Thanksgiving Day Cheer

Okay, the football gods did not smile on fans today. Texans at Lions and Washington Football Team at Cowboys is about the worst schedule the NFL could put up. There was a Steelers and Ravens game for the night slot that would have been interesting, but, alas, it was rescheduled to Sunday because of the Coronavirus. Blecch.

But, hey, there is a lot else to be thankful for. Especially here, thanks to all of you. And so we are thankful for all of you!

Also food. Mrs. bmaz is cooking up some great grub, and I know there is some awesome looking stuffing, some turkey (not the turducken I requested, but it will be fine). That, and that some part of it involves some of my personal stash of bacon from Zingermans (thanks Marcy!), is about all I really know. There is Blueberry Crumb Pie from the Rock Springs Cafe (as good of pies as you will ever taste), and vanilla bean ice cream. Some nice red wine, and that will do it.

What are you folks eating and thinking about? Have at it! Music today is the classic Wasted Words by the Allmans. Enjoy, and Happy Thanksgiving folks. May you have a joyous one, and stay safe.

Shirkey and Chatfield: No One Else Was in the Room Where It Happened

Yesterday, Michigan certified its vote, declaring Joe Biden the winner of its 16 Electoral College votes.

That should not be surprising. After all, Biden won by a sound margin, and there were no credible claims of irregularities. Nevertheless it was treated as big news, with tens of thousands glued to the live feed of the certification meeting.

After the certification, per AP’s David Eggert, the Dick and Betsy DeVos backed Michigan Freedom Fund issued a statement backing the certification.

The Board of State Canvassers did the right thing today. We believe the vote to certify should have been 4-0. The election is over, & the person with the most legal votes – & in this election that person is Joe Biden – must prevail. Period.

Not long after the certification, Trump’s GSA Administrator, Emily Murphy, released a letter announcing she was going to let the President-Elect begin the transition process, even while she bitched about the pressure she had been put under and stopped short of using the word, “ascertainment,” that gives the letter full legal weight.

I wonder whether there’s not more to how it happened that Trump began the process of conceding.

All this happened just days after DeVos machine politicians Mike Shirkey and Lee Chatfield flew to DC and sat for a meeting with the President, at his request. It’s not clear who, from the White House, attended, but none of Trump’s competent lawyers were planning on it.

Within the White House, a number of the president’s top aides were expected to skip the late-afternoon huddle, including representatives from the White House Counsel’s Office. Also not attending was Ronna McDaniel, a former head of the Michigan Republican Party who chairs the Republican National Committee, according to an RNC spokesperson.

Already in the post-election period, Trump had the GOP Republican Senate candidates and Lindsey Graham pressure election officials in Georgia, in Lindsey’s case, arguably aggressively enough to break the law. The meeting with MI’s legislators came at an even more desperate moment for Trump.

After the meeting, the MI politicians released a statement offering an explanation of their own actions that would provide legal cover — they delivered a letter asking the President for COVID relief. More interestingly, they insisted that MI’s vote be free of threats and intimidation.

Michigan’s certification process should be a deliberate process free from threats and intimidation. Allegations of fraudulent behavior should be taken seriously, thoroughly investigated, and if proven, prosecuted to the full extent of the law. And the candidates who win the most votes win elections and Michigan’s electoral votes. These are simple truths that should provide confidence in our elections.

If Trump did do something inappropriate in that meeting — as he has done over and over and over before and during his presidency — it would mean multiple people, all with close ties to the DeVos political machine, were witnesses. Given how easy it has been for grifters like Lev Parnas to record sensitive meetings, it would be a cinch for these politicians to do so as well. If they did, that would put a good deal of leverage into the hands of that DeVos machine, a machine that prefers organized raping and pillaging of the public good to the kind of chaotic looting Trump has been pursuing.

The DeVos machine would greatly like to ensure that its brand of corporatist, Christian ideology reclaim dominance in the Republican party over the unreliable Trump frothers.

Given how poorly Trump has hidden his bribes and threats in the past, it would be fairly easy to anticipate more of the same, and to exploit them if they happened during an in-person meeting with more witnesses from Michigan than from the White House. One could do so while pretending to give a fuck about good governance (as Shirkey et al did pretend after they left the meeting). And legal exposure in the State of Michigan, with a fearless Democratic Attorney General, Dana Nessel, is not the kind of risk that Trump has any power over.

Something happened over the last several days that led Trump to grudgingly start ceding power. And no one else was in the room where that something may have happened.

Update: Eggert has a thread reporting out an interview with Shirkey. In it, Shirkey claims that “only half” of the meeting talked about the election.

Shirkey estimated that in the 60- to 90-minute meeting with Trump, ‘less than half’ was devoted to discussions on the election – ‘especially if you take out the dialogue we had with Giuliani, it was far less than that.’

“Less than half” doesn’t really help Trump here.

The DeVoses and a Pence Pardon for Trump

WaPo wrote a long story about how two DeVos machine Republicans, Mike Shirkey and Lee Chatfield, went to the White House and declined to join in Donald Trump’s coup attempt. The story either chose not to mention or simply preceded the reports that the lawmakers spent the night at Trump Hotel, running up big bills for Dom Perignon, which doesn’t seem like the thing you’d do if you had just turned down a bribe to steal the election.

Presumably because it was written for a national audience, the story didn’t get into what ruthless shitholes these men are. These are men who’ve presided over attempts to undermine Gretchen Whitmer’s COVID response and refused to prohibit guns from the capitol building. And while Chatfield knocked down an effort to impeach Whitmer, Shirkey has largely facilitated the kind of eliminationist rhetoric that led to an assassination plot against Whitmer (both condemned the plot after it was thwarted).

MI journalist Susan Demas did a thread on what awful untrustworthy men they are.

Amid reports that Ronna not-Romney McDaniel is the favorite to become RNC Chair again — which stalwarts view as Trump’s attempt to run the RNC as his own operation, undercutting any challengers in 2024 — I find this quote in the WaPo story particularly interesting.

A fresh indication that Trump’s options are dwindling came Friday from an organization with close ties to his education secretary, Betsy DeVos. The conservative Michigan Freedom Fund, which the DeVos family finances, issued the following statement Friday: “The election is over. The results are in, and here in Michigan, they’re not going to change.”

There have been hints that Betsy and Dick were tiring of Trump already. Betsy’s former Chief of Staff, Josh Venable, even joined one of the anti-Trump groups during the election.

That has interesting implications for the fate of two men — Betsy’s brother Erik Prince and Trump himself.

To my mind, Erik Prince is one of Trump’s easiest pardons, both for his exposure for false statements to Congress about his back channel with Russia and for his efforts to sell mercenary services to China. That’s true because, unlike some others (like Roger Stone), Prince successfully lied his way through testimony without generating any other known legal exposure. He told his lies, did his service to Trump, and so couldn’t be forced to testify differently once his Fifth Amendment privileges disappeared. And his exposure on China — to the extent that Billy Barr hasn’t already killed this investigation beyond repair — doesn’t implicate Trump, and so is easy and clean for a President seeking to pay back loyalty. Plus, Prince is a big donor. What’s not to like?!?!

But the DeVoses are also very close to Mike Pence (he got Betsy hired, not Trump). And many of Trump’s other pardons — of people that could implicate Trump himself in crimes if they lost their Fifth Amendment protections — require that he also limit his own legal exposure (and of course, he can only do this on federal cases). He may well be planning a self-pardon, but a safer legal option would be an early resignation followed by a pardon from Pence.

In my opinion, Pence has a real incentive against such a pardon. That’s true, in part, because giving a far less controversial pardon to Richard Nixon really doomed Gerald Ford’s otherwise reasonable legacy. Pence spends a lot of time in Grand Rapids, where Ford’s tainted history is palpable.

That’s also true because Pence has further political ambitions. They may not be real ambitions, but a former Vice President would always consider himself a candidate for the Presidency. And counterintuitively, pardoning Trump would actually hurt those ambitions. That’s true because he’s not the most obvious inheritor of Trump’s legacy. Mike Pompeo has a higher profile and the same cachet among the Evangelical right. Don Jr has even suggested he might run, and if he did he could tap right into the furor his father created. Unlike both of them, Pence has mostly been a background figurehead, one who will be blamed for Trump’s biggest failing, on COVID. So if Pence pardoned Trump, it would only serve to allow one of the other Trump flunkies from capitalizing on his brand to become the presumptive 2024 nominee; it would hurt his own chances.

Still, unlike Pompeo, Pence is not inextricably linked to Trump’s crimes. Indeed, one of the bravest witnesses during impeachment, Jennifer Williams, was his aide. She even corrected her testimony to provide damning details after the fact. Everything we’ve seen from the Mueller Report also makes it clear that Pence was not in the loop of some of the most devious efforts to undermine America.

But Pence likely knows of some of that crime. He has heard some of the details of the Russian “collusion.” More importantly, he surely knows how a series of Trump campaign managers have engaged in grift that pursue ever more outrageous ways of getting rich off the process of pitching Trump, with Brad Parscale’s version only the most recent. Assuming he’s as insulated from this potentially criminal behavior as I think he he is, refusing to pardon Trump would be a way to undercut Trump’s legacy without lifting a finger. Even if Joe Biden’s Attorney General didn’t aggressively pursue new investigations, there are so many known open ones as to make Trump’s ongoing criminal exposure hard to contain.

That puts Pence — and with him, his close allies the DeVoses — in a remarkable position. To be clear, they are every bit as evil as Trump. We should assume however they wield that power will do little to help average Americans. But (caveats about Erik aside), they are differently evil than Trump.

And if they’ve decided Trump’s time is up, they have leverage that others don’t.

“Normal Transitions:” KT McFarland Sent Tom Bossert to “Spy” on Lisa Monaco

Trump is excusing his refusal to transition power by claiming he never got a real transition.

The President’s refusal to concede, as CNN has previously reported, stems in part from his perceived grievance that Hillary Clinton and former President Barack Obama undermined his own presidency by saying Russia interfered in the 2016 election and could have impacted the outcome, people around him have said.

Trump continues to hold a grudge against those who he claims undercut his election by pointing to Russian interference efforts, and he has suggested it is fair game to not recognize Joe Biden as the President-elect, even though Clinton conceded on election night in 2016 and the Trump transition was able to begin immediately.

That’s not true, but it’s also not new that he’s blaming others for his own mistakes and obstinance.

Because he’s ignoring the many efforts the Obama Administration made to ease the transition (many of which were rebuffed), it bears making something implicit in this post more explicit.

KT McFarland sent someone — almost certainly Tom Bossert — to learn what Obama’s Homeland Security Czar, Lisa Monaco, knew of Russias’ response to Obama’s sanctions. Only after Flynn got Bossert’s response did he call Sergey Kislyak.

And Kislyak exploited Trump’s insecurities as a result.

It’s not public precisely when Flynn (or his assistant) told McFarland that Ambassador Kislyak had reached out to the incoming National Security Advisor. It seems likely that Flynn forwarded the text he received from Kislyak on December 28 to McFarland and her assistant, however, because Kislyak’s text to Flynn is sourced to the subpoena production of that assistant, Sarah Flaherty, in the Mueller Report.

According to KT McFarland’s own testimony, however, she believes she told Steve Bannon about the upcoming call before it happened. The Mueller Report places this conversation shortly after McFarland called Flynn on his personal cell phone at 2:29PM on December 29 but did not reach him. That would confirm McFarland knew Flynn was going to speak to the Russian Ambassador before Flynn texted Flaherty to see if McFarland was available for a call at 3:14PM. Flaherty told Flynn that McFarland was unavailable because she was speaking with Homeland Security Czar designee Tom Bossert.

So at 3:14PM, McFarland already knew Flynn was preparing to talk to Kislyak and she was talking with Bossert.

Sometime in between 3:14PM and 3:50PM, based on Flynn’s representation that this call happened before he spoke with McFarland, Flynn called the spouse of the SJC staffer currently leading the pushback on this investigation, Michael Ledeen. Flynn and Ledeen spoke for 20 minutes.

At 3:50PM, McFarland called Flynn on his personal cell phone. They spoke for 6:39 minutes.

At 4:01PM, Bossert emailed a group including Flynn, McFarland, Bannon (at a private email), Keith Kellogg, and Reince Priebus, relaying what he had learned speaking with Lisa Monaco.

[Monaco] confirms the Russiand [sic] have already responded with strong threats, promising to retaliate. [She] characterized the Russian response as bellicose. My thoughts, sans the Russia angle, on which I defer to Mike and KT: [redacted] : Cyber attacks by forcing governments or anyone else are unacceptable and must be taken seriously. The alleged Russian hack of US entities involved in the US political process is a problem. Of course we must separate their attempts to influence our election from the rash conclusion that they succeeded in altering the views of any American voter. We must be wary of escalatory retaliation to follow.

At 4:01PM, just as he would have received that email, Flynn called McFarland using his hotel phone. They discussed highly sensitive foreign policy issues on that unsecure phone for 11 minutes.

At 4:20PM, shortly but not immediately after speaking to McFarland about what surely included what Bossert had learned from Monaco’s representation of real time intelligence collection on and conversations with Russia, Flynn called the Ambassador to Russia, again from his hotel phone.

Even though Kislyak initiated the outreach after Obama had announced sanctions, Russia’s Ambassador feigned having called for other reasons, reasons that pre-dated the imposition of the sanctions. He went through them one-by-one:

  • He reassures Flynn that Russia won’t take any actions on the Middle East (notably Israel), particularly because it might change under the Trump Administration. He tells Flynn he has told Obama that.
  • He invites Flynn to send representatives to a Russian-Turkish conference on Syrian peace in Astana that will take place after Trump is inaugurated.
  • He proposes that Trump and Putin speak by secure videoconference on January 21, they day after the inauguration.

Flynn all but interrupted Kislyak and asked him to make sure that Obama not box Trump in (the fact that Flynn raised sanctions himself is one reason DOJ and FBI were so certain Flynn was lying when he claimed to the FBI that he never spoke about sanctions with Kislyak).

Flynn: Yeah. Yeah, yeah. I understand. Okay, um, okay. Listen, uh, a couple of things. Number one, what I would ask you guys to do — and make sure you, make sure that you convey this, okay? — do not, do not uh, allow this administration to box us in, right now, okay? Um —

Kislyak: We have conveyed it. And–

Note: By saying “we have conveyed it,” Kislyak seems to suggest he has already gotten and fielded this request. That suggests that may be something that Flynn raised during their December 22 conversation, the transcript of which Ric Grenell has kept hidden.

Flynn continued, barreling through his request on sanctions.

Flynn: Yeah.

Kislyak: It’s, uh, it’s uh, very very specifically and transparently, openly.

Flynn: So, you know, depending on, depending on what uh, actions they take over this current issue of the cyber stuff, you know, where they’re looking like they’re gonna, they’re gonna dismiss some number of Russians out of the country, I understand all that and I understand that, that, you know, the information. that they have and all that, but what I would ask Russia to do is to not — is — is — if anything — because I know you have to have some sort of action — to, to only make it reciprocal. Make it reciprocal. Don’t — don’t make it — don’t go any further than you have to. Because I don’t want us to get into something that has to escalate, on a, you know, on a tit for tat. You follow me, Ambassador?

Kislyak sounded hesitant, noting that FSB and GRU couldn’t very well partner with the US on terrorism if they were under sanctions and Flynn agrees. Kislyak then agreed that he will try to “get the people in Moscow to understand it,” obviously a reference to Putin.

Then Flynn specifically framed Russia’s response as a kind of message to Trump.

Flynn: And please make sure that its uh — the idea is, be — if you, if you have to do something, do something on a reciprocal basis, meaning you know, on a sort of even basis. Then that, then that is a good message and we’ll understand that message. And, and then, we know that we’re not going to escalate this thing, where we, where because if we put out — if we send out 30 guys and you send out 60, you know, or you shut down every Embassy, I mean we have to get this to a — let’s, let’s keep this at a level that us is, even-keeled, okay? Is even-keeled. And then what we can do is, when we come in, we can then have a better conversation about where, where we’re gonna go, uh, regarding uh, regarding our relationship. [my emphasis]

And Russia’s response was viewed as a signal. KT McFarland said as much in two sets of emails, the first to Flynn, Kellogg, Spicer, Priebus, Bannon, and others (all at their official accounts):

My take is Russians are taking the most restrained retaliation possible — it’s his Signal to trump that he wants to improve relations once obama leaves. Although [Obama] didn’t mean to he has given [Trump] new leverage over Putin.

Then, hours later, she sent an email to Flynn, Kellogg (on his official account), Kushner, Priebus, and Spicer (at least some of whom were on on personal accounts), adding:

Putin response to NOT match obama tit for tat are signals they want a new relationship starting jan 20. They are sending us a signal.

Shortly thereafter, Trump thanked Putin for his restraint — the action that Flynn said would be interpreted by Trump as a message — publicly on Twitter, shortly after which McFarland wrote a cover email to hide that Flynn had discussed sanctions with Kislyak.

But Russia, knowing well that Kislyak was tapped, didn’t leave this implicit signaling to chance.

On December 31, Kislyak reached out to Flynn again, emphasizing that he had a message on top of what Putin’s decision said publicly. A key part of that message was that Trump and Russia were on the same side, pitted against the US government.

Kislyak: Uh, you know I have a small message to pass to you from Moscow and uh, probably you have heard about the decision taken by Moscow about action and counter-action.

Flynn: yeah, yeah well I appreciate it, you know, on our phone call the other day, you know, I, I, appreciate the steps that uh your president has taken. I think that it was wise.

Kislyak: I, I just wanted to tell you that our conversation was also taken into account in Moscow and…

Flynn: Good

Kislyak: Your proposal that we need to act with cold heads, uh, is exactly what is uh, invested in the decision.

Flynn: Good

Kislyak: And I just wanted to tell you that we found that these actions have targeted not only against Russia, but also against the president elect.

Flynn: yeah, yeah

Kislyak: and and with all our rights to responds we have decided not to act now because, its because people are dissatisfied with the lost of elections and, and its very deplorable. So, so I just wanted to let you know that our conversation was taken with weight.

This exchange was, transparently and successfully, an attempt to convince the paranoid Flynn and his insecure boss that Russia was on the same side as them, against all their detractors. Even when this transcript was released, it was clearly an attempt to play on the resentments of Flynn and his boss. Every single thing that has happened since suggests it worked, presumably with similar massaging along the way to reinforce that sentiment.

But with the release of the warrant applications targeting Flynn, we now know that these exchanges, with McFarland and Flynn holding off on a response until they learned what the Obama Administration knew about the Russian response, were conducted in significant part on totally unsecure devices — Flynn’s cell phone, his hotel phone, and at least Bannon and apparently several others using their private email to discuss how to respond to sanctions.

Thus, it’s likely that by the time Kislyak called Flynn back, Russian intelligence had picked up at least some of this back and forth. It’s likely he knew that Trump’s closest advisors were effectively treating Russia as a more trusted partner than the Obama Administration, and even using one of their only civil relationships with the Obama Administration, Bossert, to better counteract Obama’s actions in order to establish closer ties with Russia.

For years, Trump has falsely claimed that the Obama Administration spied on the Trump campaign. This exchange suggests the opposite happened: Trump used one of the only civil relationships his Transition team had with Obama not to ensure a smooth transition, but instead to use Obama’s information to more closely align with Russia.

Trump’s Pardon Jenga, Starting with the Julian Assange Building Block

I was going to wait to address Trump’s likely use of his power of clemency in the days ahead until it was clear he was going to leave without a fight and I will return to it once that’s clear. But there have already been a slew of pieces on the likely upcoming pardons:

None of them mentions Julian Assange (though Graff does consider the possibility of a Snowden pardon, which I consider related, not least for the terms on which Glenn Greenwald is pitching a package deal as a way for Trump to damage the Deep State).

I would argue that unless a piece considers an Assange pardon, it cannot capture the complexity facing Trump as he tries to negotiate a way to use pardons (and other clemency) to eliminate his legal exposure itself.

I’m not saying Trump’s decision on whether to give Assange a pardon is his hardest decision. But it may be one a few that could bring any hope of protecting himself falling down.

Trump has talked about pardons, generally, covering a number of crimes in which he himself (or a family member) is implicated:

  • Asking DHS officials to violate the law in order to build the wall
  • Working with the National Enquirer to capture and kill damaging stories during the 2016 election
  • Dodging impeachment
  • Steve Bannon’s Build the Wall grift (which likely implicates Jr)

There are others whom Trump would give a pardon because they’re loyal criminals, like Ryan Zinke or Commerce Officials and others who’ve lied in court. There are hybrid cases; in addition to Bannon, Erik Prince has legal exposure both for his own lies that protected Trump, but also for his efforts to sell mercenary services to hostile foreign governments. And Rudy Giuliani has committed his own crimes as well as possible crimes to protect the President. With the possible exception of Rudy (who still might claim attorney client privilege to refuse to testify about Trump), those pardons create challenges, but they’re highly likely (unless Trump made some pardons contingent on remaining in power).

Then there’s the Mueller Report. In 2019 testimony to HPSCI, Michael Cohen credibly described Jay Sekulow considering mass “pre-pardons” in the summer of 2017 in an attempt to make the Russian investigation go away. But the Mueller Report itself only obviously talks about five pardons:

  • An extensive discussion of the reasons why pardons for Mike Flynn, Paul Manafort, and Roger Stone would amount to obstruction (a sentiment with which Billy Barr once agreed)
  • A discussion of Robert Costello’s efforts to broker silence from Cohen in exchange for a pardon and almost certainly a still-redacted referral of Costello for the same; Costello is currently Rudy Giuliani’s attorney
  • A question about discussions of a Julian Assange pardon, even while the report did not mention or obscured the tie with underlying evidence proving such an effort occurred, possibly as a part of a quid pro quo to optimize the WikiLeaks releases

There are difficulties — albeit surmountable ones — for pardons of Flynn and Manafort, not least because Billy Barr has found other ways for Trump to keep them out of jail (so far), even while issuing a DOJ ruling that his prior pardon dangles are not obstruction. Costello is someone who has no privilege directly with Trump and so might implicate him personally in trading pardons for silence if Trump himself is not pardoned.

But Stone (and quite possibly Don Jr) is indelibly tied to an Assange pardon.

It’s possible something might make this easier between now and January 20. If British Judge Vanessa Baraister rules on January 4, 2021 in favor of Julian Assange’s Lauri Love gambit, arguing that American prisons are not humane for those on the autism spectrum, then there’s a decent chance he’ll beat extradition. If not, his chances are slim. And even if he beats extradition the UK could choose to prosecute him on Official Secrets Act charges tied to Vault 7.

That presents Trump limited choices. He could pardon just Stone (and Don Jr, who will undoubtedly get a broad pardon in any case). But then both could be coerced to testify against Assange under threat of contempt or perjury from a Biden DOJ.

He could pardon all three, including a broad pardon (including Vault 7) for Assange. But if he did that, it could complete the conspiracy, a quid pro quo tied to Russian interference in 2016. That would make a Pence pardon of Trump much more politically costly; it would likewise make a Trump self-pardon much more toxic for even a very partisan SCOTUS to rubber stamp.

But if he doesn’t pardon Assange, he risks pissing of those who helped him in 2016, with whatever repercussions that would have for Trump Organization funding going forward. To sum up:

  • Pardoning just Stone and Jr would expose them to coercion to testify against Assange and maybe others
  • Pardoning all three would make Trump’s own pardons much less defensible to those who would have to ensure he himself got immunity
  • Pardoning Assange at all would complete the conspiracy Mueller never charged
  • Not pardoning Assange might risk ire from Russia

I’m not saying he can’t find a way out of this dilemma. But it is one of the reasons why Trump’s pardon gambit is far more complex than others are accounting for.

Some Details of Mueller’s GRU Indictment You Probably Missed

When the Mueller team wrote the GRU indictment, they were hiding that Roger Stone might one day be included in it.

Last week,  DOJ unsealed language making it clear that, when Mueller closed up shop in March 2019, they were still investigating whether Roger Stone was part of a conspiracy with Russia’s GRU to hack-and-leak documents stolen from the Democrats in 2016.

The Office determined that it could not pursue a Section 1030 conspiracy charge against Stone for some of the same legal reasons. The most fundamental hurdles, though, are factual ones.1279 As explained in Volume I, Section III.D.1, supra, Corsi’s accounts of his interactions with Stone on October 7, 2016 are not fully consistent or corroborated. Even if they were, neither Corsi’s testimony nor other evidence currently available to the Office is sufficient to prove beyond a reasonable doubt that Stone knew or believed that the computer intrusions were ongoing at the time he ostensibly encouraged or coordinated the publication of the Podesta emails. Stone’s actions would thus be consistent with (among other things) a belief that he was aiding in the dissemination of the fruits of an already completed hacking operation perpetrated by a third party, which would be a level of knowledge insufficient to establish conspiracy liability. See State v. Phillips, 82 S.E.2d 762, 766 (N.C. 1954) (“In the very nature of things, persons cannot retroactively conspire to commit a previously consummated crime.”) (quoted in Model Penal Code and Commentaries § 5.03, at 442 (1985)).

1279 Some of the factual uncertainties are the subject of ongoing investigations that have been referred by this Office to the D.C. U.S. Attorney’s Office.

That means, eight months after they charged a bunch of GRU officers for the hack-and-leak, DOJ still hadn’t decided whether Stone had criminally participated in that very same conspiracy.

That raises questions about why they obtained the indictment before deciding whether to include Stone in it.

In his book, Andrew Weissmann provides an explanation for the timing of it.

A problem arose, however, when it came to the timing of this indictment. Having secured the Intelligence Community’s and Justice Department’s go-ahead, Jeannie aimed to have the indictment completed by July 2018. However, Team M’s first case against Manafort was scheduled to go to trial in Virginia in mid-July and, with Manafort showing little sign of wanting to plead, much less cooperate, with our office, we had few doubts that the trial would go forward. If we brought Team R’s indictment just before the trial, the judge in the Manafort case would go bonkers, justifiably concerned that such an indictment from the Special Counsel’s Office could generate adverse pretrial publicity, even if it didn’t relate directly to the Manafort charges.

But we couldn’t afford to wait to bring the hacking indictment until after both of Manafort’s trials concluded—the trial in Virginia was slated to start in July and the trial in Washington in early September. By then, we would be running up on the midterms, and we would not announce any new charges that close to the election (consistent with Department policy). But waiting until mid-November would be intolerable to Mueller. I told Jeannie I thought we could safely defend ourselves from any objections from the Virginia judge if she brought her case at least two weeks before the start of our July trial—that, I hoped, would give us a reasonable buffer.

Jeannie said she could manage that, then quickly noted that the new timetable created yet another problem: Two weeks before our trial, the president was scheduled to be in Helsinki, where he would be meeting privately with Vladimir Putin. Our indictment would require alerting the State Department, given their diplomatic concerns in preparing for and running a summit, as the indictment would accuse the Russians explicitly of election interference. That was standard operating procedure, but there was also the real perception issue that the indictment could look like a commentary on Trump’s decision to meet alone with Putin, which we did not intend.

We brought the dilemma to Mueller. He suggested we determine whether the White House would take issue with our proceeding just before the president’s trip—would it pose any diplomatic issues? The answer we got back was no: The administration would not object to the timing. I suspect the White House Counsel’s Office did not want to be perceived as dictating to us how or when to bring our indictment, or as hiding evidence of Russian election interference. In retrospect, a less generous interpretation of their blessing to move forward was that they knew dropping the indictment just before the trip would provide Trump and Putin an opportunity to jointly deny the attack on a global stage—that they were playing us, as Barr would later on. [my emphasis]

The indictment was ready in July. If it wasn’t announced then and if both Manafort trials went forward, then prohibitions on pre-election indictments would kick in, meaning the indictment wouldn’t be released in mid-November. That would have been “intolerable” for Mueller’s purposes. Weissmann doesn’t note that mid-November would also be after the election, meaning that the indictment might not get released before a hypothetical post-election Mueller firing and so might not get released at all. That may be what intolerable means.

Other possible factors on the GRU indictment timing

One thing that almost certainly played a factor in DOJ obtaining the indictment before they decided whether to include Stone in it, however, was Andrew Miller’s appeal.

Stone’s former aide Andrew Miller was interviewed for two hours at his home on May 9, 2018; this is almost certainly the 302 from the interview. Assuming that is his 302, Miller was asked about his relationship with Stone, Stone’s relationship with Trump, a bunch of Stone’s right wing nut-job friends, and someone whom Miller knew under a different name. Nothing in the unredacted passages of the interview reflects Miller’s role coordinating Stone’s schedule at the RNC, even though that was the focus of a follow-up subpoena after Miller testified to the grand jury. At the end of the interview, Miller agreed to appear voluntarily for a follow-up and grand jury testimony.

But then Stone learned about the interview.

We know that from the description of a pen register Mueller obtained on Stone a week later, described in affidavits. The PRTT showed that Miller had called Stone twice in the days after his interview with the FBI. On May 11, 2018, Miller lawyered up and his new lawyer, Alicia Dearn, told Mueller that Miller would no longer appear voluntarily (remember that Stone had offered to get a lawyer who would help Randy Credico refuse to testify).

This timeline lays out the early part of Miller’s subpoena challenge.

Miller emailed Stone over a hundred times over the month after his FBI interview. Miller did schedule a grand jury appearance, but then blew it off. Mueller started moving to hold Miller in contempt on June 11. In the days between then and a hearing on the subpoena, Miller and Stone exchanged five more emails. Then, in late June, Miller added another lawyer, Paul Kamenar (whom Stone would add to his team after his sentencing, presumably to allow Kamenar to access the evidence against him under the protective order). Kamenar made it clear he would appeal Miller’s subpoena.

In other words, in late June, the Mueller team learned that they would have to wait a while to get Miller before the grand jury (it ultimately took until the moment Mueller closed up shop on May 29, 2019). All the back and forth also would have made it clear how damaging Stone believed Miller’s testimony against him to be. When Mueller obtained a second warrant for Stone’s emails in early August 2018, the team would have gotten the content of those emails to learn precisely what Stone had to say to Miller about his testimony.

So Miller’s challenge to his subpoena meant that Mueller’s team would not obtain testimony that — it seems clear — they knew went to the heart of whether Stone was conspiring with Russia until well after the midterm election.

If my concerns that “Phil” had a role in the Guccifer 2.0 operation were correct, there’s a chance my big mouth had a role in the timing, too. Starting on June 28, I started considering revealing that I had gone to the FBI in what would eventually become this post. Contrary to the invented rants of people like Glenn Greenwald and Eli Lake, even a year into an investigation into what I had shared with the FBI, long after the time they would have been able to dismiss my concerns if they had no merit, prosecutors did not blow me off.

My interaction with Mueller’s press person in advance of going forward extended over five days. I emailed the press person on June 28 and said I wanted to run something by him. He blew it off for a day (there was a Manafort hearing), then on Friday I wrote again saying I run my decision by my lawyer, and was still planning on going forward. He still blew it off. The next day, I suggested he go check with a particular prosecutor; while the prosecutor hadn’t been in my interview, he was involved in setting it up. The press guy called back within an hour, far more interested in the discussion, and chatty about the fact that I live(d) in Michigan. He asked me to explain the threats I believed I had gotten after I went to the FBI. He asked me generally what I wanted to say. I noted that I believed if people guessed why I had gone to the FBI, they would guess the Shadow Brokers side of it, since TSB had dedicated its last words to a tribute to me, but probably not the Guccifer 2.0 side.

He told me “some people” needed to discuss it. Early on Monday July 1, we spoke again first thing in the morning. He asked me to describe more specifically what I would say. I described the select parts of my post that I suspected would be most sensitive, and read the text that I planned to publish. He said some people needed to discuss it and I would hear by the end of the day. At the end of the workday, he apologized for a further delay. After some more back-and-forth, he told me, around 10PM, that my post would not damage the investigation. The Special Counsel’s Office took no view on whether it was a stupid idea or not (it probably was, not least because one can never understand the moving parts in an investigation like this).

I posted the next day, part of a mostly-failed attempt to get Republicans to care about the non-partisan sides of this investigation. That was 11 days before the actual indictment.

I didn’t know then and frankly I still can’t rule out whether, over those two days, when “some people” discussed my plans, they reached a final conclusion that my concerns about an American who might have a role in the Guccifer 2.0 operation were either baseless or could not be proven.

But the aftermath shows they were still investigating Stone’s ties to Guccifer 2.0, whether not I was right about an American involved in it. Later in July, after the GRU indictment was released, prosecutors would obtain a warrant on several of Stone’s Google accounts in an attempt to determine whether he was the person looking up dcleaks and Guccifer 2.0 before the sites went live. A month and a half later, they would get two warrants, two minutes apart, one for Stone’s cell site location, and another for a Guccifer 2.0 email account, possibly an attempt to co-locate Stone and someone using the Guccifer account. That was the beginning of the period when Mueller’s team would start gagging warrant applications to hide the scope of the investigation from Stone.

For several months after releasing an indictment that made it appear as if all the answers about the hack-and-leak were answered, then, Mueller’s team took a number of steps that aimed to understand any tie between Stone and Guccifer 2.0. Even sixteen months after the GRU indictment, the Guccifer 2.0 persona ended up being an unstated focus of Stone’s trial — a trial about his lies to hide his true go-between with WikiLeaks — too.

Whatever the reason for the timing of the GRU indictment, given the confirmation that Mueller’s team was still investigating whether Stone had foreknowledge of ongoing GRU hacks that would merit including him in the hack-and-leak conspiracy when they closed up shop in March 2019, it’s worth revisiting the GRU indictment. At the time Mueller’s team wrote it, they knew at a minimum they were killing time to get Miller’s testimony, and subsequent steps they took show they they continued to pursue a prong of the investigation pertaining to Guccifer 2.0 that they planned to hide from Stone. So it’s worth seeing how they wrote the indictment to allow for the possibility of later including Stone in it, without telegraphing that that was a still open part of the investigation.

The Stone investigation parallels several of the counts charged in Mueller’s GRU indictment

The indictment charges 12 GRU officers for several intersecting conspiracies: Conspiracy against the US by hacking to interfere in the 2016 election (incorporating various CFAA charges and 18 USC §371), conspiracy to commit wire fraud for using false domain names (18 USC §3559(g)(1)), aggravated identity theft for stealing the credentials of victims (18 USC 1028A(a)(1)), conspiracy to launder money for using bitcoin to hide who was funding the hacking infrastructure (18 USC §1956(h)), and conspiracy against the US for tampering with election infrastructure (18 USC §371). In addition there’s an abetting charge (18 USC §2). Those charges are similar to, but do not exactly line up with, the other GRU indictment obtained in 2018, for hacking international doping agencies, which I’ll call the WADA indictment. The WADA indictment includes hacking, wire fraud, money laundering conspiracies, along with identity theft, as well. But it doesn’t include the abetting charge. And as described below, it deals with the leaking part of the operation differently.

DOJ used the abetting charge in Julian Assange’s indictments, a way to try to hold him accountable for the theft of documents by Chelsea Manning. Given the mention of Company 1, WikiLeaks, in the indictment, that may be why the abetting charge is there.

But the charges in the Mueller GRU indictment also parallel those for which the office was investigating Stone: he was investigated for CFAA charges from the start (that first affidavit focused exclusively on Guccifer 2.0), 371 was added in the next affidavit, aiding and abetting a conspiracy was added in the third affidavit, and wire fraud was added in March 2018 (the campaign finance charges that would be declined in the Mueller Report were added in November 2017). While the wire fraud investigation might be tied to Stone’s own disinformation on social media, the rest all stems from the charges eventually filed against the GRU in July 2018. Those same charges remained in Stone’s affidavits through 2018 (though did not appear in the early 2019 warrants used to search his houses and devices).

Mueller charged Unit 74455 officers for “assisting” in the DNC leak, without describing whom they assisted

Given the overlap on charges between those for which Mueller investigated Stone and those that appeared in the indictment, the treatment of the information operation in the GRU indictment — particularly when compared with the WADA indictment — is of particular interest. In both cases, the indictment described the InfoOps side to be conducted by Russian military intelligence GRU Unit 74455, as distinct from Unit 26165, which did most (but not all, in the case of the election operation) of the hacking.

In the WADA indictment, none of the personnel involved in the hack-and-leak at Unit 74455 are named or charged. Instead the indictment explains that, “these [Fancy Bears Hack Team social media accounts] were acquired and maintained by GRU Unit 74455.” Later, the indictment describes these accounts as being “managed, at least in part, by conspirators in GRU 74455,” notably allowing for the possibility that someone else may have been involved as well. The actions associated with that infrastructure are generally described in the passive voice: “were registered,” “were released” (several times). For other actions, the personas were the subject of the action: “”@fancybears and @fancybearHT Twitter accounts sent direct messages…”

The Mueller indictment, however, names three Unit 74455 officers: It charges Aleksandr Osadchuk and Anatoliy Kovalev in the hack of the election infrastructure (Kovalev got charged in the recent GRU indictment covering the Seoul Olympics and NotPetya, as well).

And it charges Osadchuk and the improbably named Aleksey Potemkin in the hack-and-leak conspiracy. The Mueller indictment describes that those two Unit 74455 officers set up the infrastructure for the leaking part of the operation. Significantly, it describes that these officers “assisted” in the release of the stolen documents.

Unit 74455 assisted in the release of stolen documents through the DCLeaks and Guccifer 2.0 personas, the promotion of those releases, and the publication of anti-Clinton content on social media accounts operated by the GRU.

[snip]

Infrastructure and social media accounts administered by POTEMKIN’s department were used, among other things, to assist in the release of stolen documents through the DCLeaks and Guccifer 2.0 personas.

The indictment doesn’t describe whom these officers assisted in releasing the documents.

Unlike the WADA indictment, the Mueller indictment also includes specific details proving that GRU did control the social media infrastructure. It describes how the conspirators used the same cryptocurrency account to register “dcleaks.com” as they used in the spear-phishing operation, and the same email used to register the server was also used in the spear-phishing effort.

The funds used to pay for the dcleaks.com domain originated from an account at an online cryptocurrency service that the Conspirators also used to fund the lease of a virtual private server registered with the operational email account [email protected] The dirbinsaabol email account was also used to register the john356gh URL-shortening account used by LUKASHEV to spearphish the Clinton Campaign chairman and other campaign-related individuals.

[snip]

For example, between on or about March 14, 2016 and April 28, 2016, the Conspirators used the same pool of bitcoin funds to purchase a virtual private network (“VPN”) account and to lease a server in Malaysia. In or around June 2016, the Conspirators used the Malaysian server to host the dcleaks.com website. On or about July 6, 2016, the Conspirators used the VPN to log into the @Guccifer_2 Twitter account. The Conspirators opened that VPN account from the same server that was also used to register malicious domains for the hacking of the DCCC and DNC networks.

(Note, this is some of the evidence collected via subpoenas to tech companies that the denialists ignore when they claim that CrowdStrike was the only entity to attribute the effort to Russia.)

The Mueller indictment describes how Potemkin controlled the computers used to launch the dcleaks Facebook account.

On or about June 8, 2016, and at approximately the same time that the dcleaks.com website was launched, the Conspirators created a DCLeaks Facebook page using a preexisting social media account under the fictitious name “Alice Donovan.” In addition to the DCLeaks Facebook page, the Conspirators used other social media accounts in the names of fictitious U.S. persons such as “Jason Scott” and “Richard Gingrey” to promote the DCLeaks website. The Conspirators accessed these accounts from computers managed by POTEMKIN and his co-conspirators.

Finally, there’s the most compelling evidence, that some conspirators logged into a Unit 74455-controlled server in Moscow hours before the initial Guccifer 2.0 post went up and searched for the phrases that would be used in the first post.

On or about June 15, 2016, the Conspirators logged into a Moscow-based server used and managed by Unit 74455 and, between 4:19 PM and 4:56 PM Moscow Standard Time, searched for certain words and phrases, including:

Search Term(s)

“some hundred sheets”

“some hundreds of sheets”

dcleaks

illuminati

широко известный перевод [widely known translation]

“worldwide known”

“think twice about”

“company’s competence”

Later that day, at 7:02 PM Moscow Standard Time, the online persona Guccifer 2.0 published its first post on a blog site created through WordPress. Titled “DNC’s servers hacked by a lone hacker,” the post used numerous English words and phrases that the Conspirators had searched for earlier that day (bolded below):

Worldwide known cyber security company [Company 1] announced that the Democratic National Committee (DNC) servers had been hacked by “sophisticated” hacker groups.

I’m very pleased the company appreciated my skills so highly))) [. . .]

Here are just a few docs from many thousands I extracted when hacking into DNC’s network. [. . .]

Some hundred sheets! This’s a serious case, isn’t it? [. . .] I guess [Company 1] customers should think twice about company’s competence.

F[***] the Illuminati and their conspiracies!!!!!!!!! F[***] [Company 1]!!!!!!!!! [emphasis original]

Remember: in the weeks after DOJ released this indictment, Mueller’s team took steps to try to obtain proof of whether Roger Stone was the person in Florida searching on Guccifer’s moniker on June 15, 2016, before the initial post was published. If Stone did learn about this effort in advance, it would suggest he learned about Guccifer 2.0 operation around the same time as someone was searching on these phrases in a GRU server located in Moscow. It would mean Stone learned about the upcoming Guccifer post in the same timeframe as these GRU officers were reviewing it.

It’s not really clear what was going on here. The assumption has always been that GRU officers were looking for translations into English from a post they drafted in Russian, even though the quotation marks suggests the Russian officers were searching on English phrases.

The one exception to that seems to confirm that. Those conducting these searches appear to have searched on a Russian phrase, a phrase they would have easily understood.

широко известный перевод

Moreover, it would take a shitty-ass translation application to come up with the stilted English used in the post. Plus, “illuminati,” at least, is an easily recognized cognate, even for someone (me!) whose Russian is surely worse than the English of any one of these Russian intelligence officers.

Still, proof of this  activity — obtained via undescribed means — clearly ties the Guccifer operation to the GRU. It’s just not clear what to make of it. And the possibility that there’s an American component to the Guccifer 2.0 operation — whether “Phil” or someone else — one that may have alerted Stone to what was going on, provides explanations other than straight up translation. Indeed, it may be that GRU officers were approving the content that someone else wrote, originally in English. Which might also explain why Stone may have known about it in advance.

Whatever else, the GRU indictment only claims that these GRU officers “assisted” this effort. It doesn’t claim they wrote this post.

The Stone-adjacent Guccifer 2.0 activity

One other detail of Mueller’s GRU indictment of interest pertains to which Stone-adjacent activity it chose to highlight.

Stone had first made his DMs with Guccifer 2.0 public himself, in March 2017. They were covered in his House Intelligence Committee testimony. But when Mueller included them in the GRU indictment, Stone first denied, and then sort of conceded the reference to them might be him.  His initial denial was an attempt to deny he had spoken with people in the campaign other than Trump himself, even though he had released the communications himself over a year earlier.

Remember — Mueller was still weighing whether Stone was criminally involved in this conspiracy when Stone issued the initial denial!

But that’s not the most interesting detail of the part of the indictment that lays out with whom Guccifer 2.0 shared stolen documents (even ignoring one or two tidbits I’m still working on).

Mueller’s GRU indictment included — along with the reference to the Roger Stone DMs they still hadn’t determined whether reflected part of a criminal conspiracy or not — the Lee Stranahan exchange with Guccifer 2.0 that ended in Stranahan, a Breitbart employee who would later move to Sputnik, obtaining early copies of a document purportedly about Black Lives Matter.

On or about August 22, 2016, the Conspirators, posing as Guccifer 2.0, sent a reporter stolen documents pertaining to the Black Lives Matter movement. The reporter responded by discussing when to release the documents and offering to write an article about their release.

These Stranahan exchanges are really worth attention, not just for the way they prove that Stone-adjacent people got early releases on request (which, lots of evidence suggests, also happened with Stone with respect to the Podesta files pertaining to Joule Holdings), but also for the way Guccifer 2.0 ignored Stranahan’s claim in early August 2016 to have convinced Stone that Guccifer 2.0 was not Russian.

Note what this indictment didn’t mention, though: Guccifer 2.0’s outreach to Alex Jones (about whom, unlike Stranahan, the FBI questioned Andrew Miller).

As I’ve pointed out, in the SSCI Report, there’s a long section on Jones that remains almost entirely redacted. Citing to five pages of a report the title of which is also redacted, the four paragraphs appear between the discussions of Guccifer 2.0’s outreach to then-InfoWars affiliate Roger Stone and Guccifer 2.0 and dcleaks’ communication with each other.

According to Thomas Rid’s book, Active Measures, both dcleaks and Guccifer 2.0 tried to reach out to Jones on October 18, 2016.

On October 18, for example, as the election campaign was white hot and during the daily onslaught of Podesta leaks, both GRU fronts attempted to reach out to Alex Jones, a then-prominent conspiracy theorist who ran a far-right media organization called Infowars. The fronts contacted two reporters at Infowars, offered exclusive material, and asked to be put in touch with the boss directly. One of the reporters was Mikael Thalen, who then covered computer security. First it was DCleaks that contacted Thalen. Then, the following day, Guccifer 2.0 contacted him in a similar fashion. Thalen, however, saw through the ruse and was determined not to “become a pawn” of the Russian disinformation operation; after all, he worked at Infowars. So Thalen waited until his boss was live on a show and distracted, then proceeded to impersonate Jones vis-à-vis the Russian intelligence fronts.23

“Hey, Alex here. What can I do for you?” the faux Alex Jones privately messaged to the faux Guccifer 2.0 on Twitter, later on October 18.

“hi,” the Guccifer 2.0 account responded, “how r u?”

“Good. Just in between breaks on the show,” said the Jones account. “did u see my last twit about taxes?”

Thalen, pretending to be Jones, said he didn’t, and kept responses short. The officers manning the Guccifer 2.0 account, meanwhile, displayed how bad they were at media outreach work, and consequently how much value Julian Assange added to their campaign. “do u remember story about manafort?” they asked Jones in butchered English, referring to Paul Manafort, Donald Trump’s former campaign manager. But Thalen no longer responded. “dems prepared to attack him earlier. I found out it from the docs. is it interesting for u?”24

Rid describes just one of two outreaches to Jones (through his IC sources, he may know of the report the SSCI relies on). But a key detail is that this outreach used as entrée some stolen documents from May 2016 showing that the Democrats were doing basic campaign research on Trump’s financials. It then purports to offer “Alex Jones” information on early Democratic attacks on Paul Manafort’s substantial Ukrainian graft, possibly part of the larger GRU effort to claim that Ukraine had planned an election year attack on Trump.

That is, unlike Stranahan’s request for advance documents, this discussion intended for “Alex Jones,” ties directly to Stone’s efforts to optimize the Podesta release. And it’s something that some entity prevented SSCI from publishing.

It’s also something Mueller’s team left out of an indictment aiming to lay out the hack-and-leak case before they might get fired, but in such a way as to hide the then-current state of the investigation from Roger Stone.

There were actually a number of Stone-adjacent associates in contact with GRU’s personas. And as recently as just a few months ago, the government wanted to hide the nature of those ties.

Afraid? Who, Us? We’re Not Afraid!

h/t Flazingo Photos
[Attribution-ShareAlike 2.0 Generic (CC BY-SA 2.0) ]

Politico has an interesting piece up about whether Trump administration staffers, especially at the senior level, will face any difficulties in life after January 20, 2021. Will they have trouble getting a new job? Will they be treated like Alan Dershowitz in the Hamptons at Martha’s Vineyard, and find themselves off the best invitation lists for the Villager’s Dinner Parties?

On the one hand, these Trump folks make a good point: the fact that more than 70 million people voted for Trump indicates that this was not a top-to-bottom repudiation of Trump and everything he stood for. The fact that so many of the folks eyeing the 2024 GOP presidential nomination are embracing Trump and his quixotic challenges to the election result suggests that these staffers won’t have a shortage of people looking to hire someone who has Been Inside The White House, even if it’s Trump’s White House.

But there’s one thing that suggests they are still worried. There’s one thing that suggests that they are looking over their shoulders. There’s one thing that suggests that they are not as comfortable as their brave words declare them to be.

Here’s a hint:

“. . . said a White House official . . .”

“. . . some current and former Trump officials . . .”

“. . . One top official at the White House . . .”

“. . . Many top Trump advisers now say . . .”

“. . . said one of the president’s closest advisers.”

“. . . Interviews with numerous current and former Trump officials reveal . . .

” . . . Most Trump officials feel . . .”

“. . . as one Trump official called them . . .”

“. . . said an administration official. . . .”

“. . . said a senior administration official . . .”

” . . . said a Trump adviser . . .”

” . . . said a Senate GOP aide . . .”

” . . . said a former senior administration official . . .”

To Politico’s credit, they did manage to quote one person by name in this story:  Alexandria Ocasio-Cortez.

But back to those Trump staffers. For folks who are quite sure they will land on their feet, they are mighty nervous about putting their name next to their words. Maybe it’s because of this:

“None of the Trump officials interviewed for this story seriously believed that Trump would prevail in the election, and it was taken as a given that they would all soon be looking for work outside the administration.”

These unnamed Trump officials may not fear repudiation by the DC social circles for having been complicit in locking children in cages and taking them away from their parents, never to be reunited. They may not fear for their next job, despite enabling the feeble and fatal Trump administration response to the coronavirus pandemic. They may not fear poverty, because they’ve got their book deal lined up already.

But their unanimous unwillingness to allow their names to be used says they are afraid of something. Or should I say “someone”?

It’s Donald John Trump, and he’s not going away.

*That* is what worries these people. It’s one thing to say “Look at the Dubya folks – they did just fine as their Iraq War stuff and market crash faded into history.” But as long as Trump doesn’t fade away, neither will their enabling of his policies. And deep down, they know that Trump is not going to quietly ride off into the sunset. Ever.

Be afraid, Unnamed Senior Administration Officials. Be very afraid.

[The post has been edited to correct the object of Alan Dershewitz’s unrequited feelings. While it is possible the residents of the Hamptons may have just as much disdain for Mr. Dershewitz as the residents of Martha’s Vineyard, that is not a matter of public record. We regret the error of not giving the residents of Martha’s Vineyard their due.]

What Comes After America

Whatever happens today, the Union is done.

It has been for a long time, maybe even from the start. But we have reached the point where the longer it goes on, the more harm it will inexorably do. It’s time, past time, to admit it didn’t work, it never worked, and that the Constitution and its institutions have ossified. There is no reforming the United States of America, there is no more perfect union to chase after. That turned out to be a lie — a lie woven into the legal fabric of this nation-state from the start. The United States of America, as defined by its constitution, can only get worse because of how irreparably broken both that document and the system it created are. This isn’t a Trump or GOP thing. They are symptoms, but they are only symptoms. As angry as you may be at Trump, voting him out, driving him from the country, jailing him, whatever, none of that will fix the great flaw that created his presidency. It does no more than shoe a fly away from an open wound and call it fixed.

The flaw is our Constitution. As there is no politically possible path to rewriting the it, the Constitution can only fall further into entropy and catastrophe.

The longer this goes on, the worse the end will be. This is why it’s the duty of people who are in and of, or love, America the culture, Americans the people, the land it spans and the diversity it holds, to imagine what comes next and the easiest way to get there. We’ve been running what was essentially the broken beta of the first representative democracy for almost 250 years, and it was built to not be upgradable. It doesn’t work right, it never did, and it is awful. It was a compromise of rich and frightened men whose imaginations (understandably) didn’t reach far beyond the 18th century.

The nightmares we live with, and their disconnect from the values we hold now are impossible to count. I was researching children in ICE detention living in cages, and their families being held in unsafe conditions and coerced into forced labor — back in the Obama days. The exploitation of forms of unfree labor continues to this day, as does the rise of oligarchy and political corruption.

Police have killed almost 900 people this year, despite a mismanaged pandemic presumably making it somewhat harder. The Flint water crisis is six years old this year, and still going. One person has been found guilty and sentenced to probation. I could go on, but you know this song: opioid crisis, inequality, lobbying, campaign finance, the two party system, gerrymandering, disenfranchisement, and of course, the damn virus. And still, all these problems are just symptoms of a deeper disease, a broken political basis for our society. Our laws have lead to an irreparable failure of the American system when it comes to the basic task of keeping the people who constitute it alive and functional and with some kind of path to a sustainable, if not improving, existence. Medical care, housing, and education are all contingent. These are the most fundamental parts of having this thing called government and ours failed these tasks aggressively, despite the brilliance and determination of even its most oppressed people pushing forward our culture to greater things.

It’s impossible to change any of this at a fundamental level, because it is impossible to re-write or even amend the superstructure of our laws and our government. Even if the GOP lost everything, and the Democrats suddenly became a party of reform (which they won’t), nothing could meet the global problems we face because the judiciary will destroy efforts to reform and remake ourselves at every turn. But even before we get to the problem of the judiciary, the two party system is disconnected from the world as it is now: facing the end of the Holocene and with that, a planet that is gentle to humans. What was the most democratic system of the 18th century is a travesty of permitted corruption, unrepresentative elites, and openly bought-and-paid-for influence. It’s over, it’s done, it’s time to let it go before it kills us all.

The successes of America, and there have been many, came not because of our form of governance but despite it. The culture – for good and ill – isn’t the constitution or the legal regime or the nation-state as recognized by other nation-states. It’s the people. It’s what we choose, believe, and imagine. Right now we choose to be constrained by a document that has manifestly failed us.

And yes, there have been efforts at positive movement using our constitutional framework, like the 13th, 14th, and 15th Amendments. But they have been undermined and destroyed almost at birth by the perniciousness of the very flaws amendments were meant to fix. And thusly, because of the 14th, we live in a world were Exxon holds the rights meant for black folk who still struggle to vote.

After spending much of my adult life feeling alone in my views, it has surprised me how many people have said to me over the last years, and especially this year, that there’s no redeeming this union, that it’s not worth preserving. But this is not an ending thought that drops into a void.

The end of the Union isn’t a hopeless position, but the only hopeful one we have. The alternative isn’t chaos and dystopia, just as the alternative to monarchy in the 17th and 18th century wasn’t chaos and dystopia. It was us.

Right now is when we start imagining and working on the most peaceful and productive transition to a post-USian world we can manage. That may seem impossible, but that’s also what we thought about the Soviet Union in 1987. It’s what we thought about the end of European hegemony at the end of the colonial ages. It’s what we thought right before parliamentary reform swept Europe after 1848. Right now we’re settling for Churchill‘s worst form of government except for all those other forms that have been tried from time to time…, in this world of sin and woe. Why does humanity think it needs to stop there? We invented everything we have now politically, technologically, culturally, and in ways of coordinating and governing.

Why on earth are so many people convinced that we don’t have anything more to invent?

The founders imagined a new thing, but they chickened out and didn’t do it. They half-assed it, retreated from their own notions. When they were done with the thing, it was born almost a ghost and tied down to the old hierarchies. The framers of the constitution were afraid of their own notions of self-determination and equality. They pulled back and tried to not make it too democratic a nation for three million people, and now it fails more than three hundred million. In fact, it fails more than seven billion.

In 2020, this structure has been constraining the political imagination for centuries, stunting our growth, and stunting the world.

My allegiance is not to America, and it hasn’t been for many years. My allegiance is to my family — my family of all the strange living things, unique in a seemingly endless void of rock and chemistry filling the universe, but not life, not as far as we know. I do love America — the land, the people, the crazy, loud, funny and emotional culture. I will always love America, but like all real love, it will be complicated. I don’t have to love its flaws, its racism, its cowardly cruelty, or its legal institutions in order to love its soul.

My allegiance isn’t to a bastard compromise of frightened men in 1776, or 1648, or even 1555. It’s to the world now, in 2020. Those men are long dead, and they do not get to describe the limits of political imagination in the 21st century. But right now, we are trapped in the infinitesimal space these old men described for us, surrounded on all sides by the high cliffs of doubt and familiarity. We need to succeed where they failed — humanity is counting on it.

I know it’s unthinkable that any of this could change, just as it was unthinkable that Rome could fall, that Carthage would be wiped from the map, that the Russian Empire could cease to be, that the Dynasties of China would come to an end, that the Toltecs would collapse, that the eternal Pharaohs of Egypt would pass from the world, and any more of the dozens of political systems that have come and gone. We are still here, waiting on something worthy of our brilliance and creativity.

One of our greatest poets, a man treated like shit for the color of his skin, wrote

O, let America be America again—
The land that never has been yet—
And yet must be—the land where every man is free.

If you want to call that thing Hughes sang for America, sure, why not. But don’t mistake it for the quicksand of desires we inhabit now. Don’t mistake it for this most failed of hoped-for states. Don’t even mistake it for a Westphalian state.

It all stops the day we decide it stops. None of these documents, forms, systems, or laws have any existence beyond our imaginations, and they never did. It is 2020, and we face a pandemic (with undoubtedly more to come), the end of our own Holocene, environmental destruction, and the task of meeting the needs of eight billion people in this world. It’s time to abandon the best systems men could think of in the late 1700s and figure out one that works now. We could even lead the world in figuring out what comes after the Westphalian nation-state, hopefully before that legal and cultural construct kills us all.

This too shall pass. How it passes, whether it’s the end of the world, or the birth of a better one, is up to our imaginations, which we need to put to work in a hurry.

And so, on this most strange of days, I put the question to you – What comes after America?

“Show Me the Metadata:” A Forensic Tie Between Shadow Brokers and Guccifer 2.0

On October 16, 2017, some of the last words the persona Shadow Brokers (TSB) ever wrote hailed my journalism.

TSB special shouts outs to Marcy “EmptyWheel” Wheeler, is being what true journalist and journalism is looking like thepeoples!

TheShadowBrokers, brokers of shadows.

As I noted at the time, I really didn’t need or appreciate the shout-out. I wrote a serious post analyzing that TSB post, but mostly I was trying to tell TSB to fuck off and leave me alone.

That was months after I told the FBI that I thought that someone I knew, whom I will refer by the pseudonym “Phil,” might be the voice of TSB, and less than a week after I got a Psycho-themed threat I deemed worthy of calling the cops.

As I laid out here, I told the FBI that months before Phil had left a comment on my site on July 28, 2016, signed [email protected], he had done some paranoid things starting on June 14, 2016, including making multiple references to ties he claimed to have with Russia. He then attended a Trump rally on August 13, 2016, taking pictures he would later suggest were really sensitive.

In addition to my suspicions about Guccifer 2.0, I also told the FBI that I suspected Phil was part of the operation that had been dumping NSA exploits and other records on the Internet starting in August 2016.

Unlike with Guccifer 2.0, Phil never signed a comment at the site under the name TSB — though on September 21, 2017, someone left a comment asking for my opinion about the ways the government was pursuing TSB.

‘Merican

September 21, 2017 at 1:58 am

Is what you say easier get FISA than Criminal warrant or FISA keep secret from rest of government, but Criminal warrant maybe not? FBI is not intelligence agency is law enforcement agency why have access FISA? You write many articles about the shadow brokers, what you think FISA or Criminal for the shadow brokers? You thinking anyone in US government is looking for the shadow brokers? US government not even say name “name that shall never be spoken”. What is best way discover national security letter sent to your service provider? …asking for a friend!

I thought Phil might be TSB, in part, because Phil had said almost identical things to me in private that TSB said publicly months later. There were other things in TSB’s writing that resonated with stuff I knew about Phil. And while Phil and I never (as far as I recall) talked about TSB, at least once he did say some other things that went a long way to convincing me he could be TSB; I thought he was seeking my approval for what TSB was doing, approval I was unwilling to give.

There are, however, public exchanges between the persona TSB and me, in addition to that shout out in what turned out to be TSB’s swan song.

For example, after I wrote a post on January 5, 2017 wondering why the government hadn’t included TSB in any of its discussions of election year hacking, TSB tweeted to me, complaining that I had described TSB as “bitching” about the coverage, rather than calling it “trolling.” (Note, the language in these screen caps reflects the language used by the people who first archived these tweets, so don’t go nuts about the Russian.)

TSB then RTed my article, suggesting other outlets were complicit for not asking the same questions.

The first tweet, at least, didn’t adopt the fake Borat voice that TSB used to mask a very fluent English, though I think there were some other tweets TSB sent that day where that may be true as well. In neither of these tweets did TSB mock me for misspelling “Whither” (the post’s title originally spelled it “Wither”); that’s a bit odd, because TSB rarely passed up any opportunity to be an asshole on Twitter.

Then, on July 18, 2018, after I had revealed I had shared information with the FBI, someone started a Twitter account under the name LexingtonAl that ultimately claimed to be — and was largely viewed as, by those who followed it — TSB (the persona deleted most tweets in February 2019, but many are saved here). Starting in December 2018, Lex and I had several exchanges about what TSB had actually done. 

Here’s my side of one from that month where I pointed out a problem with Lex’s claim that TSB consisted of just three contractors who leaked the files to reveal US complicity with tech companies to other Americans. The claim didn’t accord with having sent the files to WikiLeaks (as both WikiLeaks and TSB claimed in real time).

At the time, Lex went on an anti-Semitic rant about things he hated. Assuming that Lex is TSB (as he claimed), I got demoted from being TSB’s favorite journalist to third on the list of things Lex hated.

Note: when I interacted with Phil, he was never anti-Semitic (though he was a raging asshole when angry), but Lex was clearly even more disturbed than Phil was in the period when I interacted with him.

Then, in January, Lex bitched (again, in anti-Semitic terms) about a post I had done noting that, given Twitter’s poor security at the time, the Twitter DMs that Hal Martin allegedly sent Kaspersky might have served to frame him.

The post had noted that the early TSB posts — including a number sent after Martin was arrested — had relied on similar cultural allusions as the DMs sent from Martin’s Twitter account. Shortly thereafter the FBI arrested Martin in a guns-wagging raid on his home in Maryland. Per this Kim Zetter story, the Tweets had mentioned the 2016 version of Jason Bourne and Inception. I reiterated that on Twitter.

It was a factual observation supported by the content of the earlier TSB posts, not a comment about any spookiness behind the release of the files.

I asked why TSB was so defensive about having those cultural allusions called out.

Lex responded with another anti-Semitic rant.

I responded,

Finally, in February 2019, Lex invoked me — including that I had “had a breakdown and outed her source” — sort of out of the blue in the middle of what might be called his claimed doctrine behind the leaks.

I noted that if his claimed doctrinal explanation were true, then TSB would have done a victory lap (and stopped dropping files) when Microsoft President Brad Smith started advocating for a Digital Geneva Convention in February 2017, which would have brought about an end to the practice that, Lex claimed, was his reason for dumping the files.

Not only didn’t TSB mention that in real time (instead choosing to exacerbate the tensions between the US and Microsoft), but TSB kept dropping files for six months after that.

Lex responded with another attack.

I have far less evidence that I could share to prove that TSB or Lex are Phil. But little noticed in the midst of TSB’s widely-discussed obsession with Jake Williams, a former NSA hacker whom TSB probably tried to frame as the source of the files, TSB also had an obsession with me — and certainly took notice when I revealed that I had gone to the FBI.

All that said, virtually all of these communications post-dated the time when I went to the FBI.

I went to the FBI in the wake of the WannaCry attack. The attack, reportedly a North Korean effort to make use of the tools dropped by TSB that went haywire, ended up causing a global worm attack that shut down hospitals and caused hundreds of billions of dollars in damage. When I have alluded to the ongoing damage I was trying to prevent, that’s what I mean: the indiscriminate release of NSA exploits to the public which, in that case, literally shut down hospitals on the other side of the world. 

There’s no defense for that.

While I had been trying to find some way to share my concerns long before that, I may never have met directly with the FBI about any of my suspicions except for another detail: I learned that there was a forensic tie between the Guccifer 2.0 and TSB personas. While, at the time, I had moderate confidence about both my belief that Phil had a role in the Guccifer operation and moderate confidence that he was TSB, when I learned there was a forensic tie between the two of them, it increased my confidence in both. 

A strong caveat is in order: the forensic tie isn’t decisive; it could be insignificant, or untrue.

The forensic tie is that someone logged into one of the Guccifer 2.0 accounts — I think the WordPress account — using the same IP address as someone who logged into the early staging sites — either Pastebin or GitHub — for the TSB operation.

If someone using the same IP address accessed both sites — probably using a VPN — it could mean either that the same person was involved, or whoever staged these things was doing little to cover their tracks and outsiders were accessing their infrastructure. One of the people who told me about this forensic tie interpreted it as a deliberate attempt to tie the two operations together, sort of yanking the government’s chain.

I learned of this forensic tie from multiple people, all of whom are credible. That said, I can’t rule out that they learned it from the same person. No one has reported on this in the years since these operations, even though I’ve tried to get better sourced journalists to go chase it down. Indeed, I recently learned that a top outside expert on issues related to TSB did not know this forensic detail.

The FBI had to chase down a lot of weird forensic shit pertaining to these influence operations, because that’s how this kind of operation works. I have noted in the past, for example, that some script kiddies tried to hijack an early Guccifer 2.0 email account; that was investigated by a Philadelphia grand jury in spring of 2017. So this forensic tidbit could be similarly unrelated to the people behind the operation.

So I don’t want to oversell this forensic tie. I do want to encourage others to try to chase it down. 

But it was something that significantly influenced my understanding of all this in 2017, when files released by TSB had just caused the worst damage of any cyber attack in history, to date.

When I mentioned the forensic tie during my FBI interview, the lead agent responded that they couldn’t confirm or deny anything during the interview. I wasn’t there to get confirmation.

Still, if it’s true — given what we’ve learned since about the Guccifer 2.0 operation — it is hugely significant.

TSB started staging its release — per this really helpful SwitHak timeline — on July 25, the same day Trump directed people to get Roger Stone to chase down the next WikiLeaks releases. The first files were encrypted on August 1, after Stone had already pitched Paul Manafort on a way to “save Trump’s ass.” TSB loaded the NSA files on GitHub just after Stone published a piece suggesting that Guccifer 2.0, and not Russia, had hacked the DNC. TSB went live overnight on August 12-13, not long after Guccifer 2.0 publicly tweeted to Stone, “Thanks that u believe in the real #Guccifer2.” WikiLeaks publicized the effort on August 15, after some private back and forth between Guccifer 2.0 and Stone, including Guccifer 2.0’s question, “thank u for writing back . . . do u find anyt[h]ing interesting in the docs i posted?” And, per the SSCI analysis and my own, WikiLeaks helped to boost TSB the same day Jerome Corsi may have started giving Roger Stone advance information about the content of the John Podesta emails that wouldn’t be dropped for another two months (SSCI appears not to have considered, much less concluded, that Guccifer 2.0 might be Stone’s source).

If the forensic tie between Guccifer 2.0 and TSB is real, it means that during precisely the same period when Roger Stone was desperately trying to optimize the release of the John Podesta files to save his buddies Paul Manafort and Donald Trump, related actor TSB was beginning a year-long effort to burn the NSA to the ground.

Shorter DOJ: We Made Shit Up … Please Free Mike Flynn

Congratulations to the lawyers who worked all weekend to meet Judge Emmet Sullivan’s deadline to certify all the documents (with just eight explicit caveats and then another slew built in) submitted in the Mike Flynn motion to dismiss proceeding. I doubted you could pull it off time-wise.

In your rush you seem to have provided Judge Sullivan even more evidence that nothing about this proceeding is normal. Indeed, some of this submission almost makes Sidney Powell’s submissions look tidy by comparison.

The slew of caveats

Effectively, the certification (signed by Jocelyn Ballantine, with individual declarations signed by three others, in part because there are things that Ballantine almost certainly knows are inaccurate or include material omissions), says there have been no material alterations to the documents submitted in the proceeding except for:

  1. Redactions done in the name of classification, law enforcement sensitive, or privacy that serve to hide material information pertaining to Brandon Van Grack, Bill Barnett, and the reason a third document was altered by adding a date (at a minimum)
  2. A set of texts where “irrelevant information and excess metadata” was excluded and an error introduced in the process of creating a table showing “corrected date, corrected time,” which raises far more questions about the provenance of the document
  3. The Bill Barnett interview report that DOJ had submitted to Sullivan as “a 302” is instead a “report” that is not being certified in normal fashion, in part, because DOJ is hiding redactions that withhold material information about Brandon Van Grack
  4. An NSL declaration done by Jocelyn Ballantine that may hide the existence of at least one earlier financial NSL served on Mike Flynn that WDMO didn’t ask her to summarize
  5. A new set of text messages between Peter Strzok and Lisa Page that DOJ admits they’re not relying on (but nevertheless committed an additional Privacy Act violation in releasing), which was not redacted to hide personal information
  6. Three documents submitted by Sidney Powell that DOJ won’t certify (two of which, however, are probably more accurate than what DOJ has submitted)
  7. “Unintelligible” markings in transcripts of notes where DOJ was unsuccessful at getting the author or their lawyer to conduct a last minute review over a matter of hours on a Sunday (DOJ does not specify how many of their transcripts this includes); some of these appear significant
  8. Inconsistencies on how redactions and unintelligible text were marked in transcriptions which, in some cases, is affirmatively misleading
  9. Lots of documents where the certification doesn’t list the Bates numbers, with some hilarious results
  10. Inconsistencies on whether DOJ certifies all copies of a particular document that got submitted multiple times, which in one case would raise questions about the production of these documents
  11. An admission that, for some reason, the motion to dismiss didn’t rely on the final 302 of Flynn’s January 24, 2017 interview
  12. A new inaccurate date, ironically describing a Kevin Clinesmith email
  13. A claim that both Strzok and McCabe’s lawyers have confirmed their clients’ notes were not altered, but only Strzok’s lawyer is quoted

For all of the exhibits that accompanied the motion to dismiss, DOJ uses the docket number, not the exhibit number, even though Sullivan is supposed to be ruling on that MTD that uses exhibit numbers. That’ll make it a lot harder for him to use the transcriptions, which otherwise would make it more obvious that DOJ misrepresented what some of these documents say, including their “smoking gun,” the Bill Priestap notes.

In addition, in a lot of the documents with problems (including all undated notes to which dates were added), DOJ doesn’t include Bates numbers in its certification, even though it does elsewhere. There’s good reason for this. In the case of the re-altered altered documents, those new exhibits should have new Bates stamps, but don’t. In other cases, DOJ submitted multiple versions of the same document with different Bates stamps, in others, when they resubmitted exhibits they retained the Bates stamp. That’s … not a legal process reflecting any regularity.

DOJ still pretends to have no fucking clue about documents they relied on in the motion to dismiss

Perhaps the most pathetic (and by that I mean, I would hate to be the lawyer banking my bar membership on this ploy) detail in this package is the way they try to deal with the fact they’ve made false misrepresentations about Strzok’s January 5, 2017 notes. In one place in the table of documents, they describe the date of the notes this way:

In another, they describe it — the very same notes, just repackaged so they could submit them with the wrong date — this way:

Above both transcriptions, DOJ includes the following note.

I understand why DOJ is still claiming to be unsure about the date. It’s an attempt to minimize the damage from previously providing false dates so as to avoid being punished for knowing misrepresentations in their alterations (they’re still at risk though, because they’re incorrect dates kept changing). But this will just make it very easy for Sullivan to point out that the people making this representation are therefore confessing to being completely unfamiliar with documents on which the MTD heavily relies, which means he shouldn’t take the MTD all that seriously.

The shell game behind the actual declarations

As noted, this declaration is a filing signed by Jocelyn Ballantine, submitting declarations from three other people:

  • Executive Assistant Director John Brown, whose job it is to submit declarations like this
  • EDMO AUSA Sayler Fleming, one of the AUSAs conducting this irregular investigation
  • Keith Kohne, one of the FBI Agents conducting the investigation

Brown starts by excluding three documents from his general certification (these are the ones that Fleming and Kohne will be on the hook for):

5. To the best of my knowledge, and based on the information provided to me, the Government Exhibits described in Exhibit A, 9 with the exception of ECF Nos. 198-8 and 249-1, are true and correct copies of documents and records, including copies of select pages of a larger record, maintained by the FBI pursuant to the applicable records retention policy. See ECF Nos. 198-2, 198-3, 198-4, 198-5, 198-6, 198-7, 198-9, 198-10, 198-11, 198-12, 198-13, and 198-14 9 9

6 To the best of my knowledge, and based on the information provided to me, the Discovery Documents described in Exhibit B, with the exception of ECF Nos. 228-3, are true and correct copies of documents and records maintained by the FBI pursuant to the applicable records retention policy. See ECF Nos. 231-1, 237-1. 251-1, 9 257-1. 259-1, 9 259-2, 259-3, and 264-1

Effectively, he is saying these documents are real and that Ballantine’s claims about the reasons for classification are valid.

He then says this about Ballantine’s own summary, which purports to be a summary of all the NSLs used against Mike Flynn, but which may not include one or more financial NSLs obtained in 2016.

One of the Discovery Documents is a summary substitution of classified materials that were provided to DC-USAO by the FBI. See ECF 257-2. This summary substitution was prepared by AUSA Jocelyn Ballantine, and was reviewed, approved, and declassified by the FBI To the best of my knowledge, and based on the information provided to me, the information contained therein truly and correctly summarizes the underlying classified information provided by the FBI and maintained by the FBI pursuant to the applicable records retention policy.

He’s saying that her summary accurately summarizes what she says it does, but he’s not saying that her description of it is accurate (which it wouldn’t be if EDMO told her to leave out 2016 NSLs).

Then it’s Fleming’s turn. After reviewing her role in this shoddy review and asserting that she has no reason to believe that the documents she got from FBI were irregular, she then explains why she did a summary of the texts that Strzok and a bunch of other people sent in early 2017: Just to get rid of unnecessary metadata, she says.

3. Among the documents and records that I reviewed were spreadsheets of electronic messages exchanged between FBI personnel involved in the Michael T. Flynn investigation and prosecution. The spreadsheets produced to EDMO contained messages and metadata that were not relevant to my review.

4. I created Government Exhibit ECF 198-8 and Discovery Document ECF 228-3. These exhibits truly and correctly reflect excerpts from documents and record maintained by the FBI pursuant to the applicable records retention policy that were provided to EDMO/DC-USAO for review.1

Then she admits someone — she doesn’t say who — made an error.

1 There is a single typographical error in these exhibits. A single message (“Will do.”) from DAD Peter Strzok, sent on 4-Jan-17, is incorrectly identified as having been sent at 2:17PM; the message was actually sent at 2:18PM.

What she doesn’t explain, though, is why her table has two headings that show she or someone else had to “correct” the dates and times in the spreadsheet (which may be where the typo got introduced, or retained).

Given that heading, she has no business treating the data she got as reliable, because either she or someone upstream from her had to fix it.

Then Keith Kohne steps in, the guy who conducted an incompetent interview (and possibly one of the guys who altered dates on government exhibits). He doesn’t provide any explanation of why he’s making the declaration — not even the standard boilerplate you’d find in an affidavit. He says only,

 I, Keith Kohne, hereby declare, pursuant to 28 U.S.C. § 1746, that the document attached as Exhibit 1 to the Government’s Supplemental Filing in Support of Motion to Dismiss … is a true and correct copy of the report of the interview of William J. Barnett conducted on September 17, 2020.

Understand that this declaration lacks the certification afforded by the rules of FBI record-keeping. It lacks Brown’s certification that the data in was redacted properly (this was not). And it doesn’t explain why it wasn’t finalized as a 302 and submitted into FBI record-keeping systems.

Collectively, then, these declarations stop well short of certifying those texts, Ballantine’s summary, or the Barnett’s interview.

We already know that the Barnett interview is withholding material information. I guess we should assume there are problems with the other two documents as well.

Documents and comments

Here are the documents:

Draft closing communication (198-2) [Docket 2, Exhibit 1]

In the certification but not the exhibit referenced, DOJ redacts Bill Barnett’s name, who wrote the document, as well as that of Joe Pientka, who approved it. That serves to make it harder to figure out that the closing EC materially conflicts with unredacted claims Barnett made in his interview, particularly with regards to Barnett’s awareness that the investigation was a counterintelligence investigation considering 18 USC 951 charges.

It’s all the more problematic given that DOJ has submitted two versions of this document with the same Bates numbers; the earlier one does have the names redacted.

Opening Electronic Communication (198-3) [Docket 3, Exhibit 2]

This doesn’t include Bates numbers.

Mary McCord 302 (198-4) [Docket 4, Exhibit 3]

As with other documents, this one was specially declassified for this release. Another copy has been released under BuzzFeed’s FOIA.

Sally Yates 302 (198-5) [Docket 5, Exhibit 4]

Flynn got a summary of this before he allocuted his guilty plea before Sullivan.

170302 Jim Comey Transcript (198-6) [Docket 6, Exhibit 5]

As DOJ notes, HPSCI used a court reporter on this, so they didn’t have to certify it.

170214 Draft Flynn 302 (198-7) [Docket 7, Exhibit 6]

For some reason (I’ll return to this), DOJ submitted a draft version of the 302, rather than the final one (both have previously been submitted in this docket, and a less-redacted version of the 302 was released prior to this in BuzzFeed’s FOIA). Nowhere in the motion to dismiss does Timothy Shea acknowledge that he wasn’t relying on the final 302.

Text massages and electronic messages (198-8) [Docket 8, Exhibit 7]

The certification doesn’t include Bates stamps.

This is the document that has an admittedly minor error in one of the time stamps, saying that Strzok texted “Will do” at 2:18 instead of 2:17. But the error is interesting given that the table’s headings read, “Corrected Date, Corrected Time,” meaning these aren’t just copied, the times (and dates) were “corrected” (which is presumably where the error was introduced), raising questions about what they were corrected from. [My annotation.]

This is one of the documents that FBI EAD John Brown did not certify, which ought to raise questions about how these dates and times got “corrected.” Instead, the authentication reads:

Truly and correctly reflects information contained in documents and records maintained by the FBI, pursuant to the applicable records retention policy that were provided to EDMO.

Without an explanation of how why this data needed to be corrected, I think there are real questions whether this fulfills the requirement here.

Emails about the Logan Act (198-9) [Docket 9, Exhibit 8]

The certification doesn’t include Bates numbers.

170121-22 Emails about providing briefings (198-10) [Docket 10, Exhibit 9]

This certification doesn’t include Bates numbers.

170124 Emails of questions Flynn might ask (198-10) [Docket 10, Exhibit 9]

This certification doesn’t include Bates numbers. This matters both because they’re mixing docket number and exhibit number, but also because there are two copies of the identical document with a different Bates number in the docket.

Emails about 1001 warnings (198-10) [Docket 10, Exhibit 9]

This certification doesn’t include Bates numbers. This matters both because they’re mixing docket number and exhibit number, but also because there are two copies of the identical document with a different Bates number in the docket.

170124 Bill Priestap Notes (198-11) [Docket 11, Exhibit 10]

This certification doesn’t include Bates numbers. This matters both because they’re mixing docket number and exhibit number, but also because there are two copies of the same document with a different Bates number in the docket, yet both have the blue sticky that is hidden in later documents (raising questions about why there are two separate direct scans).

170124 Andrew McCabe write-up (198-12) [Docket 12, Exhibit 11]

This document doesn’t have a Bates stamp on it at all, which is especially problematic given that another less redacted version of the document is in this docket, with a Bates stamp of the same series as other documents submitted with the motion to dismiss.

The May version, with the Bates stamp, makes it clear that McCabe agreed with Flynn that leaks were a problem. [My annotations.]

The motion to dismiss version redacts that.

McCabe’s comment about leaks in no way qualifies under any claimed basis for redaction stated in certification.

It also appears to redact the prior declassification stamp.

One thing DOJ did by submitting this without a Bates stamp is avoided admitting that the document is not at all new, as the Motion to Dismiss suggested.

170124 Strzok and Pientka Notes of Flynn interview (198-13) [Docket 13, Exhibit 12]

These were released as the same exhibit, which given that they don’t use Bates numbers to identify which is which, effectively means they haven’t told Judge Sullivan which Agent’s notes are which, something that Sidney Powell wailed mightily about the last time it happened. They do, however, get it right in the transcript.

In the Pientka notes, however, there are numerous examples of things that are clear, at least from the context, that don’t get transcribed properly.

170822 Strzok 302 (198-14) [Docket 14, Exhibit 13]

This had already been produced in this docket.

200917 “Report” of Bill Barnett’s interview (249-1)

In the Government Supplemental Filing accompanying this interview, they claim that this is, “The FBI 302” of the Barnett interview. Here, they’re correctly noting that it’s not actually a 302, which makes it even more problematic than it already was.

The certification makes it clear that this “report” is maintained differently than normal 302s. Rather than certifying it as,

True and correct copy of a document or record maintained by the FBI pursuant to the applicable records retention policy.

It is instead certified as,

True and correct copy of the report of that interview.

I’m not sure Sullivan is going to be that thrilled that FBI itself is not treating this interview with the regularity of other investigative documents.

This “report” is probably one of the reasons why DOJ included this language in the filing.

There have been no material alterations made to any of the 14 Government Exhibits filed in support of the motion to dismiss and the supplement to the motion to dismiss. Several of the documents contain routine redactions made by the FBI to protect classified information, and/or law enforcement sensitive information, and/or made to comply with the Local Rule to remove Privacy Act information.

As I have laid out, DOJ withheld material information — most notably, all the nice things Barnett said about Brandon Van Grack — by redacting information that would otherwise be unsealed.

This is one of the documents that EAD John Brown did not certify; instead, one of the agents who did the interview did, which suggests it could not be certified properly. It also suggests that Ballantine, who knows it is withholding material information, doesn’t want to be in a position where she can see it (even though she sent an unredacted copy to Flynn).

Text messages (228-3)

The certification notes these are identical to the 198-8 text messages, with the error under heading, “corrected time.” It’s unclear why, in this one case, DOJ admitted to the same exhibit being filed multiple times, since in other cases they don’t note it.

170105 Strzok Notes (231-1)

The transcription of these notes don’t note the redactions. That’s significant because the only difference between this set of notes and the later, altered ones, is that they declassified a bit more information in the latter case.

170125 Gauhar Notes (237-1)

The transcription is inconsistent about whether it treats cross-outs as unintelligible or not, in one place treating a heading “Intro” as intelligible, but not references to “Thanksgiving” and “He said.”

170125 Strzok Notes (237-1)

By labeling these notes as Strzok’s, DOJ makes it more clear that they redacted information that must match other sets of notes from the same meeting.

170130 [Draft] Executive Summary of Flynn investigation (237-1)

The certification doesn’t reveal that this is a draft document, not a finalized one.

170330 Dana Boente Notes (237-1)

Undated McCabe Notes (248-2/259-1)

The transcription doesn’t note that McCabe crossed off his notes on Flynn. Nor does it admit that it redacted what appears to be a continuation of the discussion of Flynn.

The authentication notes that it is,

True and correct copy of a document or record maintained by the FBI pursuant to the applicable records retention policy (ECF 259-1)

That means they’re only certifying that this is something in FBI records (which it shouldn’t be, since it’s a re-altered altered document).

They also leave out Bates numbers, which is problematic because the re-altered document is technically a new document, but it retains the same Bates stamp.

170105 Strzok Notes (248-3/259-2)

The transcription reveals that two of the three new things revealed in the new copy were unintelligible to DOJ, which raises real questions about why they left it unredacted.

The authentication notes that it is,

True and correct copy of a document or record maintained by the FBI pursuant to the applicable records retention policy (ECF 259-2)

That means they’re only certifying that this is something in FBI records (which it shouldn’t be, since it’s a re-altered altered document).

They also leave out Bates numbers, which is problematic because the re-altered document is technically a new document, but it retains the same Bates stamp.

Undated Strzok Notes (248-4/259-3)

As with some others, the transcription doesn’t note all the redactions, which in this case raises questions about why they included notes from the day before.

In addition, they leave out a scribble in front of the word “willfullness” meaning Strzok switched what they were measuring with regards to whether Flynn’s lies about Turkey were deliberate.

The authentication notes that it is,

True and correct copy of a document or record maintained by the FBI pursuant to the applicable records retention policy (ECF 259-3)

That means they’re only certifying that this is something in FBI records (which it shouldn’t be, since it’s a re-altered altered document).

They also leave out Bates numbers, which is problematic because the re-altered document is technically a new document, but it retains the same Bates stamp.

170306 Jim Crowell Notes (251-1)

As expected, DOJ was thoroughly dishonest with this document. They don’t reveal that they’ve redacted something — either a date, or names — where they indicate that they’ve added a date. One way or another, this transcription is false.

Plus, if they’ve redacted the names of non-senior people in the meeting (which is the non-suspect excuse for the redaction), then they need to note that in the transcription. The alternative, of course, is worse, that they knowingly altered the date.

This is one instance where not revealing whether DOJ consulted with the author is especially problematic. But since Crowell is now a DC judge just next door to Sullivan’s courthouse, maybe he can just go ask.

170329 Gauhar Notes (251-1)

180119 Schools Notes (251-1)

161226 Clinesmith NSL Email (257-1)

The certification provides the wrong date for this email, labeling it 12/26/16. [My annotations.]

it was 12/23/16.

Unlike some of the other things here, I think this is just a sloppy error, not an affirmative misrepresentation. But it is ironic that they made the error with Clinesmith.

200924 Ballantine Summary Substitution of NSLs issued in Crossfire Razor (257-2)

In her notice of discovery correspondence accompanying this, Ballantine doesn’t note that she wrote this summary for EDMO to review for them to, in turn, give back to her to give to Flynn. That’s important, because it’s unclear whether the summary shows all NSLs, or only NSLs for the period in question. Both Barnett’s testimony and the Kevin Clinesmith email included suggest the latter.

170125 OGC Notes (264-1)

This doesn’t include Bates numbers, which is interesting because an older 2019 Bates stamp not seen elsewhere is included (possibly indicating that this was previously shared with DOJ IG).

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