelligence information counts as intelligence porn and therefore not journalism

Ben Sasse asked Comey about the discussion of indicting Wikileaks. Comey’s first refusal to answer whether DOJ would indict Wikileaks led me to believe they already had.

I don’t want to confirm whether or not there are charges pending. He hasn’t been apprehended because he’s inside the Ecuadorian embassy in London.

But as part of that discussion, Comey explained that Wikileaks’ publication of loads of classified materials amounted to intelligence porn, which therefore (particularly since Wikileaks didn’t call the IC for comment first, even though they have in the past) meant they weren’t journalism.

COMEY: Yes and again, I want to be careful that I don’t prejudice any future proceeding. It’s an important question, because all of us care deeply about the First Amendment and the ability of a free press, to get information about our work and — and publish it.

To my mind, it crosses a line when it moves from being about trying to educate a public and instead just becomes about intelligence porn, frankly. Just pushing out information about sources and methods without regard to interest, without regard to the First Amendment values that normally underlie press reporting.

[snip]

[I]n my view, a huge portion of WikiLeaks’s activities has nothing to do with legitimate newsgathering, informing the public, commenting on important public controversies, but is simply about releasing classified information to damage the United States of America. And — and — and people sometimes get cynical about journalists.

American journalists do not do that. They will almost always call us before they publish classified information and say, is there anything about this that’s going to put lives in danger, that’s going to jeopardize government people, military people or — or innocent civilians anywhere in the world.

I’ll write about this more at length.

Relatedly (though technically a Russian investigation detail), Comey revealed that the investigation into Trump ties to Russia is being done at Main Justice and EDVA.

COMEY: Yes, well — two sets of prosecutors, the Main Justice the National Security Division and the Eastern District of Virginia U.S. Attorney’s Office.

That makes Dana Boente’s role, first as Acting Attorney General for the Russian investigation and now the Acting Assistant Attorney General for National Security, all the more interesting, as it means he is the person who can make key approvals related to the investigation.

I don’t have any problem with him being chosen for these acting roles. But I think it supremely unwise to effectively eliminate levels of oversight on these sensitive cases (Russia and Wikileaks) by making the US Attorney already overseeing them also the guys who oversees his own oversight of them.

The US is on its way to becoming the last haven of shell corporations

Okay, technically these were Sheldon Whitehouse and Amy Klobuchar comments about Russia. But as part of a (typically prosecutorial) line of questioning about things related to the Russian investigation, Whitehouse got Comey to acknowledge that as the EU tries to crack down on shell companies, that increasingly leaves the US as the remaining haven for shell companies that can hide who is paying for things like election hacks.

WHITEHOUSE: And lastly, the European Union is moving towards requiring transparency of incorporations so that shell corporations are harder to create. That risks leaving the United States as the last big haven for shell corporations. Is it true that shell corporations are often used as a device for criminal money laundering?

COMEY: Yes.

[snip]

WHITEHOUSE: What do you think the hazards are for the United States with respect to election interference of continuing to maintain a system in which shell corporations — that you never know who’s really behind them are common place?

COMEY: I suppose one risk is it makes it easier for illicit money to make its way into a political environment.

WHITEHOUSE: And that’s not a good thing.

COMEY: I don’t think it is.

And Klobuchar addressed the point specifically as it relates to high end real estate (not mentioning that both Trump and Paul Manafort have been alleged to be involved in such transactions).

There have been recent concerns that organized criminals, including Russians, are using the luxury real estate market to launder money. The Treasury Department has noted a significant rise in the use of shell companies in real estate transactions, because foreign buyers use them as a way to hide their identity and find a safe haven for their money in the U.S. In fact, nearly half of all homes in the U.S. worth at least $5 million are purchased using shell companies.

Does the anonymity associated with the use of shell companies to buy real estate hurt the FBI’s ability to trace the flow of illicit money and fight organized crime? And do you support efforts by the Treasury Department to use its existing authority to require more transparency in these transactions?

COMEY: Yes and yes.

It’s a real problem, and not just because of the way it facilitates election hacks, and it’d be nice if Congress would fix it.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

Thoughts on the NYT Comey Blockbuster

The NYT has a big piece on Jim Comey’s involvement in the election you should definitely read. Rather than share my thoughts in a tweet storm I thought I’d share here so we can all gab about it.

Consensus coming closer to Jim Comey being self-righteous

As long time readers know, I think Jim Comey is self-righteous. He creates a heroic self-image that is often overblown (as it was regarding the post hospital hero events). So I was happy to see this paragraph — and observations matching it — through out the story.

Mr. Comey made those decisions with the supreme self-confidence of a former prosecutor who, in a distinguished career, has cultivated a reputation for what supporters see as fierce independence, and detractors view as media-savvy arrogance.

Comey deserves all the criticism he has gotten for his statements about the Hillary investigation. But we’re stuck with Comey for now; he’s one of the few checks against Trump’s arbitrary rule (and Comey is enough of a media hound to be able to create the space to conduct the investigation into Trump).

But one way or another I’m happy people are beginning to understand Comey not as the hospital hero, nor as a partisan, but as someone who doesn’t (or didn’t?) assess his own actions with a fair measure.

The secret David Margolis meeting

One of two really interesting new details in this story is that, when Comey was trying to decide what to do, he consulted with David Margolis, who has long been treated as the conscience of DOJ by DOJers. (See this bmaz post for more background on Margolis.)

Mr. Comey sought advice from someone he has trusted for many years. He dispatched his deputy to meet with David Margolis, who had served at the Justice Department since the Johnson administration and who, at 76, was dubbed the Yoda of the department.

What exactly was said is not known. Mr. Margolis died of heart problems a few months later. But some time after that meeting, Mr. Comey began talking to his advisers about announcing the end of the Clinton investigation himself, according to a former official.

This meeting (and the description of how they staged Margolis’ funeral so the DOJ people criticizing Comey wouldn’t have to share a stage with him) plays a weird role in the story, as if just the mention of the meeting serves to exonerate Comey’s terrible decision to announce the end of the Hillary investigation.

But what the story doesn’t note is that Comey was effectively consulting with the person who for years always intervened to make sure DOJ’s lawyers don’t get held accountable for their misconduct (most notably, he did this for John Yoo). Now, I’m not sure whether as FBI Director Comey’s behavior might have been reviewed by the Office of Professional Responsibility; as it happens DOJ IG is doing so. But it is not ethical to have the guy who, later on, would bless your actions, bless them before the fact. It’s like getting pre-approval to break the rules.

Loretta Lynch should have recused

One of the details others find most interesting is that the FBI acted as they did, in part, because a Democratic operative suggested in an email that Loretta Lynch would ensure nothing came of the investigation.

During Russia’s hacking campaign against the United States, intelligence agencies could peer, at times, into Russian networks and see what had been taken. Early last year, F.B.I. agents received a batch of hacked documents, and one caught their attention.

The document, which has been described as both a memo and an email, was written by a Democratic operative who expressed confidence that Ms. Lynch would keep the Clinton investigation from going too far, according to several former officials familiar with the document.

Read one way, it was standard Washington political chatter. Read another way, it suggested that a political operative might have insight into Ms. Lynch’s thinking.

Normally, when the F.B.I. recommends closing a case, the Justice Department agrees and nobody says anything. The consensus in both places was that the typical procedure would not suffice in this instance, but who would be the spokesman?

The document complicated that calculation, according to officials. If Ms. Lynch announced that the case was closed, and Russia leaked the document, Mr. Comey believed it would raise doubts about the independence of the investigation.

I’ve got a slew of hacking related questions about this document — starting with why it hasn’t, as far as I know, been leaked. The described timing as “early last year” suggests that it may have been hacked in the FSB phase of the hacking. But the document would have solidified the narrative the Russians were reportedly fostering about Hillary.

The article doesn’t pursue those questions, but it notes that in response to finding it, Comey did not ask Lynch to recuse. He should have. You recuse whether or not there’s basis for recusal but because of appearances as well. Moreover, so much awfulness could have been avoided had she recused. This was one of the big own goals of this whole mess.

CIA Directors should not meet with just one Gang of Eight member

The second detail I find most interesting in this story is that John Brennan privately briefed Harry Reid about his concerns about the Russians.

John O. Brennan, the C.I.A. director, was so concerned about the Russian threat that he gave an unusual private briefing in the late summer to Harry Reid, then the Senate Democratic leader.

Top congressional officials had already received briefings on Russia’s meddling, but the one for Mr. Reid appears to have gone further. In a public letter to Mr. Comey several weeks later, Mr. Reid said that “it has become clear that you possess explosive information about close ties and coordination between Donald Trump, his top advisors, and the Russian government — a foreign interest openly hostile to the United States.”

While I’m generally sympathetic to Democrats’ complaints that DOJ should have either remained silent about both investigations or revealed both of them, it was stupid for Brennan to give this private briefing (and I hope he gets grilled about it by HPSCI when he testifies in a few weeks). In addition to the things Reid said publicly about the investigation, it’s fairly clear he and his staffers were also behind some of the key leaks here (and, as CNN reported yesterday, leaks about the investigation actually led targets of it to alter their behavior). For reasons beyond what appears in this story, I think it likely Reid served as a cut-out for Brennan.

And that’s simply not appropriate. There may well have been reasons to avoid briefing Richard Burr (who was advising Trump). But spooks should not be sharing information with just one party. CIA did so during its torture cover-up in ways that are particularly troubling and I find this — while not as bad — equally problematic.

Two missing details: the leaks and the delayed notice to Congress

While this is already a comprehensive story (though its telling of October 7 omits key details), there are two parts that seem critical that are missing: the flood of leaks from FBI and the decision to delay notifying the Gang of Four of the CI investigation.

This week, CNN reported that the FBI was “clarifying” an earlier policy fostering more contact between FBI employees with the media in response to leaks about the Trump campaign. (Click through to read about the TV series coming out focusing on FBI heroism that the FBI exercised editorial control over!!!)

The FBI is overhauling its media policy, restricting contacts between the news media and its employees amid controversy over alleged leaks, bureau officials told CNN.

The new media policy was rolled out this week at a conference in Washington attended by FBI special agents in charge of its 56 field offices, according to officials who attended.
Media access to top officials at the FBI became more common in recent years under FBI Director James Comey, part of a transparency effort he said was aiming at demystifying the FBI and helping the public understand its mission. But the new policy appears to curtail that access.
An official familiar with the development of the new policy described it as largely a “clarification” intended to reinforce existing rules on who is authorized to talk to reporters, not a step back from Comey’s transparency initiatives.

Not only should this policy have been put in place before people leaked details of FISA orders, but it should have been put in place in early 2016, when it was clear FBI Agents were leaking details of the Hillary investigation to try to force their supervisors to expand its scope to include the Clinton Foundation.

Instead, the possibility that FBI Agents would leak was one of the reasons why Comey did what he did. The correct thing, instead of making unprecedented public statements as he did, would have been to shut down the leaking.

Additionally, according to Comey’s testimony, FBI actually delayed notifying at least the heads of the Intelligence Committees  until fairly recently. The NYT acknowledges that this detail was hidden. But I’d love to understand how this departure from normal briefing affected all the other decisions (particularly in light of the the Brennan meeting).

In any case, read the whole thing. It’s very frustrating. But it also lays out a series of things that Comey — and other Obama officials — should have done differently.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

Last Fall’s Efforts against Russia: Influence versus Tamper

NYT has a story — citing “former government officials” and eventually citing Harry Reid — that’s attracting a lot of attention. It explains the CIA had evidence in August that Russia was affirmatively trying to elect Trump, rather than just hurt Hillary.

In an Aug. 25 briefing for Harry Reid, then the top Democrat in the Senate, Mr. Brennan indicated that Russia’s hackings appeared aimed at helping Mr. Trump win the November election, according to two former officials with knowledge of the briefing.

The officials said Mr. Brennan also indicated that unnamed advisers to Mr. Trump might be working with the Russians to interfere in the election. The F.B.I. and two congressional committees are now investigating that claim, focusing on possible communications and financial dealings between Russian affiliates and a handful of former advisers to Mr. Trump. So far, no proof of collusion has emerged publicly.

[snip]

In the August briefing for Mr. Reid, the two former officials said, Mr. Brennan indicated that the C.I.A., focused on foreign intelligence, was limited in its legal ability to investigate possible connections to Mr. Trump. The officials said Mr. Brennan told Mr. Reid that the F.B.I., in charge of domestic intelligence, would have to lead the way.

Given Jim Comey’s description of the FBI assessment Russia wanted to elect Trump — which he described as an “enemy of my enemy” approach, rooting against the Pats at all times because he’s a Giants fan — and given the NSA’s continued moderate confidence in this claim, I don’t make too much of the CIA claim. Furthermore, given Roger Stone’s public exchanges with Guccifer 2 in the weeks leading up to this briefing (and CIA’s purported prohibition on involvement in domestic affairs), I also don’t put too much stock in CIA’s evidence of Russian coordination. In precisely this period, after all, Brennan continued to publicly brief that Putin was out of his depth, which seemed then and seems even more now to underestimate Putin’s ability to play the United States.

The line about Brennan saying FBI would have to investigate the ties between Trump and Putin also reminds me of the recent complaint, laundered through BBC’s Paul Wood, that FBI is fucking up the investigation and CIA should take the lead.

The rest of the article includes partisan details that have attracted a lot of attention but that — in light of this Lisa Monaco interview — seem to miss some distinction. The NYT describes a conflict between a bipartisan statement about the integrity of the election and a more assertive statement implicating Russia with influencing the outcome of the election.

In the briefings, the C.I.A. said there was intelligence indicating not only that the Russians were trying to get Mr. Trump elected but that they had gained computer access to multiple state and local election boards in the United States since 2014, officials said.

Although the breached systems were not involved in actual vote-tallying operations, Obama administration officials proposed that the eight senior lawmakers write a letter to state election officials warning them of the possible threat posed by Russian hacking, officials said.

But Senator Mitch McConnell of Kentucky, the Republican majority leader, resisted, questioning the underpinnings of the intelligence, according to officials with knowledge of the discussions. Mr. McConnell ultimately agreed to a softer version of the letter, which did not mention the Russians but warned of unnamed “malefactors” who might seek to disrupt the elections through online intrusion. The letter, dated Sept. 28, was signed by Mr. McConnell, Mr. Reid, Speaker Paul D. Ryan and Representative Nancy Pelosi, the ranking Democrat.

On Sept. 22, two other members of the Gang of Eight — Senator Dianne Feinstein and Representative Adam B. Schiff, both of California and the ranking Democrats on the Senate and House intelligence committees — released their own statement about the Russian interference that did not mention Mr. Trump or his campaign by name.

Here’s the full statement from Feinstein and Schiff:

Based on briefings we have received, we have concluded that the Russian intelligence agencies are making a serious and concerted effort to influence the U.S. election.

At the least, this effort is intended to sow doubt about the security of our election and may well be intended to influence the outcomes of the election—we can see no other rationale for the behavior of the Russians.

We believe that orders for the Russian intelligence agencies to conduct such actions could come only from very senior levels of the Russian government.

We call on President Putin to immediately order a halt to this activity. Americans will not stand for any foreign government trying to influence our election. We hope all Americans will stand together and reject the Russian effort.

Note the difference in emphasis: the letter from Congressional leaders emphasizes voting apparatus. Also note (and I suspect this is far more important than any report has yet made out) the letter Mitch McConnell was willing to sign states clearly that voting systems are not being designated critical infrastructure (which Jeh Johnson tried to do in early January, to much resistance from the states).

We urge the states to take full advantage of the robust public and private sector resources available to them to ensure that their network is secure from attack. In addition, the Department of Homeland Security stands ready to provide cybersecurity assistance to those states that choose to request it. Such assistance does not entail federal regulation or binding federal directives of any kind, and we would oppose any effort by the federal government to exercise any degree of control over the states’ administration of elections by designating these systems as critical infrastructure.

In other words, the Democrats wanted this to be about Russian influence, whereas the government was primarily worried about Russia affecting the outcome of the election at the polls.

Here’s how Monaco described the effort, which she describes as largely successful.

[M]y own view on that is we did not want to do anything to do the Russians’ work for them by engaging in partisan discussion about this, which is why we were so intent upon getting bipartisan support, and ultimately, we did so from the House and Senate leadership, in trying to get the state and local governments to work with us to shore up their cybersecurity.

We made a specific effort to go to Congress, to say we want bipartisan support for state governments to take us up on our offer to shore up their cybersecurity in their election systems, because there was a tremendous amount of resistance. This is an election year, I think there was a view that we—if we came to state and municipal governments and said, “We want to help you shore up your cybersecurity for your election system,” they viewed it as a big federal takeover.

We really needed bipartisan support for the efforts we were making, largely out of the Department of Homeland Security. Ultimately, that turned out to be a smart way of doing business, and we ended up having 48 of 50 states take us up on our offer, but we needed bipartisan support to do it. Ultimately, that turned out to be a smart way of doing business, and we ended up having 48 of 50 states take us up on our offer, but we needed bipartisan support to do it.

For Monaco, the effort was entirely about convincing states to accept help from DHS to ensure the machines counting the vote would not be compromised in a way that would affect the vote, not about the theft of emails from the DNC.

Incidentally, one of the two states that refused DHS help was Georgia, which of course is conducting an election to replace Tom Price as we speak, and which accused DHS of trying to hack its systems in the weeks after the election.

Two more comments on this. First, Mitch McConnell appears to have been in the right on this. Public discussion of the probes at the time noted that such hacks had happened in the past and generally sought credentials, not voting information. DHS released a warning on the polling probes on September 20, a week before the Leaders’ statement was released, and it still discussed the probes in terms of stealing PII.

(U//FOUO) DHS has no indication that adversaries or criminals are planning cyber operations against US election infrastructure that would change the outcome of the coming US election. Multiple checks and redundancies in US election infrastructure—including diversity of systems, non-Internet connected voting machines, pre-election testing, and processes for media, campaign, and election officials to check, audit, and validate results—make it likely that cyber manipulation of US election systems intended to change the outcome of a national election would be detected.

(U//FOUO) We judge cybercriminals and criminal hackers are likely to continue to target personally identifiable information (PII), such as that available in voter registration databases. We have no indication, however, that criminals are planning theft of voter information to disrupt or alter US computer-enabled election infrastructure.

And the October 7 joint DHS/ODNI statement –released after the Leaders’ statement — still stopped short of blaming Russia for those probes.

Some states have also recently seen scanning and probing of their election-related systems, which in most cases originated from servers operated by a Russian company. However, we are not now in a position to attribute this activity to the Russian Government.

In other words, McConnell’s resistance to blaming Russia in that September 28 letter was completely consistent with the public intelligence at the time.

Finally, now how the role of Richard Burr and Devin Nunes always gets glossed over in these descriptions? I get that people want to blame Mitch for refusing to take a tougher line. But what were Trump’s campaign surrogates doing at the time?

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

Raw Versus Cooked: Could NSC Monitor FBI’s Investigation?

Multiple people,including Bart Gellman and Josh Marshall, are now arguing that the reason Ezra Cohen-Watnick and Michael Ellis found intercepts involving Trump’s people is that they were monitoring FBI’s investigation of the investigation.

I certainly think the Trump people would like to do that — and would be willing to stoop to that. I even believe that the response to the Russian hack last year had some counterintelligence problems, though probably not on the FBI side.

But there are some details that may limit how much the NSC can monitor the investigation.

First, Devin Nunes has always been very clear: the intercepts he was shown have nothing to do with Russia. That’s not, itself, determinative. After all, Cohen-Watnick and Ellis might have found a bunch of Russian intercepts, but only shared the non-Russian ones so Nunes could make a stink without being accused of endangering the investigation. Also, it’s possible that intercepts involving other countries — most notably Turkey, but there are other countries that might be even more interesting, including Ukraine or Syria — would impact any Russian investigation.

Also note that among the many things Nunes appears not to understand about surveillance is that there are two ways an American’s name can be visible outside the circle of analysts doing the initial review of them: their names can be put into finished intelligence reports that get circulated more broadly, with customers asking to have the name unmasked after the fact. Alternately, their names can be found off of subsequent searches of raw data. At the NSA and CIA, searches for US person content are somewhat controlled. At FBI they are not only not controlled, but they are routine even for criminal investigations. So if, say, General Flynn (or Paul Manafort) were under investigation for failing to register as a foreign agent, the FBI would routinely search their database of raw FISA material on his name. (These are the “back door searches” Ron Wyden has been screaming about for years, concerns which people like Devin Nunes have previously dismissed on national security grounds.) And we have every reason to believe that counterintelligence intercepts of Russians in the US are among the raw feeds that the FBI gets. So if Flynn had conversations with Russians (or Turks) in the US, we should assume that FBI saw them as a routine matter if Flynn became the subject of an investigation at all. We should also assume that the FBI did a search on every Sergey Kislyak intercept in their possession, so they will have read everything that got picked up, including all recorded calls with Trump aides.

On March 15, the House Intelligence Committee asked the NSA, CIA, and FBI for information on unmasking. I don’t believe that request asked about access to US person names on subsequent searches or raw material. Furthermore, at least as of last week, the FBI was not rushing to comply with that request. As I noted after the Jim Comey hearing before HPSCI, none of the Republicans concerned about these issues seemed to have any basic clue about FBI’s searches on raw data. If Nunes doesn’t know (and he appears not to), it’s unlikely Ellis knows, who was until this month Nunes’ aide.

But there’s one other thing that may prevent NSC from obtaining information about the investigation: FBI sometimes uses what are called “ad hoc databases” that include raw FISA data (and probably, post EO 12333 sharing rule changes, raw EO 12333 data) tied to particular investigations. It’s unclear what conditions might necessitate the use of an ad hoc database (see page 25ff for a discussion of them), but if security concerns would encourage their use, it would be likely to have one here, an investigation which Comey described as being so sensitive he delayed briefing the Gang of Four. Ad hoc databases are restricted to those working on investigations, and include specific records of those authorized to access the database. So if FBI were using an ad hoc database for this investigation, it would be even harder for the NSC to learn what they were looking at.

If the FBI’s investigation relies on raw intelligence — and it would be unfathomable that it does not, because it would probably receive the raw FISA data tied to such an investigation routinely, and EO 12333 sharing rules specifically envision the sharing of raw data associated with counterintelligence investigations — then the NSC’s access to finished intelligence reports would provide little insight into the investigation (Nunes was a bit unclear on whether that’s what he was looking at, but the entire premise of his complaints is that these were finished reports).

But while we’re worrying about whether and how Trump would monitor an investigation into his aides, remember that in 2002, Jay Bybee wrote a memo authorizing the sharing of grand jury information with the President and his close advisors including for counterintelligence investigations.

In addition, the Patriot Act recently amended 6(e) and Title III specifically to provide that matters involving foreign intelligence or counterintelligence or foreign intelligence information may be disclosed by any attorney for the government (and in the case of Title III, also by an investigative or law enforcement officer) to certain federal officials in order to assist those officials in carrying out their duties. Federal officials who are included within these provisions may include, for example, the President, attorneys within the White House Counsel’s Office, the President’s Chief of Staff, the National Security Advisor, and officials within the Central Intelligence Agency and the Department of Defense.

[snip]

Although the new provision in Rule 6(e) permitting disclosure also requires that any disclosures be reported to the district court responsible for supervising the grand jury, we conclude that disclosures made to the President fall outside the scope of the reporting requirement contained in that amendment, as do related subsequent disclosures made to other officials on the President’s behalf.

In other words, Trump could demand that he — or his National Security Advisor! — get information on any grand jury investigations, including those covering counterintelligence cases. And no judge would be given notice of that.

With Jeff Sessions’ recusal, that’s far less likely to happen than it might have been. But understand that the Executive Branch believes that the President can learn about the happenings in grand jury investigations of the sort that might target his aides.

Update: additional details have been added to this post after it was first posted.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

Did Trump Just Confirm He Hid Sally Yates’ Warning from Mike Pence?

The WaPo has another big story, this one reporting that the Trump Administration attempted to prevent Sally Yates from testifying about her warnings to the Trump Administration that Mike Flynn had had conversations about sanctions with Russian Ambassador Sergey Kislyak.

Scott Schools, another Justice Department official, replied in a letter the following day, saying the conversations with the White House “are likely covered by the presidential communications privilege and possibly the deliberative process privilege. The president owns those privileges. Therefore, to the extent Ms. Yates needs consent to disclose the details of those communications to [the intelligence panel], she needs to consult with the White House. She need not obtain separate consent from the department.’’

Yates’s attorney then sent a letter Friday to McGahn, the White House lawyer, saying that any claim of privilege “has been waived as a result of the multiple public comments of current senior White House officials describing the January 2017 communications. Nevertheless, I am advising the White House of Ms. Yates’ intention to provide information.’’

That same day, Nunes, the panel’s chairman, said he would not go forward with the public hearing that was to feature Yates’s testimony.

In response to the story, Adam Schiff suggested Yates might have testified about why Trump waited before firing Flynn.

[W]e would urge that the open hearing be rescheduled without further delay and that Ms. Yates be permitted to testify freely and openly so that the public may understand, among other matters, when the President was informed that his national security advisor had misled the Vice President and through him, the country, and why the President waited as long as he did to fire Mr. Flynn.

According to the WaPo, Yates informed Don McGahn that Flynn was lying about his calls, making him susceptible to blackmail, on January 26. She was fired on January 31. Flynn tried to lie about the conversation again on February 8. Then, as the WaPo was reporting this story, he altered his story. Nevertheless, it wasn’t until the WaPo reported on Yates’ warning, on February 13, that Trump forced Flynn to resign.

Two days after Yates’ warning, January 28, Trump spent an hour on the phone with Vladimir Putin, with Flynn (and Pence) in attendance.

So one of the things that Trump enabled by stalling on his response to Sally Yates was that phone call.

In any case, the claim that Yates’ conversations with McGahn should be covered by Executive Privilege is a stretch. Just by way of precedent, in 2007, Jim Comey testified about his conversations with White House Counsel Alberto Gonzales while serving as Acting Attorney General.

That is, Yates’ conversation should not be covered by Executive Privilege unless Trump is claiming he was involved in hiding this information from Mike Pence.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

FBI Is Examining Possible Coordination with Russia, Not Collusion

Jim Comey’s statement confirming an investigation including the Trump campaign on Monday said the following:

I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election, and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts. As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed. [my emphasis]

In spite of that careful, pre-approved word choice, “coordination,” members of Congress in the hearing, as well as the press both before and after the hearing, have used the term “collusion.”

But Comey made it clear much later in the hearing that the term coordination was deliberate. Mike Quigley asked for more details about how the FBI might find collusion with a foreign power. Comey corrected him, stating that he was investigating whether there had been coordination.

Collusion is not a legal term. It is not one I have used today. I said we are investigating to see if there is any coordination between people associated with the campaign–

I think — though the lawyers should correct me if I’m wrong — this suggests the FBI is thinking in terms of conspiracy.

That, along with Comey’s focus on knowing coordination, may put things like Roger Stone’s interactions in the limelight — though the case that Guccifer 2.0 is a Russian cut-out is and always has been one of the weakest parts of the public case against Russia, and even top intelligence community people stop short of calling Wikileaks a Russian cut-out (meaning Stone would be able to deny knowingly working with Russians).

It does, however, put the events surrounding the release of Podesta’s emails on October 7 in interesting light, though the lefty case on that is neither the best case for that period, nor does it account for all the details that would be of interest.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

FBI Delayed Telling the Gang of Four about Trump-Related Investigation Because It Is So Serious

As every newspaper in town has reported, at today’s hearing into Russia’s hack of the DNC, Jim Comey confirmed that the FBI has a counterintelligence investigation into the hack that includes whether Trump’s associates coordinated with Russian actors. Along the way, Comey refused to join in James Clapper’s statement that there was no evidence of collusion between Trump’s aides and Russia. When the now retired Director of National Intelligence said that, Clapper had emphasized that his statement only extended through the end of his service, January 20; he warned that some evidence may have been discovered after that.

A far more telling detail came close to the end of the hearing, during NY Congresswoman Elise Stefanik’s questioning. She started by asking what typical protocols were for informing the DNI, the White House, and senior Congressional leadership about counterintelligence investigations.

Stefanik: My first set of questions are directed at Director Comey. Broadly, when the FBI has any open counterintelligence investigation, what are the typical protocols or procedures for notifying the DNI, the White House, and senior congressional leadership?

Comey: There is a practice of a quarterly briefing on sensitive cases to the Chair and Ranking of the House and Senate Intelligence Committees. The reason I hesitate is, thanks to feedback we’ve gotten, we’re trying to make it better. And that involves a briefing briefing the Department of Justice, I believe the DNI, and the — some portion of the National Security Council at the White House. We brief them before Congress is briefed.

Stefanik: So it’s quarterly for all three, then, senior congressional leadership, the White House, and the DNI?

Comey: I think that’s right. Now that’s by practice, not by rule or by written policy. Which is why, thanks to the Chair and Ranking giving us feedback, we’re trying to tweak it in certain ways.

Note that point: the practice has been that FBI won’t brief the Gang of Four until after they’ve briefed DOJ, the DNI, and the White House. Stefanik goes on to ask why, if FBI normally briefs CI investigations quarterly, why FBI didn’t brief the Gang of Four before the last month, at least seven months after the investigation started. Comey explains they delayed because of the sensitivity of the investigation.

Stefanik: So since in your opening statement you confirmed that there is a counterintelligence investigation currently open and you also referenced that it started in July, when did  you notify the DNI, the White House, or senior Congressional leadership?

Comey: Congressional leadership, sometime recently — they were briefed on the nature of the investigation and some details, as I said. Obviously the Department of Justice must have been aware of it all along. The DNI … I don’t know what the DNI’s knowledge of it was, because we didn’t have a DNI until Mr. Coats took office and I briefed him his first morning in office.

Stefanik: So just to drill down on this, if the open investigation began in July, and the briefing of Congressional leadership only occurred recently, why was there no notification prior to the recent — the past month.

Comey: I think our decision was it was a matter of such sensitivity that we wouldn’t include it in the quarterly briefings.

Stefanik: So when you state “our decision,” is that your decision, is it usually your decision what gets briefed in those quarterly updates?

Comey: No. It’s usually the decision of the head of our counterintelligence division.

Stefanik: And just again, to get the details on the record, why was the decision not to brief senior congressional leadership until recently, when the investigation had been open since July, a very serious investigation. Why was that decision made to wait months?

Comey: Because of the sensitivity of the matter.

Stefanik then got Comey to reconfirm what the IC report says: that Russia had hacked numerous entities, he would later say over a thousand, including Republican targets.

Stefanik then turned to the Yahoo investigation. She asked whether the FSB officers involved conducted the hack for intelligence purposes — a question Comey refused to answer. He also refused to answer what the FSB did with the information stolen.

Stefanik: Taking a further step back of what’s been in the news recently and I’m referring to the Yahoo hack, the Yahoo data breach, last week the Department of Justice announced it was charging hackers with ties to the FSB in the 2014 data breach. Was this hack done, to your knowledge, for intelligence purposes?

Comey: I can’t say in this forum.

Stefanik: Press reporting indicates the Yahoo hack targeted journalists, dissidents and government officials. Do you know what the FSB did with the information they obtained?

Comey: Same answer.

Stefanik: Okay, I understand that.

This is important for a number of reasons, including the evidence that the FSB was hiding their hacking from others in Russia.

Stefanik then turned to the sanctions, asking if Comey had any insight into how the Obama Administration chose who got sanctioned in December — which included Alexsey Belan but not the FSB officers involved (one of whom, Dmitry Dokuchaev, was already under arrest for treason by the time of the sanctions).

Stefanik: How did the Administration determine who to sanction as part of the election hacking? How familiar are [] with that decision process and how is that determination made?

Comey: I don’t know. I’m not familiar with the decision-making process. The FBI is a factual input but I don’t recall — I don’t have any personal knowledge about how the decisions were made about who to sanction.

Again, her interest in this is significant — I’ll explain why in a follow-up.

Stefanik then asked what the intelligence agencies would do going forward to keep entities safe from Russian hacking. As part of the response, Mike Rogers revealed (unsurprisingly) that NSA first learned of FSB’s hacking of those many targets in the summer of 2015.

Finally, Stefanik returned to her original point, when Congress gets briefed on CI investigations. Comey’s response was remarkable.

Stefanik: It seems to me, in my first line of questioning, the more serious a counterintelligence investigation is, that would seem to trigger the need to update not just the White House, the DNI, but also senior congressional leadership. And you stated it was due to the severity. I think moving forward, it seems the most severe and serious investigations should be notified to senior congressional leadership. And with that thanks for your lenience, Mr. Chairman, I yield back.

Comey could have been done with Stefanik yielding back. But instead, he interrupted, and suggested part of the delay had to do with the practice of briefing within the Executive Branch NSC before briefing Congress.

Comey: That’s good feedback, Ms. Stefanik, the challenge for is, sometimes we want to keep it tight within the executive branch, and if we’re going to go brief congressional leaders, the practice has been then we brief inside the executive branch, and so we have to try to figure out how to navigate that in a good way.

Which seems to suggest one reason why the FBI delayed briefing the Gang of Four (presumably, this is the Gang of Eight) is because they couldn’t brief all Executive Branch people the White House, and so couldn’t brief Congress without first having briefed the White House.

Which would suggest Mike Flynn may be a very central figure in this investigation.

Update: I’ve corrected my last observation to match Comey’s testimony that the delay had to do with keeping things on a close hold within the Executive Branch. That may be nothing, it may reflect the delay on confirming Dan Coats, it may be Flynn (if you normally brief the NSC, after all the National Security Advisor would be among the first to be briefed), but it also could be Jeff Sessions.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.