November 26, 2022 / by 

 

Three Questions at the Start of an Intelligence Review

Why? Why? Why not?

There’s been a lot of focus on the narrow legal battles over the documents seized at Mar-a-Lago, but sometimes stepping back to look at the big picture helps bring the conflict into focus. As a legal matter and a political matter, Trump, his lawyers, and his apologists are trying to make the claim that this is just a dispute about documents, like overdue library books. The passion with which the DOJ went after them since receiving the referral from NARA last February, especially the ferocity of the legal arguments and filings over the last two weeks, demonstrates how wrong the DOJ believes that framing to be.

I agree with the DOJ.

The documents are not really what is being fought over — the battle is over the damage  (hypothetical or actual) done to our intelligence services, our national defense, and our broader foreign policy by Trump’s possession of these documents at Mar-a-Lago. The documents are the first puzzle pieces the intelligence community [IC] has to put together, to fill in the whole picture and plan a way forward.

To understand why, let’s parse out what an intelligence review might look like. What follows is not based on any insider sources at the DOJ, ODNI, or any other federal agencies, but on my own experience (long ago) with classified materials and the general experiences of others I know with deeper and more recent work in classified matters, as well as analyzing other cases where classified materials were stolen from the government and passed along to foreign governments.

An intelligence review is designed to look at three things: what got exposed, to whom, and what dangers does that pose to intelligence sources, methods, and broader foreign policy objectives? These are all backwards-looking questions, to understand how this could have happened in the first place. They also serve as the starting point for forward-looking actions, as we and our allies pivot our overt and covert foreign policy approaches in a new context. Think of Klaus Fuchs, a German-born British scientist who passed US and British nuclear secrets to the USSR in the 1940s. A backwards looking intelligence review ultimately identified him as the spy and spotted the flaws in our security procedures, and a forward looking review pivoted the US and British policy toward a world with nuclear powers who opposed each other.

In the current case, the IC review begins with three interrelated questions:

  1. Why did Trump take government documents to Mar-a-Lago in the first place?
  2. Why these documents?
  3. Why not those other documents?

The second and third questions begin to move toward an answer to the first question, so let’s start there. Broadly speaking, I see five possible answers, each of which poses different dangers.

1: Vanity

If this is the answer to that first question, we would expect to find that Trump took documents that made him look good, that pointed to actions that he believed he could claim credit for, or that simply let him feel powerful because he knows stuff very few others know. Think of these as Extreme Presidential Souvenirs. These would be documents that shout to the world, “Look at how great Trump is . . .”

Danger: Simply having documents like this in his possession would likely not be enough for Trump’s ego. Trump’s ego would demand that he show them to others, so that they would know how great Trump is. The level and kind of danger depends on who the “others” are, and who they might have spoken to about what Trump showed them.

2: Fear

In this scenario, the IC review would see that Trump took documents that would help cover up his failures and/or possible crimes, such as a full transcript of the “Perfect Phone Call” with Zelenskyy. These would be documents that whisper in Trump’s ear, “This could get you into trouble. You better hide this . . .”

Danger: These are the documents least likely to be shared by Trump, so in that respect they are safe. On the other hand, they become prime material for blackmail if unfriendly parties realize he has them. Trump’s nightmare is getting a phone call about these documents, threatening to expose the documents to the “wrong” people. “I’d like you to do me a favor, though . . .”

3: Greed

Given Trump’s proclivity to monetize anything he can for his own personal gain, it is hard to imagine that Trump would not be looking at anything that crossed his desk to see how he might make money on it. (“Hmmm . . . I’m doing some traveling? OK, which of my properties are closest, and how much can I charge the Secret Service for staying there?”) Documents that showed him something that would let him make money would be particularly tempting to Trump. Think of this as corporate espionage, or a twisted form of insider trading. Perhaps he received knowledge of foreign government’s as yet unannounced plans to develop certain properties overseas, and figured he could jump in, buy the property first, and then get bought out for a profit. Or maybe he would buy the property next to the future development and cash in when the government project became public and went forward, driving up the value of what he purchased. Perhaps these were not projects led by foreign governments, but by US corporations acting abroad whose plans were picked up as part of a signals intelligence surveillance program aimed at less-than-friendly nations. Documents like this would be calling out to his wallet, telling him “Hey, you can really use this . . .”

Danger: Suppose Trump acts on this information in some way, and the foreign government in question starts wondering “Did Trump merely get lucky in choosing to invest right where our project was going in, or did US spies give him the information?” Questions like that might lead to the exposure of human assets (sources) and signals intelligence capabilities (methods), which in turn could lead to those sources being shut down/arrested/killed, those signals intelligence methods being countered, or either the sources or methods being turned and used to feed false information to the US.

4: Corruption

As bad as #3 is, this scenario is the IC nightmare: Trump took documents that he knows other foreign governments, perhaps some of our greatest enemies, would love to have, and then deliberately passed them along to those governments. It might be to get revenge on Biden and the Dems for beating him in 2020. It might be to sabotage the work of the current administration and cause great public political problems for the Dems, to enable his return to the White House in 2024. It might be that some foreign adversary has compromising information about Trump or holds a private loan to Trump, his family, or his Trump Organization, and that country demanded classified information from Trump in exchange for not revealing the compromising information they hold or for not calling in the loan he could not immediately repay.

Danger: Beyond the damage done to sources, methods, and US foreign policy objectives created by disclosing the classified information in these documents, this scenario is worse. It weakens our relationships with our allies and harms our position in the world, simply by indicating we can’t keep secrets and by making us weaker through whatever is revealed. Should Trump have provided classified intelligence deliberately, it only gives those folks more leverage over Trump, which they would use to push for more information and more favors. Once you’ve turned over classified information to a hostile power, those folks own you forever. “Nice resort you’ve got here. It’d be a shame if anything were to happen to it.”

And it is not beyond the realm of possibility that foreign governments might lean on Trump to use his family to further their goals. “You need to have Jared talk to his friends in the Middle East, and convince them to . . . “

5: Some/all of the above

Trump might have taken some documents to feed his ego, others to hide them, and still others to try to monetize their contents. He might have taken some for his own reasons, and others because he was pressured to do so by hostile powers. The permutations are . . . troubling.

Danger: some/all of the above.

HOW BAD IS ALL THIS? DON’T ANSWER YET . . .

On top of these five possible explanations of Trump’s motives, one other thing is absolutely certain. Documents like those that were seized by the DOJ would have been catnip for the intelligence agencies of other nations. Once word got out that Trump had taken highly classified documents out of the WH (or once folks even suspected he had done so), all manner of foreign spies no doubt became very interested in Mar-a-Lago – much more than they had been during the Trump administration itself. It’s hard as hell to get into the WH and take classified materials, or to plant electronic surveillance devices inside the WH. Mar-a-Lago, on the other hand, is a relative sieve, especially after Trump left office and the security around Trump was much more directed to protecting his person rather than protecting all the stuff around a sitting president. At Mar-a-Lago these days, you pay your membership fee, and walk right in for a grand tour. Whatever the reason Trump chose to take these documents, even if he simply wanted to hold onto them as presidential souvenirs and he does nothing with them otherwise, should foreign agents copy them or steal them from Mar-a-Lago, that’s almost as bad it as it gets for the US.

Danger: Exposing whatever classified information to the prying eyes of our adversaries not only exposes sources and methods of our intelligence services, but provides our adversaries with insight into our strengths and weaknesses, depending on what the intelligence said. It also opens Trump to blackmail, as noted above in scenarios #2 and 4. “Well look what we found at your home. It sure would be terrible if the FBI were to discover that you were so sloppy with security that we were able to waltz right in and take them.”

To sort out the likelihood of each of these scenarios and the specific dangers posed, those conducting the IC review will do a couple of things. First, the leaders of the intelligence agencies are likely going back to the original creators of these documents, to tell them they were found in unsecured locations at Mar-a-Lago, and therefore (a) the creators need to assess what the specific danger would be if this particular document were to be exposed, and (b) the creators should look around to see if they have any signs that these documents had been shared already. The former is to measure the hypothetical damage, while the latter is to assess the likelihood that this is not hypothetical. Did spies suddenly go quiet, or did the quality of their information suddenly become different? Did satellites that used to provide good, regular photos of intelligence targets begin to provide much less good intelligence? All the while, the IC reviewers know that this is likely even worse.

EVEN WORSE? HOW CAN THIS BE EVEN WORSE?

If any of this information came to the US IC through our partnerships with other friendly nations (like Five Eyes or NATO), that means going to the intelligence folks in those countries who trusted us with their secrets and telling them that their trust was misplaced, at least while Trump was in office. They are the folks who need to assess the danger that exposure of this information would create, and who would have to see if there were signs that this information had already been shared. Of course we would promise to do whatever we could to assist them in that analysis, but that’s like telling a shopkeeper that you will help sweep up the shards of all the broken crystal after your kid threw a bowling ball into the display case.

Danger: It’s bad enough if our secrets get exposed, but if we let their secrets get exposed, that’s going to make them less likely to trust us in the future. As I said before, this is why having career diplomat William Burns as head of the CIA was a stroke of genius by Biden, and why Burns and the rest of the IC is no doubt bending over backwards to help Garland get this right, and bending farther over backwards to help our allies get this fixed.

SO HOW MIGHT THIS REVIEW WORK?

This is why the analysis of what was taken and trying to determine Trump’s motive(s) is the starting place. It leads to other critical questions like these:

  • What does Trump’s selection of documents — classified and unclassified — tell us about what is going on?
  • Were the documents tucked away by Trump over a long period of time, or did they all get tucked away in a specific, relatively short time period?
  • And what else was tucked in the drawers, file folders, and boxes next to these classified documents? Are there notes or letters that appear to have been written based on the content of the classified materials?

Depending on what this initial analysis reveals, the reviewers will begin to talk to the counterintelligence people in their agencies, especially if there is some concentration of subject matters or particular time frames involved.

  • Have you noticed any unusual behavior in known foreign agents around those time frames?
  • Was there any unusual signals traffic between foreign agents here and their bosses back home?
  • Were there any new agents who arrived here, who have a particular focus to their work that meshes with the subject matters of the documents Trump took? What actions have they taken?

To dig into all this, the analysts will be looking at other information and also be in contact with the folks in the field who are managing the human sources or electronic surveillance methods, to see what insights they might have. They know that decisions will need to be made about protecting or extracting sources who might be in danger, shutting down electronic surveillance already in place (pull out/relocate bugs and cameras if possible, re-direct satellite orbits, change communications frequencies, reprogramming software, etc.), and otherwise working to replace these sources and methods in some way to avoid further exposure. They hope to restore secrecy to the people and programs, and restore quality to the intelligence that might have been harmed through exposure.

While all this covert review work is going on, the FBI will no doubt be doing an ordinary shoe-leather investigation into the folks who have been going in and out of Mar-a-Lago over the last 18 months after the security of the resort was scaled back to simply protect the former president. They will be looking at guests and staff alike, trying to see what can be learned from videos, logs of visits, work schedules, and in some cases interviews. They will be looking at the White House document handling, especially after December 18, 2020 when the head of the White House Office of the Staff Secretary resigned and no one was named to take his place — even in an acting capacity — until January 20, 2021. They will be doing deeper domestic investigations of any new foreign agents that were identifies by the IC analysts.

And then there’s the investigation that NARA is probably already trying to complete: what other documents from the Trump White House were not turned over?

This is all very time consuming and expensive. You don’t want to do this if it isn’t necessary, but you absolutely have to do it if these sources and methods are likely to have been (or actually were) blown. Only when the Why?, Why?, and Why not? questions have been answered can the forward looking work really begin in earnest.

There’s a lot more that can be inferred about what an intelligence review would contain, but one thing is certain. The panel of judges from the 11th Circuit Court of Appeals and Special Master Raymond Dearie are focused on what Judge Cannon does not want to recognize: this is not a case about misfiled documents, but a national security case in which documents hold the key to assessing the dangers posed and actual damage done to our nation, so that the current government can begin to address it.


What Family Rifts at Funerals can Teach Us About Pardoning Presidents

Exhibit A of Step Two Behavior

Watching the coverage of the death of Elizabeth II, two questions seem to be on a constant loop. The first is political: “How will Charles change the monarchy?” The second is personal: “Will the funeral heal the rift between Harry and William/Charles/the rest of the family?” The discussions that follow, between television anchors, reporters, and “royal watchers” have provided me with great amusement. “Oh look: Charles said something nice about Harry and Meghan in his first broadcast after the Queen’s death! Perhaps all is well again!!” The wishfulness of the discussion — “Surely the funeral of their beloved mother/grandmother will bring the family together, and they can heal from the past unpleasantness” — says much more about the hopes that these media folks have and much less about the reality of how a family torn apart acts as a family funeral approaches.

As a pastor for more than three decades, I’ve never done a royal funeral, but I’ve done plenty of regular funerals, including those of matriarchs who had presided over a divided family. Most of the time, what I’ve seen is that either (a) the family members manage to sit on their frustrations with one another for a week or so as the funeral goes forward, and then they return to their earlier fighting, or (b) the funeral intensifies the fighting, as they argue about the decisions made around the funeral itself. Occasionally, the funeral does help to begin a healing process, as folks who have not seen “those monsters” in years are now in the same room for the first time again, and they realize that these other folks aren’t the monsters they have seen them to be in the past. It doesn’t happen five minutes after the burial, but with a willingness to work on both sides, healing is possible. But it sure isn’t the magic “If only Harry and William can sit next to each other at the funeral, everything will be fixed!” that so many commentators are looking for.

Which brings me to the other crazy question I’ve seen popping up more and more often between anchors, reporters, and political pundits. This is the question posed by Chuck Todd that NBC chose to highlight as they tease the Meet The Press interview with VP Kamala Harris that airs in full tomorrow:

Let me try to go to 60,000 feet. What do you say to the argument that it would be too divisive to the country to prosecute a former president?

Earth to Chuck Todd, and anyone else who asks this question: the country *is* deeply divided already.

Giving Trump a pass to “avoid division” is like that scenario (a) at the family funeral, except you are betting that everyone can sit on their frustrations not for a week but forever. Turning the question around — “Would it be too divisive to the country to give a former president a pass for illegal behavior?” — ought to make it clear how silly both questions are.

Step One in dealing with divisions — either at a family funeral or in national politics — is admitting your family/nation is already divided.

As an interim pastor, I work with congregations whose previous pastor has left. Maybe that pastor retired, died, took a new call elsewhere, or was run out of town on a rail. One of the things I often have to help the congregation deal with is conflict, either between the old pastor and the members, or between the members themselves. Whenever I hear “Yes, we had divisions, but now that the old pastor is gone, everything is just fine now” I have to figure out how get them to pull their heads out of the sand. “What’s going to happen when you disagree with your next pastor?” I ask them, knowing that for the immediate future, I am that next pastor. “What do you have to say to the folks around here who loved that old pastor and blame you for running that pastor off?”

Within the House of Windsor, simply coming up with the right seating chart at the funeral for Elizabeth will not wash away the pain that led the Duke and Duchess of Sussex to withdraw from royal duties and decamp to the US. Similarly, pardoning Trump, either by choosing not to prosecute or by an act of President Biden, will not heal the nation either.

What *will* help both the House of Windsor and the United States is to admit that divisions already exist.

Step Two in dealing with divisions, then, is to explore that divided reality. What, specifically, does that painful divided reality look like? What are the presenting issues, that anyone can see at the surface? What are the underlying issues, that lie deeper down, at the heart of the trouble? What are the triggers, that bring all that buried pain out into the open again? How is everyone being hurt by these divisions?

Looking at all that is not easy. It requires a willingness to dig into a painful past, to admit to past bad behavior (your own as well as that of others), and to accept just how bad things have gotten for everyone involved. Until you do that, all you are doing is papering over division and pretending things aren’t that bad.

In the US, the arguments about race and the causes of the Civil War are a perfect illustration of this. So long as a non-trivial part of the country denies that the Civil War was about slavery (“it was the war of Northern Aggression, fought over state’s rights”), our country will never be able to fully deal with how race continues to divide our country today. If you don’t think racism divides our country today, please go back to step one and try again.

Only when the divided congregation or family or nation has done the hard work of examining its own ugly past are they ready to move to Step Three.

Step Three is to look at what you’d like the future to be. What would a healthy House of Windsor look like? How would members treat one another, in ways that are different than what caused the fractures in the past? What would a healthy United States of America look like? How would those with different political views treat one another, in ways that are different from what caused the fractures in the past?

Step Four, then, is to figure out how to get to that future. That’s a conversation about rules, roles, and responsibilities, with unstated assumptions put out in the open and mixed expectations clarified. It’s about crafting behavior that rebuild trust, dignity, and belonging for everyone involved.

The big lesson in all of this is that THERE IS NO SHORTCUT.

You can’t just jump to step four, without doing all the work of the other three steps. You can try, but you’re just sticking your fingers in your ears and singing “La la la – I can’t hear you.” You don’t need to take my word for this. Just look at the House of Windsor.

When the Duke and Duchess of Sussex announced they were leaving their royal roles behind, that was Step One behavior. “Our family is painfully divided.” No more smiling masks, no more pretending all is well, and no more trying to ignore the pain.

When they sat down for their interview with Oprah, that was Step Two behavior. “Here’s what happened, at least from our point of view.”

Ever since then, the royal family had various private conversations to sort things out further, including such things as whether Harry and Meghan would be part of the Platinum Jubilee celebration last summer. (The answers at that time were that they were included in small family gatherings, but not the big public ones.) Now they are having similar conversations around the Queen’s funeral and the coming coronation ceremony that will follow in a few months. This is all Step Three and Step Four behavior.

To the extent that things are getting better for the House of Windsor, it’s because they’ve been working hard at Steps One through Three, not that they simply came together magically at a funeral and jumped to Step Four.

The US political press and political actors could learn a lot from the House of Windsor. Those who worry about prosecuting a past president need to recognize that this doesn’t cause division, but is a step along the way to healing – part of the hard work of Step Two that explores the divided reality in all its painful, ugly depth. The work of the January 6 Committee in the House of Representatives is Step Two behavior, and so is the work of the DOJ to investigate possible criminal behavior of the former president and his minions.

Until we as a nation are willing to honestly look at our ugly reality, we will never heal.

 


The Redacted Mar-a-Lago Affidavit DOJ Should Submit

As you may know, DOJ is ordered by Magistrate Judge Bruce Reinhart to submit a “suggested” redacted version of the warrant affidavit for the Mar-a-Lago search executed on August 8, 2022.

The federal magistrate judge who authorized the warrant to search Donald Trump’s Mar-a-Lago estate emphasized Monday that he “carefully reviewed” the FBI’s sworn evidence before signing off and considers the facts contained in an accompanying affidavit to be “reliable.”

Magistrate Judge Bruce Reinhart offered his assessment in a 13-page order memorializing his decision to consider whether to unseal portions of the affidavit, which describe the evidence the bureau relied on to justify the search of the former president’s home.

“I was — and am — satisfied that the facts sworn by the affiant are reliable,” Reinhart said in the order.

Reinhart ruled last week that he would consider unsealing portions of the affidavit after conferring with the Justice Department and determining whether proposed redactions would be sufficient to protect the ongoing criminal investigation connected to the search. But in his order, Reinhart emphasized that he may ultimately agree with prosecutors that any redactions would be so extensive that they would render the document useless.

The last sentence of that quote is the key. Unless DOJ is going to capitulate to the clicks and reads voyeurism of the overly exuberant political press, nothing whatsoever should be released unless and until charges are filed against some defendant, whether it be Trump or otherwise. Why? Because that it how it is done, and properly so.

Reinhart has received abuse and threats. Is his willingness to even entertain a “redacted version” sound under such threat? His decision will yield the answer to that question.

In the meantime, I have a proposed example of what DOJ should submit to Reinhart. Yes, this example is from CAND, not SDFL, but it is exactly what ought be handed over to Reinhart. And if Reinhart grants any “redacted version”, DOJ should appeal immediately and fully. Leave the affidavit sealed. The voyeuristic public, and press, thinks they have an interest because Trump. But they really do not. Do it the right and normal way.


Merrick Garland Preaches to an Overseas Audience

Alexander Vindman thanks Attorney General Garland

When Merrick Garland gave his brief press statement yesterday about the search of Mar-a-Lago, he had various audiences in mind. One was Donald Trump and his defenders, calling their bluff by announcing that the DOJ was moving to unseal the search warrant and list of items seized. Another was his own DOJ employees, to let them know that he had their backs and would support them when the rightwing attacked them. But as I listened to him, I thought that perhaps the most critical audience were the leaders of nations all around the globe — and especially the heads of their intelligence services. When hours later the story broke that some of the documents the DOJ were seeking were nuclear related, I dropped the mental “perhaps”. To build on one of Marcy’s previous posts, let me add that this is a huge foreign policy story, which is largely missing from the current discussion in the media.

Think back to the beginning of the Trump administration. On May 15, 2017, a disturbing story hit the news:

President Donald Trump disclosed highly classified information to Russia’s foreign minister about a planned Islamic State operation, two U.S. officials said on Monday, plunging the White House into another controversy just months into Trump’s short tenure in office.

The intelligence . . . was supplied by a U.S. ally in the fight against the militant group, both officials with knowledge of the situation said.

H.R. McMaster categorically denied it, and as the story unfolded over time, McMaster was lying through his teeth. The unnamed ally was later revealed to be Israel, who had a mole inside an ISIS cell. And Trump blithely blew the cover of that Israeli asset by bragging to Lavrov.

Shortly after this meeting (at which Trump also bragged about just having fired James Comey), US intelligence officials made a bold move. From CNN:

In a previously undisclosed secret mission in 2017, the United States successfully extracted from Russia one of its highest-level covert sources inside the Russian government, multiple Trump administration officials with direct knowledge told CNN.

A person directly involved in the discussions said that the removal of the Russian was driven, in part, by concerns that President Donald Trump and his administration repeatedly mishandled classified intelligence and could contribute to exposing the covert source as a spy.

The decision to carry out the extraction occurred soon after a May 2017 meeting in the Oval Office in which Trump discussed highly classified intelligence with Russian Foreign Minister Sergey Lavrov and then-Russian Ambassador to the US Sergey Kislyak. The intelligence, concerning ISIS in Syria, had been provided by Israel.

This was the opening act of the Trump presidency. From the very beginning, intelligence officers worried about how Trump handled classified information. Our intelligence officers worried, and so did the intelligence officers of our allies, as they asked themselves some version of the question “Will Trump say something or do something that will get us killed?” In a completely different way, so did the intelligence officers of our adversaries. If Trump were to rashly reveal something he learned about the capabilities of our adversaries, it could have disastrous consequences for those countries and their leaders, as the reaction to the revelation could easily spiral out of control in unforeseeable ways.

And the damage was done.

A lot of the work of intelligence services is, if not cooperative, then transactional. “I have some information you would like,” says an ally to us, “and we’ll pass it along to you in exchange for something we need.” That favor might be us passing information back to them on another subject, or supporting some foreign policy objective. That favor might be immediate, or something later. Among the Five Eyes nations (US, UK, Australia, New Zealand, and Canada) and the major NATO allies, that relationship was formalized into regular practice.

But now, with Trump’s first foray into intelligence matters, all these countries worried about passing things along that under previous administration they never would have hesitated to share. With good reason.

Fast forward four years, past all the bizarre meetings with Russia where notes were not taken, past the stunning press conference in Helsinki where Trump declared he trusted Putin’s word over the word of his own intelligence services, past all the coddling of authoritarians, past all the threats to withdraw from NATO, past all the insults to our allies around the world . . . Fast forward past all of that, and there came November 2020. On the Sunday after the election, when Biden was declared the president-elect and foreign leaders began to offer their congratulations, the New York Times discussed the deeper reactions of European leaders to Biden’s election:

David O’Sullivan, former European Union ambassador to the United States, said he looked forward to a renewal of American leadership — if not the hegemony of the past, then at least “America’s role as the convening nation” for multilateral initiatives and institutions.

But the world has changed, and so has the United States, where the Biden victory was relatively narrow and not an obvious repudiation of Mr. Trump’s policies. A fundamental trust has been broken, and many European diplomats and experts believe that U.S. foreign policy is no longer bipartisan, so is no longer reliable.

Biden, with his decades of experience with foreign policy, knew this was true, which meant that two of his most critical appointments would be his Secretary of State and his CIA Director. For State, he chose Anthony Blinken, who had served in the State Department under President Clinton and on the White House national security staff in both the Clinton and Obama administrations, and for CIA he chose William Burns.

Burns was not a product of the intelligence community. He was a career State Department diplomat, but not just any diplomat. From 2001 to 2005, as the US reacted to the attacks on 9/11, Burns was the Assistant Secretary of State for Near Eastern Affairs — that is, the Middle East. From 2005 until 2008, as Vladimir Putin tightened his hold of the office of President of Russia following the chaos of the Yeltsin era, Burns was the US Ambassador to Russia. From 2008 to 2011, Burns held the position of Undersecretary of State for Political Affairs – the #4 position at State and the highest office reserved for a career foreign service officer. By the end of his 32 year tenure, he held the rank of Career Ambassador – the State Department’s equivalent to a four-star general.

Beyond running the CIA, the new director had to rebuild all those broken international relationships and restore that “fundamental trust” between the US and the world. That’s what made Burns such a great choice.

When the National Archives discovered classified information had not been turned over when Trump left office, they brought the news to the DOJ. I have this vision of Garland swallowing hard, and then arranging a meeting with Burns, DNI Victoria Nuland Avril Haines [corrected], and the other US intelligence agency heads to let them know what Trump had done. I can see the shock on their faces, followed by the “of course he did” sighs of resignation. Then the wheels start turning as each tries to figure out how this affects their agency.

But I also imagine Burns, either in the meeting or in a private conversation, telling Garland one thing: “I have no doubts about your department and your passion for justice. If there is anything I can do to assist, just let me know. I won’t press you to share things with me that you shouldn’t share — you do your job and I’ll do mine. But there’s one thing you need to know. You may already know it, but let me reinforce it. The. Whole. World. Is. Watching. Our allies are just beginning to trust us again, and how you handle this will determine whether that continues or is blown to bits. From a foreign policy perspective, especially on the intelligence side, we *have* to get this right.” That’s total fantasy on my part, but I’m reasonably confident that something like that was communicated, one way or another.

Two days ago, when the search was first revealed, Garry Kasparov tweeted, “For those who live where the law exists only to serve the powerful and oppress the rest–as I did in the USSR and Putin’s Russia–the dictum that no one is above the law is nearly awe-inspiring.”

The American legal community is watching this all unfold very carefully, with an eye toward all the minutia of the various legal questions at issue. The US political folks on every side are watching this carefully, with an eye toward the midterms and 2024. US media organizations are watching this carefully, trying to figure out how to cover the story. Ordinary Americans are watching this carefully, for all kinds of reasons.

And beyond our borders, the whole world is watching, as that Kasparov tweet indicates. It shows that Garland is reaching that worldwide audience, even before the word “nuclear” became part of the story.

In his long-ago testimony before Congress about that “perfect phone call,” Alexander Vindman captured in three words the essence of US foreign policy, and he repeated them as a hashtag in that tweet above. In the actions of the DOJ this past week, Garland is giving Vindman a big “Amen.”

Russia, if you’re listening, listen to Vindman. #HereRightMatters indeed.

I know we’ve got a fair chunk of readers outside the US, and I’d love to hear in the comments what you all are seeing in the coverage your countries.

 


Three Things: Let’s Give Them Something to Talk About

[NB: check the byline, thanks. /~Rayne]

Before I go any further, I’m going to point to one of Marcy’s past posts:

What DOJ Was Doing While You Were Wasting Time Whinging on Twitter July 16, 2022

Whinger Verbs: To Investigate … To Prosecute … To Indict March 26, 2022

The Eight Trump Associates Whom DOJ Is Investigating February 8, 2022

While TV Lawyers Wailed Impotently, DOJ Was Acquiring the Communications of Sidney Powell, Rudy Giuliani, and (Probably) Mark Meadows February 2, 2022

Merrick Garland Points Out that Misdemeanors Are Easy January 5, 2022

Ten Things TV Lawyers Can Do Rather than Whinging about Merrick Garland December 3, 2021

Oops, that’s more than one post. Yeah. All that for the last eight months at least, with receipts along the way.

~ 3 ~

On Monday July 25, the Murdochian Wall Street Journal dumped:


DOJ has been one degree of separation and less from Trump in its investigation, but unsurprisingly so to those paying attention.

What may be more interesting is that it was the Wall Street Journal. Are the Murdochs and News Corp finally throwing in the towel on Trump?

~ 2 ~

Just before 7:00 pm ET last evening, the Washington Post published this piece confirming the DOJ was investigating Trump:

Shocking, SHOCKING, I tell you. Not.

~ 1 ~

In a bid for relevancy, the New York Times dropped this We, Too piece last night after WaPo’s piece above:

Unsurprising that communications of those close to Trump are under scrutiny. Especially since DOJ has had so many messages in their possession for months, like Giuliani’s.

~ 0 ~

I’m sure you’ll hear more from Marcy she’s got time, stable internet access, and something dramatically new and important arises.

This is an open thread. Have at it.


EDNY Notes that Tom Barrack Won’t Explain the Tactical Advantage of Waiting to Charge Him

I continue to follow Tom Barrack’s prosecution with interest, not least because it is the single example of a case that arose out of the Mueller investigation, was largely completed while Trump remained in office, yet was only charged after Merrick Garland took over.

As I noted last month, Barrack filed a motion to dismiss based, in significant part, on the two year delay between the time he interviewed with the FBI and when he was charged.

The government has submitted an omnibus response to Barrack’s filing as well as one from his alleged co-conspirator, Matthew Grimes (whose motion to dismiss focused more closely on the Foreign Agent statute under which they were charged).

The motion shoots down Barrack’s claims that the delays — and the treatment of his interview just like all other non-custodial FBI interviews — will make it harder for him to defend against the false statement charges, noting in part that he had a room full of lawyers with him making their own record of what he said.

Barrack claims that because of the purported delay, he is unable to obtain (1) “critical proof to establish what he was asked and how he answered” questions when he was interviewed in 2019; and (2) evidence of records from others of communications he may have had. Id. Neither has merit.

First, Barrack was represented by multiple attorneys who took notes during the 2019 interview, presumably with the intent of creating the “critical proof to establish what he was asked and how he answered” of which defendant claims he has been deprived. Barrack Mot. at 38. Barrack fails to articulate how these notes would have been more helpful to the defendant if the charges were brought earlier. And Barrack identifies no other proof that he could have gathered regarding his statements at his interview, had he been indicted earlier. As a result, Barrack not only fails to establish a substantial, actual, non-speculative prejudice, but fails to establish any prejudice at all. See Birney, 686 F.2d at 105-06.

More coyly, however, DOJ notes that Barrack has not tried to obtain any records from the Trump administration that might undermine the charges against him nor has he identified any witnesses who would have testified in his favor two years ago who cannot now.

Second, Barrack does not provide a single concrete example of attempts that he has made to obtain documents or offer examples about how these attempts have been thwarted by the passage of time. See Barrack Mot. at 38. He does not specify what documents he could have obtained, from whom he would have obtained them, or make any claims that this evidence would have been admissible. He merely speculates that the evidence could have helped his defense.

[snip]

Finally, Barrack makes a general claim about a loss of memories, without identifying a single witness who is now unavailable due to loss of memory. See Barrack Mot. at 39. “Faded memories or unavailable witnesses are inherent in any delay, even if justifiable.

[snip]

Even were Barrack to provide the names of witnesses with failing memories, this in and of itself would still be insufficient.

[snip]

He must also show that the witness would have testified, withstood cross-examination, and that the jury would have found the witness credible.” (citations omitted)); see also United States v. Valona, 834 F.2d 1334, 1339 (7th Cir. 1987) (noting that prejudice analysis must consider whether the missing witness “would have withstood cross-examination,” whether the jury would have found him a “credible witness,” and whether the testimony, when compared to other trial evidence “would affect the trial outcome” (internal quotation marks and citations omitted)).

Here, Barrack has not alleged that anyone would have been available to testify in the first instance, much less that he or she would have voluntarily agreed to testify at his trial in a way that would help, rather than hurt, Barrack.

There are, surely, witnesses who would have testified in favor of Barrack if they expected their own testimony would be immune from consequences or that they’d be receiving a pardon. Paul Manafort, for example, is a key witness to Barrack’s actions.

The government’s filing reveals more details about the circumstances of his interview in 2019 at which he allegedly lied. After he was alerted to the investigation, he asked for the interview and then — the government claims — he told a number of blatant lies about his own conduct.

After Barrack subsequently became aware that he was being investigated by the FBI for his actions at the behest of the UAE, Barrack, through counsel, contacted the government and affirmatively requested an interview. After the government consented to the request, the interview was scheduled for June 20, 2019, at the law firm offices of Barrack’s counsel in Washington, D.C. FBI special agents traveled from New York to Washington, D.C. to attend the interview. During the interview, Barrack was represented by multiple attorneys and was advised that the interview was entirely voluntary and that he was free to end the interview at any time. During the interview, an FBI special agent took detailed, contemporaneous notes, totaling more than 50 pages. Barrack’s counsel also took contemporaneous notes during the interview, but did not electronically record or transcribe the interview, nor did Barrack ever request that the interview be so recorded or transcribed, despite being the party that requested the interview and set its date, time, and location.

During the interview, Barrack repeatedly and materially lied about the events and activities that underlie Count One and Count Two of the Indictment, including, but not limited to, making misstatements about whether Al Malik proffered policies or requests to Barrack on behalf of the UAE, whether he was ever asked to download a messaging application or acquire a dedicated telephone to communicate with UAE officials, whether he facilitated communications between President-Elect Donald Trump and UAE officials after the 2016 Presidential Election, and whether he provided any guidance or input in arranging a former U.S. official’s meeting with a senior UAE official. Indictment ¶¶ 91-92, 98-107.

As I described, these alleged lies will make the core 18 USC 951 charges far more durable. Indeed, the government makes precisely that point: if Barrack was not intentionally hiding his ties to the Emirates, then why would he tell blatant lies about it?

Although not dispositive to Barrack’s vagueness challenge, if Barrack actually believed that he had done nothing wrong, it is unclear why he allegedly lied to FBI special agents during his voluntary June 20, 2019 interview as set forth in Counts Three through Seven of the Indictment.

But the circumstances of his charges raise questions about how he learned he was under investigation and whether he had any belief that if he lied to protect himself (and Trump) — as so many other Trump associates were prosecuted for doing — he could expect impunity.


Three Things: A Three-Ring Circus

[NB: Check the byline, thanks. /~Rayne]

Under the enormous canvas tent of the United States, come see the mightiest extant amusement organization, superior in character, regal in appointment, magnificent in conception, omnipotent in strength, with hundreds of witnesses, a plethora of attorneys and paralegals, the promise of the wild beast-like Chansley, multiple frustrated judges…

And one orange-tinted slack-bottomed kack-handed clown unseen off the stage entantrumed in the wings.

Ladies, Gentlemen, and those of pronouns without and within, welcome to the American circus.

I can’t even begin to imagine what all of this looks like from abroad.

~ 3 ~

Arguments just wrapped up in the U.S. Court of Appeals for the DC Circuit regarding former president Trump’s claim of executive privilege over testimony and materials subpoenaed by the House January 6 Committee. Twitter threads covering the hearing’s progress:

For BuzzFeed:


For DailyKos:

Stream the audio of the arguments on YouTube at: https://youtu.be/DcMnkpZOpxo

I have to admit this hearing is making me grit my teeth. No one is above the law; the executive’s job is to execute what Congress legislates, and Congress cannot do its job effectively without oversight of the executive’s work when its work product is not related to classified national security issues. There’s zero executive privilege for testimony and materials related to campaigning if performed in and by the White House.

~ 2 ~

Convicted shaman insurrectionist perp Jacob Chansley filed an appeal today.

Good luck with that, buddy. What a waste of a lengthy mea culpa in court.

Chansley wasn’t the only lower level perp on the agenda today — check Scott MacFarlane’s Twitter feed for more including another perp charged and another arraigned today.

~ 1 ~

Washington Post published an article today about Trump’s former chief of staff Mark Meadows, who until now has completely resisted compliance with a House January 6 Committee subpoena. Here’s the timeline of related events:

September 23, 2021 — House January 6 Committee issued a subpoena to Meadows;
October 7, 2021 — Due date for records subpoenaed;
October 15, 2021 — Deposition deadline;
November 11, 2021 — White House Deputy Counsel sent a letter to Meadow’s attorney advising that President Biden would not exert executive privilege over any testimony or records the House January 6 Committee subpoenaed;
November 11, 2021 — U.S. Court of Appeals for the D.C. Circuit blocked handover of National Archives’ presidential records responsive to a January 6 committee’s subpoena;
November 12, 2021 — Meadow’s attorney issued a statement which said Meadows would not cooperate with the committee until after the legality of the subpoenas was settled in court;
November 30, 2021 — See Thing 3 above, Court of Appeals for the DC Circuit hearing today regarding subpoena of testimony and records over which Trump claims executive privilege.

Hed and subhed of WaPo’s article today:

Former White House chief of staff Mark Meadows cooperating with Jan. 6 committee
Meadows has provided records to the committee investigating the attack on the Capitol by a pro-Trump mob and will give a deposition.

“Cooperating” is rather broadly used. Committee chair Bennie Thompson issued a statement today about Meadows:

“Mr. Meadows has been engaging with the Select Committee through his attorney. He has produced records to the committee and will soon appear for an initial deposition. The Select Committee expects all witnesses, including Mr. Meadows, to provide all information requested and that the Select Committee is lawfully entitled to receive. The committee will continue to assess his degree of compliance with our subpoena after the deposition.”

“has been engaging” isn’t the same as cooperating; an “initial” deposition doesn’t mean anything until Meadows has actually answered questions put to him without prevarication.

As Marcy tweeted, “Meadows could invoke a bunch of things and avoid testifying and avoid contempt that way.

Betting this “cooperating” is a stall tactic which won’t end until the Department of Justice indicts Meadows for contempt of Congress as they did Steve Bannon.

But perhaps there will be more than two charges if Meadows “has been engaging” in a little light obstruction.

Sure hope for his own sake Meadows turned information related to his phone records.

~ 0 ~

What other hearing(s) did I miss? Share in comments.


Minority Report: Botheration Benefits Bannon

[NB: Check the byline, thanks. /~Rayne]

At the risk of annoying the rest of Team Emptywheel — especially our resident attorney and in part because I’m not a lawyer myself — let me offer a minority report and note we have a serious problem.

You’ll recall one-time Chief Strategist and Senior Counselor to then-President Trump Steve Bannon refused to answer a subpoena issued by the House January 6 committee.

You’ll also recall that the House then debated and voted on a charge of contempt of Congress.

The House then referred the charge once passed to the Department of Justice.

Many Americans are disappointed that Bannon is still out walking around as if U.S. laws don’t apply to him. It doesn’t help matters that Trump pardoned Bannon for conspiracy to commit mail fraud and money laundering, a pardon which has the appearance that it may have been intended as payback and as advance compensation for helping to organize the January 6 insurrection.

And now those Americans are even more disappointed that Bannon has now blown off Congress without any repercussions so far. It’s not obvious to the public why it takes so long to bring the scruffy bucket of excess shirtage, whiskers, and pudge to answer their representatives’ questions.

Bannon is thumbing his nose at the American people and they know it.

~ ~ ~

Persons who’ve worked in federal law enforcement insist the Department of Justice is working on this and the rule of law simply takes time, chiding us not to be like those people, implying behavior like the “deplorables” who chant “Lock him up!”

Except the American people have seen justice work too rapidly and unfairly for those who aren’t privileged. They expect a reasonable effort to effect justice speedily; justice delayed is justice denied. The tick-tock has been annoyingly like water torture — drip, drip, drip wearing on stone:

July 1 — Six months after the insurrection the House January 6 committee was approved and formed.

September 23 — It took two and a half months to subpoena Bannon who had been an advocate if not an organizer for the rally on January 5 and 6.

October 8 — President Biden refused to exert executive privilege over documents requested from the National Archives by the committee.

October 8 — Bannon was supposed to testify October 14 but his lawyer communicated on October 8 to the committee Bannon would not comply with the subpoena because former president Trump exerted a claim of executive privilege.

October 14 — Bannon does not report to the House committee.

October 19 — The committee began the process to hold Bannon in criminal contempt on the date Bannon was supposed to testify; the committee voted unanimously on October 19 to hold Bannon in contempt.

October 21 — Congress approved the charge on October 21 so that the charge could be referred to the Department of Justice.

October 25 — President Biden again refused to exert executive privilege over documents requested from the National Archives by the committee. No privilege has been claimed by Biden with regard to Bannon.

The public has seen no concrete action by DOJ in response to the contempt charge against Congress — a charge which should result in arresting Bannon, taking him into custody, and charging him with contempt until he complies.

23 days later, what the public sees is Bannon still doing whatever he does on any average day besides shave.

And the folks who’ve worked in law enforcement continue to say this simply takes time.

~ ~ ~

Except Congress itself is irritated, if Rep. Connolly’s opinion is more widely shared among his colleagues:


Congress members have good reason to be irritated; if DOJ couldn’t see ahead from Day One of the Biden administration that some Trump administration officials, staffers, and other supporters would resist a Congressional investigation into any allegation of Trump or Trump-adjacent wrongdoing, they had to be naïve or grossly incompetent. The impeachment investigations gave ample examples of what would happen and hinted at worse.

DOJ could at least have made an effort to appear ready to deal with intransigent witnesses. It’s not as if DOJ is unaware the public is bombarded with messaging all day long and in the absence of official messages, poor messaging will embed in the public’s consciousness.

The DOJ also has no good excuse for failing to execute the contempt charge. Congressional Research Service has at least twice in the last decade examined Congress’s ability to execute subpoenas and inherent contempt — the research has been done, it’s all neatly spelled out. Vet it if necessary but it’s pretty straightforward.

The biggest single reason DOJ shouldn’t dally is that it cannot question Congress’s speech or debate. An attack on the Capitol Building while Congress was in session is the most obviously legitimate reason for the House to issue a subpoena. Congress must know as part of its necessary speech and debate what happened leading up to and during the attack in order to:

(2) identify, review, and evaluate the causes of and the lessons learned from the domestic terrorist attack on the Capitol regarding—

(A) the command, control, and communications of the United States Capitol Police, the Armed Forces, the National Guard, the Metropolitan Police Department of the District of Columbia, and other Federal, State, and local law enforcement agencies in the National Capital Region on or before January 6, 2021;

(B) the structure, coordination, operational plans, policies, and procedures of the Federal Government, including as such relate to State and local governments and nongovernmental entities, and particularly with respect to detecting, preventing, preparing for, and responding to targeted violence and domestic terrorism;

(C) the structure, authorities, training, manpower utilization, equipment, operational planning, and use of force policies of the United States Capitol Police;

(D) the policies, protocols, processes, procedures, and systems for the sharing of intelligence and other information by Federal, State, and local agencies with the United States Capitol Police, the Sergeants at Arms of the House of Representatives and Senate, the Government of the District of Columbia, including the Metropolitan Police Department of the District of Columbia, the National Guard, and other Federal, State, and local law enforcement agencies in the National Capital Region on or before January 6, 2021, and the related policies, protocols, processes, procedures, and systems for monitoring, assessing, disseminating, and acting on intelligence and other information, including elevating the security posture of the United States Capitol Complex, derived from instrumentalities of government, open sources, and online platforms; and

(E) the policies, protocols, processes, procedures, and systems for interoperability between the United States Capitol Police and the National Guard, the Metropolitan Police Department of the District of Columbia, and other Federal, State, and local law enforcement agencies in the National Capital Region on or before January 6, 2021; and

(3) issue a final report to the House containing such findings, conclusions, and recommendations for corrective measures described in subsection (c) as it may deem necessary.

All of which is part of Congress’s legislative purview.

Nor should the DOJ find a way to punt to the judiciary since the court has already repeatedly agreed that under Article I, Section 8, Clause 18, Congress’s implied powers of investigation are essential to its ability to legislate — and subpoenas are part of that power to investigate.

As for the excuse given by Bannon for not complying with the subpoena: executive privilege belongs to the office, not the person. The current executive has so far declined to exert privilege over anything Bannon provided to Trump during the eight months Bannon was a federal employee and adviser to Trump. There’s no executive privilege over any acts Bannon exerted as a private individual on behalf of candidate Trump’s campaign; Bannon can avail himself of his Fifth Amendment rights when questioned by the January 6 committee as he and his attorney feel appropriate.

~ ~ ~

The charge is dirt simple and obvious: Bannon didn’t comply with the subpoena, violating 2 USC 192 – Refusal of witness to testify or produce papers, and 2 USC 194 – Certification of failure to testify or produce; grand jury action. He’s not the executive, nor is Trump the executive, and the current executive has made no claim, making Bannon’s claim of executive privilege at Trump’s request invalid.

The January 6 committee is investigating a domestic terrorist attack upon the United States Capitol Complex, interfering with government operations. Though fewer deaths resulted, it’s a crime on par with 9/11 in that terrorists attacked the United States with intent to disrupt our government — or worse, since it was an attack directly on the people’s representatives with the intent to overthrow the government (through an autogolpe).

Should we really expect the public not to get antsy about the apparent lack of action given the seriousness of the crime and the persistent inability of the House to consistently obtain compliance from witnesses under both the 116th and 117th Congress?

Should we really expect the public not to be itchy when the current Attorney General admits to having been insulated by “the monastery of the judiciary” for years (an approximate paraphrase of an analogy Garland made during during an October 4 interview with Jane Mayer of The New Yorker)?

Should we really expect a majority of the American people not to be concerned about the length of time it takes to arrest and detain a white male investment banker and media executive who was Trump’s adviser, when they elected this administration to both undo the damage of the Trump years AND restore faith in their government?


Andrew McCabe Got His Pension and His Cufflinks — But Is that Adequate Recourse for the Country?

As part of a settlement DOJ entered into yesterday to avoid giving Andrew McCabe discovery on the full extent of the politicized campaign against him, DOJ agreed to give him his retirement — and the cufflinks he would normally have gotten upon retiring from Senior Executive Service.

The more substantive parts of the agreement reflect a total capitulation by DOJ: restoration of McCabe’s pension backdated to the time he was fired and partial award of his legal fees for representation from Arnold & Porter.

Defendants will complete all actions necessary to ensure that Plaintiff will be recorded as having entered the federal retirement system effective March 19, 2018, with an annuity commencement date of April 1, 2018, see 5 U.S.C. § 8464(a)(1)(A), 5 C.F.R. § 842.208(b), and will receive:

a. a payment of a lump sum representing all retirement annuity payments, including annuity supplement payments, that he would otherwise have received from the April 1, 2018 annuity commencement date until the day before he is paid his first regular monthly payment, which will be computed in accordance with all relevant statutory and regulatory provisions, and which will not deduct or withhold any amounts for benefits not received or for taxes not owed during the time period specified above, unless such deductions and/or withholdings are required by relevant statutory or regulatory provisions;

b. prospectively from the date of his first regular monthly payment, through the federal retirement system, all periodic annuity payments, including annuity supplement payments, consistent with his March 19, 2018 retirement date;

[snip]

Defendants agree to pay $539,348.15 to Plaintiff, pursuant to the Equal Access to Justice Act, and in full settlement and satisfaction of all attorney’s fees, costs, and expenses. Payment shall be made to Plaintiff via electronic funds transfer to Arnold & Porter Kaye Scholer LLP, as promptly as practicable, consistent with the normal processing procedures followed by the Department of Justice and the Department of the Treasury, following the dismissal of the above-captioned civil action. This provision does not constitute an admission that Defendants’ position was not substantially justified under 28 U.S.C. § 2412(d)(1)(A).

McCabe will get also an admission that “Executive Branch officials outside the Department” — otherwise known as The President —  “should not comment publicly on ongoing career civil service employee disciplinary matters.” [my emphasis]

WHEREAS, the Parties agree that Executive Branch officials outside the Department of Justice and its components should not comment publicly on ongoing career civil service employee disciplinary matters, except as provided by statute or regulation, so as not to create any appearance of improper political influence;

But McCabe won’t get a concession that numerous people within the chain of command at DOJ and FBI, including prosecutors who pursued a false statements charge against McCabe, bowed to that improper political influence. Nor, as noted, will McCabe get discovery to learn what documents — besides proof that Bill Barr’s DOJ altered McCabe’s notes in an effort to undermine the Mike Flynn prosecution —  DOJ was so determined to avoid disclosing that they settled this case.

All this is being accomplished, legally, by a kind of reset. McCabe’s personnel records will be altered such that there’s no record of his firing.

1. Within 30 days of the execution of this Settlement Agreement, Defendants will rescind their removal of Plaintiff from the FBI and the civil service, and will rescind and vacate former Attorney General Jefferson B. Sessions’s March 16, 2018 removal decision (“DOJ Removal Decision”), and the March 16, 2018 removal recommendation that was submitted to Attorney General Sessions (“DOJ Removal Recommendation”).

2. The Parties agree that Plaintiff’s electronic Official Personnel Folder will reflect that he was employed continuously by the FBI from July 1996 until his retirement on March 19, 2018, as the FBI Deputy Director and a member of the Senior Executive Service (“SES”), after becoming 50 years of age and completing over 20 years of service.

3. Within 30 days of the execution of this Settlement Agreement, the government will remove from Plaintiff’s electronic Official Personnel Folder all documents that reflect or reference his removal, and replace them with documents reflecting that Plaintiff was continuously employed by the FBI until his retirement on March 19, 2018. Defendants will then provide to Plaintiff a copy of his revised electronic Official Personnel Folder.

4. Plaintiff will be deemed to have retired from the FBI on March 19, 2018.

5. Plaintiff will be deemed to have separated from the FBI in good standing for the purposes of 18 U.S.C. § 926C(c)(1).

By my reading, this doesn’t force DOJ Inspector General to revise its report on McCabe to incorporate Michael Kortan’s testimony, one of the problems in the report identified in McCabe’s suit. It doesn’t negate the conflicting Office of Professional Responsibility review results. But it does legally remove the final effect of over a year of retaliation and public badgering by the President, eliminating all trace of Sessions’ last minute firing of McCabe.

I have no doubt this settlement makes a lot of sense for McCabe. He gets the money he earned over two decades of chasing terrorists, spies, and organized crime and the ability to be treated with the respect a former Deputy Director is normally accorded.

But this country is still fighting the aftereffects of a coup attempt that almost succeeded, in part, because the FBI backed off investigating those close to the President, including Proud Boys who played a key leadership role in the attack. We never got fully visibility into the President’s relationship with Russia because Trump throttled that investigation with firings and pardons. And an unrelenting flood of disinformation masks both of these facts.

We know, from the fact that DOJ entered into this settlement (among other things), that Trump badly politicized DOJ. But this settlement allows DOJ to avoid coming clean about all that happened.


Tea Leaves on the Garland-Monaco DOJ and the Stay in Andrew McCabe’s Lawsuit

The effort to figure out precisely why moderate Merrick Garland and career DOJ employee Lisa Monaco are having the Department of Justice sustain shitty positions adopted under Bill Barr has reached a fever pitch. In my piece on Monaco, I noted one thing — her presumed approval, on her first day in the job, of a raid on Rudy Giuliani — that suggests some people are mistaking a likely effort to sustain DOJ as an institution for an effort to protect Trump.

I’d like to point to another tea leaf — something that happened (perhaps coincidentally) on Monaco’s third full day on the job. That’s when the two sides in Andrew McCabe’s lawsuit moved to stay discovery pending an effort to settle the case.

The parties jointly move this Court to stay all discovery in this proceeding, for 45 days after this motion is granted, and to extend all previously set case deadlines and events by 45 days. The parties request this relief so that they may explore the possibility of settlement.

Good cause exists for the requested relief, because the stay and extension would allow the parties to focus their efforts on discussing settlement expeditiously, free from any competing obligations and ongoing disputes related to discovery, and without burdening the Court with potentially unnecessary discovery disputes. The parties propose to update the Court two business days before the stay’s expiration about whether a further stay and extension is warranted.

On its face, a settlement with McCabe would look like a stark reversal of a Trump policy. Top levels of Trump’s DOJ signed declarations swearing that McCabe’s firing was for cause. At that level, the interest in settling the lawsuit looks like a pretty serious reversal.

That said, depending on how broadly Judge Randolph Moss ruled discovery must extend (an issue that is still pending), McCabe’s lawsuit could seriously embarrass DOJ. Even just his case in chief, in which DOJ IG and OPR ignored the testimony of key witness, FBI press person Michael Kortan (with whom McCabe’s office worked on the story that DOJ claims he was trying to hide), full discovery could badly embarrass DOJ. Still more so if the extent to which DOJ pushed to indict McCabe, allegedly after the grand jury rejected charges against him, became public. By the end of Barr’s tenure, DOJ had altered a McCabe document and submitted it to Emmet Sullivan, another potentially damaging revelation (though one probably outside any imaginable scope of discovery).

And that’s just what we know about. In the weeks leading up to McCabe’s testimony before the Senate Judiciary Committee, DOJ was refusing to share documents that McCabe needed to adequately prep for his appearance.

I’m not sure what this particular move suggests about DOJ. But I know that full exposure of the witch hunt against McCabe would badly damage DOJ, including some career employees who served Barr’s whims. But a settlement would also damage the Trump DOJ, because it would prove that Trump politicized his entire DOJ to take out perceived enemies.

That is, amid all the other tea leaves, what happens with the McCabe suit may indicate which damage to DOJ the Garland-Monaco DOJ seems most intent on avoiding.

Update: The two sides just filed an update: No settlement has been reached, but they remain in talks.

Consistent with their April 23, 2021 Joint Motion to Stay Discovery and Extend All Case Deadlines (Dkt. 56), the parties submit this joint notice regarding the current stay of litigation.

On April 27, 2021, this Court granted the parties’ joint motion for a 45-day stay of all discovery so that the Parties could focus on exploring the possibility of settlement. No settlement has been reached, but the parties are continuing their discussions. In the event that they agree that a further stay is warranted, they will so notify the Court by filing another joint motion to extend the stay and related deadlines.

Copyright © 2022 emptywheel. All rights reserved.
Originally Posted @ https://www.emptywheel.net/department-of-justice/