Horowitz

DOJ’s Accounting of Its FISA Errors Cannot Be Compared to the Carter Page Report

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Last year, Bill Barr adopted the stance that Inspector General Michael Horowitz’s assessment of FISA — in the report on the Carter Page FISA applications — wasn’t strict enough, because it found no evidence that the errors in the applications arose from political bias. Last week, Bill Barr’s DOJ adopted the opposite stance, that DOJ IG was too critical of FISA, finding errors in the FBI process where there were none.

It did so in the second of two filings reviewing the errors that DOJ IG had found in 29 other FISA applications. When DOJ IG released an interim report (MAM) describing those errors in March, it appeared to suggest that the level of error in the Carter Page applications — at least with respect to the Woods Files — was actually lower than what DOJ IG had found in the 25 applications.

Now, DOJ appears to be trying to claim — without basis — that that’s not the case.

Ahead of the release of the actual filing, DOJ and FBI orchestrated a press release last week, announcing that they would tell the court none of the errors identified by DOJ IG invalidated the probable cause finding for the 29 files. Predictably, both the responsible press and the frothy right (in stories that misunderstood the findings of either DOJ IG report and at times made errors about the FISA process), concluded that this review shows that Page’s application was uniquely bad.

Only after the press had jumped on that conclusion did DOJ release the filing (here’s the earlier one and here’s AAG John Demers’ statement in conjunction with last week’s release).

The filing makes it clear that it is impossible to draw any comparison between these findings about the earlier Carter Page ones (or even to declare — as many in the press have — that this filing proves DOJ’s FISA problems aren’t as bad as DOJ IG suggested).

That’s true for three reasons:

  • DOJ IG has not finished the kind of review on any of the 29 files it did for Page, and DOJ is not claiming it did either
  • DOJ used a dramatically different methodology for this Woods review than DOJ IG did for the Page review
  • DOJ effectively disagreed with DOJ IG’s findings for roughly 46% of the errors DOJ IG identified — and it’s not clear they explained to the FISA Court why they did so

Before I explain these, there’s a more important takeaway.

In giving itself a clean bill of health, DOJ judged that it doesn’t matter that a 2016 FISA application claimed that one of their sources accused a person of sympathizing with a particular terrorist organization when in fact the source said the person had become sympathetic to radical Muslim causes. For the purposes of FISA, this is a huge distinction, because a terrorist organization counts as a foreign power for the sake of FISA, but radical Muslim causes do not. It’s the difference between targeting someone as a suspected agent of a foreign power and targeting them for First Amendment protected activities. DOJ said this error didn’t matter because there was so much other derogatory information against the target; whether that’s true or not, it remains the case that DOJ’s self-congratulation nevertheless admits to a key First Amendment problem in one of the applications.

Woods violations are different from significant inaccuracies are different from material inaccuracies are different from probable cause

As I explained in this post, the IG Report on Carter Page found two types of problems: 17 “significant inaccuracies” that were mostly errors of omission (see PDF 12 and 14-15 for a list), and Woods file errors (PDF 460ff) for which an assertion made in the application did not have or match the back-up in the accuracy file that is supposed to prove it. The “significant inaccuracies” are the more serious of the two, but a number of those were overblown and in a few cases, dubious, in the DOJ IG Report.

Both of those categories are different from material misstatements, of which DOJ admitted to a number by the time they withdrew the probable cause claim from the third and fourth, but not the first two, Page applications. Before the conclusion of the DOJ IG Report they had told the court of the following material misstatements:

  • July 12, 2018: Cover stories Papadopoulos gave to informants that FBI accurately assessed in real time as false, statements Bruce Ohr made that (in the slightly misrepresented form included in the DOJ IG Report) call into question Christopher Steele’s motives, admissions that Steele himself had spoken to the press
  • October 25, 2019 and November 27, 2019: Details about the actions of Kevin Clinesmith — first not disclosing and then altering a document to hide Page’s relationship with the CIA that covered some but not all of his willful sharing of non-public information with known Russian intelligence officers

It’s not clear the government specified which aspects of the DOJ IG Report it submitted to Rosemary Collyer in December 2019 it deemed material, but she focused on:

  • Statements made by Steele’s primary sub-source that undermined key claims about Page
  • Page’s denials (some proven true, some of still undetermined veracity) of details in the Steele dossier
  • Steele’s derogatory comments about Sergei Millian

On the scale of severity, the material misstatements are the ones that matter, because they’re the ones that will affect whether someone gets wiretapped or not. But the Woods file errors in the Carter Page report identified by DOJ IG describe just four (arguably, three) details even related to things ultimately deemed material which, in turn, led to the withdrawal of two of the applications. None directly described the core issues that led to the withdrawal of the two applications (though the Page denials in conjunction with the sub-source comments did).

Indeed, one key conclusion of this entire process — one that DOJ, DOJ IG, and FISC have all agreed with — is that the Woods files process is not very useful at finding the more important errors of omission of the kind that were the most serious problems in the Page application.

And that’s important because all three of these reports — the March DOJ IG MAM and the June and July responses to FISA — stem from, and only explicitly claim to address, Woods file errors. In its MAM, DOJ IG described what it called its “initial” review this way:

During this initial review, we have not made judgments about whether the errors or concerns we identified were material. Also, we do not speculate as to whether the potential errors would have influenced the decision to file the application or the FISC’s decision to approve the FISA application. In addition, our review was limited to assessing the FBI’s execution of its Woods Procedures, which are not focused on affirming the completeness of the information in FISA applications.

For its part, DOJ calls DOJ IG’s report “preliminary” (seemingly ignoring that the IG claimed in that MAM and claims on its website to be continuing this part of what it calls a preliminary part of a larger review of FISA). DOJ’s Office of Intelligence did do materiality reviews of both the errors DOJ IG found and some that it found in the process of compiling these reports (in addition to the CT material misstatement described above, it found what sounds like the omission of exculpatory statements in a CI case).

But all this amounts to the more basic of the two kinds of reviews that DOJ IG did in the Carter Page case.

For these reports, DOJ continued to use the accuracy review methodology it now agrees is inadequate

As noted, all parties now agree that the Woods procedure wasn’t doing what it was supposed to do. One reason it wasn’t is because the FBI has always given agents a few weeks notice before they review one of their Woods files, allowing them to scramble to fill out the accuracy file.

But DOJ IG (perfectly reasonably) didn’t give the Crossfire Hurricane team or any of the people involved in the 29 FISA applications it reviewed here that same notice. It conducted its Woods file assessment on what was actually in the accuracy file. In the case of the Carter Page review, they found a placeholder for a 302 that said exactly what DOJ IG faulted FBI for not having evidence for, an observation about how much Stefan Halper has been paid, and publicly available details about Gazprombank, among other true claims that were nevertheless not backed up in the Woods file. It would have been child’s play — but take some work — to get proof of those and most other claims in the file. The Woods file review that DOJ IG did in the Page case — and almost certainly, the review of the 29 files — tested whether the Woods procedures were being adhered to at all, not whether the Woods procedure effectively ensured only documented claims made it into a FISA application.

If you’re going to rely on the Woods procedure as an accuracy tool, that’s what reviews need to do, because otherwise they’re doing nothing to test the accuracy of the reports.

And DOJ now agrees. In its June filing, DOJ committed to changing how it does accuracy reviews starting in September (maybe). Starting then, agents will get no notice of a review before it happens, and the accuracy rate of that no-notice review will be tracked along with the accuracy once an agent is given time to chase down the documentation he didn’t include the first time.

NSD has determined that commencing with accuracy reviews starting after September 30, 2020, it will not inform the FBI field offices undergoing NSD oversight reviews which applications will be subjected to accuracy reviews in advance of those reviews. This date is subject to current operational limitations the coronavirus outbreak is imposing. NSD would not apply this change in practice to accuracy reviews conducted in response to a request to use FISA information in a criminal proceeding, given the need to identify particular information from particular collections that is subject to use. NSD also would not apply this change in practice to completeness reviews ( discussed further below); because of the pre-review coordination that is contemplated for those reviews.

NSD will expect that the relevant FBI field offices have ready, upon NSD’s arrival, the accuracy sub-files for the most recent applications for all FISAs seeking electronic surveillance or physical search. NSD will then, on its arrival, inform the FBI field office of the application(s) that will be subject to an accuracy review. If the case will also be subject to a completeness review, pre-coordination, as detailed below, will be necessary. The Government assesses that implementing this change in practice will encourage case agents in all FISA matters to be more vigilant about applying the accuracy procedures in their day-to-day work.

In addition, although NSD’s accuracy reviews allow NSD to assess individual compliance with the accuracy procedures, NSD’s historical practice has been to allow agents to obtain documentation during a review that may be missing from the accuracy sub-file. NSD only assesses the errors or omissions identified once the agent has been given the opportunity to gather any additional required documentation. While the Government believes that, in order to appropriately assess the accuracy of an application’s content, it should continue to allow agents to gather additional documentation during the accuracy review, it assesses that this historical practice has not allowed for the evaluation of how effective agents have been at complying with the requirement to maintain an accuracy sub-file, complete with all required documentation.

As a result, NSD will tally and report as a part of its accuracy review process all facts for which any documentation, or appropriate documentation, was not a part of the accuracy sub-file at the time the accuracy review commenced.

That said, that’s not how DOJ did these reviews. In fact, John Demers emphasized this fact in his statement claiming victory over these reviews.

In addition, when the OIG found a fact unsupported by a document in the Woods file, the OIG did not give the FBI the opportunity to locate a supporting document for the fact outside the file.

Indeed, that’s not the only thing that DOJ did to help DOJ clean up DOJ’s shitty performance on DOJ IG’s review of their work. After FBI Field Office lawyers got the DOJ IG assessment, they pulled together the existing documentation, then DOJ’s OI worked with agents to fill in what wasn’t there. In fact, DOJ even got an extension on the second report because DOJ and FBI agents were still working through the files, suggesting it took up to three months of work to get the files to where DOJ was willing to tell FISC about them.

In other words, whereas the Crossfire Hurricane team got judged — by Bill Barr’s DOJ — on what was in the Woods file when DOJ IG found it, Bill Barr’s DOJ is judging Bill Barr’s DOJ on what might be in a Woods file after agents have up to three months to look for paperwork to support claims they made as long as six years ago.

DOJ disagreed with DOJ IG’s finding of error about 46% of the time

Finally, DOJ and DOJ IG did not use the same categories of information to track errors on the Woods file reviews, and one of the most common ways they dismissed the import of an error was by saying that DOJ IG was wrong.

The MAM divides the errors it found into three categories: claims not supported by any documentation, claims not corroborated by the supposed back-up, and claims that were inconsistent with the supporting documentation.

[W]e identified facts stated in the FISA application that were: (a) not supported by any documentation in the Woods File, (b) not clearly corroborated by the supporting documentation in the Woods File, or (c) inconsistent with the supporting documentation in the Woods File.

In addition to the two material errors they found, DOJ claims the errors they found fall into five categories (described starting on page 10):

  • Non-material date errors
  • Non-material typographical errors
  • Non-material deviations from the source documentation
  • Non-material misidentified sources of information
  • Non-material facts lacking supporting documentation

But to get to that number, DOJ also weeded out a number of other problems identified by DOJ IG via three other categories of determination reflected in the up to three month back and forth with OI:

  • Claims made that were substantiated by documents added to the file after DOJ IG’s review
  • Claims that, after reviewing additional information, OI “determined that the application accurately stated or described the supporting documentation, or accurately summarized other assertions in the application that were supported by the accuracy subfile”
  • Claims not backed by any document, but for which “the supporting documentation taken as a whole provided support for the fact in the application”

DOJ doesn’t count those instances in its overview — as distinct from individual narratives — of the report (indeed, the scope of added documentation is not qualified at all). And while the DOJ fillings say FBI described that it added documentation to the file in the redacted FBI declaration for FISC, it’s not clear whether it told FISC what it added and how much and where and when it came from (FBI has been known to write 302s long after the fact to document events not otherwise documented in real time).

Here’s what all this looks like in one table (FBI did what is probably a similar table, but it’s classified). Note that DOJ IG used still different categories for the Carter Page review: “Supporting document does not state this fact,” which is probably the same as their “not clearly corroborated” category. In my table, I’ve counted that as a “lacking documentation error.”

There are several takeaways from this table.

First, the numerical discrepancy provides some idea of how many errors DOJ IG found that DOJ made go away either by finding documentation for them, or by deciding that DOJ IG was wrong. DOJ IG said it found an average of 20 errors in the 25 applications it was able to review, or 500 total. DOJ says it found 63 errors in the June report and 138 errors in the July Report, over a total of 29 applications (they did a review of the four files for which DOJ IG was provided with no Woods file, so had 4 more files than DOJ IG).

My numbers are off by 3 from theirs, which might be partly accounted for recurrent errors in a reauthorized application or lack of clarity on DOJ’s narrative. Or maybe like DOJ, I subtracted 48 from 138 and got 91.

Approximately 48 of these 138 non-material errors reflect typographical errors or date discrepancies between an assertion in an application and a source document. Of the remaining 91 non-material errors or unsupported facts, four involve nonmaterial factual assertions that may be accurate, but for which a supporting document could not be located in the FBI’s files; 73 involve non-material deviations between a source document and an application; and 13 involve errors in which the source of an otherwise accurate factual assertion was misidentified.

But my count shows that DOJ simply declared DOJ IG to be wrong 151 times in its assessment that something was an error, with an amazing 35 examples of that in one application, and of which 14 across all applications were instances where DOJ couldn’t find a document to support a claim (not even with three months to look), but instead said the totality of the application supported a claim.

Claiming that the totality of an application supports a claim, while being unable to find documentation for a discrete fact, sure sounds like confirmation bias.

And in the up to three months of review, FBI found documentation to support upwards of 130 claims that originally were not supported in the Woods file. In other words, these weren’t errors of fact — they were just instances of FBI not following the Woods procedure.

We know that if the Crossfire Hurricane team had been measured by the standard DOJ did in these filings, it would have done better than most of these applications (again, only with respect to the Woods file). That’s because, aside from the four claims that rely on intercepted information (which is not public), there is public documentation to support every claim deemed unsupported in the report but three: the one claiming that James Clapper had said that Russia was providing money in addition to the disinformation to help Trump.

The DNI commented that this influence included providing money to particular candidates or providing disinformation.

And the two claiming that Christopher Steele’s reporting had been corroborated, something the DOJ IG Report lays out at length was not true in the terms FBI normally measured. Except, even there, Steele handler Mike Gaeta’s sworn testimony actually said it had been. He described jumping when Steele told him he had information because he was a professional,

And at that time there were a number of instances when his information had borne out, had been corroborated by other sources.

He also provided a perfectly reasonable explanation for why Steele’s reporting was not corroborated in the way DOJ IG measured it in the report: because you could never put Steele on a stand, so his testimony would never be used to prosecute people.

From a criminal perspective and a criminal investigative kind of framework, you know, Christopher Steele and [redacted] were never individuals who were going to be on a witness stand.

In other words, while it appears that DOJ cleaned up many of the errors identified by DOJ IG by finding the documentation to back it over the course of months, the public record makes it clear that Crossfire Hurricane would have been able to clear up even more of the Page Woods file.

The exceptions prove the rule. There are, as my table notes, two or three claims that do not accurately describe what the underlying document says, claiming:

  • That Page never refuted the claims against him (he had, and in many cases, was telling the truth in his refutations)
  • That Steele told the FBI he never shared information with anyone outside his “business associate” [Fusion] and the FBI (he also shared it with State, as other parts of FBI had been told)
  • That in his first FBI interviews Papadopoulos admitted he had met with Australian officials but not that he discussed Russia during those meetings (it’s unclear how accurate this claim is)

Assume the last bullet (used just once) reflects the redacted parts of Papadopoulos’ 302s even though it does match his current statements, that nevertheless leaves you with an error rate on arguably the worst category — misrepresenting your evidence — of 2 or 3 per application. The first two of these are the Woods file errors that turned out to have a tie (a significant one in the first bullet) with the material reasons why some of the files were withdrawn. They’re the two errors in the Woods file that most directly tied to omitted evidence in the application that would lead to their withdrawal.

Of the 29 applications reviewed by DOJ, 12 of them have 3 or more “deviations from the source” material. One has 14 and another has 15.

So on the worst measure that this review actually did measure, the one that on Page’s application tied most directly to reasons to withdraw the application, Page’s application actually was within the norm.

It may well be that when all the reviews are done, DOJ will have proof that Carter Page’s application was an exceptionally bad application. Certainly, the material misstatements may end up being worse.

But the only thing this apples to oranges comparison of the Page methodology and the traditional DOJ methodology has proven is that — as a matter of the Woods file reviews — Bill Barr has used a different standard for Bill Barr’s DOJ than he has with Crossfire Hurricane. And that if the Page file had been treated as all the others were, from a Woods file perspective, it actually wouldn’t look that bad.

It also shows that when Bill Barr’s DOJ wants to continue spying on Americans who don’t happen to be associated with Donald Trump, he’s happy to argue that Michael Horowitz’s very legalistic reviews of the sort that did Andrew McCabe in are wrong.

Updated for clarity.

This is Impossible, Part One: Climbing the Mountain

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There’s no second wave of the Covid-19 pandemic, and there never really was a first wave. Like generals always fighting the last war, that’s a metaphor we lifted from the 1918 Flu Pandemic. Whether it was a good metaphor then or not, it’s not a good metaphor now. In a way, there isn’t even a pandemic, not in any functional sense. There’s just thousands and thousands of local epidemics, breaking out, dying down, and breaking out again. Because of this, we’re on edge, trying to judge our actions, trying to judge our risk, trying to understand what’s ok in the Fog of Disease. Deciding we don’t care, deciding we might be wrong again. Losing our damn minds. This is not something most people have to deal with.

But there is a group of people who do deal with the ups and downs, the sudden changes in freedom and pain all the time: people with chronic and remitting diseases. In a way, a pandemic is just the moment where society has a relapsing and remitting disease, though it’s not just Covid-19 itself, it’s also the economic and social impact, and how everything changes without warning.

I know these feelings well, I have several diseases that come and go, and I have dealt with them all my life, even before I knew what they were. One day I may be mostly ok, and the next, unable to get far from my bed. I might have weeks of freedom, then suddenly be barely able to get around my house. I have a partner, and a daughter, and many friends who have all come to understand that there are bad times and I can’t control them. I can influence them, but all my promises and all my plans are contingent.

What I have learned in the process of 40 years of dealing with incurable and unpredictable illness suddenly applies to the whole damn world, so here goes.

I call the process Climbing the Mountain, partly because I can’t climb a mountain. The Himalayas are right out.

I can push it down further but I’m told that’s gross.

I have a disease called Ehlers-Danlos Syndrome (hEDS) which causes my joints to skitter around in unpleasant ways, and when I was young I had a number of amazing party tricks my physical therapist has banned me from ever doing again. But I can show you one with my thumb doing things thumbs aren’t supposed to do, which has also been voted by one party of friends the least gross. When I was young I was a gymnast and a dancer, which is a mixed bag for EDS kids. You’re likely to damage your body, but you also get used to using and living in a damaged body, which can be a real blessing as you get older.

The first part of Climbing the Mountain, and for many people the hardest, is accepting what is. Just that: accepting what is, right now. There’s something bold and great in rejecting what is and doing what’s not possible, at least in stories. And there is power in rejecting the idea that what is can’t be changed, because it always can be in some way. But without accepting what is, you can’t make wise choices on how to change it.

I can’t climb a mountain. We can’t stop or cure SARS-CoV-2, at least right now. We can’t just go back to life as we knew it. One of the things you have to accept with chronic illness is that what was normal is gone, and it’s never coming back.

Let me say that again: What was normal life for you, from birth to 2019, is gone. It’s never coming back. Ever. What’s in front is unknown, confusing, distressing, painful, and not what you know as normal, and all you can do is go forward to climb a mountain you can’t climb.

I have PTSD, which some clinicians classify as cPTSD, but for the sake of clarity I’ll just call it fucking awful PTSD. Sometimes I can’t get out of bed because my brain is torturing me. One of the things I have PTSD from is an episode of activities done to me as a child in a clinical setting that many years later the US government would call “enhanced interrogation techniques” when done to Iraqis. Also, I have lost many people I loved. I have been homeless, stalked, and beaten. I have been hounded and harassed. I come by my crazy honestly. I have nightmares most of the time, and mornings just aren’t a thing I can do very often. When you’re looking forward into an abyss and feeling weak, it’s easy to write yourself, the world, or both, off. But just accepting the limitations makes you stronger. I pick my weak times and distract myself. I don’t try to be strong in the morning, when I’m waiting for the howling ghosts in my head to die down. But I’ve learned that they will.

This is the time I am preparing to climb the mountain. I eat a bit, do something nice, look after a plant, look at something pretty. NatGeo social media accounts are great. Food posts, nature, ceramic art, are all how I un-doomscroll in the morning, when I’m waiting for the screaming demons of last night to fade away.

For everyone, for you, now, it’s the same. You need a method of un-doomscroll to let dread and sadness pass. Nature Instagram, Paleontology podcasts, Bird YouTube. It’s all great.

Then, the climbing.

I am currently training to do a half-marathon. It’s something I’ve been doing on and off for about four years. Obviously, as my doctor and physical therapist would tell you, I should not run a half marathon, and it’s not my real goal. My real goal is a full marathon. 15 years ago when I got to my first physical therapist and was diagnosed with hypermobility, I couldn’t walk. “I’d like to do martial arts and parkour one day,” I told her. She gave me a look I can’t fit in words and replied “Let’s get you walking and see if we can get you back on a bike.” We did both of those, but it was long and hard and painful and I cried a lot. I still cry a lot, which is ok and kind of my thing.

I have had to start and stop my marathon training more times than I care to count, because I don’t care to count at all. I need every day to be new, because I can’t control where it goes. I listen to my body, and my reality, and let that guide me. I didn’t learn this with EDS originally, I learned it with my first chronic condition, childhood-onset IBS. I learned that sometimes I could do anything I wanted, and sometimes I couldn’t leave the house without throwing up and shitting myself. It’s a lot better than it was, because I’ve learned it. I’ve accepted it. Not at once, but eventually after a lot of failure and pain and gross bodily fluids. I did eventually accept it, I listened to it, some have said I gave into it. “You let these things define you and limit you,” I’ve been told by so many able-bodied people who I think just didn’t like what I represented: Working with a thing you can’t control, and can’t beat, taking over your life.

There’s a thing you can’t control, and can’t beat, taking over your life right now.

Working with that kind of thing means being mindful in the moment. Can I eat this? I ask myself, and if the answer is no, I don’t. Sometimes that means missing out, and sometimes it means pissing off friends and being a damn inconvenience. “How is the bathroom situation where we’re going?” “What kind of food is available, can I bring my own?” And the most dreaded and annoying: “I have to leave now. Right now.”

For you now, it’s the same. “Can I go there?”

“Is this way of eating out ok?”

“Do the government guidelines make sense?”

“How does this damn thing work and why does it keep changing?”

This is all the discomfort of climbing the mountain. You learn, you fiddle with it, and you let it change. You accept the change. You update how you live, knowing you’ll update it again.

But there’s the fun part too. Figuring out how long I can run/walk (called Jeffing in the running world) when I’m training, and learning to be an excellent cook in the process of understanding my relationship with food. But neither of these make it all better. Not training or cooking, or therapy for Major Depressive Disorder or medications for PTSD gets me to the top of the mountain. It’s like I keep telling you, I can’t climb to the top of the mountain. We can’t just make this go away. We won’t, and we can’t. It just is.

But, I can climb. Almost every day, in some way or another. And when I fall, and I will inevitably fall, I will land higher on the mountain than I would have if I hadn’t been climbing.

That’s the trick. Right there.

Everyday you accept what is and work with it. Everyday you exercise your mind, body, and spirit. When you fall, and you will fall, you won’t be as low on the mountain. And you can climb a little higher until the next fall.

I know it sounds sisyphean. But it’s just impossible, not meaningless. It is, in fact, the most meaningful thing we can do. It’s just the little bits of impossible things you do every day when there is no such thing as normal anymore.

Here is how you climb a mountain you can’t climb: Accept what is, accept that it will change without notice. Learn how your life works, and what is possible. Figure out what you can do today, do it, and maybe if you’re lucky, a tiny bit more. Love things, even when you hate them.

Be completely quiet sometimes. Cry. Look at pretty things. Try to rest.

Try again.

Accept what is. Learn. Move. Rest. Climb. Fall.

Accept what is.

My work for Emptywheel is supported by my wonderful patrons on Patreon. You can find out more, and support my work, at Patreon.

 

How Chuck Ross Helped Make Roger Stone a Felon

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Last night, Chuck Ross all but admitted he doesn’t know what he’s talking about with respect to to the Roger Stone case.

I tweeted several things in response to this Ross coverage of the exposure of Igor Danchenko as Christopher Steele’s primary subsource. Ross got sloppy with a lot of details in his story, including everything in this paragraph:

The special counsel’s report debunked the claim about Cohen, saying that he did not visit Prague. It also said that no Trump associates conspired with Russia or helped release emails through WikiLeaks.

My tweet thread started by noting that Mueller did not say no Trump associates conspired with Russia. It specifically said that when the report said the investigation did not establish something — presumably including any such conspiracy — that didn’t mean there wasn’t any evidence. Indeed, there was evidence they may have, but the investigation was thwarted by the obstruction of Trump, Paul Manafort, Erik Prince, and others, including Roger Stone.

I then noted that both of Ross’ claims about the WikiLeaks finding were overstated (note, Ross also falsely claimed the report said Cohen didn’t go to Prague; Mueller’s congressional testimony did).

As noted, the report states clearly that the investigation was never able to determine whether Stone — who had a slew of suspicious calls in the lead-up to the Podesta email release — had a role in their timely release.

The investigation was unable to resolve whether Stone played a role in WikiLeaks’s release of the stolen Podesta emails on October 7, 2016, the same day a video from years earlier was published of Trump using graphic language about women.

I further noted that when a bunch of Stone-related warrants were released in April, a bunch that focused on a new strand of the investigation, investigating Foreign Agent (18 USC 951) charges on top of the conspiracy one that had long been listed in warrants, remained heavily redacted as part of an ongoing investigation. One of those affidavits made clear that Stone was one of the subjects of the investigation they were hiding that Foreign Agent prong of the investigation from.

It does not appear that Stone is currently aware of the full nature and scope of the ongoing FBI investigation.

The thing that appears to have really set Ross off, however, was my observation that he got Stone subpoenaed by credulously reporting his lies.

To add to the fun, Ross claimed (after admitting he didn’t know what I was talking about) that he barely wrote about Stone until after he was subpoenaed.

Stone was never subpoenaed by the House Intelligence Committee (that was one reason the government was able to show he obstructed that investigation; by claiming he had no communications to subpoena, he made it more likely he wouldn’t be subpoenaed). He was subpoenaed by the Mueller team.

It’s not clear precisely what date Stone was subpoenaed, but he complied in November 2018. A warrant explaining the subpoena reveals that the government learned Stone had texts involving Randy Credico from media accounts. Later in the affidavit, it specifically cites this story from Chuck Ross. The government used Ross’ attribution to Stone as his source to justify searching Stone’s houses for the old phone.

“Julian Assange has kryptonite on Hillary,” Randy Credico wrote to Stone on Aug. 27, 2016, according to text messages that Stone provided to The Daily Caller News Foundation.

[snip]

Pointing to the text messages, Stone asserts that Credico “lied to the grand jury” if he indeed denied being Stone’s contact to Assange.

“These messages prove that Credico was the source who told me about the significance of the material that Assange announced he had on Hillary. It proves that Randy’s source was a woman lawyer,” Stone told TheDCNF.

Stone, who is the men’s fashion editor for The Daily Caller, had struggled for months to provide evidence to back up his claims about Credico. The former friends had engaged in a he said-he said battle through various media outlets for months.

But Stone finally obtained the text messages, which he says is smoking gun evidence supporting his claims, after his lawyers were able to extract the communications from a cell phone he stopped using in 2016.

It is unclear whether Mueller’s team has also obtained the messages.

It turns out Mueller had obtained some of these texts from Stone’s iCloud and from Randy Credico. But there were a set that Credico no longer had, and so Ross’ credulous reporting of an obviously cherry picked set of texts provided some of the key justification for the subpoena and warrant. An initial version of the government’s exhibit list appears to source a series of texts between Credico and Stone from August and September 2016 to Stone’s return. Those texts included some showing the circumstances of Credico’s August 2016 interview with Julian Assange, which were part of the proof that Credico couldn’t have been the guy Stone was claiming as his go-between in early August 2016.

I’ve noted repeatedly that, by sharing his comms with Credico and Corsi in an attempt to rebut public claims, Stone proved two of the charges against him, that he lied when he claimed he had no such communications (and, indeed, provided proof that he knew of those texts). All that said, given that Trump commuted his sentence and that Ross and other frothers continue to lie about what Mueller found, telling lies to journalists that ended up getting him subpoenaed probably was a good trade-off for Stone.

Unless, of course, there was something more interesting on that phone that Ross’ credulous reporting helped prosecutors get a warrant for.

The Absurdity of the Present: Stealing Vaccine Research

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Last week the breaking news in international political/media drama was the Russians hacking vaccine research in Europe and America, and on Tuesday the DOJ charged two Chinese hackers for hacking what Politico called “hundreds of millions of dollars worth of intellectual property and trade secrets” about vaccines for a deadly virus that is currently ravaging humanity.

Right now the world is working on a lot of vaccines, as well as treatments, for and research about the virus. We’re not just trying to end it, we’re trying to pull the virus, and ourselves, out of the fog of war that we’re in right now. Some of that research is ending up as trade secrets and intellectual property, the modern legal equivalent of what was once the secrecy of alchemists.

Russia and China are not rich countries the way the US is, though they are spending their blood and treasure on medical research and treatment just like the rest of us. Journalists and experts, particularly in cybersecurity, have blasted their efforts at hacking European and North American corporations as a kind of greed and cheating when it comes to the vaccines research process.

This all makes sense, from the perspective of the absurdity of the present moment. As Misha Glenny, a cybersecurity reporter who went on the BBC’s Newscast to blast the Russian effort to get medical research data said, “They’re just trying to get a vaccine on the cheap as far as I can see.”

Of course they are. It’s a fucking vaccine for a disease that’s causing a global pandemic.

Before we talk about how important it is to motivate biotech firm Moderna to work on a medicine that could save millions and put the planet to rights again (at least in this one way), let’s talk about where we are right now.

As of this writing, there have been 15 million confirmed cases of Covid-19 and 600,000 deaths. It’s clear there will be millions of deaths before the pandemic is over and millions more maimed from the inside by the disease. There is also the suffering of families and communities as folks bury some of their loved ones and support loved ones who will suffer with the long term effects of Covid-19 for years or decades. There is no global public health infrastructure or even much in the way of public health standards around the world.

Most people can’t get good quality care at the best of times, even though we have the ability as a species to provide it several times over. It’s normally bad and it’s all much worse right now. Pediatric vaccination rates has fallen through the floor the world over, and it could be that millions more children die of preventable diseases than adults of Covid-19, just because Covid-19 has wrecked public health infrastructure so badly. And with economic downturns around the world, there’s no money to pay for routine care which could cost more lives than the disease itself, again.

But there’s reasons things are shut down. The thing about a respiratory virus like SARS-CoV-2 is that it’s so aggressively transmissible that no one is safe until everyone is safe. Despite how much we all hate each other, if Russian and Chinese people can’t vaccinate against both Covid-19 and Measles, we will all pay, in blood, and treasure, and the kind of grief that takes generations to mend.

Will those generations care about Moderna, GlaxoSmithKline, or Sanofi’s Q4 2020?

No, they will not care. They will be as mystified by what we’re doing now, by what we’re valuing now, as we are by the people in history who drank mercury trying to live forever, or attached leeches to George Washington until he died of blood loss, or any of the other stupid things we did that killed people or actively spread disease over the millennia.

We still live with the biological and cultural trauma of the Black Death, and our whole world order was configured by Smallpox. But still, we are ghouls and deatheaters, asking about intellectual property rights when someone is using hacking to try to save lives, for once.

Why is any of this, any of this at all, still a secret? Why isn’t all the data and research being published and collated and poured through by the scientific community the moment the data is collected? Why are we still such ghouls when it comes to public health?

Why do children still die of Measles? Why do 10 million people fall ill with TB every year? Why, in fucking 2020, do people die of fucking Consumption?

We could stop all of this.

But we think health should be a profitable business, like it’s making fancy handbags or golf clubs or something.

We don’t think voting is something you should pay for, or that only the well enough off should be governed. We don’t think streets should turn a profit, or that you should pay a monthly fee to maintain your human rights. We don’t even think you should pay firefighters to save your house, especially since it’s going to set the rest of your city on fire. But we think Chinese people or Russians or you should pay for a vaccine, even though if you can’t, it’s going to set the rest of your city and then the world on fire.

It’s evil, it’s madness, and the fact that it’s just the way things are doesn’t make it even the tiniest bit less absurd. And my colleagues in the media would do well to point that out, and not just leave it to comment sections below their articles and Trevor Noah.

My work for Emptywheel is supported by my wonderful patrons on Patreon. You can find out more, and support my work, at Patreon. Thanks to Ryan Singel.

 

 

Earlier This Year, Billy Barr Minimized Threats of Violence against Judges

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Billy Barr lies, a lot.

One of the things he has lied about — first anonymously to irresponsible beat reporters and then repeatedly on the record — is that Amy Berman Jackson agreed with his sentencing recommendation in the Roger Stone case. To Steve Inskeep, for example, Barr first lied by hiding that he created a dispute by replacing Jesse Liu with his crony Timothy Shea  so Shea could start disagreeing with prosecutors.

I was the decision maker in that case because there was a dispute. And usually what happens is, disputes, especially in high profile cases, come up to the attorney general. It’s not unusual for there to be a dispute in a high-profile case and for it to be resolved by the attorney general. And what actually happened in that case is that the four prosecutors who had prosecuted the case, the first line, they wanted to recommend a seven to nine year sentence on Stone, and the U.S. attorney felt that was too severe and was not justified under the circumstances.

Barr then claimed that all he did, in replacing the sentencing memo written by prosecutors adhering to DOJ guidelines on calling for the maximum sentence with one calling for far less, was to lay out the relevant information and let Amy Berman Jackson decide.

And what I said was set forth all the relevant information and leave it to the judge’s discretion to select the right decision, which is also not uncommon in the department. And that judge actually gave the sentence that I thought was correct, which was half of what the line prosecutors were recommending. They could not point to any case even remotely close to the seven to nine year sentence. The cases were essentially centered on about two and a half to three years. The judge gave him three years and four months, which I thought was a fair sentence under the circumstances. And it was essentially what I was proposing, or thought was fair. And so the proof of the pudding is in the eating. I made that decision based on what I was felt was fair to that person.

Aaron Zelinsky has made it clear that, in fact, even in the first memo, prosecutors were ordered to downplay certain information.

The more important detail — given that an anti-feminist Trump supporter allegedly targeted the family of federal judge Esther Salas, killing her son and also shooting her spouse — is how he overrode the sentencing recommendation of prosecutors.

As I laid out in this post, prosecutors asked for the following enhancements:

  • 8 levels for the physical threats against Randy Credico
  • 3 levels for substantial interference
  • 2 levels for the substantial scope of the interference
  • 2 levels for obstructing the administration of justice

The last of these, per the original sentencing memo, had to do with Stone’s threats against ABJ.

Finally, pursuant to U.S.S.G. § 3C1.1, two levels are added because the defendant “willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the prosecution of the instant offense of conviction.” Shortly after the case was indicted, Stone posted an image of the presiding judge with a crosshair next to her head. In a hearing to address, among other things, Stone’s ongoing pretrial release, Stone gave sworn testimony about this matter that was not credible. Stone then repeatedly violated a more specific court order by posting messages on social media about matters related to the case.

This enhancement is warranted based on that conduct. See U.S.S.G. § 3C1.C Cmt. 4(F) (“providing materially false information to a magistrate or judge”); see, e.g., United States v. Lassequ, 806 F.3d 618, 625 (1st Cir. 2015) (“Providing false information to a judge in the course of a bail hearing can serve as a basis for the obstruction of justice enhancement.”); United States v. Jones, 911 F. Supp. 54 (S.D.N.Y. 1996) (applying §3C1.1 enhancement to a defendant who submitted false information at hearing on modifying defendant’s conditions of release).

Barr’s memo got to the outcome he wanted by eliminating the 8-point enhancement for physically threatening Credico and the 2-point enhancement for threatening ABJ.

The memo suggested the 8-level enhancement shouldn’t apply, first, because doing so would double Stone’s exposure.

Notably, however, the Sentencing Guidelines enhancements in this case—while perhaps technically applicable— more than double the defendant’s total offense level and, as a result, disproportionately escalate the defendant’s sentencing exposure to an offense level of 29, which typically applies in cases involving violent offenses, such as armed robbery, not obstruction cases. Cf. U.S.S.G. § 2B3.1(a)-(b). As explained below, removing these enhancements would have a significant effect on the defendant’s Guidelines range. For example, if the Court were not to apply the eight-level enhancement for threatening a witness with physical injury, it would result in the defendant receiving an advisory Guidelines range of 37 to 46 months, which as explained below is more in line with the typical sentences imposed in obstruction cases.

[snip]

Then, Barr’s memo argued (and this is the truly outrageous argument) that Stone’s attempts to obstruct his own prosecution overlapped with his efforts to obstruct the HPSCI investigation.

Second, the two-level enhancement for obstruction of justice (§ 3C1.1) overlaps to a degree with the offense conduct in this case. Moreover, it is unclear to what extent the [defendant’s obstructive conduct actually prejudiced the government at trial.]

Effectively, this language treated threats against a judge as unworthy of enhancement.

The Attorney General of the United States found a way to go easy on the President’s life-long rat-fucker by downplaying the importance of threats against those participating in trials.

ABJ disagreed with both of those changes (though she did rule against the government’s enhancement on scope), taking Credico’s letter asking for leniency into account but also noting that in his grand jury testimony Credico had described being genuinely fearful of Stone’s thuggish buddies, and insisting on the import of the threat against her.

She got to close to the same conclusion as Barr, however, because she believes that sentencing recommendations are too harsh.

On one side, Barr dismissed the import of physical threats against a witness and a judge (while otherwise backing harsh sentencing). On the other side, ABJ insisted in the import of threats to participants in the judicial system, while finding sentencing recommendations generally too harsh.

ABJ in no way agreed with Barr’s logic, in part because she felt it important to punish threats against judges. Barr, however, thought it more important to go easy on Trump’s rat-fucker than reinforce the danger of threats to judges.

Then Trump commuted Stone’s sentence, showing that he doesn’t much give a damn if people threaten witnesses and judges either (unsurprisingly, because he does so much of it himself).

In the wake of the attack on Salas, Barr has taken to the press, proclaiming how serious he thinks such attacks to be.

U.S. Attorney General Bill Barr also offered his condolences to Judge Salas and her family.

“This kind of lawless, evil action carried out against a member of the federal judiciary will not be tolerated, and I have ordered the full resources of the FBI and U.S. Marshals Service to investigate the matter,” Barr said in a statement.

Bullshit.

You don’t get to proclaim how serious you think attacks on judges are if earlier this year you took extraordinary measures to minimize threats on a judge. The actions Barr and Trump took earlier this year sent the message that it doesn’t much matter if someone undermines the entire judicial system by intimidating judges and witnesses — particularly if they’re supporters of Trump.

Billy Barr wants you think he’s a hard ass on such violence. But earlier this year, he took unprecedented action to dismiss the import of violence against judges. No credible journalist should print his statements without explaining that Barr is part of the problem.

Roger Stone Invented a New Cover Story Rather than Defend Himself at Trial

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In the wake of Friday’s commutation, I’ve been prepping to write some stuff about Roger Stone I’ve long been planning.

In this post, I’d like to elaborate on a comment I made several times during the trial.

Stone’s defense, such as it existed, consisted of two efforts. Along with ham-handed attempts to discredit witnesses, Stone — as he had always done and did even after the commutation —  denied he had anything to do with “Russia collusion.” In the trial, that amounted to an attempt to claim his lies about WikiLeaks were not material, which, if true, would have undermined the false statements charges against Stone. But that effort failed, in part, because Stone himself raised how the stolen emails got to WikiLeaks early in his HPSCI testimony, thereby making it clear he understood that WikiLeaks, and not just Russia, was included in the scope of HPSCI’s investigation.

More interestingly, however, in Bruce Rogow’s opening argument for Stone, Rogow reversed his client’s claims — made during his HPSCI testimony — to have had an intermediary with WikiLeaks.

Now, the government has said something about Mr. Stone being a braggart. And he did brag about his ability to try to find out what was going on. But he had no intermediary. He found out everything in the public domain.

[snip]

And the first one at paragraph 75, it says that Mr. Stone sought to clarify something about Assange, and that he subsequently identified the intermediary, that’s Mr. Credico, who, by the way, the evidence is going to show was no intermediary, there was no go between, there was no intermediary. Mr. Corsi was not an intermediary. These people were playing Mr. Stone.

And Mr. Stone took the bait. And so that’s why he thought he had an intermediary. There was no intermediary. There were no intermediaries. And the evidence is going to show that. And I think when Mr. Credico testifies, he will confirm that he was not an intermediary.

And what is an intermediary? What is a go-between? An intermediary is someone between me and the other party. And the other party, the way the government has constructed this, was Julian Assange. And there was no intermediary between Mr. Stone and Julian Assange. It’s made up stuff.

Does it play in politics? Does it play in terms of newspaper articles and public? Did Mr. Stone say these things? You saw the clips that are going to be played. We don’t hide from those clips. They occurred. Mr. Stone said these things.

But he was playing others himself by creating for himself that notion that he had some kind of direct contact, which he later on renounced and publicly renounced it and said that is not what I meant, that is not what was happening. And to the extent that anybody thinks that Credico was a direct intermediary, a go-between between Stone and Julian Assange, Mr. Credico will destroy that notion. Mr. Corsi will destroy that notion.

All these people were playing one another in terms of their political machinations, trying to be important people, trying to say that they had more than they really had in terms of value and perhaps value to the committee, I mean, value to the campaign.

That story certainly had its desired effect. Some credulous journalists came in believing that whether Stone had an intermediary or not mattered to the outcome. Those who had reason to discount the possibility that Stone had advance knowledge of the stolen emails grasped on this story (and Jerome Corsi’s unreliability), and agreed that Rogow must have it right, that Stone was really working from public information. For a good deal of the public, then, this story worked. Roger Stone didn’t have any inside track, he was just trying to boost his value to the Trump campaign.

From a narrative standpoint, that defense was brilliant. It had the desired effect of disclaiming any advance knowledge of the hack-and-leak, and a great many people believed it (and still believe it).

From a legal standpoint, though, it was suicidal. It amounted to Roger Stone having his lawyer start the trial by admitting his guilt, before a single witness took the stand.

That’s true partly because the facts made it clear that Randy Credico not only had not tricked Roger Stone, but made repeated efforts, starting well in advance of Stone’s HPSCI testimony, to correct any claim that he was Stone’s intermediary. This is a point Jonathan Kravis made in his closing argument.

Now, the defense would have you believe that Randy Credico is some sort of Svengali or mastermind, that Randy Credico tricked Roger Stone into giving false testimony before the committee; that Randy Credico somehow fooled Roger Stone into believing that Stone’s own statements from August 2016 were actually about Credico. That claim is absurd.

You saw Randy Credico testify during this trial. I ask you, does anyone who saw and heard that man testify during this trial think for even a moment that he is the kind of person who is going to pull the wool over Roger Stone’s eyes. The person that you saw testify is just not the kind of person who is going to fool Roger Stone.

And look at the text messages and the email I just showed you. If Randy Credico is trying to fool Roger Stone about what Roger Stone’s own words meant in August 2016, why is Credico repeatedly texting and emailing Stone to set the record straight, telling him: I’m not the guy, there was someone else in early August.

Kravis also laid out the two times entered into evidence (there are more that weren’t raised at trial) where Stone coordinated his cover story with Corsi. If he really believed this story, Stone might have argued that when Corsi warned Stone that he risked raising more questions by pushing Credico forward as his intermediary, it was just part of Corsi duping him. But while he subpoenaed Corsi, Stone didn’t put him on the stand to testify to that, nor did he ever make such a claim in his defense.

There’s a more important reason why such a defense was insane, from a legal standpoint.

Rogow’s story was that Stone believed that both Credico and Corsi had inside information on the hack-and-leak, and that he was fully and utterly duped by these crafty villains.

If that were true, it would still mean Stone intended to lie. It would still mean that Stone sufficiently believed Corsi really was an intermediary when he testified to HPSCI that he believed he needed to — and did — cover up Corsi’s role. If Stone believed both Corsi and Credico had inside information on the hack-and-leak, it would mean he lied when he claimed he had one and only one interlocutor. If Stone believed both Corsi and Credico really were back channels, it would mean only one false statement charge against him — the one where he claimed Credico was his back channel (Count 3) — would be true. The rest — that he had no emails about Assange (Count 2), that he didn’t make any request of his interlocutor (Count 4), that he had no emails or text messages with his interlocutor (Count 5), and that he didn’t discuss his communication with his interlocutor with the campaign (Count 6) — would still be false.

Rogow’s claim that poor Roger Stone was too stupid to realize Corsi wasn’t really an interlocutor would suggest that Stone nevertheless acted on that false information, and successfully obstructed the HPSCI investigation anyway. Rogow was effectively arguing that Stone was stupid and guilty.

Moreover, if Stone really came to realize he had been duped, as Rogow claimed, then it would mean Stone had his lawyers write multiple follow-ups with HPSCI — including as late as December 2018 — yet never asked them to correct the record on this point.

(Compare that with Michael Caputo, who did correct the record when he learned Mueller knew of his ties with Henry Greenberg in his FBI interview.)

Those who bought this story did so because they believed Stone was all about claiming credit, so much so he was willing to face prison time rather than correct the record. But Stone sustained this story even at a time when Stone was explicitly avoiding making any claim he deserved credit for Trump’s victory.

So long as you don’t think through how insane this defense strategy was, it made a nice story, one that (as Stone’s original HPSCI testimony had) disclaimed any role in optimizing the fruits of the Russian operation and thereby protected Donald Trump. But that’s a narrative, not a legal defense, and as a legal defense this effort was absolutely insane.

That doesn’t mean we know precisely what secret Roger Stone was willing to risk prison time to hide. But Stone’s confession of guilt as a defense strategy makes it far more likely that he was — and is — still trying to keep that secret.

The Growing WikiLeaks Conspiracy [Indictment]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Government Argues that Edward Snowden Is a Recruiting Tool

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

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

Using Snowden as a recruitment tool

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

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

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

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

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

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

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

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

[snip]

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

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

Snowden admits Harrison got involved to optimize his fate

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

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

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

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

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

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

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

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

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

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

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

Snowden’s own attempt to optimize outcomes

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

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

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

gpg –verify PRISM.pptx.sig PRISM.pptx

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

using RSA key ID ⬛⬛⬛⬛⬛⬛⬛⬛

gpg: Good signature from “Verax”

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

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

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

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

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

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

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

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

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

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

The government is using Snowden as inspiration in other cases

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

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

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

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

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

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

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

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

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

Sidney Powell’s Great Time Machine of Electoral Gaslighting

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

HJC Democrats Do Little to Limit Jim Jordan’s Assault on Public Health and Rule of Law

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Jim Jordan, a self-purported libertarian, garnered the love of authoritarian Donald Trump by yelling. And yelling. And yelling.

But his normally obtuse manner of engagement didn’t undermine the dual threat he posed in today’s hearing on the ways Billy Barr is politicizing justice. Democrats failed to get him to abide by the committee rule that he wear a mask when not speaking (not even while sitting in close proximity to Jerry Nadler, whose wife is seriously ill). At one point, Debbie Mucarsel-Powell called him out on it. But Republicans on the committee thwarted the means by which Nadler was enforcing the rule — which was to not recognize anyone not wearing a mask — by yielding their time to Jordan.

Jordan used the time he got to attack the integrity of the witnesses unanswered, make repeated false claims about the conduct of the Russian investigation (both pre-Mueller and under him), and softball Barr’s own actions.

There were exceptions, mind you. Joe Neguse brilliantly got Michael Mukasey to talk about how normal it is — and was for him, when he had the job — for Attorneys General to show up for oversight hearings. Neguse then revealed that the last time an Attorney General had as systematically refused to appear for oversight hearings as Barr, it was Bill Barr, in his first tenure in the job. Val Demings got Mukasey to lay out that Barr himself has said the President was inappropriately interfering in investigations, but no one followed up on the significance of that admission. Likewise, after Demings got Mukasey to affirm a statement he made during confirmation to be Attorney General that he was never asked what his politics were, she didn’t follow up and ask whether it would have been appropriate for Mueller to ask prosecutors about their politics, or even for Republicans to ask Zelinsky about the partisan leanings of Mueller prosecutors in this hearing. No one used Jordan’s repeated questioning of Mukasey about the sheer number of unmaskings of Mike Flynn to ask Mukasey to lay out the real national security questions that might elicit such a concerted response to what was apparently one conversation, to say nothing of testing whether Mukasey actually understood what Jordan was misrepresenting to him.

Worse still, no Democrats asked Mukasey questions that would have laid out how complicit he is with some of Trump’s crimes, particularly the politicization of investigations into Turkey.

Then, long after Republicans sand-bagged anti-trust attorney whistleblower John Elias, presenting cherry-picked results of the whistleblower complaint he submitted, Mary Gay Scanlon circled back and laid out how he submitted the complaint, how it got forwarded, and laid out that Office of Professional Responsibility didn’t actually deal with the substance of his complaint, but instead said even if true, it wouldn’t affect the prerogatives of the department. Even there, neither she nor anyone laid out the significance of OPR (which reports to the Attorney General) reviewing the complaint, rather than DOJ IG, which has statutory independence. The way Elias got sandbagged should have become a focus of the hearing, but was not.

And no Democrats corrected the false claims Jordan made, particularly about the Flynn case, such as when he ignored how Bill Priestap got FBI to cue Flynn on what he had said to Sergey Kislyak or the date of notes released today that Sidney Powell had every Republican, including Mukasey, claim came one day before they had to have. No one even asked Mukasey why he was agreeing with Jordan about Obama’s pursuit of Mike Flynn when the prosecution happened under Trump (and recent documents have shown both Peter Strzok and Jim Comey working hard to protect Flynn). Mukasey would have made the perfect foil for such questions. He even could have been asked how often DOJ flip flops on its position from week to week, as Barr has in the Flynn case.

Even worse, no one circled back to get Aaron Zelinsky to correct the premise of Jordan’s questions about whether Amy Berman Jackson’s final sentence accorded with the initial sentencing memo or not, much less his cynical reading of one sentence out of context to falsely portray ABJ as agreeing with DOJ’s second memo.

Finally, Democrats did almost no fact-finding (indeed, it took Jordan to lay out the hierarchy of the politicization of the Stone sentencing). For example, while Eric Swalwell got Zelinsky to agree that the Mueller Report showed gaps in the investigations, he did not invite Zelinsky to describe what specific gaps he would be permitted to identify in the Stone investigation, such as that DOJ was not able to recover any of Stone’s texts from shortly after the election until a year later, in 2017. No one circled back to invite Zelinsky to explain that he had been able to describe Paul Manafort’s testimony implicating Trump directly in Stone’s work because descriptions of that testimony were hidden by DOJ and just got declassified — months after Stone’s sentencing. Hakeem Jeffries got Zelinsky to lay out one thing that prosecutors had been forced to leave out in the initial sentencing memo — Randy Credico’s testimony about how freaked out he was about Stone’s threats — but he left it there, without follow-up to learn if there had been anything more (like Stone’s discussions personally with Trump).

The testimony of the witnesses — especially Donald Ayer, who had to testify over Louie Gohmert’s tapping of a pencil to try to drown out his testimony — was scathing. But the Democratic members of the committee left them hanging out there, which is going to further disincent other witnesses from testifying. This hearing was far too important not to do better prep work to ensure the risks the witnesses took on will be worth it going forward.

Sometime today, Nadler said he’s reconsidering his earlier statement that the committee would not impeach Barr. But unless Democrats seriously up their game — both on preparation and on discipline — then any impeachment of Barr will be as ineffectual of the Ukraine impeachment, if not worse.

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