You Cannot Discuss Disinformation and the Steele Dossier without Discussing Oleg Deripaska

The New York Times’ Barry Meier is the latest person to become part of the disinformation project associated with the Steele dossier, while claiming to critique it.

Before I explain why, let me lay out some very basic facts about the Steele dossier about which anyone deigning to comment on it at this point should be expected to exhibit basic awareness.

It is a fact that, starting in 2014 and continuing at least through at least February 2017, Christopher Steele used his relationship with DOJ’s Organized Crime expert, Bruce Ohr, to encourage ties between Oleg Deripaska and the US government. That included brokering a meeting between Ohr and Deripaska in 2015, and several communications in 2016 before Fusion GPS hired Christopher Steele to investigate Trump. It included Steele’s meeting with Ohr on July 30, 2016, at which Steele provided Ohr information on Russian doping, details from his reporting for the DNC, and news about Deripaska’s lawsuit against Paul Manafort. On December 7, 2016 — the day before Deripaska associate Konstantin Kilimnik would renew his pitch to Paul Manafort on a plan to carve up Ukraine — Ohr even suggested that Deripaska would be a useful source to reveal Manafort and Trump’s corruption. Just as Steele was working with the DNC via an attorney client, Steele was working with Deripaska via one or more attorney client. Like Manafort, Steele was under financial pressure in this period, and so was eager to keep Deripaska’s attorneys as a client. This post and this post provide a summary of their exchanges over that year.

It is a fact that Steele’s primary subsource, Igor Danchenko, described that in March 2016, Steele tasked Danchenko to find out what he could learn about Paul Manafort’s corruption and his ties to Ukraine (though Danchenko had little success). When asked about the client for this work, Danchenko, “had no inclinations as to why, or for whom, Steele was asking about Manafort.”

It is a fact that the DOJ Inspector General Report on Carter Page provided evidence to suggest an associate of Oleg Deripaska — and so we should assume Oleg Deripaska himself — learned of Steele’s dossier on Donald Trump by early July 2016, which would have been after just the first report had been completed.

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.

This means that Deripaska’s associate probably learned of the dossier project before Steele met with Ohr on July 30 to share — along with information on Russian doping — information about Deripaska’s lawsuit against Manafort and the first tidbits from Steele’s dossier reporting.

It is a fact that in the same month, early June 2017, that the Intelligence Community found evidence that an Oleg Deripaska associate had learned of the dossier project, the Intelligence Community found evidence that two people with ties to Russian intelligence learned of the dossier project.

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 [sic] 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.

The Intelligence Community has identified two associates of Deripaska — Konstantin Kilimnik and Victor Boyarkin (through both of whom Manafort’s reports on the Trump campaign were funneled) — who have ties to Russian intelligence, so it’s possible that this early June 2017 intelligence is actually the same report, showing that a Manafort associate who had ties to Russian intelligence had learned of the dossier.

It is also a fact that Natalia Veselnitskaya, who because she was also a Fusion GPS client, was by far the most likely person to learn of a project conducted by Fusion GPS (possibly through Ed Baumgartner, who was working both the Fusion project with Veselnitskaya and the one with the DNC), also has ties to Russian intelligence.

It is a fact that when DOJ’s Inspector General entertained with the Crossfire Hurricane team the possibility that the Steele dossier had been injected with disinformation, DOJ IG envisioned Oleg Deripaska running that effort.

Priestap told us that the FBI “didn’t have any indication whatsoever” by May 2017 that the Russians were running a disinformation campaign through the Steele election reporting. Priestap explained, however, that if the Russians, in fact, were attempting to funnel disinformation through Steele to the FBI using Russian Oligarch 1, he did not understand the goal. Priestap told us that

what he has tried to explain to anybody who will listen is if that’s the theory [that Russian Oligarch 1 ran a disinformation campaign through [Steele] to the FBI], then I’m struggling with what the goal was. So, because, obviously, what [Steele] reported was not helpful, you could argue, to then [candidate] Trump. And if you guys recall, nobody thought then candidate Trump was going to win the election. Why the Russians, and [Russian Oligarch 1] is supposed to be close, very close to the Kremlin, why the Russians would try to denigrate an opponent that the intel community later said they were in favor of who didn’t really have a chance at winning, I’m struggling, with, when you know the Russians, and this I know from my Intelligence Community work: they favored Trump, they’re trying to denigrate Clinton, and they wanted to sow chaos. I don’t know why you’d run a disinformation campaign to denigrate Trump on the side. [brackets original]

I have laid out the evidence that Oleg Deripaska was playing both sides in 2016, taking steps to make Manafort more vulnerable legally and financially even as his deputy Kilimnik was using Manafort’s vulnerability to swap campaign information for a plan to carve up Ukraine and financial salvation. The same post shows how every single report in the dossier could serve key Russian purposes, both associated with the 2016 operation and more generally (though I’m not arguing the entire dossier was disinformation). If the dossier was disinformation, it would taint a great number of anti-Russian experts, from Steele to the FBI to others in the US government.

If you’re going to write about the Steele dossier at all in 2021, you should exhibit some familiarity with these facts. All the more so if you’re going to talk about whether it was disinformation.

But NYT’s Barry Meier doesn’t do that. Last week, Meier published an excerpt from his book on private intelligence services. The entire excerpt uses the Steele dossier as the exemplar of what can go wrong when private intelligence services sell information collection to clients and also share that information with journalists. I don’t disagree that the dossier was a shit-show, but then I’ve been warning about that for four years now.

As part of Meier’s proof of the shoddy product in the dossier, Meier astoundingly quotes Natalia Veselnitskaya, without clearly explaining that when he says Veselnitskaya “worked alongside” Glenn Simpson, he meant she thought highly enough of his services to employ him.

Over dinner in Moscow in 2019, Natalia Veselnitskaya, a Russian lawyer who met with Donald Trump Jr. at Trump Tower during the 2016 campaign, offered her take on the matter. Ms. Veselnitskaya had worked alongside Mr. Simpson when she represented a Russian-owned real estate firm called Prevezon Holdings and said she regarded him as a skilled investigator. As for Mr. Steele and the dossier, she had nothing but contempt.

“If you take this fake stuff for real, then you just have to be brave enough to believe, to completely dismiss all your special services, all your intelligence staff,” she said rapidly through an interpreter. She suggested how odd it was that all those people and agencies “were never able to find out what that talented person found out without ever leaving his room.”

Ms. Veselnitskaya was embroiled in her own legal drama. The Justice Department had indicted her in connection with her work for Prevezon, a charge she denied. Still, she raised an issue that reporters who embraced the dossier had blown past: How did Christopher Steele know more about Donald Trump and Russia than the C.I.A. or MI6?

One basic piece of evidence that the dossier had been compromised was that neither Simpson nor Steele ever figured out Veselnitskaya had floated a quid pro quo directly to Trump’s son — sanctions relief for dirt — with Manafort in attendance. But Meier apparently doesn’t think that Veselnitskaya was the proof that she said Steele missed. That is, he apparently doesn’t even understand — perhaps because he knows so little about what the Mueller investigation actually revealed? — that he’s being trolled by Veselnitskaya and that troll is offered up as proof that Christopher Steele is uniquely vulnerable to getting fooled by spooked up Russians.

That’s Meier’s one piece of primary evidence against the dossier. Otherwise, Meier explains, investigative journalists like himself rely on primary sources.

Investigative journalists normally rely on court records, corporate documents and other tangible pieces of evidence.

But he recites the kind of understanding of Igor Danchenko you’d get from reading right wing propaganda about him, rather than the Danchenko’s interview itself which showed ways that the DOJ IG Report did not faithfully report on the Danchenko interview (and indeed, had to make a significant correction), or, frankly, all the other problems with the DOJ IG Report.

Meier relies on a series that Erik Wemple did, for which he says, “most journalists [Wemple] contacted either defended their work or ignored his inquiries.” Meier doesn’t mention that not only did I not ignore Wemple, but I told him (twice, I think, both for an early inquiry about Chuck Ross’ reporting on the dossier and for his later series) that to the extent the dossier was disinformation, Ross and Wemple had become part of that effort. That is, Meier may not know, but Wemple himself is guilty of what Meier accuses others of, ignoring inconvenient details that undermine his narrative.

Craziest still, Meier relies on the claims of Matt Taibbi, who has harbored outright conspiracy theories about 2016, and whose own “reporting” on the Russian investigation consistently relies on, and usually misrepresents, secondary sources rather than the primary texts.

In an article for Rolling Stone, Matt Taibbi cast the media’s handling of the dossier as a replay of a press disaster: the reporting before the Persian Gulf war, which claimed that Saddam Hussein had weapons of mass destruction. “The W.M.D. affair showed what happened when we don’t require sources to show us evidence, when we let political actors use the press to ‘confirm’ their own assertions,” Mr. Taibbi wrote. “Are we never going to own up to this one?”

On its own, Meier’s piece is a performance of the problems he complains about: relying on unreliable sources and apparent ignorance of the public record.

But it gets crazier still once you consider the response Glenn Simpson and Peter Fritsch posted to Meier’s work. Along with pointing to some inaccuracies in Meier’s attacks on them and some disclosures Meier should have made, they reveal that Fusion GPS played a bit part in the August 2016 NYT story on Manafort that led to his ouster from the Trump campaign.

By the time of the Democratic National Convention in July, we had been researching Trump for some 10 months — work that began for Republicans and was later continued for Democrats. On July 25, 2016, we met on the sidelines of the convention in Philadelphia with two ofthe Times’ top editors, Dean Baquet and Matt Purdy, to share information about our Trump-Russia research.

Among the topics we discussed was Paul Manafort’s prior work for Ukrainians backed by Putin. The next day, at Purdy’s request, we sent the Times a pile of public record documents that supported a conclusion that Manafort was in a compromised position in relation to Moscow, including records that showed he owed millions of dollars to Deripaska.

Purdy connected us with two of his top reporters. Barry Meier was also assigned to the story. He was having a hard time locating the Virginia court records we’d mentioned to Purdy and Baquet and reached out to Simpson and a colleague for help.

Fusion helped Meier find the records, and they featured prominently in the Times story published two weeks later, proving a vital link connecting Manafort and Deripaska:

After that story, Meier even went back to Fusion for any information they had on Deripaska.

The most important takeaway from the dossier is the way it served as a tool in Oleg Deripaska’s two-sided game that turned Paul Manafort into an easy target. And it turns out that way back in 2016, Meier (and Fusion, in yet another undisclosed way) was part of this two-sided game.

Update: The partially sealed documents in Manafort’s docket are being released today. This Rick Gates 302 shows how closely the August 2 meeting tied Deripaska’s efforts to increase Manafort’s legal and financial woes — the lawsuit — with the delivery of detailed information about how to win the campaign.

Snowden

Insurance File: Glenn Greenwald’s Anger Is of More Use to Vladimir Putin than Edward Snowden’s Freedom

Glenn Greenwald risks making his own anger more valuable to Vladimir Putin than Edward Snowden’s freedom.

When WikiLeaks helped Snowden flee Hong Kong eight years ago, both WikiLeaks and Snowden had the explicit goal of using Snowden’s successful flight from prosecution to entice more leakers.

In his book, Snowden described that Sarah Harrison and Julian Assange’s goal in helping him flee Hong Kong was to provide a counterexample to the draconian sentence of Chelsea Manning.

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. That said, I was initially wary of Sarah’s involvement. But Laura told me that she was serious, competent, and, most important, independent: one of the few at WikiLeaks who dared to openly disagree with Assange. Despite my caution, I was in a difficult position, and as Hemingway once wrote, the way to make people trustworthy is to trust them.

[snip]

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.

It’s not just Snowden’s impression, though, that WikiLeaks intended to make an example of him. The superseding indictment against Assange cites several times when Assange invoked WikiLeaks’ role in Snowden’s successful escape to encourage others (including CIA Systems Administrators like Joshua Schulte, who had a ticket to Mexico when the FBI first interviewed him and seized his passports) to go do what Snowden did. British Judge Vanessa Baraitser even included one of those speeches in paragraphs distinguishing what Assange is accused of from legal journalism. And as early as 2017, public reporting said that WikiLeaks’ assistance to Snowden was what changed how DOJ understood WikiLeaks and why it began to consider prosecuting Assange. It wasn’t Trump that led DOJ to stop treating Assange as a journalist, it was Snowden.

According to Snowden’s own words, he shared WikiLeaks’ goal of setting an example to inspire others. In an email that Snowden must have sent Bart Gellman weeks before the exchange between him and Harrison above, Snowden described steps he took to give other leakers (this may be Gellman’s paraphrase), “hope for a happy ending.”

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?

Citizenfour also quotes Snowden describing how he hoped that proof that his “methods work[]” would encourage others to leak.

If all ends well, perhaps the demonstration that our methods worked will embolden more to come forward.

Snowden’s “methods” don’t work — they certainly haven’t for Daniel Hale, Reality Winner, or Joshua Schulte. But for each, Snowden played at least some role (there is ambiguity about how Schulte really felt about Snowden) in inspiring them to ruin their lives with magical thinking and inadequate operational security.

One of Snowden’s “methods” appears to entail quitting an existing job and then picking another at an Intelligence Community contractor with the intent of obtaining documents to leak. Snowden did this at Booz Allen Hamilton, and his book at least suggests the possibility he did that with his earlier job in Hawaii.

The government justified the draconian sentence that it had negotiated with Winner’s lawyers, in part, by claiming that she premeditated her leak.

Around the same time the defendant took a job with Pluribus requiring a security clearance in February 2017, she was expressing contempt for the United States, mocking compromises of our national security, and making preparations to leak intelligence information

Along with evidence Winner researched The Intercept’s SecureDrop before starting at her new job, the government supported this claim by pointing to three references Winner made to Snowden as or shortly after she started at Pluribus, including texts in which Winner told her sister she was on Assange and Snowden’s side the day the Vault 7 leak was revealed. That was still two months before she took the files she would send to The Intercept.

Had Hale gone to trial, the government would have shown that Hale discussed serving as a source for Jeremy Scahill by May 30, 2013, the day before he left NSA, and discussed Snowden — and hanging out with the journalists reporting on him — the day Snowden came forward on June 9. Then, on July 25, Hale sent Scahill a resume showing he was looking for counterterrorism or counterintelligence jobs. In December, Hale started the the job at Leidos where he would print out the files he sent to The Intercept.

You can think these leaks were valuable and ethical without thinking it a good idea to leave a months-long trail of evidence showing premeditation on unencrypted texts and social media.

Similarly, one of Snowden’s “methods” was to claim he had expressed concerns internally, but was ignored, a wannabe whistleblower stymied by America’s admittedly failed support for whistleblowers, especially those at contractors.

In the weeks before Snowden left NSA, he made a stink about some legal issues and NSA’s training programs (about how FISA Section 702 interacted with EO 12333) that he subsequently pointed to as his basis for claiming to be a whistleblower. The complaint was legit, and one NSA department actually did take notice, but it was not a formal complaint; indeed, it was more a complaint about US law. But his complaint had nothing to do with the vast majority of the documents that have been published based off his files, to say nothing of the far greater set of documents he took. And he made the complaint long after having prepared for months to steal vast amounts of files.

Similarly, Joshua Schulte wrote two emails documenting purported concerns about CIA security, one to a colleague less than a month before he left, which he didn’t send, and then, on his final day, one to CIA’s Inspector General that he falsely claimed was unclassified, a copy of which he was seen taking with him when he packed up. In the first search warrant for Schulte’s house obtained on March 13, 2017, less than a week after the initial Vault 7 release, the FBI had already found those emails and deemed Schulte’s treatment of them as suspect. And when they found a copy of the classified letter to the IG stashed in his headboard, it gave them cause to seize Schulte’s passports on threat of arrest. Snowden’s “methods” didn’t deliver Schulte a “happy ending;” they made Schulte’s apprehension easier.

To the extent Schulte could be shown to be following Snowden’s “methods” (again, that question was not resolved at his first trial) it would be a fairly damning indictment of those methods, since this effort to create a paper trail as a whistleblower was such an obvious attempt to retroactively invent cover for leaks for which there was abundant evidence Schulte’s motivation was spite and revenge. Maybe that’s why someone close to Assange explicitly asked me to stop covering Schulte’s case.

Had Daniel Hale gone to trial, the government undoubtedly would have used the exhibits showing that Hale had never made any whistleblower claims in any of the series of government jobs where he had clearance as a way to push back on his claim of being a whistleblower, though Hale was outspoken about his criticisms of the drone program before he took most of the files he shared with The Intercept. Indeed, given the success of Hale’s earlier anti-drone activism, his case raises real questions about whether leaking was more effective than Hale’s frank, overt witness to the problems of the drone program.

Worse still, Snowden’s boasts about his “methods” appear to have made prosecutions more likely. An early, mostly-sealed filing in Hale’s case, reveals that the government set out to investigate whether Hale was The Intercept’s source because they were trying to figure out whom Snowden had “inspired” to leak.

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.

That explains why the government required Hale to allocute to being the author of an essay in a collection of Hale’s leaked documents involving Snowden: by doing so, they obtained sworn proof that Hale is the person Snowden and Glenn Greenwald were discussing, while the two were sitting in Moscow, in the closing sequence of Citizenfour. In the scene, Glenn flamboyantly wrote for Snowden how this new leaker and The Intercept’s journalist were communicating, what appears to be J-A-B-B-E-R. That stunt for the camera would have tipped the government off, in cinema release just two months after they had raided Hale’s home, to look for and reconstruct Hale’s Jabber communications with Jeremy Scahill, which they partly succeeded in doing.

Rather than being means to a “happy ending,” then, prosecutors have found Snowden’s “methods” useful to pursuing increasingly draconian prosecutions of people inspired by him.

And now, after Snowden and Greenwald failed to persuade Trump to pardon Snowden, Assange — and in a secondary effort — The Intercept’s sources (perhaps, like Assange, they find the association with Schulte counterproductive, because they didn’t even try to get him pardoned, even though Trump himself almost bolloxed that prosecution), Snowden is left demanding pardons on Twitter for the people he set out to convince leaking could have a “happy ending.”

By associating these leaks with someone being protected by Russia so that — in Snowden’s own words — he could encourage more leaks, Snowden only puts a target on these people’s back, making a justifiable commutation of Winner’s sentence less likely (Winner is due to get out on November 23, two days before the most likely time for Joe Biden to even consider commuting her sentence).

I’m grateful for Snowden’s sacrifices to release the NSA files, but his efforts to lead others to believe that leaking would be easy was bound to, and has, ended badly.

If Vladimir Putin agreed to protect Snowden in hopes that he would inspire more leakers to release files that help Russia evade US spying (as Schulte’s leak did, at a time when the US was trying to understand the full scope of what Russia had done in 2016), the US prosecutorial focus on Snowden-related leakers undermines his value to Putin, probably by design. As that happens, Snowden might reach the moment that observers of his case have long been dreading, the moment when Putin’s utilitarian protection of Snowden will give way to some other equally utilitarian goal.

This is all happening as Putin adjusts to dealing with Joe Biden rather than someone he could manipulate by (at the very least) feeding his narcissism, Donald Trump. It is happening in the wake of new sanctions on Russia, in response to which Putin put US Ambassador John Sullivan on a plane to deliver some message, in person, to Biden. It is happening as Biden’s response to the Colonial Pipeline attack, in which ransomware criminals harbored by Putin shut down US critical infrastructure for fun and profit, includes noting that he and Putin will meet in person soon, followed by the unexplained disabling of the perpetrators in the wake of the attack.

Meanwhile, even as Snowden is of less and less use to Putin, Glenn Greenwald’s utility continues to grow. Snowden, for example, continues to speak out about topics inconvenient to Putin, like privacy. The presence in Russia of someone like Snowden with his own platform and international credibility may become increasingly risky for Putin given the success of protests around Alexei Navalny.

Greenwald, by contrast, seems to have dropped all interest in surveillance and has instead turned many of his grievances — even his complaint that former NSA lawyer Susan Hennessey will get a job in DOJ’s National Security Division, against whom one can make a strong case on privacy grounds — into a defense of Russia. Greenwald spends most of his time arguing that a caricature that he labels “liberals” and another caricature that he labels “the [American] Deep State,” followed closely by another caricature he calls “the  [non-right wing propaganda] Media,” are the most malignant forces in American life. In his rush to attack “liberals,” “the Deep State,” and “the Media,” Greenwald has coddled the political forces that Putin has found useful, including outright racists and other right wing extremists. By the end of the Trump presidency, Greenwald was excusing virtually everything Trump did, up to and including his attempted coup based on the utter denigration of democratic processes. In short, Greenwald has become a loud and important voice in support of the illiberalism Putin favors, to say nothing of Greenwald’s use of a rhetoric unbound by facts.

That Greenwald spends most of his days deliberately inciting Twitter mobs is just an added benefit, to those who want to weaken America, to Greenwald’s defense of fascists.

Most of us who used to know Greenwald attribute his Russian denialism and his apologies for Trump at least partly to his desire to free Snowden from exile. Yet Greenwald’s tantrums, because of their value to Putin, may have the opposite effect.

Stoking Greenwald’s irrational furor over what he calls “liberals” and “the Deep State” and “the Media” would actually be a huge incentive for Putin to deal Snowden to the US, in maximally symbolic fashion. There is nothing that could light up Greenwald’s fury like Putin bringing Snowden to a summit with Biden, wrapped up like a present, to send back on Air Force One. (That’s an exaggerated scenario, but you get my point.)

Plus, if Putin played it right, such a ceremonial delivery of Snowden might just achieve the completion of the Snowden operation, the public release of all of the files Snowden stole, not just those that one or another journalist found to have news value.

The Intelligence Community has, over the years, said a bunch of things about Snowden that were outright bullshit or, at least, for which they did not yet have evidence. But one true thing they’ve said is that Snowden took a great many files that had no imaginable privacy value. Even from a brief period working in the full archive aiming to answer three very discrete questions about FISA, I believe that to be true. While some (including Assange) pressured Snowden and others to release all these files, Snowden instead ensured that journalists would serve a vetting role, and after some initial fumbling, The Intercept did a laudable job of keeping those files safe. So up to now, the fact that Snowden took far more files than any privacy concern — even privacy concerns divorced from all question of nationality — could justify may not have mattered.

But as far as I know there are still full copies out there and Russia would love to spin up Glenn Greenwald’s fury so much he would attempt to burn down his caricature of “The Deep State” in retaliation — much like Schulte succeeded in badly damaging the CIA — by releasing his set.

I believe Russia has been trying to do this since at least 2016.

To be very clear, I’m not claiming that Greenwald is taking money from or is any way controlled by Russia. I am very much not claiming that, in part because it wouldn’t be necessary. Why pay Greenwald for what you can get him to do for free?

And while I assume Greenwald would respect Snowden’s stated wishes and protect the files, like Trump, Greenwald’s narcissism and resentment are very, very easy buttons to push. Greenwald has been heading in this direction without pushing. It would be child’s play to have people friendly to Russia’s illiberal goals (people like Steve Bannon or Tucker Carlson) exacerbate Greenwald’s anger at “the Deep State” to turn it into the frenzy it has become.

Meanwhile, custody of Edward Snowden would be a very enticing dangle for Putin to offer Biden as a way to reset Russia’s relationship with the US. One cannot negotiate with Putin, one can only adjust the points of leverage over each other and hope to come to some stable place, and Snowden has always been at risk of becoming a bargaining chip in such a relationship. By turning Snowden over to the US to be martyred in a high profile trial, Putin might wring the last bit of value out of Snowden. All the better, from Putin’s standpoint, if Greenwald were to respond by releasing the full Snowden set.

For the past four years, Greenwald seems to have believed that if he sucked up to Putin and Trump, he’d win Snowden’s freedom, as if either man would ever deal in good faith. Instead, I think, that process has had the effect of making Greenwald more useful to Russia than Snowden is anymore. And at this point, Greenwald seems to have lost sight of the likelihood that his belligerent rants may well make Snowden less safe, not more.

Vicky and Rudy: The Subjects of Delay

When I asked around last year what the net effect of Billy Barr and Jeffrey Rosen’s efforts to protect Rudy Giuliani would be, I learned that the net effect of refusing to approve searches on Rudy would only delay, but it would not change the outcome of, the investigation into the President’s lawyer.

That’s worth keeping in mind as you read SDNY’s response to Victoria Toensing and Rudy’s demand that they get to treat both the April warrants against them, as well as the 2019 warrants, like subpoenas. Effectively, SDNY seems to be saying, “let’s just get to the indictment and discovery phase, and then you can start challenging these searches.”

The filing several times speaks of charges hypothetically.

If Giuliani is charged with a crime, he will, like any other criminal defendant, be entitled to production of the search warrant affidavits in discovery, at which time he will be free to litigate any motions related to the warrants as governed by Federal Rule of Criminal Procedure 12. Conversely, if the Government’s grand jury investigation concludes without criminal charges, then the sealing calculus may be different, and Giuliani may renew his motion.

[snip]

If there is a criminal proceeding, the Government will produce the affidavits, warrants, and materials seized pursuant to those warrants, and at that time, the warrants’ legality can be litigated.

[snip]

Finally, Toensing will have both a forum and an opportunity to litigate any privilege issues if there is a criminal proceeding. As the Second Circuit has noted, in affirming the denial of a return-of-property motion, “If [the grand jury’s] inquiry results in indictment, the lawfulness of the seizure will be fully considered upon a motion to suppress, and any ruling adverse to the defendant will be reviewable upon appeal from a final judgment; if the grand jury declines to indict the movant, or adjourns without indicting it, its property will most likely be returned, and if not, it can initiate an independent proceeding for its return.” [my emphasis]

But the filing repeatedly makes clear that not just Rudy, but also Toensing (whose lawyer made much of being informed that Toensing was not a target of the investigation), are subjects of this investigation.

But the Government specifically chose not to proceed by subpoena in this case, for good reason, and there is no precedent for permitting the subjects of an investigation to override the Government’s choice in this regard.

None of the cases cited by Giuliani or Toensing supports their proposed approach. Toensing principally relies on United States v. Stewart, No. 02 Cr. 395 (JGK), 2002 WL 1300059, at *4-8 (S.D.N.Y. June 11, 2002), 4 but that case is readily distinguishable because it involved the seizure of documents from several criminal defense attorneys who were not subjects of the Government’s investigation and had many cases before the same prosecuting office

[snip]

Such concerns merely serve to highlight the many countervailing problems with Giuliani and Toensing’s proposal: under their approach, the subjects of a criminal investigation would have the authority to make unilateral determinations not only of what is privileged, but also of what is responsive to a warrant.

[snip]

Nevertheless, Giuliani argues that, quite unlike other subjects of criminal investigations, he is entitled to review the affidavits supporting the warrants, which would effectively give him the extraordinary benefit of knowing the Government’s evidence before even being charged with a crime.

[snip]

Her request is contrary to law and would effectively deprive the Government of its right to evidence in the midst of a grand jury investigation so that she, the subject of that investigation, may decide what is privileged and what is responsive in those materials.

[snip]

In other words, accepting Giuliani and Toensing’s argument about the impropriety of using a filter team to review covert search warrant returns would entitle subjects of a criminal investigation to notice of that investigation any time a warrant were executed that related to them, no matter if the investigation were otherwise covert and no matter if the approving Court had signed a non-disclosure order consistent with the law. [my emphasis]

SDNY correctly treats Rudy and Toensing’s demands to review this material before SDNY can obtain it as a delay tactic.

Giuliani and Toensing’s proposal to allow their own counsel to conduct the initial review of materials seized pursuant to lawfully executed search warrants, including making determinations of what materials are responsive to the warrants, on their own timeline is without any precedent or legal basis. The Government is aware of no precedent for such a practice, which has the effect of converting judicially authorized search warrants into subpoenas.

Indeed, their discussion of the Lynn Stewart precedent emphasizes their goal of obtaining this material expeditiously.

None of the cases cited by Giuliani or Toensing supports their proposed approach. Toensing principally relies on United States v. Stewart, No. 02 Cr. 395 (JGK), 2002 WL 1300059, at *4-8 (S.D.N.Y. June 11, 2002), 4 but that case is readily distinguishable because it involved the seizure of documents from several criminal defense attorneys who were not subjects of the Government’s investigation and had many cases before the same prosecuting office. (See infra at pp. 33-34). In any event, the Court appointed a special master in Stewart, as the Government seeks here. And the procedures adopted in Stewart illustrate why the Government’s proposed approach is preferable. In Stewart, the presiding judge initially believed that the special master’s review could be conducted expeditiously because the defendant’s counsel could quickly produce a privilege log (as Toensing seeks to do here). Id. at *8. But 15 months later, the judge lamented that the special master still had not produced a report on the seized materials. United States v. Sattar, No. 02 Cr. 395 (JGK), 2003 WL 22137012, at *22 (S.D.N.Y. Sept. 15, 2003), aff’d sub nom. United States v. Stewart, 590 F.3d 93 (2d Cir. 2009). That cumbersome process stands in stark contrast to that adopted by Judge Wood in Cohen, wherein the special master completed her review on an expedited basis in parallel to Cohen’s counsel, and set deadlines for Cohen’s counsel to object to any of her designations. (Cohen, Dkt. 39 at 1-2). In Cohen, the special master was appointed in April 2018, and her review was complete by August 2018. The Cohen search involved approximately the same number of electronic devices seized here, but also included significant quantities of hard copy documents, which are not at issue here. In sum, the Court should follow the model set forth in Cohen, which resulted in an efficient and effective privilege review. [my emphasis]

Likewise, the government also offered to pay the costs of the Special Master, so long as the Special Master follows the expeditious procedure conducted with Michael Cohen’s content.

This Court should not permit Giuliani and Toensing to stall the investigation of their conduct in this manner, particularly where the Government’s proposal will allow them to conduct the same review in parallel with a special master. The Government’s proposal to appoint a special master to review the seized materials is the only proposal that is fair to all parties, respects the unique privilege issues that the 2021 Warrants may implicate, and will ensure that Government’s investigation proceeds without undue delay.6

6 In the Cohen matter before Judge Wood, the Government and Cohen split the costs associated with the special master’s privilege review. Here, because the Government made the initial request of the Court and considers the appointment of a special master appropriate in this matter, the Government is willing to bear the costs of the review insofar as the special master follows the procedures adopted by Judge Wood in the Cohen matter, namely to review the seized materials for potential privilege in parallel with counsel for Giuliani and Toensing. To the extent the Court adopts the proposals advanced by Giuliani and Toensing, including that the special master also conduct a responsiveness review of those same materials—which the Government strongly opposes for the reasons set forth above—Giuliani and Toensing should solely bear any costs associated with a responsiveness review, any review beyond the initial privilege review, or any cost-enhancing measures traceable to Giuliani and Toensing. [my emphasis]

I’m mindful, as I review the schedule laid out above, that Cohen was charged almost immediately after the Special Master review was completed, in August 2018. In addressing the partial overlap between the 2019 searches and the April ones, the government notes that, “the Government expects that some, but not all, of the materials present on the electronic devices seized pursuant to the Warrants could be duplicative of the materials seized and reviewed pursuant to the prior warrants.”

The government already knows what they’re getting with these warrants (and if they don’t get it, they’re likely to be able to charge obstruction because it has been deleted). They’re calling for a Special Master not because it provides any more fairness than their prior filter review (indeed, they speak repeatedly of the “perception of fairness”), especially since investigators are about to obtain the materials from the 2019 search, but because it ensures they can get this material in timely fashion, especially since, as it stands now, they’re going to have to crack the passwords on seven of the devices seized from Rudy.

The remaining seven devices belonging to Giuliani and his business cannot be fully accessed without a passcode, and as such the Government has advised Giuliani’s counsel that the devices can be returned expeditiously if Giuliani were to provide the passcode; otherwise, the Government does not have a timeline for when those devices may be returned because the FBI will be attempting to access those devices without a passcode, which may take time.

Yes, Rudy and Toensing are trying to get an advance look at how bad the case against them is. But they’re also hoping to delay, possibly long enough to allow a Republican to take over again and pardon away their criminal exposure.

Which suggests that all the hypotheticals about Rudy and Toensing being able to challenge these searches if they are indicted are not all that hypothetical. SDNY is just trying to get to the place where they can indict.

Victoria Toensing’s Singular Multiple Devices

The government has docketed a less redacted version of the letter it originally posted asking for a Special Master to troll through Rudy Giuliani and Victoria Toensing’s devices to separate out the privileged material. As I predicted, the redacted parts of the letter describe the filter team search conducted on the material seized in November and December 2019.

That makes the argument this argument all the more cynical.

[T]he overt and public nature of these warrants necessitates, as Judge Wood observed, the appointment of a special master for the “perception of fairness, not fairness itself.”

Particularly given the admission that the government already obtained, “certain emails and text messages,” that they expect to find on the seized devices.

Which makes the other details more interesting. The FBI obtained 18 devices from Rudy in their search (though remember that thumb drives may count as a device for the purposes of a search).

But with Toensing, the government showed up with a warrant, “to search premises belonging to Victoria Toensing and seize certain electronic devices” — devices, plural. But the FBI came back with just one device.

So why did the government think they’d come back with multiple devices and where did those devices go?

Y’all Qaeda Northwest: Ethan Nordean Provides Yet More Proof of the Proud Boys’ Sophistication and Resilience

The government and Ethan Nordean are having a dispute that is, at least procedurally, about whether by giving Nordean the Telegram text messages he demanded in prioritized fashion, the government committed a Brady violation. Nordean started this dispute on April 29 with a filing admitting that the texts he received before his detention hearing were the ones he asked for specifically but still complaining that he didn’t get all his texts at once.

Today, the government produced for the first time additional Telegram messages extracted from Nordean’s phone. The government provided no explanation as to why they were produced after the hearing on its third detention motion and not beforehand.1 Like the Telegram chats it used to support detention, today’s production was drawn from the same device (Nordean’s phone), the same app (Telegram), and only postdate by some days the chats the government used to detain Nordean. In reviewing the following chats, the Court may recall that because the Telegram messages are encrypted and, according to the government, “designed to evade law enforcement,” the government would have the Court believe the app users are speaking candidly in Telegram.

On March 25, Nordean requested that the government produce, at least by March 30, Telegram chats on Nordean’s phone sent and received between 1/4/21 and 1/8/21. Nordean did not say that no other chats should be produced, nor did he waive any right to Brady material of which the government was aware. On March 9, Nordean served a discovery letter on the government seeking all of the defendant’s statements and requesting that Brady material be produced according to the schedule in Rule 5.1.

The government response doesn’t point out that they gave Nordean precisely what Nordean asked for. It does describe how they provided Nordean’s Telegram chats in three waves, with the entire content of his phone provided by April 30.

On April 29, 2021, the government produced to defendant Nordean eleven (11) strings of text messages, totaling over 5,000 pages, that contained the terms “Ministry of Self-Defense” or “MOSD,” and that were recovered from defendant Nordean’s phone.

Thereafter, on April 30, 2021, a full copy of an extraction from defendant Nordean’s phone was produced to Nordean’s counsel. That production included approximately 1,172 Telegram message strings (totaling over 1.3 million messages). The extracted text of the Telegram messages in Nordean’s phone runs over 204,000 pages when printed in .pdf format, which does not include any of the images, audio, or video files that are associated with the message strings. In addition to the Telegram messages, the phone contains hundreds of other communications using other platforms, including other encrypted platforms such as Signal and WhatsApp. The government’s review of these message strings, hundreds of which contained communications between December 2020 and January 2021, is ongoing, and all of this information is in defendant Nordean’s possession.

Nordean’s reply doubles down on the accusations of misconduct, now claiming the government intentionally withheld substantiation of Nordean’s claim to have disavowed rallies.

Nordean had presented an audio recording of himself in a conversation with members of his group in which he rejected political rallying. The recording shows him annoyed with how often he had to “repeat himself” on the point. The clip was recorded in February, shortly before his arrest. It is not “self-serving,” as he was communicating with his in-group and through the medium that the government alleges was used “to evade detection.”1 The Court found that the clip “does suggest that, at some point, [Nordean] agreed that the Proud Boys should stop rallying.” Hr’g Trans., 4/19/21, p. 55:21. However, the Court also found that “without any further context there’s no indication that that was some kind of permanent decision.” Id., p. 55:22.

At the time of the hearing, there was “further context.” The government knew it and did not inform the defense or the Court. Shortly after that hearing, on April 29, the government produced late January chats in which Nordean repeatedly discussed “bans on rallies”; in which Nordean said, “fuck politics, build communities and local economy” (Cf. the Court: “politics has not [passed]”); where Nordean endorses the doubly capital notion “THE PROUD BOYS ARE NOT MARCHING ON CAPITAL BUILDINGS”; and in which Nordean reacts dismissively, in real time, to the conspiracy charge supposedly predicating his detention. On its own, the government’s late production of these chats is unequivocally a violation of the Due Process Protections Act and Local Criminal Rule 5.1. It is also a violation of Rule 3.8(e) of the D.C. Rules of Professional Conduct for prosecutors.2

2 “The prosecutor in a criminal case shall not . . . Intentionally fail to disclose to the defense, upon request and at a time when use by the defense is reasonably feasible, any evidence or information that the prosecutor knows or reasonably should know tends to negate the guilt of the accused or mitigate the offense.” Rule 3.8(e) of the D.C. Rules of Professional Conduct.

In his reply Nordean asks a fair question — why the government didn’t just keep screen-capping texts that were a “two-second scroll” down Nordean’s phone from the chats the government had turned over in response to Nordean’s specific request. It seems the government has a reasonable answer: because it was responding to a specific request, though they have yet to say that specifically.

Nevertheless, neither side is treating this as a dispute over misconduct. The government notes that his original motion asks for no relief.

Defendant Nordean’s notice alleging a violation of those provisions (ECF 79) seeks no relief, and no relief or further action by the Court is necessary or appropriate.

Nordean’s reply asks for no relief either. It instead says that he is “developing evidence,” but once again asks for no relief.

The government concludes its response by saying Nordean’s “notice seeks no relief because defendant is entitled to no relief.” ECF No. 84, p. 12. The government is mistaken. The notice sought no relief because Nordean is developing further evidence of the government’s misconduct in filing a series of misleading claims in this matter and in withholding evidence so that it cannot be timely used.

And Nordean goes from that comment — stating that it is incorrect that he asks for no relief by once again asking for no relief — to instead make an argument about bail. (This series of exchanges is actually about preparing a record for Nordean’s detention challenge at the DC Circuit.)

Nordean points to this declaration from Daniel Aurellano stating that Ethan Nordean is no longer the President of Proud Boys Seattle Chapter, because he, Aurellano, was elected to replace him.

Nordean is also developing evidence showing that the premises for revoking his release order are factually mistaken. For example, although Nordean’s leadership role in the Proud Boys was cited to detain him, he is no longer a leader, in any sense of the word, in that organization, nor does he have any decision-making authority, as sworn statements indicate and will further indicate.

Aurellano says he was elected to replace Nordean “in February 2021,” but doesn’t say when that happened. Nor does Aurellano say when, in February 2021, the Proud Boys Northwest chose to dissociate from the national Proud Boys. He does, however, say Nordean stopped participating in Proud Boys Internet communications after his arrest in February 2021. Which suggests Aurellano got elected to replace Nordean at a meeting that Nordean called for while still the head of the chapter, on January 20, and at which Nordean planned to discuss “bugout bags” and “bulk armor deals” because they were “on the brink of absolute war.”

Nordean makes much of the fact that subsequent to this January 20 statement, and so also subsequent to Joe Biggs’ arrest on January 20, he made a series of comments forswearing rallies.

But that means one of the last things Nordean did while still in charge was call for and prepare for war — not to mention to call for bugout bags for which the old passport of one’s ex-wife, such as the one the government alleges (though the allegation is contested) was out on Nordean’s bedroom dresser when the FBI came to search his house — would be acutely valuable. And then everyone started getting arrested and the Proud Boys took steps to cover their tracks.

Amid this whole bail dispute pretending to be a misconduct dispute, however, Nordean has helped to lay out both that this is a remarkably organized militia, and it is adopting a tactic other terrorist groups have in the past: to splinter and rebrand as a way to attempt to evade prosecution, as if the Proud Boys Northwest had adopted the name Y’All Qaeda Northwest like African branches of the Islamic State did.

Thus far, filings in the Proud Boys Leadership conspiracy case have shown that:

  • The Proud Boys started preparing a compartmented cell structure in anticipation of the January 6 insurrection on December 29
  • Enrique Tarrio anticipated he would be arrested when he came to DC on January 4 and so provided for a succession plan
  • Charles Donohoe allegedly attempted to destroy evidence of past planning in the wake of Tarrio’s arrest, specifically in an attempt to avoid gang charges (whether he succeeded or not remains contested)
  • In the aftermath of January 6, the Proud Boys (and Nordean specifically) took steps to prepare for war
  • In Seattle, the Proud Boys responded to Nordean’s arrest by ensuring the continuity of the organization

Again, none of this is exculpatory for Nordean. It shows the Proud Boys operating like sophisticated terrorist groups have operated in the past, in an attempt to retain viability while under government scrutiny.

And along the way, Nordean and the government have been drawing an utterly convincing argument — with two attempts to access passports and an explicit call for bugout bags — that he would flee the country the first chance he got.

January 6: A Change of Pace

Although GWU’s tracker, which is still the best way to keep track of all the January 6 defendants (though this visual story from WaPo using their data is nifty) added four new January 6 defendants yesterday, the pace of new defendants has slowed considerably. While there are still some detention fights, several of those disputes (Proud Boys Ethan Nordean and Joe Biggs, and disorganized conspirators Nate DeGrave and Ronnie Sandlin, as well as Neo-Nazi sympathizer Timothy Hale-Cusanelli — have moved to the DC Circuit.

We’re likely to have more bail revocation fights. The other day, for example, Landon Copeland — who made news for his meltdown during a magistrate judge’s hearing last week — was arrested for some still unidentified bail violation. The government has also moved to revoke Patrick Montgomery’s bail because he — a professional hunting guide — shot a mountain lion that he — a felon — cannot legally possess.

But there are a couple of developments this week that point to what’s going on with this investigation.

Delayed phone exploitation

In a hearing in the case against mother and son defendants Deborah and Salvador Sandoval, Deborah’s attorneys were anxious to move to trial based off an apparent misunderstanding that the evidence on her sole computer device, her smart phone, would show she barely entered the Capitol. Meanwhile, the government revealed that because Salvador chose not to share passwords to his multiple devices, those are taking a lot longer to exploit. As I’ve already noted, Ethan Nordean is the only Proud Boys leadership co-conspirator whose phone DOJ was able to exploit without cracking the password first (the FBI got the password from Nordean’s wife). Exploiting all these phones is going to take a lot of time.

In another case, there appear to be privileged communications on Eric Torrens’ phone, which will delay the exploitation of that for up to four weeks as a filter team reviews the content.

In other words, even before you consider any delay created by FBI’s need to respond to Signal’s Moxie Marlinspike’s exposure of vulnerabilities in Cellebrite’s code, it will take some time to process the vast volume of evidence the government has obtained since January 6.

The network analysis

The arrest of Brittiany Dillon gives a sense of another cause of delay.

Bryan Betancur was one of the first wave of January 6 defendants to be arrested, on January 17, after his parole officer alerted the FBI that he had lied about handing out Bibles to get permission to travel from Baltimore to DC that day. The government got a warrant for his phone on January 20. Once they got into his phone, they discovered text messages between Betancur and Dillon in which Dillon described falling in the door of the Capitol during the riot. The government found video of her — falling down as she entered — on surveillance videos by January 23. The government obtained phone and Google warrants to confirm that Dillon had been inside the Capitol the day of the riot. For some reason, the FBI only got around to interviewing Dillon’s father, ostensibly about Betancur, on April 21; the agent got Dillon’s father to confirm Dillon’s ID while they were talking.

This is similar to what happened with Patrick Montgomery, who like Betancur was arrested on January 17. Only after FBI exploited his phone and found some key pictures did they arrest a buddy he was with that day, Brady Knowlton, while pursuing two others.

These arrests of friends of early arrestees may reflect an FBI agent trying to get arrest numbers, but in a number of cases, they seem to reflect larger investigative strategies based on things investigators have found in the profiles of the original defendant. By my count there are about 18 cases of network arrests aside from the militia conspiracies, and about half of those look like they may be more interesting than friends getting scooped up together. I would expect to see more of this going forward.

Delayed arrests

The two month delay between the time DOJ identified active duty Marine, Major Christopher Warnagiris, as the person who played a key role in keeping the East door of the Capitol open after it was first breached on January 6 and when they arrested him on Wednesday is far more interesting.

As the arrest affidavit explains, FBI isolated Warnagiris as a suspect based on his conduct as shown in video, and then published a Be On the Lookout picture to figure out who he was. On March 16, a former co-worker IDed him, and on March 17, the FBI interviewed one of his current co-workers, who positively IDed Warnagiris.

And that’s it–that’s where the narrative in the affidavit, which was signed on Wednesday, ends. They get a BOLO-based tip on March 16, and get military witnesses to confirm his ID on March 17. And that’s all they’re telling us about who he is and what other evidence they have against him.

I’m sure that’s not all that has transpired since FBI discovered an active duty Major played a key role in keeping the East Capitol breach open.

All the while, someone who by dint of being an active duty service member has clearance, has (as far as we know) been going into Quantico every day for the almost two months since they IDed him. That’s … an interesting investigative decision.

Compare that narrative to the one told in the arrest affidavit of Timothy Hale-Cusanelli, the Army reservist and Nazi-sympathizer who worked as a contractor at Naval Weapons Station Earle in New Jersey. On January 12, an informant told the FBI that Hale-Cusanelli was at the riot, on January 14, the informant recorded a conversation in which Hale-Cusanelli admitted to pushing and shoving along with the rest of the mob. Hale-Cusanelli has been jailed since the very next day, January 15 (he is appealing his detention to the DC Circuit). Hale-Cusanelli has not been charged with assault and he is not known to have played such a key role in compromising the Capitol from a second side.

Now, for many defendants, I can see taking your time after the initial rush of arrests. After all, if they were going to delete their Facebook, that would have happened (and did happen, with a goodly number of defendants) by January 9. But Warnagiris seems like a more urgent risk.

And, remarkably, DOJ apparently did not ask for any special conditions on Warnagiris. He has no location monitoring, no restrictions on possessing a gun, no specificity to his travel around DC (most defendants have stay-away orders, but for people like Warnagiris who are local to DC, they’re sometimes restricted to their District). They did not ask him to surrender his passport. Now, perhaps something is also going on with him in the military. But the whole thing — on top of the inevitable shock of having an active duty officer arrested — raises more questions than other cases.

All of which is to say that, with a defendant who genuinely poses unique security risks, the government is now taking their time to flesh out their investigation.

I’ve said from the start that this investigation has been lightning quick. That’s still, absolutely, true. But there’s going to be a lot more happening behind closed doors in the weeks ahead.

DOJ’s Curious Militia Math

The government has responded to Ethan Nordean’s claim that texts that confirmed he was a recognized leader in the Proud Boys were exculpatory. In a filing that lays out more of how the Proud Boys responded — first with glee, then with cover stories, then with plans to regroup — to the events of January 6, DOJ includes a curious paragraph describing Enrique Tarrio establishing a very hierarchical upper leadership of the militia.

On December 29, 2020, the Proud Boys Chairman announced the leadership and structure of the Ministry of Self-Defense. The leadership and structure included an “upper tier leadership” of six people, which included Proud Boys Chairman, Nordean, Biggs, and Rehl. Later that evening, Donohoe explained the structure with reference to the upcoming trip to Washington, D.C. Among other things, Donohoe explained that the MOSD was a “special chapter” within the organization. The “special chapter” was not to have any interaction with other Proud Boys attending the event.

Other Proud Boys attending the event were to coordinate with their own chapters and “do whatever you guys want.”1

The filing goes on to describe the statements of, “one member (“Person-1”) of the upper tier leadership” and “another member of MOSD leadership (Person-2).” In addition, it describes the comments of our old friend UCC-1, an unindicted co-conspirator, clearly distinguishing that person’s legal risk from the others.

When UCC-1 was first introduced in the indictment against the Proud Boys Leadership, it was implied that both he and Charles Donohoe were also in the leadership MOSD, and described the total membership as the four indicted defendants plus “a handful of additional members.”

39. On after Chairman’s January 4, 2021, shortly after Proud Boys Chairman’s arrest pursuant to a warrant issued by D.C. Superior Court, DONOHOE expressed concern that encrypted communications that involved Proud Boys Chairman would be compromised when law enforcement examined Proud Boys Chairmans’ phone. DONOHOE then created a new channel on the encrypted messaging application, entitled, “New MOSD,” and took steps to destroy or “nuke” the earlier channel. After its creation, the “New MOSD” channel included NORDEAN, BIGGS, REHL, DONOHOE, and a handful of additional members.

40. On January 2021, at 7:15 p.m., DONOHOE posted a message on various encrypted messaging channels, including New MOSD, which read, “Hey have been instructed and listen to me real good! There is no planning of any sorts. I need to be put into whatever new thing is created. Everything is compromised and we can be looking at Gang charges.” DONOHOE then wrote, “Stop everything immediately” and then “This comes from the top.”

41. On January 4, 2021, at 8:20 p.m., an unindicted co-conspirator (“UCC-1”) posted to New MOSD channel: “We had originally planned on breaking the guys into teams. Let’s start divying them up and getting baofeng channels picked out.”

Perhaps it’s because I’m what one of Nordean’s buddies calls a “purple haired faggot,” and so can’t understand Tarrio hierarchical logic. But by my math, these two filings suggest the MOSD leadership looks like this:

  1. Enrique Tarrio (who correctly anticipated he’d be arrested in advance of the insurrection)
  2. UCC-1
  3. Joe Biggs
  4. Ethan Nordean
  5. Zach Rehl
  6. Person 1
  7. Person 2

One-two-three-four-five-six-seven. Not six, seven. And that’s assuming Donohoe is not part of the group, though the indictment had suggested he was.

Whether UCC-1 is in or out of that leadership group is a key distinction. The government has a presumed informant who said some of the most inflammatory things in advance of the insurrection:

UCC-1: I want to see thousands of normies burn that city to ash today

UCC-1: The state is the enemy of the people

If this person was an active informant for the FBI going in — as an Aram Rostom story suggests — it means someone at the FBI lost control of their informant and rather than punishing the informant for participating in an insurrection and not informing the FBI about it, it is giving the person a pass. It would mean that because this person had made accusations to feed Billy Barr’s demand for dirt on Antifa, he is getting a pass on insurrection.

But if this informant provided the FBI some kind of warning, then it means the Bureau failed, badly, because the FBI has claimed that it had no warning of events of the day, not even with multiple Proud Boys in its informant ranks, including, possibly, one with top level access.

Not to mention the fact, if this guy had the access some of these filings suggest, it raises real questions about why the FBI still doesn’t know precisely how the operation rolled out.

David Headley and Tamerlan Tsarnaev demonstrate that one way to plan a terrorist attack without the FBI seeing it is to serve as an informant. And if the Proud Boys managed to carry out fairly complex planning for an insurrection because so many of them were trading information on Antifa, it would mean FBI’s handing of informants, plus DOJ’s commitment, from the very top, to prioritize Antifa at the expense of right wing militia, were key ingredients to the success of January 6.

“Oversight:” Mike Flynn Lied to Protect Barbara Ledeen, Who Then Fed Disinformation to Sara Carter

In a footnote to an October 2019 filing, prosecutors in the Mike Flynn case suggested that Sidney Powell was misrepresenting Flynn’s “cooperation and candor” in his first interviews with Robert Mueller’s team, a claim that is consistent with Flynn’s own description of his lawyers’ unhappy review of it. The 302s liberated by BuzzFeed earlier this year show just how ridiculous some of the lies Flynn told in his November 16, 2017 meeting with Mueller’s prosecutors.

For example, in addition to repeating his lies about his conversations with Sergey Kislyak and claiming that he “did not specifically recall conversations regarding Wikileaks” during the campaign, Flynn also claimed that he never had conversations about how to get Hillary’s missing emails.

FLYNN did not recall discussions about a concerted effort to locate [Hillary’s] missing emails.

[snip]

FLYNN never had any conversations about how to get CLINTON’s missing emails. FLYNN did not remember hearing anyone else on the campaign discuss this either. The consensus was that they hoped the emails would be found all of a sudden.

Flynn would go on to unforget all three topics in the weeks and months ahead.

On the topic of searching for Hillary’s emails, however, Flynn was still shading the truth in his final interview before pleading guilty on November 29, 2017. Flynn described that he had met Peter Smith regarding business development in 2015, and described that Smith had emailed during the campaign. But, “FLYNN lost interest in what SMITH sent him because he ‘did not see any there, there’,” per the interview report. As to others who might be involved in the effort, Flynn described that “possibly Barbara LEDEEN” had been a recipient of some of the emails from Smith, though suggested Sam Clovis was a more important player.

It would be six months later, in an interview on May 4, 2018, before prosecutors returned to Flynn’s role in hunting down Hillary’s emails in depth. It appears that, at first, they asked Flynn generally about the Peter Smith effort, and this time, he remembered that “LEDEEN’s role” in the effort “was as a conduit.” Flynn explained that he gave “time and attention” to the effort “out of respect for his friendship with LEDEEN.” It was in that context that Flynn remembered that someone “sent files to FLYNN on one or two occasions,” though even then, he couldn’t remember whether the files were about Benghazi or the missing emails.

The prosecutors started asking Flynn about the actual emails — many of which were liberated in the documents liberated by BuzzFeed.

Prosecutors first asked about an email that the FBI Agent who wrote up the 302 described as a May 24, 2016 email from Ledeen to Flynn. But it’s actually an email Ledeen sent one of the chief purveyors of disinformation about the Flynn case, Catherine Herridge, promising “evidence” (though there are notations on it that may reflect Flynn got a hard copy).

Prosecutors then showed an email Flynn sent to Ledeen on June 16, 2016, in response to Ledeen’s question, “You got the Signal email.”

Flynn’s response reflects him having downloaded and read the report on the effort to obtain the emails. “amazing!” Flynn responded. “I’ll speak more off line with you about it this evening or tomorrow.”

On September 10, 2016, Ledeen wrote Flynn a “TIME SENSITIVE” email, explaining that “we are at the point of rubber hitting the road re the project you know I have been working on.”

In response to Ledeen’s request, the interview suggests, Flynn spoke with someone who had been an early campaign advisor, but he told Mueller’s team that “he did not really remember the details of the conversation.”

He claimed to remember nothing of the October 29, 2016 Hushmail promising a Phase II of the report, however.

“You’ve got me on this one,” Mike Flynn claimed, then described asking Barbara Ledeen, “Can’t you just tell me?” and imagining that, “he became frustrated trying to open the message.”

There was another HushMail on November 3, which Flynn suggested might pertain to Sidney Blumenthal.

But he suggested that “The servers may have been a second set of email messages to FLYNN,” and explained it was all “secret squirrel stuff.”

Flynn’s interview then proceeded to talk about an in-person meeting that Ledeen had set up, apparently with this same person, to discuss microtargeting; the pitch appeared to combine Sidney Blumenthal, servers in Eastern Europe, and microtargeting. It was in this context that, six months after claiming that he never spoke to anyone about getting Hillary’s missing emails, he admitted he actually talked about pursuing the Hillary emails “to anyone he was with on the Trump plane,” including Trump.

FLYNN conveyed to people that people were looking for the missing emails and were confident they would eventually find them. FLYNN would have said this to anyone he was with on the TRUMP plane. FLYNN does not know if specifically said he knew people but he could have. People on the plane include TRUMP. FLYNN did not believe he conveyed to the team information about the servers in the Ukraine or Eastern Europe. FLYNN was not ruling it out but does not recall exactly what he said.

Barbara Ledeen, still a key Senate Judiciary Committee staffer to Senators who have led the effort to undermine the Russian investigation, was right in the thick of all this during the 2016 election: Secret servers in Ukraine, missing emails, and microtargeting. That’s the woman overseeing the investigation into the investigation.

Which makes the other emails liberated in the BuzzFeed release implicating Ledeen all the more important.

It turns out that, before prosecutors asked about all this, they may have been alerted to a text Ledeen sent on May 1, 2018, inquiring about the status of Flynn’s case. Mueller’s team raised the text two weeks after the Peter Smith and microtargeting discussion, on May 17, 2018, when prosecutors focused on Ledeen’s extensive effort to monitor the Russian investigation (starting well before Mueller was appointed).

The backup liberated by Buzzfeed shows that Michael Ledeen inquired about whether he “and Sara” could say that Flynn was getting an immunity for testimony deal on March 31, 2017 (the same way Ledeen’s co-conspirators in Iran-Contra escaped accountability), establishing that the Ledeens funneled stories to Sara Carter.  A year later, Flynn conceded, he may have still been a source for Sara Carter stories via the Ledeens, in this case for a story about Flynn getting discovery.

BARBARA reached out FLYNN but he did not respond to her with anything specific. FLYNN may have told her they received discovery and were reviewing the documents.

FLYNN had many conversations around the time of this article but was never asked if the information could be shared with CARTER, nor did he direct anyone to share it with her.

Prosecutors asked about several other Carter stories, and Flynn’s long-suffering attorney, Rob Kelner, admitted that Carter had reached out several times before the plea deal and that he (Kelner) may have been the source for the detail that Andrew McCabe reached out to Flynn about an interview on short notice.

More interesting, however, are the emails between those Carter stories, which show Michael Ledeen (who, remember, was one of the first people Flynn called before secretly undermining sanctions with Sergey Kislyak in December 2016) reached out on April 17, 2017, telling Flynn, “it’s time…”

Then Michael Ledeen reached out the next day (apparently to a different Flynn email address) to arrange a pastrami dinner with extra pickles, Dr. Brown’s diet soda, and “a message for you.”

The meeting would have been on Monday April 24, 2017. Some of Carter’s scoops have been solid, albeit hyped. Others have been garbage. Her regurgitation of Sidney Powell’s false claims was pure propaganda. But she was also responsible, with John Solomon, for one of the most important unsubstantiated stories of the entire investigation, one that claimed Andrew McCabe had said they were going to “fuck Flynn” in a meeting after Flynn’s interview, an allegation that came up in Flynn’s last interview with Mueller (at a time when Mueller would replicate the two investigations that had been done on this allegation in the past).

The same interview reveals that Barbara Ledeen was responsible for another false claim that never died, that there was some original 302 that said something different from the one that recorded Flynn’s lies.

“Barbara tends to have a ‘big mouth,'” Flynn complained on May 17, 2018, as part of these discussions. But he still did what, according to the same interview report, she kept nagging him to do: withdraw his guilt plea. For a long time, it looked like she was simply protecting her husband Michael’s close friend. But with the backup materials, it seems just as likely that Ledeen’s efforts to undermine the Russian investigation are as much about her own complicity as Flynn’s himself.

A person who had a key role Senate Judiciary Committee oversight of the Russian investigation was sending Hushmail and Signal communications looking for secret servers in Ukraine during the events in question.

Update: Here’s my summary of what each of the 302s included from when they were released in January).

Update: In January, Flynn thought that the April message that Ledeen was passing on may have been from Trump.

The Two Communities And The Future Of Democracy

Posts in this series

Chapter 5 of John Dewey’s The Public And Its Problems is a rich statement of much of Dewey’s thinking on knowledge, science, and psychology, all brought to bear on the question of what is needed to bring us closer to an ideal community and an ideal democracy. I’ve discussed some of these points in the last two posts. Here I look at two more points, and conclude the discussion of this chapter on a sour note.

1. In the previous post, I quoted this:

To learn to be human is to develop through the give-and-take of communication an effective sense of being an individually distinctive member of a community; one who understands and appreciates its beliefs, desires and methods, and who contributes to a further conversion of organic powers into human resources and values. P. 180.

This idea is central to Dewey’s concept of the nature of a community. We think of ourselves as separate individuals. Certainly in private settings we are. But we are much more than that. In public settings, such as work, team sports, Church, and in government service, we become more. Our understanding of ourselves is completely different when we act as part of a group or a family. In the work setting and in government service we have responsibilities and powers we don’t have as individuals. In our Churches, we are affected by worship and service, in self-examination and openness to forces beyond ourselves.  When we play basketball with others, we have different roles, and our success or failure comes from the actions of all of us.

One of the main things that links us in our different roles is a common understanding of the situation in front of us. That includes both the context of the norms of our society, “its beliefs, desires and methods”, and the nature of the contending forces. Norms set limits on our behavior, especially our interactions with others. They channel our actions in ways deemed socially useful. Deviations can cause us problems. Negotiating changes is a long-term project.

2. Dewey thinks that habits of thought frequently blind us to the need for change. He says that for most of us habits of thought are so deeply engrained that we cannot truly question them. When these habits are activated, we respond to abstract concepts instead of to the merits of the proposition. Here’s Dewey’s example:

One of its commonest [bad habits of thought] is a truly religious idealization of, and reverence for, established institutions; for example in our own politics, the Constitution, the Supreme Court, private property, free contract and so on. The words “sacred” and “sanctity” come readily to our lips when such things come under discussion. P. 192-3.

This must have been shocking to Dewey’s audience (recall that this book is a series of lectures). I picture gun fetishists braying about their sacred Second Amendment rights which have existed from all eternity, or at least 1791. Hilarious bewilderment follows when they’re confronted with Dewey’s statement that their sacred rights are subject to change.

Change might come from a new group of Justices who see fit to reject the mummery drooled by the intellectually dishonest hacks who signed on to the Heller opinion. Change can come because we as a nation are entitled to move on from the dictates of the long-dead Founders which merely resolved the political problems they faced. We can make our own rules fit for our purposes. For example, we are even free to adjust the absurd idea that a democracy can function under the dead weight of unaccountable life-tenured ancients acting as a bevy of Platonic Guardians. [H/T Learned Hand]

That last is a good example of throwing off bad habits of thought. I was a lawyer for many years and defended the role of SCOTUS. Now I just see it as one of many obstacles to democracy, an institution in desperate need of rethinking. In a similar way, the prison abolition people and the defund the police people are demanding close inquiry into the roles of major institutions. Dewey would be pleased, I think.

Conclusion on Chapter 5

It’s helpful to think of democracy as the natural form of government for a healthy community. As a nation we need knowledge of the situation, reasonable means for discourse on those problems, conceptual tools that enable us to do a good analysis, and the willingness to proceed even when we are uncertain of the best path, with the idea that we will change direction if our first solutions don’t work, and with a commitment to facing the problems our solutions create.  Only then can we forge a community and a democracy.

In other works, Dewey emphasizes the importance of a good education for all citizens as a key to a functioning democracy. Dewey doesn’t say it, but we also need to conduct ourselves in good faith.

Dewey doesn’t try to apply these ideas to his time, and disclaims the ability to suggest practical steps towards a healthy community. I think our problem is that there are forces at work that are aggressively trying to create a massive divide in our nation, as if we are two competing communities. The Republicans are hell-bent on creating an alternate reality, one that has few points of contact with the world as I see it. Theirs is the world of the Big Lie, Qanon, Trump as an anointed savior sent by the Almighty, a vaccine that causes people to shed something something that upsets menstrual cycles and causes sterility, science denial, patriarchy, and unthinking acceptance of gibberish readings of ancient texts. It’s also a world in which only unfettered capitalism can save us.

One of their tactics is attacking the conceeptual tools we use to understand our selves and our society. A recent example is the redefinition of Critical Race Theory. This tool begins with the idea that what and who we are is largely shaped by our institutions and power structures, just as Dewey suggests. Critical Race Theory looks at the way our legal system and the power structures it supports interact with race. The Right Wing media translates this into “being white is bad”, or “all white people are racists” or some similar stupid lie. This is a deliberate attack on a conceptual tool that may be of great value.

This has been running side-by-side with the effort of Christian Fundamentalism to create a separate world for its adherents, perhaps with a long-term goal of turning the government into a Christian Theocracy. That includes Seg Schools, havens for White Christian Children safe from the unChristians and other rabble, Christian Rock music, creationism and other forms of fake science, home schooling, and colleges in which the devils of secular humanism can be expelled along with anything that threatens their world view.

These trends now include adherence to a limited range of self-sorted media and social media platforms where the two groups intermingle to some extent, or perhaps where the dominant class teaches the subordinate class what to believe and how to think.

To see these trends, see this by Ross Douthat in the New York Times, and this by Eric Levits in New York Magazine.

I do not see anything in Chapter 5 that helps me even begin to think about this problem. I’ll just say again following Pierre Bourdieu that the the right wing part of the dominant class is using this division to maintain its own position and serve its own desires. The sane part of the dominant class can’t seem to do anything about this division, assuming it opposes the division.

DOJ’s Failures to Follow Media Guidelines on the WaPo Seizure

I wanted to add a few data points regarding the report that DOJ subpoenaed records from three WaPo journalists.

This post is premised on three pieces of well-justified speculation: that John Durham, after having been appointed Special Counsel, obtained these records, that Microsoft challenged a gag, and that Microsoft’s challenge was upheld in some way. I’m doing this post to lay out some questions that others should be asking about what happened.

An enterprise host (probably Microsoft) likely challenged a gag order

The report notes that DOJ did obtain the reporters’ phone records, and tried, but did not succeed, in obtaining their email records.

The Trump Justice Department secretly obtained Washington Post journalists’ phone records and tried to obtain their email records over reporting they did in the early months of the Trump administration on Russia’s role in the 2016 election, according to government letters and officials.

In three separate letters dated May 3 and addressed to Post reporters Ellen Nakashima and Greg Miller, and former Post reporter Adam Entous, the Justice Department wrote they were “hereby notified that pursuant to legal process the United States Department of Justice received toll records associated with the following telephone numbers for the period from April 15, 2017 to July 31, 2017.” The letters listed work, home or cellphone numbers covering that three-and-a-half-month period.

[snip]

The letters to the three reporters also noted that prosecutors got a court order to obtain “non content communication records” for the reporters’ work email accounts, but did not obtain such records. The email records sought would have indicated who emailed whom and when, but would not have included the contents of the emails. [my emphasis]

What likely happened is that DOJ tried to obtain a subpoena on Microsoft or Google (almost certainly the former, because the latter doesn’t care about privacy) as the enterprise host for the newspaper’s email service, and someone challenged or refused a request for a gag, which led DOJ to withdraw the request.

There’s important background to this.

Up until October 2017, when the government served a subpoena on a cloud company that hosts records for another, the cloud company was often gagged indefinitely from telling the companies whose email (or files) it hosted. By going to a cloud company, the government was effectively taking away businesses’ ability to challenge subpoenas themselves, which posed a problem for Microsoft’s ability to convince businesses to move everything to their cloud.

That’s actually how Robert Mueller obtained Michael Cohen’s Trump Organization emails — by first preserving, then obtaining them from Microsoft rather than asking Trump Organization (which was, at the same time, withholding the most damning materials when asked for the same materials by Congress). Given what we know about Trump Organization’s incomplete response to Congress, we can be certain that had Mueller gone to Trump Organization, he might never have learned about the Trump Tower Moscow deal.

In October 2017, in conjunction with a lawsuit settlement, Microsoft forced DOJ to adopt a new policy that gave it the right to inform customers when DOJ came to them for emails unless DOJ had a really good reason to prevent Microsoft from telling their enterprise customer.

Today marks another important step in ensuring that people’s privacy rights are protected when they store their personal information in the cloud. In response to concerns that Microsoft raised in a lawsuit we brought against the U.S. government in April 2016, and after months advocating for the United States Department of Justice to change its practices, the Department of Justice (DOJ) today established a new policy to address these issues. This new policy limits the overused practice of requiring providers to stay silent when the government accesses personal data stored in the cloud. It helps ensure that secrecy orders are used only when necessary and for defined periods of time. This is an important step for both privacy and free expression. It is an unequivocal win for our customers, and we’re pleased the DOJ has taken these steps to protect the constitutional rights of all Americans.

Until now, the government routinely sought and obtained orders requiring email providers to not tell our customers when the government takes their personal email or records. Sometimes these orders don’t include a fixed end date, effectively prohibiting us forever from telling our customers that the government has obtained their data.

[snip]

Until today, vague legal standards have allowed the government to get indefinite secrecy orders routinely, regardless of whether they were even based on the specifics of the investigation at hand. That will no longer be true. The binding policy issued today by the Deputy U.S. Attorney General should diminish the number of orders that have a secrecy order attached, end the practice of indefinite secrecy orders, and make sure that every application for a secrecy order is carefully and specifically tailored to the facts in the case.

Rod Rosenstein, then overseeing the Mueller investigation, approved the new policy on October 19, 2017.

The effect was clear. When various entities at DOJ wanted records from Trump Organization after that, DOJ did not approve the equivalent request approved just months earlier.

If DOJ withdrew a subpoena rather than have it disclosed, it was probably inconsistent with media guidelines

If I’m right that DOJ asked Microsoft for the reporters’ email records, but then withdrew the request rather than have Microsoft disclose the subpoena to WaPo, then the request itself likely violated DOJ’s media guidelines — at least as they were rewritten in 2015 after a series of similar incidents, including DOJ’s request for the phone records of 20 AP journalists in 2013.

DOJ’s media guidelines require the following:

  • Attorney General approval of any subpoena for call or email records
  • That the information be essential to the investigation
  • DOJ has taken reasonable attempts to obtain the information from alternate sources

Most importantly, DOJ’s media guidelines require notice and negotiation with the affected journalist, unless the Attorney General determines that doing so would “pose a clear and substantial threat to the integrity of the investigation.”

after negotiations with the affected member of the news media have been pursued and appropriate notice to the affected member of the news media has been provided, unless the Attorney General determines that, for compelling reasons, such negotiations or notice would pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm.

But a judge can review the justifications for gags before issuing them (for all subpoenas, not just media ones).

Just as an example, the government obtained a gag on Twitter, Facebook, Instagram and Google when obtaining Reality Winner’s cloud-based communications a week after they had arrested her (at a time when she was in no position to delete her own content). After a few weeks, Twitter challenged the gag. A judge gave DOJ 180 days to sustain the gag, but in August 2017, DOJ lifted it.

That was a case where DOJ obtained the communications of an accused leaker, with possible unknown co-conspirators, so the gag at least made some sense.

Here, by contrast, the government would have been asking for records from journalists who were not alleged to have committed any crime. The ultimate subject of the investigation would have no ability to destroy WaPo’s records. The records — and the investigation — were over three years old. Whatever justification DOJ gave was likely obviously bullshit.

Hypothetical scenario: DOJ obtains cell phone records only to have a judge rule a gag inappropriate

Let me lay out how this might have worked to show why this might mean DOJ violated the media guidelines. Here’s one possible scenario for what could have happened:

  • In the wake of the election, John Durham subpoenaed the WaPo cell providers and Microsoft, asking for a gag
  • The cell provider turned over the records with no questions — neither AT&T nor Verizon care about their clients’ privacy
  • Microsoft challenged the gag and in response, a judge ruled against DOJ’s gag, meaning Microsoft would have been able to inform WaPo

That would mean that after DOJ, internally — Billy Barr and John Durham, in this speculative scenario — decided that warning journalists would create the same media stink we’re seeing today and make the records request untenable, a judge ruled that that a media stink over an investigation into a 3-year old leak wasn’t a good enough reason for a gag. If this happened, it would mean some judge ruled that Barr and Durham (if Durham is the one who made the request) invented a grave risk to the integrity of their investigation that a judge subsequently found implausible.

It would mean the request itself was dubious, to say nothing of the gag.

Once again, DOJ failed to meet its own notice requirements

And with respect to the gag, this request broke another one of the rules on obtaining records from reporters: that they get notice no later than 90 days after the subpoena. The Justice Manual says this about journalists whose records are seized:

  • Except as provided in 28 C.F.R. 50.10(e)(1), when the Attorney General has authorized the use of a subpoena, court order, or warrant to obtain from a third party communications records or business records of a member of the news media, the affected member of the news media shall be given reasonable and timely notice of the Attorney General’s determination before the use of the subpoena, court order, or warrant, unless the Attorney General determines that, for compelling reasons, such notice would pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm. 28 C.F.R. 50.10(e)(2). The mere possibility that notice to the affected member of the news media, and potential judicial review, might delay the investigation is not, on its own, a compelling reason to delay notice. Id.
  • When the Attorney General has authorized the use of a subpoena, court order, or warrant to obtain communications records or business records of a member of the news media, and the affected member of the news media has not been given notice, pursuant to 28 C.F.R. 50.10(e)(2), of the Attorney General’s determination before the use of the subpoena, court order, or warrant, the United States Attorney or Assistant Attorney General responsible for the matter shall provide to the affected member of the news media notice of the subpoena, court order, or warrant as soon as it is determined that such notice will no longer pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm. 28 C.F.R. 50.10(e)(3). In any event, such notice shall occur within 45 days of the government’s receipt of any return made pursuant to the subpoena, court order, or warrant, except that the Attorney General may authorize delay of notice for an additional 45 days if he or she determines that for compelling reasons, such notice would pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm. Id. No further delays may be sought beyond the 90‐day period. Id. [emphasis original]

Journalists are supposed to get notice if their records are seized. They’re supposed to get notice no later than 90 days after the records were obtained. AT&T and Verizon would have provided records almost immediately and this happened in 2020, meaning the notice should have come by the end of March. But WaPo didn’t get notice until after Lisa Monaco was confirmed as Deputy Attorney General and, even then, it took several weeks.

DOJ’s silence about an Office of Public Affairs review

While it’s not required by guidelines, in general DOJ has involved the Office of Public Affairs in such matters, so someone who has to deal with the press can tell the Attorney General and the prosecutor that their balance of journalist equities is out of whack. At the time, this would have been Kerri Kupec, who was always instrumental in Billy Barr’s obstruction and politicization.

But it’s not clear whether that happened. I asked Acting Director of OPA Marc Raimondi (the guy who has defended what happened in the press; he was in National Security Division at the time of the request), twice, whether someone from OPA was involved. Both times he ignored my question.

The history of Special Counsels accessing sensitive records and testimony

There’s a history of DOJ obtaining things under Special Counsels they might not have obtained without the Special Counsel:

  • Pat Fitzgerald coerced multiple reporters’ testimony, going so far as to jail Judy Miller, in 2004
  • Robert Mueller obtained Michael Cohen’s records from Microsoft rather than Trump Organization
  • This case probably represents John Durham, having been made Special Counsel, obtaining records that DOJ did not obtain in 2017

There’s an irony here: Durham has long sought ways to incriminate Jim Comey, who is represented by Pat Fitzgerald and others. In 2004, as Acting Attorney General, Comey approved the subpoenas for Miller and others. That said, given the time frame on the records request, it is highly unlikely that he’s the target of this request.

Whoever sought these records, it is virtually certain that the prosecutor only obtained them after making decisions that DOJ chose not to make when these leaks were first investigated in 2017, after Jeff Sessions announced a war on media leaks in the wake of having his hidden meeting with Sergey Kislyak exposed.

That suggests that DOJ decided these records, and the investigation itself, were more important in 2020 than Jeff Sessions had considered them in 2017, when his behavior was probably one of the things disclosed in the leak.

The dubious claim that these records could have been necessary or uniquely valuable

Finally, consider one more detail of DOJ’s decision to obtain these records: their claims, necessary under the media policy, that 3-year old phone and email records were necessary to a leak investigation.

When these leaks were first investigated in 2017, DOJ undoubtedly identified everyone who had access to the Kislyak intercepts and used available means — including reviewing the government call records of the potential sources — to try to find the leakers. If they had a solid lead on someone who might be the leaker, the government would have obtained the person’s private communication records as well, as DOJ did do during the contemporaneous investigation into the leak of the Carter Page FISA warrant that ultimately led to SSCI security official James Wolfe’s prosecution.

Jeff Sessions had literally declared war within days of one of the likely leaks under investigation here, and would approve a long-term records request from Ali Watkins in the Wolfe investigation and a WhatsApp Pen Register implicating Jason Leopold in the Natalie Edwards case. After Bill Barr came in, he approved the use of a Title III wiretap to record calls involving journalists in the Henry Frese case.

For the two and a half years between the time Sessions first declared war on leaks and the time DOJ decided these records were critical to an investigation, DOJ had not previously considered them necessary, even at a time when Sessions was approving pretty aggressive tactics against leaks.

Worse still, DOJ would have had to claim they might be useful. These records, unlike the coerced testimony of Judy Miller, would not have revealed an actual source for the stories. These records, unlike the Michael Cohen records obtained via Microsoft would not be direct evidence of a crime.

All they would be would be leads — a list of all the phone numbers and email addresses these journalists communicated with via WaPo email or telephony calls or texts — for the period in question. It might return records of people (such as Andy McCabe) who could be sources but also had legal authority to communicate with journalists. It would probably return a bunch of records of inquiries the journalists made that were never returned. It would undoubtedly return records of people who were sources for other stories.

But it would return nothing for other means of communication, such as Signal texts or calls.

In other words, the most likely outcome from this request is that it would have a grave impact on the reporting equities of the journalists involved, with no certainty it would help in the investigation (and an equally high likelihood of returning a false positive, someone who was contacted but didn’t return the call).

And if it was Durham who made the request, he would have done so after having chased a series of claims — many of them outright conspiracy theories — around the globe, only to have all of those theories to come up empty. Given that after years of investigation Durham has literally found nothing new, there’s no reason to believe he had any new basis to think he could solve this leak investigation after DOJ had tried but failed in 2017. Likely, what made the difference is that his previous efforts to substantiate something had failed, and Barr needed to empower him to keep looking to placate Trump, and so Durham got to seize WaPo’s records.

Billy Barr has been hiding other legal process against journalists

Given the disclosure that Barr approved a request targeting the WaPo about five months ago and that under Barr DOJ used a Title III wiretap in a leak investigation (albeit targeting the known leaker), it’s worth noting one other piece of oversight that has lapsed under Barr.

In the wake of Jeff Sessions declaring war on leaks in 2017 (and, probably, the leak in question here), Ron Wyden asked Jeff Sessions whether the war on leaks reflected a change in the new media guidelines adopted in 2015.

Wyden asked Sessions to answer the following questions by November 10:

  1. For each of the past five years, how many times has DOJ used subpoenas, search warrants, national security letters, or any other form of legal process authorized by a court to target members of the news media in the United States and American journalists abroad to seek their (a) communications records, (b) geo-location information, or (c) the content of their communications? Please provide statistics for each form of legal process.
  2. Has DOJ revised the 2015 regulations, or made any other changes to internal procedures governing investigations of journalists since January 20, 2017? If yes, please provide me with a copy.

In response, DOJ started doing a summary of the use of legal process against journalists for each calendar year. For example, the 2016 report described the legal process used against Malheur propagandist Pete Santilli. The 2017 report shows that, in the year of my substantive interview with FBI, DOJ obtained approval for a voluntary interview with a journalist before the interview because they, “suspected the journalist may have committed an offense in the course of newsgathering activities” (while I have no idea if this is my interview, during the interview, the lead FBI agent also claimed to know the subject of a surveillance-related story I was working on that was unrelated to the subject of the interview, though neither he nor I disclosed what the story was about). The 2017 report also describes obtaining Ali Watkins’ phone records and DOJ’s belated notice to her. The 2018 report describes getting retroactive approval for the arrest of someone for harassing Ryan Zinke but who claimed to be media (I assume that precedent will be important for the many January 6 defendants who claimed to be media).

While I am virtually certain the reports — at least the 2018 one — are not comprehensive, the reports nevertheless are useful guidelines for the kinds of decision DOJ deems reasonable in a given year.

But as far as anyone knows, DOJ stopped issuing them under Barr. Indeed, when I asked Raimondi about them, he didn’t know they existed (he is checking if they were issued for 2019 and 2020).

So we don’t know what other investigative tactics Barr approved as Attorney General, even though we should.

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