July 8, 2020 / by 

 

The Growing WikiLeaks Conspiracy [Indictment]

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 provide 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

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

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

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.


Even the First Roger Stone Sentencing Memo Was Politicized

Mueller prosecutor Aaron Zelinsky’s testimony for a House Judiciary Committee hearing on how Trump and Barr are politicizing DOJ has been released. As a number of outlets are reporting, he will testify about how, when Bill Barr flunky Timothy Shea was bending to pressure to “cut Stone a break,” Shea did so because he was “afraid of the President.”

I’m more interested in a few details about the actual drafting of the memos, some of which I’ll return to. The original draft of the sentencing memo was drafted by February 5; it was not only approved, but deemed “strong.”

The prosecution team – which consisted of three career prosecutors in addition to myself – prepared a draft sentencing memorandum reflecting this calculation and recommending a sentence at the low end of the Guidelines range. We sent our draft for review to the leadership of the U.S. Attorney’s Office. We received word back from one of the supervisors on February 5, 2020, that the sentencing memo was strong, and that Stone “deserve[d] every day” of our recommendation.

On February 7, the hierarchy started intervening. In addition to asking to drop the enhancements (which is what the final memo did), DOJ big-wigs also asked prosecutors to take out language about Stone’s conduct.

However, just two days later, I learned that our team was being pressured by the leadership of the U.S. Attorney’s Office not to seek all of the Guidelines enhancements that applied to Stone – that is, to provide an inaccurate Guidelines calculation that would result in a lower sentencing range. In particular, there was pressure not to seek enhancements for Stone’s conduct prior to trial, the content of the threats he made to Credico, and the impact of his obstructive acts on the HPSCI investigation. Failure to seek these enhancements would have been contrary to the record in the case and to the Department’s policy that the government must ensure that the relevant facts and sentencing factors are brought to the court’s attention fully and accurately.

When we pushed back against incorrectly calculating the Guidelines, office leadership asked us instead to agree to recommend an open-ended downward variance from the Guidelines –to say that whatever the Guidelines recommended, Stone should get less. We repeatedly argued that failing to seek all relevant enhancements, or recommending a below-Guidelines sentence without support for doing so, would be inappropriate under DOJ policy and the practice of the D.C. U.S. Attorney’s Office, and that given the nature of Stone’s criminal activity and his wrongful conduct throughout the case, it was not warranted.

In response, we were told by a supervisor that the U.S. Attorney had political reasons for his instructions, which our supervisor agreed was unethical and wrong. However, we were instructed that we should go along with the U.S. Attorney’s instructions, because this case was “not the hill worth dying on” and that we could “lose our jobs” if we did not toe the line.

We responded that cutting a defendant a break because of his relationship to the President undermined the fundamental principles of the Department of Justice, and that we felt that was an important principle to defend.

Meanwhile, senior U.S. Attorney’s Office leadership also communicated an instruction from the acting U.S. Attorney that we remove portions of the sentencing memorandum that described Stone’s conduct. Again, this instruction was inconsistent with the usual practice in the U.S. Attorney’s Office, and with the Department’s policy that attorneys for the government must ensure that relevant facts are brought the attention of the sentencing court fully and accurately.

Ultimately, we refused to modify our memorandum to ask for a substantially lower sentence. Again, I was told that the U.S. Attorney’s instructions had nothing to do with Mr. Stone, the facts of the case, the law, or Department policy. Instead, I was explicitly told that the motivation for changing the sentencing memo was political, and because the U.S. Attorney was “afraid of the President.”

Ultimately, Tim Shea approved the prosecutors’ inclusion of the enhancements, but took out the language about Stone’s conduct.

On Monday, February 10, 2020, after these conversations, I informed leadership at the U.S. Attorney’s Office in D.C. that I would withdraw from the case rather than sign a memo that was the result of wrongful political pressure. I was told that the acting U.S. Attorney was considering our recommendation and that no final decision had been made.

At 7:30PM Monday night, we were informed that we had received approval to file our sentencing memo with a recommendation for a Guidelines sentence, but with the language describing Stone’s conduct removed. We filed the memorandum immediately that evening.

That means even the first sentencing memo — the one that made a strong case for prison time — had been softened by Barr’s flunkies, in some way not laid out in Zelinsky’s opening statement.

Here’s the first sentencing memo. One thing lacking from that memo — but in Zelinsky’s opening statement — pertains to Stone’s discussions directly with Trump.

And that summer, Stone wasn’t just talking to the CEO, Chairman, and Deputy Chairman of the campaign. He was talking directly to then-candidate Trump himself.

On June 14, 2016, the Democratic National Committee (DNC) announced that it had been hacked earlier that spring by the Russian Government. That evening, Stone called Trump, and they spoke on Trump’s personal line. We don’t know what they said.

On August 2, [sic — this should be July 31] Stone again called then-candidate Trump, and the two spoke for approximately ten minutes. Again, we don’t know what was said, but less than an hour after speaking with Trump, Stone emailed an associate of his, Jerome Corsi, to have someone else who was living in London “see Assange.”

Less than two days later, on August 2, 2016, Corsi emailed Stone. Corsi told Stone that, “Word is friend in embassy [Assange] plans 2 more dumps. One “in October” and that “impact planned to be very damaging,” “time to let more than Podesta to be exposed as in bed w enemy if they are not ready to drop HRC. That appears to be the game hackers are now about.”

Around this time, Deputy Campaign Chairman Gates continued to have conversations with Stone about more information that would be coming out from WikiLeaks. Gates was also present for a phone call between Stone and Trump. While Gates couldn’t hear the content of the call, he could hear Stone’s voice on the phone and see his name on the caller ID. Thirty seconds after hanging up the phone with Stone, then-candidate Trump told Gates that there would be more information coming. Trump’s personal lawyer, Michael Cohen, also stated that he was present for a phone call between Trump and Stone, where Stone told Trump that he had just gotten off the phone with Julian Assange and in a couple of days WikiLeaks would release information, and Trump responded, “oh good, alright.” Paul Manafort also stated that he spoke with Trump about Stone’s predictions and his claimed access to WikiLeaks, and that Trump instructed Manafort to stay in touch with Stone.

Surely there’s someone sharp enough on HJC who can note this discrepancy and ask Zelinsky whether there was similar language in the sentencing memo that Tim Shea took out because he’s “afraid of the President.”

Zelinsky knows little about the drafting of the second memo — he describes that he heard about it in the press and the rest of his understanding appears to come from what he was told in the office.

What he was told was that DOJ actually considered attacking its own prosecutors in the memo.

We repeatedly asked to see that new memorandum prior to its filing. Our request was denied. We were not informed about the content or substance of the proposed filing, or even who was writing it. We were told that one potential draft of the filing attacked us personally.

This is akin to the Mike Flynn motion to dismiss, which insinuated that prosecutors had engaged in misconduct. The Attorney General and his flunkies are attacking career officials at DOJ to perform for the President like trained seals.

In the passage where Zelinsky offers his opinion of that second memo he notes that it matched Trump’s tweet of the interim day.

The new filing stated that the first memo did not “accurately reflect” the views of the Department of Justice. This new memo muddled the analysis of the appropriate Guidelines range in ways that were contrary to the record and in conflict with Department policy. The memo said that the Guidelines were “perhaps technically applicable,” but attempted to minimize Stone’s conduct in threatening Credico and cast doubt on the applicability of the resulting enhancement, claiming that the enhancement “typically” did not apply to first time offenders who were not “part of a violent criminal organization.” The memo also stated that Stone’s lies to the Judge about the meaning of the image with the crosshairs and how it came to be posted on Instagram “overlaps to a degree with the offense conduct in this case,” and therefore should not be the basis for an enhancement.

The new memo did not engage with testimony in the record about Credico’s concerns. Nor did the new memo engage with cases cited in the old memo where the obstruction enhancement was applied to non-violent first-time offenders. And the memo provided no analysis for why Stone’s lies to Congress regarding WikiLeaks overlapped at all with his lies two years later to the judge about his posting images of her with a crosshairs. The new memo also stated that the court should give Stone a lower sentence because of his “health,” though it provided no support for that contention, and the Guidelines explicitly discourage downward adjustments on that basis.

Ultimately, the memo argued, Stone deserved at least some time in jail– though it did not give an indication of what was reasonable. All the memo said was that a Guidelines sentence was “excessive and unwarranted,” matching the President’s tweet from that morning calling our recommendation “horrible and very unfair.” [my emphasis]

Zelinsky’s read of that second memo also complains that it left out the record on Randy Credico’s response to Stone’s threats. In his opening statement, he provides this detail, which I don’t recall from the trial (Amy Berman Jackson was able to rely on Credico’s grand jury transcript in her sentencing, because Stone had submitted that with one of his filings).

Then, fearful of what Stone’s associates might do to him, Credico moved out of his house and wore a disguise when going outside.

Credico explains that he grew a thick mustache and wore a cap and sunglasses. Dressing up as John Bolton is indeed a fearful disguise.

The detail that Credico moved out of his house, taken in conjunction with the detail from the Stone warrants that Stone hired a private investigator to find an address to “serve” Credico with a subpoena he never served him, is especially chilling.

Stone hired a PI to hunt Credico down after Credico took measures to hide from him and (Credico has always emphasized) Stone’s violent racist friends.

In addition to making it clear that Shea politicized even the first memo in some way, Zelinsky hints at ways that Stone’s witness tampering was more aggressive than widely understood.

Let’s hope those details come out in tomorrow’s hearing.


Mike Flynn Prosecutor Jocelyn Ballantine Tries to Square DOJ’s Crooked Circle

DOJ and Mike Flynn responded to Amicus John Gleeson’s filing arguing that Judge Emmet Sullivan should reject DOJ’s motion to dismiss Flynn’s prosecution today.

Sidney Powell claims Bill Priestap’s attempt to shield Flynn is misconduct

Sidney Powell’s brief was like all her other ones, legally a shit-show, at times making false claims, at others rolling out a word salad designed to impress the frothy right. It did not substantively address Gleeson’s filing but instead mostly repeated the arguments made in support of the petition for mandamus.

Two details are important, however. First, Powell repeatedly argued that both the FBI and DOJ’s prosecutors engaged in misconduct, in the latter case arguing the prosecutors withheld information covered by Brady.

Given the substantial briefing and documentation by the Justice Department of the reasons for dismissal here, based primarily on the Government’s proper recognition that it should correct its own misconduct which included suppression of extraordinary exculpatory evidence, this court has no further role to play than to grant dismissal forthwith. Smith, 55 F.3d at 159; United States v. Hamm, 659 F.2d 624, 631 (5th Cir. 1981).

[snip]

In its ninety-two-page decision denying General Flynn all exculpatory Brady material he requested, the court distinguished this case from United States v. Stevens, Criminal Action No. 08-231 (EGS) (D.D.C Apr. 1, 2009), because in Stevens, the government moved to dismiss the case upon admitting misconduct in the suppression of Brady evidence. ECF No. 144 at 91. That distinction is eviscerated with the Government’s Motion to Dismiss here. Moreover, in Stevens, the government filed a mere two-page motion to dismiss. Ex. 4. Here, the Government has moved to dismiss in a hundred-page submission that includes 86 pages of new documentation that completely destroys the premise for any criminal charges. This evidence was long sought by General Flynn but withheld by the prior prosecution team and its investigators and wrongly denied to him by this court.

[snip]

Amicus elides the reality of the egregious government misconduct of the FBI Agents—particularly that of Comey, McCabe, Strzok, Page, Pientka, Priestap and others who met repeatedly to pursue the targeted “take-out” of General Flynn for their political reasons and those of the “entirety lame duck usic.”

That last reference to the “entirely lame duck usic” refers to some text messages involving Strzok which, she claims, “the defense recently found that were never produced to it by the Government,” which given how the government provided the text messages probably means only that she didn’t look before. The text messages show Strzok describing a conversation with Bill Priestap about withholding the full transcripts of Flynn’s calls with Sergey Kislyak from the Obama White House to avoid having Obama dead-enders politicizing them — precisely the opposite of what her entire argument is premised on!!!.

So Powell’s new smoking gun–the thing she’s using to rile up the frothers–is proof that Strzok tried really hard to protect Flynn from precisely what she claims did him in, a politicized prosecution led by Obama people. In doing so, she presents evidence (and not for the first time) that Strzok tried really hard to protect Flynn.

Jocelyn Ballantine invents entirely new reasons why DOJ is moving to dismiss

The government’s response is the least-shitty argument DOJ has made in defense of abandoning Flynn’s prosecution, yet it still presents new problems for their case.

The government response was signed by a different team of people than have signed anything submitted thus far. Whereas only Timothy Shea — since promoted to be acting DEA Administrator — signed the initial motion to dismiss, and a team including five people from the Solicitor General’s office, including outgoing Solicitor General Noel Francisco himself, outgoing Criminal Division head Brian Benczkowski, in addition to people from the DC US Attorney’s office and career National Security Division prosecutor Jocelyn Ballantine signed the response on the DC Circuit petition for mandamus, this filing includes only the the latter three:

Whereas the Circuit filing necessarily argued a constitutional issue — the limits of a judge’s authority to deny a motion to dismiss the prosecution, this one argued an admittedly overlapping criminal one, one that makes the third different argument justifying the motion to dismiss. Significantly, this is a defense of the motion to dismiss that (unlike the original one) Jocelyn Ballantine, one of the two prosecutors on the case, was willing to sign.

Along the way, Ballantine presents new reasons to substantiate the claim that DOJ couldn’t convince a jury Flynn was guilty, including describing two things that she now claims weren’t in the notes but were in Flynn’s final 302.

According to the final FD-302, when the agents asked Flynn whether he recalled any conversation with Kislyak in which he encouraged Kislyak not to “escalate the situation” in response to the sanctions, Flynn responded, “Not really. I don’t remember. It wasn’t, ‘Don’t do anything.’” Doc. 198-7, at 6. According to the FD-302, the agents asked Flynn whether he recalled a conversation in which Kislyak stated that Russia had taken the incoming administration’s position into account when responding to the sanctions; Flynn stated that he did not recall such a conversation. Id. The agents’ handwritten notes do not reflect that question being asked or Flynn’s response. See Doc. 198-13, at 2-8.

The final FD-302 also reports that Flynn incorrectly stated that, in earlier calls with Kislyak, Flynn had not made any request about voting on a UN Resolution in a certain manner or slowing down the vote. Doc. 198-7, at 5. Flynn indicated that the conversation, which took place on a day when he was calling many other countries, was “along the lines of where do you stand[ ] and what’s your position.” Id. The final FD-302 also states that Flynn was asked whether Kislyak described any Russian response to his request and said that Kislyak had not, id., although the agents’ handwritten notes do not reflect Flynn being asked that question or giving that response, see Doc. 198-13, at 2-8.

[snip]

The interview was not recorded and the final FD-302 includes two instances where the agents did not record a critical question and answer in their handwritten notes: (1) that agents asked Flynn whether he recalled a conversation in which Kislyak stated that Russia had taken the incoming administration’s position into account when responding to the sanctions, and Flynn stated that he did not recall such a conversation; and (2) that the agents asked whether Kislyak described any Russian response to his request, and Flynn said that Kislyak had not.

This is actually a claim Sidney Powell has made in the past, though I found notes consistent with those questions here, explicitly so with respect to the sanctions conversation:

[Update: Note that, as I first pointed out, the notes here are reversed; Strzok’s are the ones on the left, Pientka’s are the ones on the right.]

Ballantine herself was on a filing stating that, “The final interview report, just like the agent’s handwritten notes, reflect all of the above material false statements” (though that filing did not address whether Flynn was asked about Russia taking Trump’s stance into account; see especially page 5 for the extended discussion that lacks that). And Judge Sullivan agreed, ruling in December that,

Having carefully reviewed the interviewing FBI agents’ notes, the draft interview reports, the final version of the FD302, and the statements contained therein, the Court agrees with the government that those documents are “consistent and clear that [Mr. Flynn] made multiple false statements to the [FBI] agents about his communications with the Russian Ambassador on January 24, 2017.”

Ballantine–consistent with her past signed filing–does not contest that some of Flynn’s lies are clearly included in the notes, and so doesn’t contest that the notes clearly show Flynn lying at least twice to prosecutors.

Ballantine also further develops the “new thing” that the motion to dismiss relied on to justify flip-flopping on past DOJ stances (though it is the same “new thing” presented in the Circuit filing): the new developments involving essential participants in Flynn’s prosecution:

Furthermore, since the time of the plea, extensive impeaching materials had emerged about key witnesses the government would need to prove its case. Strzok was fired from the FBI, in part because his text messages with Page revealed political bias against the current administration and “implie[d] a willingness to take official action to impact the presidential candidate’s electoral prospects.” U.S. Dep’t of Justice, Office of the Inspector General, A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election xii (December 2018). The second interviewing agent has been accused of acting improperly in connection with the broader investigation. McCabe, who authorized Flynn’s interview without notifying either the Department of Justice or the White House Counsel, was fired for conduct that included lying to the FBI and lying under oath. U.S. Dep’t of Justice, Office of the Inspector General, A Report of Investigation of Certain Allegations Relating to Former FBI Deputy Director Andrew McCabe 2 (February 2018). In addition, significant witnesses have pending investigations or lawsuits against the Department of Justice, which could create further questions about their testimony at trial. See Strzok v. Barr, Civ. No. 19-2367 (D.D.C. Aug. 6, 2019); McCabe v. Barr, Civ. No. 19-2399 (D.D.C. Aug. 8, 2019); Page v. Dep’t of Justice, Civ. No. 19-3675 (D.D.C. Dec. 10, 2019). Those developments further support the government’s assessment about the difficulty it would have in proving its case to a jury beyond a reasonable doubt.

While this information would definitely make it harder (but in no way impossible, not least because there are witnesses like Mike Pence and KT McFarland to Flynn’s lies) to prove DOJ’s case, as Gleeson pointed out in his brief, DOJ didn’t have to do that — they already have two allocutions of guilt, including one that affirmed Flynn could never again raise such issues! Moreover, all but one of these new “new things” happened before Flynn reallocuted his guilty plea, meaning Ballantine is in no position to argue they justify abandoning the prosecution. Plus, they conflict with the “new things” cited in the Shea motion to dismiss explaining the DOJ flip-flop.

Ballantine creates a case and controversy over whether prosecutorial misconduct occurred

Ballantine presents some things she’s willing to buy off on to argue why DOJ was right to dismiss the prosecution.

But along the way, she contested the central point in Flynn’s argument, that any of this amounted to prosecutorial misconduct.

1 Before Flynn’s 2017 guilty plea, the government provided Flynn with (1) the FBI report for Flynn’s January 24 interview; (2) notification that the DOJ Inspector General, in reviewing allegations regarding actions by the DOJ and FBI in advance of the 2016 election, had identified electronic communications between Strzok and Page that showed political bias that might constitute misconduct; (3) information that Flynn had a sure demeanor and did not give any indicators of deception during the January 24 interview; and (4) information that both of the interviewing agents had the impression at the time that Flynn was not lying or did not think he was lying.

The government subsequently provided over 25,000 pages of additional materials pursuant to this Court’s broad Standing Order, which it issues in every criminal case, requiring the government to produce “any evidence in its possession that is favorable to [the] defendant and material either to [his] guilt or punishment.” Doc. 20, at 2. The majority of those materials, over 21,000 pages of the government’s production, pertain to Flynn’s statements in his March 7, 2017 FARA filing, for which the government agreed not to prosecute him as part of the plea agreement. The remainder are disclosures related to Flynn’s January 24, 2017, statements to the FBI, and his many debriefings with the SCO.

The government disclosed approximately 25 pages of documents in April and May 2020 as the result of an independent review of this case by the United States Attorney for the Eastern District of Missouri. While those documents, along with other recently available information, see, e.g., Doc. 198-6, are relevant to the government’s discretionary decision to dismiss this case, the government’s motion is not based on defendant Flynn’s broad allegations of prosecutorial misconduct. Flynn’s allegations are unfounded and provide no basis for impugning the prosecutors from the D.C. United States Attorney’s Office. [my emphasis]

Ballantine directly contradicts the suggestion made in the Shea motion to dismiss, that any of the documents turned over were new or Brady material; they’ve been demoted to “relevant to.” More importantly, she says that Flynn is wrong to claim either that DOJ said there was misconduct (it did not) or that any misconduct occurred.

Now there’s a case and controversy between DOJ and Flynn. DOJ says no DOJ abuse occurred, in this filing quite explicitly. Flynn says it’s why his prosecution must be dismissed.

While it’s not central to the issue before John Gleeson, it is something he can exploit.

Ballantine dances around DOJ’s shitty materiality claims

Particularly given how Ballantine dances around the main reason DOJ claims it moved to dismiss Flynn’s prosecution, because his lies weren’t material.

This motion was better argued all around than the Main DOJ ones, including the one bearing the Solicitor General’s name. And in numerous places, it presents actual nuance and complexity. One key place it does so is where it admits that DOJ has some motions still pending before Sullivan.

Flynn subsequently retained new counsel. Doc. 88, at 2. He then filed a Brady motion, which the Court denied. Doc. 144, at 2-3. In January 2020, Flynn moved to withdraw his guilty plea, asserting ineffective assistance of prior counsel. Docs. 151, 154, 160. The government has not yet responded to this motion. Flynn also filed a motion to dismiss the case for government misconduct. Doc. 162. In February 2020, the government opposed Flynn’s motion to dismiss. Doc. 169. Flynn repeatedly supplemented the motion after receiving the government’s response, Docs. 181, 188, 189; the government has not submitted a further filing responding to the additional allegations.

On May 7, 2020, while those motions remained pending, the government moved to dismiss the case under Federal Rule of Criminal Procedure 48(a). The government first explained a court’s “narrow” role in addressing a Rule 48(a) motion. Doc. 198, at 10 (quoting United States v. Fokker Servs. B.V., 818 F.3d 733, 742 (D.C. Cir. 2016)). The government then set out its reasons for the dismissal, explaining why it had concluded that continued prosecution was not warranted. Id. at 12-20; see pp. 25-32, infra. Flynn consented to the motion. Doc. 202. [my emphasis]

Already this passage presents problems, because Ballantine doesn’t explain why DOJ opposed Flynn’s motion to dismiss in February but does not now, even though none of her “new things” were new in February.

But she doesn’t mention the still-pending DOJ sentencing memorandum, submitted after all the “new things” that Ballantine laid out were already known. That sentencing memorandum not only suggested Flynn should do prison time, but it also argued not only that Flynn’s lies were material, but that Judge Sullivan should consider Flynn’s material FARA lies in his sentencing.

On December 1, 2017, the defendant entered a plea of guilty to a single count of “willfully and knowingly” making material false statements to the Federal Bureau of Investigation (“FBI”) regarding his contacts with the Government of Russia’s Ambassador to the United States (“Russian Ambassador”) during an interview with the FBI on January 24, 2017 (“January 24 interview”), in violation of 18 U.S.C. § 1001(a)(2). See Information, United States v. Flynn, No. 17-cr-232 (D.D.C. Nov. 30, 2017) (Doc. 1); Statement of Offense at ¶¶ 3-4, United States v. Flynn, No. 17-cr-232 (D.D.C. Dec. 1, 2017) (Doc. 4) (“SOF”). In addition, at the time of his plea, the defendant admitted making other material false statements and omissions in multiple documents that he filed on March 7, 2017, with the Department of Justice (“DOJ”) pursuant to the Foreign Agents Registration Act (“FARA”), which pertained to his work for the principal benefit of the Government of Turkey. See SOF at ¶ 5. These additional material false statements are relevant conduct that the Court can and should consider in determining where within the Guidelines range to sentence the defendant.

[snip]

It was material to the FBI’s counterintelligence investigation to know the full extent of the defendant’s communications with the Russian Ambassador, and why he lied to the FBI about those communications.

[snip]

The defendant’s false statements to the FBI were significant. When it interviewed the defendant, the FBI did not know the totality of what had occurred between the defendant and the Russians. Any effort to undermine the recently imposed sanctions, which were enacted to punish the Russian government for interfering in the 2016 election, could have been evidence of links or coordination between the Trump Campaign and Russia. Accordingly, determining the extent of the defendant’s actions, why the defendant took such actions, and at whose direction he took those actions, were critical to the FBI’s counterintelligence investigation.

[snip]

The defendant now claims that his false statements were not material, see Reply at 27-28, and that the FBI conducted an “ambush-interview” to trap him into making false statements, see Reply at 1. The Circuit Court recently stated in United States v. Leyva, 916 F.3d 14 (D.C. Cir. 2019), cert. denied, No. 19-5796, 2019 WL 5150737 (U.S. Oct. 15, 2019), that “[i]t is not error for a district court to ‘require an acceptance of responsibility that extended beyond the narrow elements of the offense’ to ‘all of the circumstances’ surrounding the defendant’s offense.” Id. at 28 (citing United States v. Taylor, 937 F.2d 676, 680-81 (D.C. Cir. 1991)). A defendant cannot “accept responsibility for his conduct and simultaneously contest the sufficiency of the evidence that he engaged in that conduct.” Id. at 29. Any notion of the defendant “clearly” accepted responsibility is further undermined by the defendant’s efforts over the last four months to have the Court dismiss the case. See Reply at 32.

[snip]

Public office is a public trust. The defendant made multiple, material and false statements and omissions, to several DOJ entities, while serving as the President’s National Security Advisor and a senior member of the Presidential Transition Team. As the government represented to the Court at the initial sentencing hearing, the defendant’s offense was serious. See Gov’t Sent’g Mem. at 2; 12/18/2018 Hearing Tr. at 32 (the Court explaining that “[t]his crime is very serious”).

The integrity of our criminal justice depends on witnesses telling the truth. That is precisely why providing false statements to the government is a crime.

[snip]

As the Court has already found, his false statements to the FBI were material, regardless of the FBI’s knowledge of the substance of any of his conversations with the Russian Ambassador. See Mem. Opinion at 51-52. The topic of sanctions went to the heart of the FBI’s counterintelligence investigation. Any effort to undermine those sanctions could have been evidence of links or coordination between the Trump Campaign and Russia. For similar reasons, the defendant’s false statements in his FARA filings were serious. His false statements and omissions deprived the public and the Trump Administration of the opportunity to learn about the Government of Turkey’s covert efforts to influence policy and opinion, including its efforts to remove a person legally residing in the United States.

After the most recent “new thing” Ballantine cited (the DOJ IG Report), in a motion that is still pending before Sullivan, she argued that these lies were material. She doesn’t admit it’s still pending or in any other way deal with it. But Ballantine is making an argument here that conflicts with an argument she signed off on (and spent a great deal of time getting approved by all levels of DOJ) in January.

That presents problems for her claim that the motion to dismiss is the “authoritative position of the Executive.”

The Rule 48(a) motion here represents the authoritative position of the Executive Branch,

A still-pending sentencing memo she signed says Flynn’s lies were material, which conflicts with the pending motion to dismiss. Both are the still-authoritative position of the Executive.

She makes things worse by adopting only one part of Shea’s argument about materiality (though this is consistent with the DC Circuit brief). Shea argued the lies were not material, at all.

The Government is not persuaded that the January 24, 2017 interview was conducted with a legitimate investigative basis and therefore does not believe Mr. Flynn’s statements were material even if untrue.

[snip]

The particular circumstances of this case militate in favor of terminating the proceedings: Mr. Flynn pleaded guilty to making false statements that were not “material” to any investigation. Because the Government does not have a substantial federal interest in penalizing a defendant for a crime that it is not satisfied occurred and that it does not believe it can prove beyond a reasonable doubt, the Government now moves to dismiss the criminal information under Rule 48(a).

[snip]

In the case of Mr. Flynn, the evidence shows his statements were not “material” to any viable counterintelligence investigation—or any investigation for that matter—initiated by the FBI.

[snip]

In light of the fact that the FBI already had these transcripts in its possessions, Mr. Flynn’s answers would have shed no light on whether and what he communicated with Mr. Kislyak.—and those issues were immaterial to the no longer justifiably predicated counterintelligence investigation. Similarly, whether Mr. Flynn did or “did not recall” (ECF No. 1) communications already known by the FBI was assuredly not material.

[snip]

Even if he told the truth, Mr. Flynn’s statements could not have conceivably “influenced” an investigation that had neither a legitimate counterintelligence nor criminal purpose. See United States v. Mancuso, 485 F.2d 275, 281 (2d Cir. 1973) (“Neither the answer he in fact gave nor the truth he allegedly concealed could have impeded or furthered the investigation.”); cf. United States v. Hansen, 772 F.2d 940, 949 (D.C. Cir. 1985) (noting that a lie can be material absent an existing investigation so long as it might “influenc[e] the possibility that an investigation might commence.”). Accordingly, a review of the facts and circumstances of this case, including newly discovered and disclosed information, indicates that Mr. Flynn’s statements were never “material” to any FBI investigation.6

6 The statements by Mr. Flynn also were not material to the umbrella investigation of Crossfire Hurricane, which focused on the Trump campaign and its possible coordination with Russian officials to interfere with the 2016 presidential election back prior to November 2016. See Ex. 1 at 3; Ex. 2 at 1-2. Mr. Flynn had never been identified by that investigation and had been deemed “no longer” a viable candidate for it. Most importantly, his interview had nothing to do with this subject matter and nothing in FBI materials suggest any relationship between the interview and the umbrella investigation. Rather, throughout the period before the interview, the FBI consistently justified the interview of Flynn based on its no longer justifiably predicated counterintelligence investigation of him alone.

Shea further argued that Sullivan’s past judgment that these lies were material came before DOJ’s view on the case changed.

7 The Government appreciates that the Court previously deemed Mr. Flynn’s statements sufficiently “material” to the investigation. United States v. Flynn, 411 F. Supp. 3d 15, 41-42 (D.D.C. 2019). It did so, however, based on the Government’s prior understanding of the nature of the investigation, before new disclosures crystallized the lack of a legitimate investigative basis for the interview of Mr. Flynn, and in the context of a decision on multiple defense Brady motions independent of the Government’s assessment of its burden of proof beyond a reasonable doubt.

Ballatine does parrot Shea’s claim that “additional information” has emerged since Sullivan ruled.

In any event, additional information that was not before the Court emerged in the months since the decision that significantly alters the analysis.

The problem, here, is that in her filing, that’s as much a false claim as Shea’s claim to have found “new things” were. Ballantine’s “new things” was all known to the government well before Sullivan ruled.

As to materiality itself, the only part of Shea’s argument about materiality that Ballantine adopts pertains to whether she could prove it.

The government expressed concern specifically about its ability to prove materiality.

[snip]

The government’s Rule 48(a) motion accordingly explained that it doubted whether, in light of those aspects of the record, it should attempt to prove to a jury that the information was objectively material.

Which, as Gleeson has pointed out, doesn’t matter given Flynn’s past guilty plea.

Perhaps because of that, Ballantine adopts a different approach than Shea did in arguing that Sullivan’s past ruling didn’t matter. She argues that only a jury can decide materiality.

But as the Supreme Court has held, determining whether information is material is an essential element of the crime that must be determined by a jury, and cannot be determined as a matter of law by a court. United States v. Gaudin, 515 U.S. 506, 511- 512, 522-523 (1995). Indeed, the materiality inquiry is “peculiarly one for the trier of fact” because it requires “delicate assessments of the inferences a reasonable decision-maker would draw from a given set of facts and the significance of those inferences to him.” Id. at 512 (internal quotation marks and brackets omitted). For that reason, the Court’s determination could not resolve the government’s concerns about its materiality case at trial.

But then she imagines what the jury might think about the materiality of Flynn’s lies that — much of the subsequent developments make clear — actually did affect the investigation into him.

Amicus makes much of the fact that a defendant’s false statements can be material even when the investigators are not deceived by them, accusing the government of asking for “the suspension of settled law for this case, but not for any others.” Gleeson Br. 46-47 (citing United States v. Safavian, 649 F.3d 688, 691-692 (D.C. Cir. 2011) (per curiam)). Contrary to amicus’s assertion (at 46-47), however, that is entirely consistent with the government’s analysis. In Safavian, the D.C. Circuit rejected a defendant’s argument that his false statements were not material where the interviewing FBI agent “knew, based upon his knowledge of the case file, that the incriminating statements were false when [the defendant] uttered them.” 649 F.3d at 691. As the government recognized in its motion to dismiss, the fact that the FBI knew at the time it interviewed Flynn the actual contents of his conversations with Kislyak does not render them immaterial. See Doc. 198, at 17 (citing Safavian, 649 F.3d 688 at 691-692). Rather, the fact that the FBI knew the content of the conversations is relevant because it would allow a jury to assess the significance the FBI in fact attached to that truthful information when the FBI learned it; and, absent reason to think that the FBI’s reaction was objectively unreasonable, that would inform the jury’s assessment of the significance a reasonable decision-maker would attach to the information.

Shea’s argument was — as Gleeson made clear — legally indefensible. Ballantine’s is legally more defensible. Except that she has already argued more persuasively against herself, in a still-pending filing that is, like the motion to dismiss, the authoritative position of the Executive Branch.

Ballantine’s argument here is more persuasive then — though inconsistent with — Shea’s. Except that she’s arguing with a still more persuasive Ballantine memorandum that remains before Sullivan.

Not only is DOJ arguing with DOJ, but Jocelyn Ballantine is arguing with Jocelyn Ballantine

With DOJ’s motion to dismiss, Bill Barr’s DOJ argued against what Bill Barr’s DOJ argued in a still pending sentencing memo submitted in January. DOJ’s response in the DC Circuit mandamus petition argued against Bill Barr’s admission that Emmet Sullivan has a say in whether to dismiss the case or not. Now, Jocelyn Ballantine is arguing that DOJ’s past (but still-pending) statements about materiality conflict with its current statements.

The DC Circuit filing and this one conflict with Shea about what the “new things” are justifying such flip-flops.

But crazier still, Ballantine argues that these conflicting statements are the authoritative view, singular, of the Executive.

Ballantine has laid out a case and controversy with Sullivan here — whether her own conduct amounted to misconduct. Sullivan’s amicus, John Gleeson, may well be able to use that to argue that the many conflicting statements from DOJ make it clear there is no authoritative view from the Executive, because it can’t agree with itself — its prosecutor can’t even agree with herself — on a week to week basis.

And if there is no one authoritative authoritative view of the Executive, Sullivan will have a much easier time arguing all this overcomes any presumption of regularity.


Defendant Barr’s Flip-Flops Finally Attract Press Attention

Bill Barr’s sloppy lying may finally be catching up to him.

The press should have stopped treating the Attorney General as credible after he obviously lied about the contents of the Mueller Report. But he continued to be accorded the courtesy of the office, through changing DOJ stories about his involvement in Trump’s effort to coerce a quid pro quo in Ukraine (and the impeachment that followed) and his cover stories to explain unprecedented interference in the prosecution of Trump flunkies.

But over the course of the last week, the press has gone from reporting anonymous DOJ scoops, to noting how later DOJ claims conflicted with that scoop, to outright debunking of Barr (even if they’re not yet treating him as the consistent liar they recognize Trump to be).

On Tuesday, WaPo had a scoop citing an anonymous DOJ official stating that Barr personally ordered the attack on protestors, perhaps an effort to shift the focus from Trump.

Attorney General William P. Barr personally ordered law enforcement officials to clear the streets around Lafayette Square just before President Trump spoke Monday, a Justice Department official said, a directive that prompted a show of aggression against a crowd of largely peaceful protesters, drawing widespread condemnation.

The claim took the heat off of President Trump.

In a presser on Thursday, Barr offered a more elaborate explanation. He claimed he made the decision to move the perimeter around the White House on Trump’s orders — to protect the White House from protestors — before the arrival of protestors on Monday.

On Monday, the president asked me to coordinate the various federal law enforcement agencies, not only the multiple department of justice agencies, but also other agencies such as those in the Department of Homeland Security. So we had a coordinated response and worked with the National Guard and also with the DC police. That morning, we decided that we needed more of a buffer to protect the White House and to protect our agents and secret service personnel who could be reached by projectiles from H Street. I made the decision that we would try to move our perimeter northward by a block to provide this additional protection. And later at 2:00 on Monday, I met with all the various law enforcement agencies and we set our tactical plan. And that plan involve moving our perimeter a block North to I Street. It was our hope to be able to do that relatively quickly before many demonstrators appeared that day.

Unfortunately, because of the difficulty in getting appropriate units into place, by the time they were able to move our perimeter up to I street, a large number of protestors had assembled on H Street. There were projectiles being thrown and the group was becoming increasingly unruly. And the operation to what… They were asked to three times if they would move back one block, they refused. And we proceeded to move our perimeter out to I Street.

In the same presser, he claimed that he saw “instigators” before the move to push them back, thereby claiming both advance planning but also an imminent threat.

I think one of the difficulties is that while there are peaceful demonstrators and participants in these protests, the instigators, those committed to violence, basically shield themselves by going among them and carrying out acts of violence. I saw the projectiles on Monday when I went to Lafayette Park to look at the situation. And as one of the officials said, he pointed out various knots of people where the projectiles were coming from and we could see… and it was a lot of demonstrators. And it’s hard to know exactly where they’re coming from. Frequently, these things are thrown from the rear of the demonstration, but we could not continue to protect the federal property involved and protect the safety of our agents with such a tight perimeter. And so our object was to move it out by one block. Next question, please.

On Friday, however, Barr started backing away from responsibility. That day, the AP reported that Barr had not given the tactical move to attack the protestors. Instead, some unnamed person who could not be directly tied to a Barr (and therefore a Trump) command did that.

On Friday, Barr told the AP that both he and U.S. Park Police were in agreement on the need to push back the security perimeter. He said he attended a meeting around 2 p.m. Monday with several other law enforcement officials, including Metropolitan Police Chief Peter Newsham, where they looked at a map and decided on a dividing line. Under the plan, the protesters would be moved away from Lafayette Park and federal law enforcement officials and members of the National Guard would maintain the perimeter line, Barr said.

[snip]

Barr said it was a Park Police tactical commander — an official he never spoke to — who gave the order for the law enforcement agencies to move in and clear the protesters.

“I’m not involved in giving tactical commands like that,” he said. “I was frustrated and I was also worried that as the crowd grew, it was going to be harder and harder to do. So my attitude was get it done, but I didn’t say, ‘Go do it.’”

Barr insisted there was no connection between the heavy-handed crackdown on the protesters and Trump’s walk soon after to St. John’s Church.

Finally, on Sunday, Margaret Brennan interviewed Barr on Face the Nation, one of the first times during this tenure as AG Barr has sat for an interview with someone who was neither (like Pete Williams or Pierre Thomas) someone he knew from the Poppy days, nor (like Catherine Herridge) a right wing stenographer. Brennan challenged a lot of these inconsistencies, leading to Barr to make a comment — that pepper balls are not tear gas — that has been widely mocked since.

MARGARET BRENNAN: I want to ask you about some of the events of the week. On Monday, Lafayette Park was cleared of protesters. You’ve spoken about this. The federal agents who were there report up to you. Did you think it was appropriate for them to use smoke bombs, tear gas, pepper balls, projectiles at what appeared to be peaceful protesters?

BARR: They were not peaceful protesters. And that’s one of the big lies that the- the media is- seems to be perpetuating at this point.

MARGARET BRENNAN: Three of my CBS colleagues were there. We talked to them.

BARR: Yeah.

MARGARET BRENNAN: They did not hear warnings. They did not see protesters–

BARR: There were three warnings.

MARGARET BRENNAN:–throwing anything.

BARR: There were three warnings given. But let’s get back to why we took that action. On Friday, Saturday and Sunday, OK, there were violent riots in- at Lafayette Park where the park police were under constant attack at the- behind their bike rack fences. On Sunday, things reached a crescendo. The officers were pummeled with bricks. Crowbars were used to pry up the pavers at the park and they were hurled at police. There were fires set in not only St. John’s Church, but a historic building at Lafayette was burned down.

MARGARET BRENNAN: These were things that looters did.

BARR: Not looters, these were- these were the- the violent rioters who were- dominated Lafayette Park.

MARGARET BRENNAN: But what I’m asking about–

BARR: They broke into the Treasury Department,–

MARGARET BRENNAN: –on Monday when it was a peaceful protest.

BARR: I’m going to- let me get to this, because this has been totally obscured by the media. They broke into the Treasury Department, and they were injuring police. That night,–

MARGARET BRENNAN: Sunday night?

BARR: Sunday night, the park police prepared a plan to clear H Street and put a- a larger perimeter around the White House so they could build a more permanent fence on Lafayette.

MARGARET BRENNAN: This is something you approved on Sunday night?

BARR: No. The park police on their own on- on Sunday night determined this was the proper approach. When I came in Monday, it was clear to me that we did have to increase the perimeter on that side of Lafayette Park and push it out one block. That decision was made by me in the morning. It was communicated to all the police agencies, including the Metropolitan Police at 2:00 p.m. that day. The effort was to move the perimeter one block, and it had to be done when we had enough people in place to achieve that. And that decision, as I say, was communicated to the police at 2:00 p.m.. The operation was run by the park police. The park police was facing what they considered to be a very rowdy and non-compliant crowd. And there were projectiles being hurled at the police. And at that point, it was not to respond–

MARGARET BRENNAN: On Monday, you’re saying there were projectiles–

BARR: On Monday, yes there were.

MARGARET BRENNAN: As I’m saying, three of my colleagues were there.

BARR: Yeah.

MARGARET BRENNAN: They did not see projectiles being thrown–

BARR: I was there.

MARGARET BRENNAN: –when that happened.

BARR: I was there. They were thrown. I saw them thrown.

MARGARET BRENNAN: And you believe that what the police did using tear gas and projectiles was appropriate?

BARR: Here’s- here’s what the media is missing. This was not an operation to respond to that particular crowd. It was an operation to move the perimeter one block.

MARGARET BRENNAN: And the methods they used you think were appropriate, is that what you’re saying?

BARR: When they met resistance, yes. They announced three times. They didn’t move. By the way, there was no tear gas used. The tear gas was used Sunday when they had to clear H Street to allow the fire department to come in to save St. John’s Church. That’s when tear gas was used.

MARGARET BRENNAN: There were chemical irritants the park police has said–

BARR: No, there were not chemical irritants. Pepper spray is not a chemical irritant.

It’s not chemical.

MARGARET BRENNAN: Pepper spray, you’re saying is what was used–

BARR: Pepper balls. Pepper balls.

MARGARET BRENNAN: Right, and you believe that was appropriate. What I want to show you is what a lot of people at home who were watching this on television saw and their perception of events. So while the president says that he appreciates peaceful protest, around the same time, this crowd–

BARR: Well, six minutes- six minutes difference–

MARGARET BRENNAN: Right, around same time the area is being cleared of what appear to be peaceful protesters using some force. And after the speech is finished, the president walks out of the White House to the same area where the protesters had been and stands for photo op in front of the church where the protesters had been. These events look very connected to people at home. In an environment where the broader debate is about heavy handed use of force in law enforcement, was that the right message for Americans to be receiving?

Along the way, however, Barr’s explanation got more and more inconsistent.

What started out as an apparent effort to shield the President from direct responsibility for attacking protestors to clear way for his photo op became, by the end of the week, an effort to create a legal justification — protestors throwing things — while still distancing the time of the order from the photo op.

That’s a conflict Phil Bump highlighted in a particularly good job of shredding Barr’s statements, relying on an earlier detailed timeline he did. In addition to mocking Barr’s claim that pepper balls are not tear gas because they’re naturally occurring, Bump shows how Barr’s statements yesterday conflict with the justification for using tear gas.

“Here’s what the media is missing,” Barr said to Brennan on Sunday. “This was not an operation to respond to that particular crowd. It was an operation to move the perimeter one block.”

The problem with that framing is twofold.

First, it contradicts that same statement from the Park Police that serves as the backbone of the tear-gas defense. In that statement, the Park Police claim that protesters “began throwing projectiles including bricks, frozen water bottles and caustic liquids” at 6:33 p.m. This prompted the effort to clear the square to “curtail the violence that was underway.” There’s nothing about this being a planned operation.

What’s more, Barr himself made the claim to Brennan that the protesters were being violent at the time that the effort to remove them began.

“Three of my colleagues were there,” Brennan told him. “They did not see projectiles being thrown.”

“I was there,” Barr replied. “They were thrown. I saw them thrown.”

The timing of Barr’s visit is important, and we’ll get to it in a bit. But suffice it to say that video evidence from the period not only doesn’t back up the Park Police claim, it also doesn’t show Barr reacting to any such events.

It has been rare, possibly unprecedented, for the press to track Barr’s obvious lies this closely, even in the case of legal cases (like the Flynn prosecution) where Barr’s flip-flops are docketed.

I think a lot of things explain the unusual attention to Barr’s flip-flops. The assault on protestors and Trump’s tone-deaf photo op was so pathetic, the White House went into damage control. And because there were so many journalists at Lafayette Park, there were a slew of witnesses attesting to inconsistencies and inaccuracies in the official version of the story (starting with the Park Police’s flip-flops on the tear gas). Now, Barr is in a position of accusing three CBS reporters and at least one WaPo reporter, whose versions of this story differ dramatically from his own, of lying: His word against the reports of outside observers who have film to backup those reports.

But Barr’s changing excuses may also be partly explained by one other thing.

As noted, Barr’s first instinct seemed to be to distance the President from the order targeting peaceful protestors, and as he has repeatedly done, he took responsibilty (and Kayleigh McEnany happily gave him responsibility). But that created new problems: including why the Attorney General was ordering cops, many of them not within his chain of command, but more importantly, why Trump —  through orders given to Barr who executed those orders by issuing orders of his own — had responded to First Amendment protected activities with a violent assault.

The stakes of the answers to that question may have gone up with the filing of a lawsuit captioned, “Black Lives Matter v. Donald Trump:” Bill Barr is a named defendant.

Defendant William Barr is the Attorney General of the United States. He is sued in his individual and official capacity. He personally issued the order that resulted in the unlawful actions complained of in this lawsuit.

[snip]

At approximately 6:08 pm, Defendant Barr entered Lafayette Square.

At 6:10 pm, Defendant Barr was behind the law enforcement officials in Lafayette Square pointing north towards St. John’s Church. The Department of Justice subsequently acknowledged that Defendant Barr personally ordered that Lafayette Square be cleared.

Let me be clear: because this suit focuses on Bivens complaints about the violation of Constitutional rights, it probably won’t succeed in terms of the damages requested. Recent proceedings have largely gutted Bivens.

But what the suit does do is trace a link between Barr’s actions and the complaints of the plaintiffs (who include a 9-year old boy, a Navy veteran, and a former Eagle Scout). It does so through some of the same details that Barr is now trying to obfuscate.

And what the lawsuit may do is force a way to make the events that Barr is trying to cover up public.

Barr’s lies are consistent with all his other lies. He makes broad claims to power — not authority — and then he keeps changing the story as needed to try to give his claims retroactive legal cover.

This time, he may be forced to do so in court.

Update: WaPo did an unbelievably detailed piece showing no evidence for Park Police claims of dangerous projectiles, and making evident how the clearance of the Square led to the photo op.


The Fog of Protest

“We could wrap this up right now,” a police officer said over the scanner traffic that I was listening to as I walked along Mission Street in San Francisco. It was late on the night of June 3rd, and I had joined a protest group walking south on Valencia Street in San Francisco’s Mission District. The group was loud and a little rowdy, but not destructive. 30-something people trailed down to 20-something people — counts are always a little abstract in a group like this. We made a couple turns and walked back north, along Mission. “We could wrap this up…” the officer had said, and then the radio chatter moved smoothly onto the tactical part.

Motorcycle police trailing the protest through the Mission.

I was listening to the police scanner while walking with the group. When I do this, I often notice a disconnect between the police and the people on the ground, and sometimes between the police and the police on the ground. In this case, there was some panicky talk of the protestors building a barricade and setting it on fire after we turned onto Mission Street. I spun around to figure out what I’d missed. This didn’t seem like that kind of protest. Loud and rude for sure, we were hours after curfew and this was the proud hood crowd more than the carefully-stenciled-signs-of-unity crowd. But, not violent, and not even vandalous. From looking over the street behind me, I couldn’t see what the police were talking about. I did spot a newly-emptied trashcan on the sidewalk, but not in the street. No one was near it, much less ready to set fire to the mess. I’m not a fan of littering, but I’ve watched people build burning barricades across streets, mostly in France, and this wasn’t that. This was someone kicking the trash over.

The reason for kettling and arresting this group given by an officer on the scanner was the curfew violation. It was late, and there were “about 25” of us, an officer said over the radio. It gave me a sense that the police were done and wanted to leave. “We could wrap this up right now…” and they laid out a plan to bring in officers on both sides, close in, and arrest everyone. I ducked onto a side street and circled around to different sides of the area now blocked off by police, and tried to take pictures of the arrests. (I did not get many, Julian Mark of Mission Local got the best images while being detained.)

Some of the police and one arrestee.

These three things, curfew, the hour, and something about fire, became conflated later into a nebulous story about lighter fluid, when the cops were tired of following 25ish shouty people cussing at them, but not doing much else.

Police and arrestees line up for a police wagon.

None of this was extraordinary. Whatever problems are inherent to a protest situation, they are deeply compounded by police forces, and, to a lesser degree, protestors, all being very sure about what the other side is doing and thinking without having much real knowledge or insight.

I’m willing to say after more than a decade of doing this work that those arrests took place because the police were tired and wanted to go back to the station or home. But to get there, they really had to work up some other reason, whether they were aware of it or not. Police are mere humans, and subject to mere human follies. Protestors are too, but everyone knows that. Protestors look like a mess, even when they’re not. The police are the ones who dress alike and larp¹ being Perfectly Coordinated Machines of Order, instead of tired humans who just need to pee, damnit. This underlying humanity is scant comfort for those being arrested, maybe even less so for the one protestor that night who was taken away in an ambulance. When you’re supposed to be the perfect passionless embodiment of state violence, but you’re just a petty and tired as anyone, you can end up being a right bastard without knowing how, or that, you got there. This is what lies behind the sentiment ACAB: All Cops Are Bastards. It’s not a personal statement; it’s just what happens when role play gets out of hand, and in our society, the role play is always out of hand.

The other human bias police often suffer from in these chaotic scenes is that vigilance for the extraordinary generally leads humans to perceiving extraordinary things, whether they are there or not. Back on June 1st, when San Francisco was just getting started on its larger and more raucous protests, I was tracking people around the SOMA District (South of Market, a major dividing street in the city) protesting police violence. Scanner chatter was high, and the largest group was at the base of the Salesforce Tower, the tallest (and newest) building on the San Francisco skyline. There was talk of crowbars and vandalism, and the back-and-forth was working itself up into urgency. I started to run towards the tower, a few blocks away, because I know where this kind of talk usually leads. But another officer got on the radio. He was on the scene, and things were fine. “This is a peaceful protest,” he said repeatedly. “Don’t antagonize them.” He talked the chatter down.

The Salesforce building with minimal grafitti and no damage.

“Fuck 12” (12 means police) in spray paint was the only evidence of the protests. I’m sure it’s been cleaned up by now.

I stopped running, which I appreciated, and made my way over towards the building more slowly, taking some pictures along the way. The chatter became tense a few more times, but the original officer kept talking them down. “They’re peaceful,” he said repeatedly, and something like, “We have them,” as in he and the other officers on the scene were able to handle it. Another officer said there was vandalism, and the original officer said “Very minor” and again, “Don’t antagonize them!” He expressed the tension of someone who was talking his friends out of doing something stupid, which as it turns out, he was. In the end the Salesforce Tower was fine, and undoubtedly better than it would have been if the police had clashed with thousands of protestors at its front door. Cooler heads prevailed.

We who attend or cover protests have a saying which we often don’t say aloud because of the accusation of bias: “It ain’t a riot ’til the riot cops get there.” This isn’t universal, but it’s more common than most people think, including the police. Even well-meaning cops are in a system where they’re looking for something to do violence on, and looking for things hard enough makes humans tend to see what they’re looking for. It’s hard to understand what’s happening in a mass of angry people, but it’s violence much less often than you’d think.

I have seen actual riots that are riots from their very first moments, torrents of anger and grief that become a violent backlash on the physicality of society itself. But I’ve never seen a protest get much beyond turning over trashcans and spray painting things without police provocation. But that form of escalation is so baked-in to the dance of police and protestors now, I can’t imagine police can see it the way I do. The police look for trouble, they invariably find (and create) it, therefore they know there’s always trouble to look for.

Sometimes cooler heads prevail, sometimes there’s proportional responses, or no responses, and the crowd moves on without much damage, or the people drift off and go home tired at the end of a long day of exercising their First Amendment. On those occasions, protestors are often praised as peaceful, but not by me. I expect most protestors (except maybe the French) to be largely peaceful by default.

Instead, I’ve come to praise the cops more over the years, though it’s damning with faint praise. I praise them for not crashing hard into a crowd because a kid got out a can of spray paint. I praise them for just letting people walk it out late into the night, until everyone gets to go home and sleep. I praise them for not jumping at shadows and petty slights, for not getting frightened in the fog of protest and turning violent. Good cop, don’t hit anyone.

Honestly, the fog of war effect and confirmation bias are not just police problems, they’re human problems. They are the mistakes Homo Sapiens always make, and everyone including me, and you, would likely have the same errors of perception if we were suddenly part of a police force. As long as the police and people are other from each other, human biases towards the other will defeat our unity and progress.

The most heartening thing I’ve seen is police who took a knee, Kaepernick-style, against police violence. But I don’t believe police violence can be meaningfully curbed until the police are no longer a separate force from their communities, both sides lost in fogs of human bias.

  1. Larp stands for live action role play, a style of gaming involving dressing up and playing roles in a group.

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.


 


When Billy Barr Called a Press Conference to Target Non-Terrorists Rather than Brag about the Right Wing Terrorists FBI Caught

What if the FBI succeeded in thwarting a right wing terrorist attack but rather than bragging about that success, instead redoubled its efforts to target peaceful protestors as terrorists?

That’s what happened this week.

On Tuesday, the FBI terrorism agents arrested three adherents of the “Boogaloo” movement, a group of extremists planning a civil war. All have military experience and one, Andrew Lynam, is currently in the Army Reserve. At a ReOpen Nevada protest held in April, at which they were all heavily armed, Lynam told a person who’d go on to become an FBI informant that, “their group was not for joking around and that it was for people who wanted to violently overthrow the United States government.” One of them planned to use the cover of the George Floyd protests to conduct attacks and sow panic.

CHS stated that PARSHALL and LOOMIS’s idea behind the explosion [targeting Lake Mead] was to hopefully create civil unrest and rioting throughout Las Vegas. They wanted to use the momentum of the George Floyd death in police custody in the City of Minneapolis to hopefully stir enough confusion and excitement, that others see the two explosions and police presence and begin to riot in the streets out of anger.

They were arrested on the way to a Black Lives Matter protest with the makings of Molotov cocktails and an AR-15 in their vehicles.

Normally when the FBI thwarts a terrorism attack in process, they hold a big press conference to brag about it. As of this morning, however, neither DOJ nor FBI have posted the arrest on their national news websites (the Nevada US Attorney’s Office has).

Instead of boasting about the plotters arrested as terrorists, yesterday Billy Barr, FBI Director Christopher Wray, Acting DEA Administrator (and Barr flunky) Timothy Shea, and the head of ATF had a press conference that seemed designed to provide post hoc and advance justification for abusive steps Barr has and plans to authorize. (The Daily Beast also remarked on their silence about the Boogaloo arrests, and noted that that was one of the only arrests of ideologically motivated groups that have taken place during the uprising.)

The specifics of their statements, given the legal framework around national security investigations and known and presumptive OLC memos authorizing such things, deserves more attention.

The culprit is Antifa, not (also) the right-wingers carrying guns

In questions, for example, Pierre Thomas asked Bill Barr about the Boogaloo bust. Barr responded by focusing on Antifa.

And that’s why in my prepared statement, I specifically said, in addition to Antifa and other extremist groups like Antifa, there were a variety of groups and people of a variety of ideological persuasion. So I did make that point. I’m not going to get too specific, but the intelligence being collected by our US attorney’s office is particularly integrated by the FBI from multiple different sources is building up. There are some specific cases against individuals, some Antifa related.

Chris Wray also responded to the question about Boogaloo by emphasizing that Antifa was a terrorist organization.

Sure. Let me say first, as I’ve said for quite some time and including even my first few months in job, we, the FBI have quite a number of ongoing investigations of violent anarchist extremists, including those motivated by an Antifa or Antifa like ideology. And we categorize and treat those as domestic terrorism investigations and are actively pursuing them through our joint terrorism task forces.

This repeats comments both Wray and Barr made in their prepared speeches. Barr saidhe culprit here is “Antifa” and it is violent.

At some demonstrations, there are groups that exploit the opportunity to engage in looting.  And finally, at some demonstration, there are extremist agitators who are hijacking the protests to pursue their own separate and violent agenda.

We have evidence that Antifa and other similar extremist groups, as well as actors of a variety of different political persuasions, have been involved in instigating and participating in the violent activity.

Wray said the same. The culprits are “Antifa” and other agitators.

We’re seeing people who are exploiting this situation to pursue violent, extremist agendas—anarchists like Antifa and other agitators. These individuals have set out to sow discord and upheaval, rather than join in the righteous pursuit of equality and justice. And by driving us apart, they are undermining the urgent work and constructive engagement of all those who are trying to bring us together—our community and religious leaders, our elected officials, law enforcement, and citizens alike.

There is a foreign nexus that will allow us to use transnational tools

In his prepared speech, Barr claimed that there are foreign actors involved.

We are also seeing foreign actors playing all sides to exacerbate the violence.

It’s true that the Russians who helped Trump get elected are sowing dissension but that would be dealt separately from a press conference if Barr weren’t trying to use the foreign nexus to access national security tools he says can’t be used with Trump supporters.

Barr returned to this later, and specifically said they maybe can’t offer proof.

I may ask Chris if he cares to provide a little more detail. I’m not sure how much detail we want to get into, but people shouldn’t think that countries that are hostile to the United States, that their efforts to influence the US or weaken the US or sow discord in the US is something that comes and goes with the election cycle. It is constant. And they are constantly trying to sow discord among our people, and there’s a lot of disinformation that circulates that way. And I believe that we have evidence that some of the foreign hackers and groups that are associated with foreign governments are focusing in on this particular situation we have here and trying to exacerbate it in every way they can. Unless Chris has something to add, I can turn it over to … Yeah.

By suggesting there’s a foreign nexus, Barr is laying the groundwork to claim to need tools only available with that foreign nexus (something that has been done with past protest movements).

Every store that gets raided gives federal jurisdiction

After making it clear that Billy Barr intends to target Antifa as the culprit here, and use national security tools to do so, Barr and his flunkies then laid out how they think they have national jurisdiction.

Barr asserted his own jurisdiction based off the federal buildings he said that had been targeted (and because protestors were in front of the White House).

Many of the buildings, as you know, and facilities here, and the monuments are the responsibility of the federal government and the proceedings and process of the federal government take place here. And so when you have a large scale civil disturbance that is damaging federal property, threatening federal property, threatening federal law enforcement officers, threatening the officials in government and their offices and our great monuments, it is the responsibility of the federal government to render that protection.

Barr described how that Federal jurisdiction — and his invocation of the word “riot” — allows them to lead the response via what is the intelligence-driven network used against terrorists.

The Justice Department is also working closely with our state and local partners to address violent riots around the country.  Our federal law enforcement efforts are focused on the violent instigators.

Through the FBI, U.S. Attorney’s Offices, component field offices, and state and local law enforcement, we are receiving real-time intelligence, and we have deployed resources to quell outbreaks of violence in several places.

While Wray didn’t use the word “riot” he described the centrality of the Joint Terrorism Task Force to the Federal response.

We’re making sure that we’re tightly lashed up with our state, local, and federal law enforcement partners across the country, by standing up 24-hour command posts in all of our 56 field offices. We have directed our 200 Joint Terrorism Task Forces across the country to assist local law enforcement with apprehending and charging violent agitators who are hijacking peaceful protests.

Timothy Shea invented an excuse not used in his request to get involved: the DEA has jurisdiction because some people stole controlled substances from pharmacies, possibly after they had been looted.

In addition, DEA continues to investigate drug related crimes, including the theft of controlled substances from looted pharmacies, which is happening here in the District of Columbia and across the country. In the national capital region, approximately or over 150 DEA special agents have partnered with the metropolitan police department at their request and the National Guard to enforce security posts and maintain a secure perimeter in designated areas.

Acting ATF Director Regina Lombardo made a similar claim to jurisdiction (though theirs legitimately extends to explosives activity): ATF is investigating firearm dealer thefts.

 ATF has also responded to 73 federal firearms licensed dealers. We have identified many suspects that made arrest and recovered many firearms already.

When it came to Bureau of Prisons Director Michael Carvajal, the only real excuse he offered was that Billy Barr requested BOP get involved. Though he did offer the bogus claim that BOP’s riot team is “experienced in … conflict resolution.”

The Attorney General asked the BOP to request and assist other law enforcement agencies in maintaining order and peace in the district of Columbia. BOP crisis management teams are highly trained to deal with various types of emergency situations, including crowd control and civil disturbances. They are experienced in confrontational avoidance and conflict resolution.

Barr offered even more transparently bullshit excuses for inviting in the kinds of people who put down riots among violent felons, claiming that there weren’t enough Marshals to go around, and that no one else in the US Government (like Park Police) know how to deal with the kinds of crowds they deal with all the time. Barr also provided a totally bullshit excuse for why the riot teams weren’t wearing identification.

Let me just add that the Bureau of Prisons SORT teams are used frequently for emergency response and emergency situations, in either civil disturbances or hurricanes or other things like that. They’re highly trained. They’re highly trained units. And in fact, in the Department of Justice, we do not really have large numbers of units that are trained to deal with civil disturbances. I know a lot of people may be looking back on history, think we can call on hundreds and hundreds and hundreds of US Marshals, and that’s simply not the case. Our marshals’ response for us is approximately a hundred US Marshals. And so, historically when there have been emergencies where we have to respond with people who do have experience in these kinds of emergencies that are highly trained people, we use what are called SORT teams, response teams from the Bureau of Prisons.

And I could see a number … Now, in the federal system, we don’t wear badges with our name. I mean, the agents don’t wear badges and their names and stuff like that, which many civilian police agents, I mean, non-federal police agencies, do. And I could understand why some of these individuals simply wouldn’t want to talk to people about who they are, if that were, if that in fact was the case.

The photo op was not a photo op

But Barr’s bullshit explanation for why he sicced riot teams on peaceful protestors was still more credible than the excuse he offered for violently attacking peaceful protestors, including priests at a church serving them, for a photo op. He had decided (using the jurisdiction assumed by claiming everything is a federal building) to expand the perimeter around the White House.

Unfortunately, because of the difficulty in getting appropriate units into place, by the time they were able to move our perimeter up to I street, a large number of protestors had assembled on H Street. There were projectiles being thrown and the group was becoming increasingly unruly. And the operation to what… They were asked to three times if they would move back one block, they refused. And we proceeded to move our perimeter out to I Street.

And that had nothing at all whatsoever with the President’s desire for a photo op and he just happened to be in the photo op that had nothing to do with the violent attack on peaceful protestors and the exploitation of a house of worship.

Obviously, my interest was to carry out the law enforcement functions of the federal government and to protect federal facilities and federal personnel, and also to address the rioting that was interfering with the government’s function. And that was what we were doing. I think the president is the head of the executive branch and the chief executive of the nation, and should be able to walk outside the White House and walk across the street to the church of presidents. I don’t necessarily view that as a political act. I think it was entirely-I don’t necessarily view that as a political act. I think it was entirely appropriate for him to do. I did not know that he was going to do that until later in the day after our plans were well underway to move the perimeter, so there was no correlation between our tactical plan of moving the perimeter out by one block and the president’s going over to the church. The president asked members of his cabinet to go over there with him, the two that were present, and I think it was appropriate for us to go over with him.

Let me be clear. These are — most of them — transparently bullshit excuses. Unfortunately, the way our intersecting justifications for using national security authorities work, such transparently bullshit excuses provide the legal cover that the Federal government has long used, especially when it comes to spying on brown people.

To be clear, this is not new. It’s just incredibly ham-handed and pretty transparently done after the fact, after the press already identified Barr’s abuses. And I assume OLC only now is writing memos to match the transparently bogus claims made in yesterday’s presser.


If the Steele Dossier Is Disinformation, Republicans Have Become Willful Participants in the Operation

I was among the first people to argue that the Steele dossier had been planted either partially or predominantly with Russian disinformation.

Republicans never consider the implications if the Steele dossier is disinformation

I first suggested the dossier reflected a feedback loop — magnifying both the Alfa Bank and the Michael Cohen allegations — in March 2017 (there’s increasing evidence the Alfa Bank story was disinformation, too, which I’ve also argued). In November 2017, I showed evidence suggesting the Democrats were complacent in response to their discovery of the hack in May and June 2016, in part because the dossier falsely led them to believe that the Russians hadn’t accomplished such hacks and that the kompromat Russians had on Hillary consisted of old FSB intercepts of her, not newly stolen emails. In January 2018, I showed how the dossier would be useful to Russia, partly to thwart and partly to discredit the investigation into their operation. In August 2018, I laid out six specific false claims made in the dossier that would have led Democrats or the FBI to take action counter to their own interests:

  • Russians hadn’t had success hacking targets like Hillary
  • Russians were planning to leak dated FSB intercepts rather than recent stolen emails
  • Misattribution of both what the social media campaign included and who did it, blaming Webzilla rather than Internet Research Agency
  • Carter Page, not George Papadopoulos or Roger Stone, was one key focus of Russian outreach
  • Russia had grown to regret the operation in August, when instead they were planning the next phase
  • Michael Cohen was covering up Trump’s funding of the hackers rather than Trump’s sexual scandals and an improbably lucrative business deal

Also in August 2018, I laid out the specific risk that Oleg Deripaska, who had influence over both Christopher Steele and Paul Manafort at the time, could have been manipulating both sides. In January, I wrote a much more detailed post that, in part, showed that that’s what Deripaska seems to have done. The post also showed how any disinformation in the dossier succeeded in confusing and discrediting the most experienced investigators into Russian organized crime (both Steele and at both DOJ and FBI), as well as harming Democrats.

Long after I started laying out the implications of the possibility that the dossier was disinformation, Republicans came to believe that was the case. Unsurprisingly, however, that’s all they’ve done, point to Russia’s success at feeding the FBI and Democrats disinformation (just as Russia got Don Jr, Roger Stone, and Mike Flynn to embrace and magnify other disinformation), as if that in some way uniquely damns Democrats. When, earlier this year, Chuck Grassley got footnotes declassified providing further evidence that the dossier was disinformation, Republicans just kept squawking that it was, without thinking through the implications of it.

Because Grassley and others raised the issue in the Rod Rosenstein hearing yesterday (and because I’m preparing a post on that hearing), I’m going back to look closely at three footnotes reflecting Russian knowledge of the dossier project. As with all my other posts criticizing the dossier, nothing here is meant to excuse the Democrats’ refusal to come clean on it, or the ham-handed way the project was managed in the first place. But the footnotes don’t actually say what the Republicans think they do, and in some ways they increase the import of Paul Manafort’s interactions with Deripaska during the campaign.

The three references to June 2017 reporting on mid-2016 knowledge of the dossier

There were actually three mentions of June 2017 reporting related to the Steele dossier. I’ve included the context from the IG Report and footnotes below, but summarized, they are:

  • Footnote 211: An intelligence report from June 2017 said someone associated with Oleg Deripaska was or may have been aware of Steele’s work by early July 2016.
  • Footnote 342: An early June 2017 USIC report said two people affiliated with Russian intelligence were aware of Steele’s work in “early 2016” (this is either a typo or inaccurate, as the earliest anyone could have known would have been May 2016, and more likely June 2016).
  • Footnote 347: The FBI received reporting in early June 2017 that must come from 702 coverage revealing a bunch of details about a sub-source, including that the person had contact with the Presidential Administration in June/July 2016 and that he or she was strongly pro-Hillary.

I’ve highlighted the temporal references in the longer passages below, to make this more clear, but it’s worth noting that all three of these references are to intelligence reports dated June 2017. Once you account for the error in footnote 342 (since Steele’s election reporting didn’t start until May 2016, awareness of it most post-date that), all three of the reports reflect some time to Steele’s project in roughly the same time frame: May to early July 2016.

So it’s possible that some if not all three of these reports are the same report. All the more so given that two key Deripaska deputies, Konstantin Kilimnik and Victor Boyarkin, have been publicly identified as having links to Russian intelligence.

The Mueller Report describes evidence–including but not limited to witness interviews–that Kilimnik has ties to GRU.

Manafort told the Office that he did not believe Kilimnik was working as a Russian “spy.”859 The FBI, however, assesses that Kilimnik has ties to Russian intelligence.860 Several pieces of the Office’s evidence-including witness interviews and emails obtained through court-authorized search warrants-support that assessment.

It makes no such claims about Boyarkin, though it does note that he served as defense attaché in the past, the kind of job often used for official cover. But when Treasury sanctioned Boyarkin in December 2018 along with all the people who implemented the Russian interference campaign in 2016, it identified Boyarkin as a former GRU officer.

Victor Alekseyevich Boyarkin (Boyarkin) is a former GRU officer who reports directly to Deripaska and has led business negotiations on Deripaska’s behalf.  Deripaska and Boyarkin were involved in providing Russian financial support to a Montenegrin political party ahead of Montenegro’s 2016 elections.  Boyarkin was designated pursuant to Executive Orders (E.O.) 13661 and 13662 for having acted or purported to act for or on behalf of, directly or indirectly, Oleg Deripaska, who was previously designated pursuant to E.O. 13661 for having acted or purported to act for or on behalf of a senior Russian government official, as well as pursuant to E.O. 13662 for operating in the energy sector of the Russian Federation economy, as well as with entities 50 percent or more owned by designated persons.

The government refers to both of these guys as GRU-linked publicly. So if either showed up in a classified intelligence report, that affiliation would likely be more explicit. Both Kilimnik and Boyarkin were the target of retroactive surveillance as part of the investigation in Paul Manafort. And because they were interacting with Manafort, it would be likely one or both of them would learn of any issues involving Manafort, like the dossier, if such information came to Deripaska. To be clear, it is speculation that one of these men was the person associated with Deripaska who got wind of the dossier, but the description would fit both, both were under surveillance, and both would have a reason to be informed of the dossier if feeding disinformation to it was part of a larger project.

If either of them were one of the people named in the intelligence reports, it would mean Deripaska’s actions towards Manafort during the election would have been conducted by someone who knew of the Steele dossier. It would also mean that Boyarkin’s outreach (via Kilimnik) to Manafort in July 2016 would have come just after (this intelligence report reflects) learning of the dossier.

For example, in response to a July 7, 2016, email from a Ukrainian reporter about Manafort’ s failed Deripaska-backed investment, Manafort asked Kilimnik whether there had been any movement on “this issue with our friend.”897 Gates stated that “our friend” likely referred to Deripaska,898 and Manafort told the Office that the “issue” (and “our biggest interest,” as stated below) was a solution to the Deripaska-Pericles issue.899 Kilimnik replied:

I am carefully optimistic on the question of our biggest interest.

Our friend [Boyarkin] said there is lately significantly more attention to the campaign in his boss’ [Deripaska’s] mind, and he will be most likely looking for ways to reach out to you pretty soon, understanding all the time sensitivity. I am more than sure that it will be resolved and we will get back to the original relationship with V. ‘s boss [Deripaska].900

Eight minutes later, Manafort replied that Kilimnik should tell Boyarkin’s “boss,” a reference to Deripaska, “that if he needs private briefings we can accommodate.”901

It would also mean that when Manafort traveled to Madrid in early January 2017 he may have learned whatever the Deripaska people knew of the disinformation effort.

Manafort’ s activities in early 2017 included meetings relating to Ukraine and Russia. The first meeting, which took place in Madrid, Spain in January 2017, was with Georgiy Oganov. Oganov, who had previously worked at the Russian Embassy in the United States, was a senior executive at a Deripaska company and was believed to report directly to Deripaska.940 Manafort initially denied attending the meeting. When he later acknowledged it, he claimed that the meeting had been arranged by his lawyers and concerned only the Pericles lawsuit.941 Other evidence, however, provides reason to doubt Manafort’s statement that the sole topic of the meeting was the Pericles lawsuit. In particular, text messages to Manafort from a number associated with Kilimnik suggest that Kilimnik and Boyarkin-not Manafort’s counsel-had arranged the meeting between Manafort and Oganov.942 Kilimnik’s message states that the meeting was supposed to be “not about money or Pericles” but instead “about recreating [the] old friendship”-ostensibly between Manafort and Deripaska-“and talking about global politics.”943

According to an old Ken Vogel story, Manafort called Reince Priebus the day the dossier came out — at a time when he’d still be in Madrid with Oganov (he returned on January 12) and suggested he discredit the Russian investigation by focusing on the Steele dossier.

It was about a week before Trump’s inauguration, and Manafort wanted to brief Trump’s team on alleged inaccuracies in a recently released dossier of memos written by a former British spy for Trump’s opponents that alleged compromising ties among Russia, Trump and Trump’s associates, including Manafort.

“On the day that the dossier came out in the press, Paul called Reince, as a responsible ally of the president would do, and said this story about me is garbage, and a bunch of the other stuff in there seems implausible,” said a personclose to Manafort.

[snip]

According to a GOP operative familiar with Manafort’s conversation with Priebus, Manafort suggested the errors in the dossier discredited it, as well as the FBI investigation, since the bureau had reached a tentative (but later aborted) agreement to pay the former British spy to continue his research and had briefed both Trump and then-President Barack Obama on the dossier.

Manafort told Priebus that the dossier was tainted by inaccuracies and by the motivations of the people who initiated it, whom he alleged were Democratic activists and donors working in cahoots with Ukrainian government officials, according to the operative.

This would have been one of the few communications Manafort had with anyone in the Trump Administration (per court records, he had no direct communication after the inauguration, though he did use Sean Hannity as a back channel after that).

From that Manafort call to the present, the push to discredit the Russian investigation by treating the dossier as the Russian investigation and discrediting the former by unpacking the (admitted, egregious) problems in the latter has been the primary response to the Russian investigation. If Manafort was tipped to the fact that the dossier was full of baseless allegations because the Russians had put them there, it would mean the entire GOP effort since has been one of the intended goals of the disinformation.

Again, this rests on speculation, but if, in fact, Manafort’s interlocutors were the people identified as those who learned of the dossier, then everything the Republicans have been doing since would be part of that disinformation campaign.

210 and 211: Deripaska’s contemporaneous knowledge of the Steele dossier

Ohr told the OIG that, based on information that Steele told him about Russian Oligarch 1, such as when Russian Oligarch 1 would be visiting the United States or applying for a visa, and based on Steele at times seeming to be speaking on Russian Oligarch l’s behalf, Ohr said he had the impression that Russian Oligarch 1 was a client of Steele. 210 We asked Steele about whether he had a relationship with Russian Oligarch 1. Steele stated that he did not have a relationship and indicated that he had met Russian Oligarch 1 one time. He explained that he worked for Russian Oligarch l’s attorney on litigation matters that involved Russian Oligarch 1 but that he could not provide “specifics” about them for confidentiality reasons. Steele stated that Russian Oligarch 1 had no influence on the substance of his election reporting and no contact with any of his sources. He also stated that he was not aware of any information indicating that Russian Oligarch 1 knew of his investigation relating to the 2016 U.S. elections. 211

210 As we discuss in Chapter Six, members of the Crossfire Hurricane team were unaware of Steele’s connections to Russian Oligarch 1. [redacted]

211 Sensitive source reporting from June 2017 indicated that a [person affiliated] to Russian Oligarch 1 was [possibly aware] of Steele’s election investigation as of early July 2016.

342: On top of disinformation, FBI believed both Steele and his sources may have been boasting

According to the Supervisory Intel Analyst, the cause for the discrepancies between the election reporting and explanations later provided to the FBI by Steele’s Primary Sub-source and sub-sources about the reporting was difficult to discern and could be attributed to a number of factors. These included miscommunications between Steele and the Primary Sub-source, exaggerations or misrepresentations by Steele about the information he obtained, or misrepresentations by the Primary Sub-source and/or sub-sources when questioned by the FBI about the information they conveyed to Steele or the Primary Sub-source. 342

342 In late January 2017, a member of the Crossfire Hurricane team received information [redacted] that RIS [may have targeted Orbis; redacted] and research all publicly available information about it. [redacted] However, an early June 2017 USIC report indicated that two persons affiliated with RIS were aware of Steele’s election investigation in early 2016. The Supervisory Intel Analyst told us he was aware of these reports, but that he had no information as of June 2017 that Steele’s election reporting source network had been penetrated or compromised.

347: FBI used 702 collection to test Steele’s sub-sources

FBI documents reflect that another of Steele’s sub-sources who reviewed the election reporting told the FBI in August 2017 that whatever information in the Steele reports that was attributable to him/her had been “exaggerated” and that he/she did not recognize anything as originating specifically from him/her. 347

347 The FBI [received information in early June 2017 which revealed that, among other things, there were [redacted]] personal and business ties between the sub-source and Steele’s Primary Sub-source; contacts between the sub-source and an individual in the Russian Presidential Administration in June/July 2016[redacted] and the sub‐source voicing strong support for candidate Clinton in the 2016 U.S. elections. The Supervisory Intel Analyst told us that the FBI did not have Section 702 coverage on any other Steele sub‐source.

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