The Scope of DOJ IG’s FISA Review

A seeming millennium ago, last Tuesday, DOJ’s Inspector General released a Management Advisory Memo describing the interim results of its effort to assess whether problems identified in Carter Page’s FISA application were unique, or reflected a more general problem with FISA. Based on the results from two prongs of DOJ IG’s ongoing investigation, DOJ IG believed they needed to alert FBI right away of their preliminary results in hopes they would inform FBI’s efforts to fix this and to offer two additional recommendations on top of the ones they made in December.

Unsurprisingly, a bunch of mostly right wingers have misrepresented the MAM. I wanted to use this post to explore what the MAM shows about the two prongs of investigation, the significance of the results, and the review of FISA generally. As a bonus track, I’ll talk about what role Intelligence Community Inspector General Michael Atkinson, who was fired on Friday, did not have in the FISA application reviews discussed in the MAM, contrary to what a bunch of wingnuts are claiming to justify his firing.

The universe of FISA

Before getting into what the review showed, some background on the universe of FISA may be helpful.

Both prongs of DOJ IG’s investigation examine probable cause FISA applications from 8 FBI offices submitted over the 5 year period ending last September (the end of Fiscal Year 2019).

The last three years’ transparency reports from the Office of Director of National Intelligence have broken down how many of the probable cause FISA applications were known to target US persons. While there’s been some flux in the number of total probable cause applications, the ones targeting US persons have been going down (perhaps not coincidentally, as scrutiny of the process has increased), from 336 in CY 2016 to 232 in CY 2018.

Using 300 applications targeting US persons as an estimate, that says for the 5-year period DOJ IG is examining, there would have been roughly 1,500 that targeted US persons. The MAM says that the 8 offices included in the review thus far submitted more than 700 FISA applications “relating to U.S. Persons.”

The FBI has 56 field offices. Some states (CA, TX, FL, NY, PA) have multiple FBI offices. Some offices cover multiple states.

In any given year, National Security Division’s Office of Intelligence only does FISA reviews in a fraction of the FBI offices — 25-30, per a recent court filing (FISA 702 reviews covered a smaller number of offices during the early years of the 5-year period, but it’s unclear whether NSD does the reviews at the same time). A James Boasberg opinion on 702 reauthorization from last year confirmed that, “OI understandably devotes more resources to offices that use FISA authorities more frequently.”  That would presumably include DC, NY, and LA (all of which are big enough to be led by an Assistant Director). Cities with large numbers of Chinese-Americans (like SF) or Muslims (like Minneapolis and Detroit) likely do disproportionately more FISA than other large city offices, and I assume offices in TX and FL do a lot as well.

Prong One: Reviewing Woods Files

DOJ IG described that one prong of their review — their own review of Woods Files — involved visiting those 8 field offices “of varying sizes” and reviewing “judgmentally selected sample” of 29 applications to review.

over the past 2 months, we visited 8 FBI field offices of varying sizes and reviewed a judgmentally selected sample of 29 applications relating to U.S. Persons and involving both counterintelligence and counterterrorism investigations. This sample was selected from a dataset provided by the FBI that contained more than 700 applications relating to U.S. Persons submitted by those 8 field offices over a 5-year period.

Between them, those 8 field offices submitted 700 applications in the 5-year period studied, which says that even with some smaller offices included, the field offices still submitted almost half of the US person applications in the period (meaning DOJ IG likely included at least a few of the biggest offices).

This review is ongoing. But thus far, assuming my 1,500 estimate is fair, DOJ IG reviewed around 2% of the applications submitted by the FBI, or 4% of those submitted by these offices. By definition, those 29 files could not have included an application from each office for each year.

For each of these 29 applications, DOJ IG reviewed the Woods File associated with the application to see if there was, as intended, back-up for each of the factual claims in the application; that’s all they’ve done so far. This prong of the review was a strictly paperwork review: DOJ IG did not review whether the claims in the application could be backed up elsewhere, or if there were things in the case file targeting a person that should have been included in the application (which was actually the far bigger problem in the Carter Page applications).

[I]nitial review of these applications has consisted solely of determining whether the contents of the FBI’s Woods File supported statements of fact in the associated FISA application; our review did not seek to determine whether support existed elsewhere for the factual assertion in the FISA application (such as in the case file), or if relevant information had been omitted from the application.

But they didn’t have to keep reviewing to conclude that Woods Files are not functioning like they’re supposed to. Not only was there not a Woods File for 4 of the applications, but the remaining 25 all had problems.

(1) we could not review original Woods Files for 4 of the 29 selected FISA applications because the FBI has not been able to locate them and, in 3 of these instances, did not know if they ever existed; (2) our testing of FISA applications to the associated Woods Files identified apparent errors or inadequately supported facts in all of the 25 applications we reviewed, and interviews to date with available agents or supervisors in field offices generally have confirmed the issues we identified;

[snip]

[F]or all 25 FISA applications with Woods Files that we have reviewed to date, we identified facts stated in the FISA application that were: (a) not supported by any documentation in the Woods File, (b) not clearly corroborated by the supporting documentation in the Woods File, or (c) inconsistent with the supporting documentation in the Woods File. While our review of these issues and follow-up with case agents is still ongoing—and we have not made materiality judgments for these or other errors or concerns we identified—at this time we have identified an average of about 20 issues per application reviewed, with a high of approximately 65 issues in one application and less than 5 issues in another application.

By comparison, DOJ IG found just 8 Woods File errors in the first Carter Page application and 16 in last two, most problematic, renewals (see PDF 460-465). So the applications DOJ IG reviewed were, on average, worse than the Page application with respect to the Woods compliance.

These applications also didn’t all have the required paperwork from an informant’s handling agent — though in some cases, the agent was the same.

About half of the applications we reviewed contained facts attributed to CHSs, and for many of them we found that the Woods File lacked documentation attesting to these two requirements. For some of these applications, the case agent preparing the FISA application was also the handling agent of the CHS referenced in the application, and therefore would have been familiar with the information in CHS files.

It’s actually somewhat notable that just half of this very small sample of applications included information from an informant. And only some of these files were lacking the required paperwork for informants. That suggests, to the degree that the FISA application might hide problems with informants that otherwise might have been found in a criminal warrant affidavit (though even there, FBI has a lot of ways to protect these details), that may not be as big of a problem as defense attorneys have suspected (though that’s an area where I’d expect bigger problems on the CT side than the CI one).

The findings on the third problem identified in the Carter Page applications — that the Woods File did not get a fresh review with each application — are less definitive.

based on the results of our review of two renewal files, as well as our discussions with FBI agents, it appears that the FBI is not consistently re-verifying the original statements of fact within renewal applications. In one instance, we observed that errors or unsupported information in the statements of fact that we identified in the initial application had been carried over to each of the renewal applications. In other instances, we were told by the case agents who prepared the renewal applications that they only verified newly added statements of fact in renewal applications because they had already verified the original statements of fact when submitting the initial application.

This could represent as few as 3 of the 25 files for which there were Woods Files.

In any case, the larger point seems to be the more important one: the FBI has not been using Woods Files like they’re supposed to, making sure that the paperwork to back up any claim made in a FISA application actually reflects the underlying documentation and thereby making sure the claims they make to the FISC are valid.

Presiding FISA Judge James Boasberg issued an order today, requiring the government to figure out whether any of the problems identified in this review were material, with an emphasis on the 4 applications for which there was no Woods File.

Reviewing Accuracy Reviews

As noted, the FBI has not been using Woods Files like they’re intended to be used. But neither is DOJ’s National Security Division.

The other part of DOJ IG’s audit involved reviewing the Accuracy Reviews done by the FBI and NSD as part of the existing FISA oversight process.

There are two kinds of Accuracy Reviews done as part of FISA oversight. First, the FBI requires that lawyers in its field offices review at least one application a year.

FBI requires its Chief Division Counsel (CDC) in each FBI field office to perform each year an accuracy review of at least one FISA application from that field office.

As noted below, these are sent to FBI OGC. NSD’s Office of Intelligence doesn’t get them.

In addition, NSD OI does their own reviews for a subset of offices.

Similarly, NSD’s Office of Intelligence (OI) conducts its own accuracy review each year of at least 1 FISA application originating from each of approximately 25 to 30 different FBI field offices.

Remember there are 56 field offices and roughly 300 US person applications. So in practice, IO could review as few as 8% of the applications in a given year (though it’s probably more than that).

Here’s how DOJ described the OI reviews to FISC in December.

OI’s Oversight Section conducts oversight reviews at approximately 25-30 FBI field offices annually. During those reviews, OI assesses compliance with Court-approved minimization and querying procedures, as well as the Court orders. Pursuant to the 2009 Memorandum, OI also conducts accuracy reviews of a subset of cases as part of these oversight reviews to ensure compliance with the Woods Procedures and to ensure the accuracy of the facts in the applicable FISA application. 5 OI may conduct more than one accuracy review at a particular field office, depending on the number of FISA applications submitted by the office and factors such as whether there are identified cases where errors have previously been reported or where there is potential for use of FISA information in a criminal prosecution. OI has also, as a matter of general practice, conducted accuracy reviews of FISA applications for which the FBI has requested affirmative use of FISA-obtained or -derived information in a proceeding against an aggrieved person. See 50U.S.C. §§ 1806(c), 1825(d).

(U) During these reviews, OI attorneys verify that every factual statement in the categories of review described in footnote 5 is supported by a copy of the most authoritative document that exists or, in enumerated exceptions, by an appropriate alternate document. With regard specifically to human source reporting included in an application, the 2009 Memorandum requires that the accuracy sub-file include the reporting that is referenced in the application and further requires that the FBI must provide the reviewing attorney with redacted documentation from the confidential human source sub-file substantiating all factual assertions regarding the source’s reliability and background. 6

5 (U) OI’s accuracy reviews cover four areas: (1) facts establishing probable cause to believe that the target is a foreign power or an agent of a foreign power; (2) the fact and manner of FBI’s verification that the target uses or is about to use each targeted facility and that property subject to search is or is about to be owned, used, possessed by, or in transit to or from the target; (3) the basis for the asserted U.S. person status of the target(s) and the means of verification; and (4) the factual accuracy of the related criminal matters section, such as types of criminal investigative techniques used (e.g., subpoenas) and dates of pertinent actions in the criminal case. See 2009 Memorandum at 3.

6 (U) If production of redacted documents from the confidential human source sub-file would be unduly burdensome, compromise the identity of the source, or otherwise violate the Attorney General Guidelines for Confidential Human Sources or the FBI’s Confidential Human Source Manual, FBI personnel may request that the attorney use a human source sub-file request form. Upon receipt of that form, the relevant FBI confidential human source coordinator will verify the accuracy of the source’s reliability and background that was used in the application, and transmit the results of that review to the reviewing or attorney.

So in December, DOJ claimed that these reviews served to “ensure compliance with the Woods Procedures and to ensure the accuracy of the facts in the applicable FISA application.” They claimed that “OI attorneys verify that every factual statement in the categories of review described in footnote 5” — pertaining to 1) facts establishing probable cause 2) the target actually uses the targeted facilities 3) the target is a US person and 4) the criminal investigative techniques are accurately described —  are “supported by a copy of the most authoritative document that exists or, in enumerated exceptions, by an appropriate alternate document.” In theory, the easiest way to verify bullet point 1 (the case for probable cause) would be for the OI lawyers to check whether the Woods Files were complete.

Before I get into results, a word about the numbers.

Altogether, DOJ IG reviewed 34 FBI CDC and NSD OI reports and those reports covered 42 US person FISA applications.

Specifically, in addition to interviewing FBI and NSD officials, we reviewed 34 FBI and NSD accuracy review reports covering the period from October 2014 to September 2019—which originated from the 8 field offices we have visited to date and addressed a total of 42 U.S. Person FISA applications, only one of which was also included among the 29 FISA applications that we reviewed.

These numbers are bit confusing. For starters, the base number of accuracy reports, 34, is less than 40 (what it would be if there were a review for all 8 field offices for each of 5 years, which is supposed to be mandated for each FBI office). DOJ IG did not review one application per year per FBI office. I asked DOJ IG why that was; they said only “there may be many reasons why this is the case,” emphasizing multiple times that this audit is in its earliest phases (I’ve got requests for comment in with both NSD and FBI). Some of those many reasons might be:

  • Smaller offices reviewed don’t submit a FISA application every year, so for some offices there was none to review
  • OI doesn’t review most FBI offices every year, so for less frequently reviewed offices, there won’t be a review every year (but there should be an FBI one if the office did any FISA applications)
  • DOJ IG was only interested in US person FISA applications; some of the ones that FBI and OI reviewed would likely not target US persons
  • Only applications for which FISA coverage had ended were reviewed; for the later applications, FISA coverage might be ongoing and therefore excluded from the DOJ IG review
  • DOJ IG may not have finished its review of all these Accuracy Reviews reviews yet, so didn’t include them in the MAM

Additionally, the references to this part of review seems to suggest that the NSD reviews the same FISA application that each FBI field office reviews each year, as well as any problematic ones or ones being used in a prosecution, though that’s something I’m trying to get clarity on. Likewise, I’m trying to figure out whether FBI and OI similarly try to pick a “judgmentally selected sample” to ensure both the counterterrorism and counterintelligence functions are reviewed.

One detail makes this process a really bad measure of Woods File compliance (which is different from whether they measure the accuracy of the application effectively). Before any of these reviews happen, the field offices are told which applications will be reviewed, which gives the case agents a chance to pull together the documentary support for the application.

Thus, prior to the FBI CDC or NSD OI review, field offices are given advance notification of which FISA application(s) will be reviewed and are expected to compile documentary evidence to support the relevant FISA.

If the Woods Procedures were being followed, it should never be the case that the FBI needs to compile documentary evidence before the review; the entire point of it is it ensure the documentary evidence is in the file before any application gets submitted. Once you discover that all the FBI and OI reviews get advance notice, you’re not really reviewing Woods Procedures, it seems to me, you’re reviewing paperwork accuracy.

Nevertheless, even with the advance notice, the 93% of the 42 applications DOJ IG reviewed included problems.

[T]hese oversight mechanisms routinely identified deficiencies in documentation supporting FISA applications similar to those that, as described in more detail below, we have observed during our audit to date. Although reports related to 3 of the 42 FISA applications did not identify any deficiencies, the reports covering the remaining 39 applications identified a total of about 390 issues, including unverified, inaccurate, or inadequately supported facts, as well as typographical errors. At this stage in our audit, we have not yet reviewed these oversight reports in detail.

Keep in mind, OI is reviewing for four things — whether there’s paperwork present to support  that the application shows 1) facts establishing probable cause 2) the target actually uses the targeted facilities 3) the target is a US person (or, for applications targeting under the lower foreign power standard, that the target is not a US person, but that shouldn’t be relevant here) and 4) the criminal investigative techniques used already are accurately described. The second bullet point is actually at least as important as the probable cause, because if the wrong person is wiretapped, then a completely innocent person ends up compromised. That’s the kind of thing where typographical errors (say, transposing 2 digits in a phone number) have had serious ramifications in the past.

The lack of clarity regarding numbers makes one other point unclear. The memo setting up this process envisions NSD’s involvement in assessing whether problems with FISA applications are material. But in practice, the FBI doesn’t consult with them. And in the set of applications that DOJ IG Reviewed (again, it’s unclear whether OI reviewed all the FBI files, along with a select few more, or not), FBI found more problems than OI did, 250 as compared to 140 (for a total of 390 problems).

The 2009 joint FBI-NSD policy memorandum states that “OI determines, in consultation with the FBI, whether a misstatement or omission of fact identified during an accuracy review is material.” The 34 reports that we reviewed indicate that none of the approximately 390 identified issues were deemed to be material. However, we were told by NSD OI personnel that the FBI had not asked NSD OI to weigh in on materiality determinations nor had NSD OI formally received FBI CDC accuracy review results, which accounted for about 250 of the total issues in the reports we reviewed.

[snip]

FBI CDC and NSD OI accuracy review reports had not been used in a comprehensive, strategic fashion by FBI Headquarters to assess the performance of individuals involved in and accountable for FISA applications, to identify trends in results of the reviews, or to contribute to an evaluation of the efficacy of quality assurance mechanisms intended to ensure that FISA applications were “scrupulously accurate.” That is, the accuracy reviews were not being used by the FBI as a tool to help assess the FBI’s compliance with its Woods Procedures.

This is one of the complaints and recommendations in the MAM: it complains that the FBI reviews are basically going into a file somewhere, without a lessons learned process. It recommends that change. It also recommends that OSD get FBI’s reports, so they can integrate them into their own “trends reports” that they do based on their own reviews.

DOJ IG describes its finding that these results aren’t being used in better fashion.

(4) FBI and NSD officials we interviewed indicated to us that there were no efforts by the FBI to use existing FBI and NSD oversight mechanisms to perform comprehensive, strategic assessments of the efficacy of the Woods Procedures or FISA accuracy, to include identifying the need for enhancements to training and improvements in the process, or increased accountability measures.

At least given their description, however, I think they’ve found something else. They’ve confirmed that — contrary to DOJ’s description to FISC that,

OI also conducts accuracy reviews of a subset of cases as part of these oversight reviews to ensure compliance with the Woods Procedures and to ensure the accuracy of the facts in the applicable FISA application.

OI is actually only doing the latter part, measuring the accuracy of the facts in an applicable FISA application. To check the accuracy of the Woods Files, they should with no notice obtain a subset of them, as DOJ IG just did, and see whether the claims in the report are documented in the Woods File, and only after that do their onsite reviews (with notice, to see if there was documentation somewhere that had not been included in the file). That might actually be a better way of identifying where there might be other kinds of problems with the application.

With regards to the lessons learned problem, there seems like an obvious solution to this: Congress mandates that DOJ complete semiannual reviews of 702 practices (which includes reviews of NSA and CIA practices, as well as those of FBI), and they include precisely this kind of trend analysis. Even in spite of their heavy redaction in public form, I’ve even been able to identify problems with 702 and related authorities in the same time frame as NSA was doing so. There’s no reason that semiannual reports couldn’t be expanded (or replicated) to include probable cause targeting. At the very least it’d be a way to force OI and FBI to have this lessons learned discussion. Republican members of Congress have claimed that more oversight should be shifted to Congress (not a very good idea given that no one in Congress seemed to be conducting the close read that I had been), and this is an easy way to play a more active role.

DOJ IG has not reviewed the most important things yet

The MAM is explicit that it has not reviewed the import of the errors it found.

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

Nor has it reviewed FBI’s own decisions regarding the 290 errors they found in their own reviews to determine if the FBI’s judgment that they were not material was valid. If it compared its results for the one application that FBI and/or OI also reviewed, it doesn’t say so explicitly (which would seem a really important measure about the integrity of the standard reviews).

And while it’s significant that there are so many errors, regardless of the review, it still doesn’t address what the Carter Page case said was the far more important issue: what got left out. Of the 8 to 18 Woods Files errors in the Carter Page investigation, for example, just one got to the core of the problem with the application, that Page was making denials, denials that — before later applications were submitted — the FBI had reason to know were correct (another of the Woods File errors might have raised questions about Steele, but did not go to the heart of the problems with his reporting). The other problems had to do with paperwork, not veracity. And none of the Woods File problems related to CIA’s contact approval of Page for some but not all of his willful sharing of non-public information with known Russian intelligence officers.

DOJ IG says it will conduct further analysis of the problems it has thus far found.

In connection with our ongoing audit, the OIG will conduct further analysis of the deficiencies identified in our work to date and of FBI FISA renewals. In addition, we are expanding the audit’s objective to also include FISA application accuracy efforts performed within NSD. Consistent with the OIG’s usual practices, we will keep the Department and the FBI appropriately apprised of the scope of our audit, and we will prepare a formal report at the conclusion of our work.

But it’s not yet clear that this will include picking a subset of the files already reviewed to do the kind of deep dive that was done with Carter Page.

Further, at this point, DOJ IG seems not to be seeing one of the more obvious conclusions. As explained above, it recommends that the FBI and NSD use their accuracy reviews better to better do lessons learned.

We recommend that the FBI institute a requirement that it, in coordination with NSD, systematically and regularly examine the results of past and future accuracy reviews to identify patterns or trends in identified errors so that the FBI can enhance training to improve agents’ performance in completing the Woods Procedures, or improve policies to help ensure the accuracy of FISA applications.

But it specifically speaks in terms of improving performance with the Woods Procedures.

If the Woods Procedures are meant to be a tool, it would be necessary to conduct no-notice reviews of the files. Otherwise, you’re not reviewing the Woods Procedures. That would need to be a recommendation.

But it seems to be possible if not likely that fixing the problems IDed back before 2000 with a paperwork requirement that doesn’t go to the core of the issue hasn’t worked (and, as described, has never been used as a key measure for the existing OI reviews), then it seems other solutions are necessary — including that criminal defendants get some kind of review. Though even that would be inadequate to the task, given that before DOJ makes the decision to permit FISA materials to be used in a prosecution, they review whether the files would sustain a judge’s review first.

The goal here is not to placate FISC, nor is it to check some boxes as part of the application process. It’s to ensure that absent the threat of review by a defense attorney, the benefits (which already have serious limits) of adversarial review are achieved via other means. And there’s good reason to believe that absent more significant changes in the oversight process, the Woods Procedures are never going to achieve that result.

The Michael Atkinson conspiracy theory

As I was already writing this, it became clear that the frothy right was using this report, released on Tuesday, to provide a non-corrupt excuse for Trump’s firing of Intelligence Community Inspector General Michael Atkinson late on Friday night.

The basis for such a claim is not entirely clear to me. Frothers in my Twitter timeline at first seemed to confuse Atkinson with DOJ’s IG, Michael Horowitz, or believed that the ICIG had a central role in FISA. Then they seized on the fact that, for the two years before he became ICIG, Atkinson was at National Security Division, which both oversees some cases likely to have a FISA component and oversees the submission of applications and then conducts the oversight reviews.

Atkinson’s confirmation materials provide some exactitude for what he did at DOJ when:

September 2002 to March 2006: Trial Attorney for DOJ’s Fraud Section

March 2006 to March 2016: AUSA in DC USAO working on Fraud (including in oversight positions)

March 2016 to June 2016: Acting DAAG, National Asset Protection at NSD

July 2016 to May 2018: Senior Counsel to AAG for NSD

There would be little imaginable reason for a fraud prosecutor, as Atkinson was for the majority of his DOJ career, to use FISA (two of the highest profile cases he worked on were the prosecution of Democratic Congressmen William Jefferson and Jesse Jackson Jr), though he said he worked on some espionage, sanctions, and FARA cases. As Acting DAAG, he worked in a different part of NSD than the unit that handles FISA applications and oversight.

As he described it in his confirmation materials, he would have been a consumer of FISA information, but not the person doing the reviews.

As Senior Counsel to the AAG (serving under John Carlin, Mary McCord, Dana Boente, and John Demers), he might have visibility into review processes on FISAs, though at that level, managers assumed the Woods Procedure worked as required (meaning, Atkinson would not have known of these problems).

In his confirmation materials, however, Atkinson suggested he spent far more time as Senior Counsel overseeing the response to unauthorized disclosures, which likely still included Snowden when he started in 2016, added Shadow Brokers that year, and would have focused closely on Vault 7 in 2017 and 2018.

My experience in helping to coordinate the responses to unauthorized disclosures while serving as the Senior Counsel to the Assistant Attorney General, U.S. Department of Justice, National Security Division (NSD), should assist me in serving effectively as the IC IG. As part of this position, I have assisted in coordinating the Department’s efforts to investigate and prosecute unauthorized disclosures across the IC enterprise. This experience has reinforced for me the important role that fair, impartial, and effective whistleblower protection processes play in maximizing the IC’s effectiveness and minimizing the risks of unauthorized disclosures and harm to our national security. As part of this experience, I have also been a consumer and user of intelligence from multiple intelligence sources, and I have seen first-hand the benefits to our country when there is a unity of effort by the Intelligence Community to address national security needs.

For Vault 7, at least, the investigation into Joshua Schulte — who was always the prime suspect — used criminal process from the very start (though it’s possible that the increased surveillance of Julian Assange involved FISA). And while there are less spectacular cases of unauthorized disclosure that might involve some nexus with a foreign country, raising FISA issues, many of these leaks cases were criminal cases, seemingly not reliant on FISA. Which would mean some of the most sensitive cases Atkinson worked on didn’t involve FISA.

Though the frothy right may think Atkinson had a central role because the title of the person at FBI field offices who must conduct a review is “Chief [Division] Counsel,” and they confused both the agency and the location.

In any case, there’s one more piece missing from this: while I happen to think DOJ IG has not focused closely enough on what NSD should be doing in its oversight role, thus far, DOJ IG has not investigated it. And so there’s actually no allegation of wrong-doing from anyone at NSD in either of these two reports, not even the NSD people who actually work on FISA. On the contrary, DOJ IG simply describes OI doing reviews where they identified problems and wrote them up. Yes, OI likely should have been more involved in determining whether the errors FBI found were material. Given that Boasberg has mandated materiality reviews of the 29 files reviewed by DOJ IG, now would be a good time to implement that practice.

Still, compliance or not with Woods Files remains a distraction from a deeper review of whether these files included all pertinent information. And if FISA is going to remain viable, that’s the examination that needs to happen.

Michigan Is Using More a Pessimistic Model than the White House

On Monday, the CEO of Spectrum Health, Tina Freese Decker, sent out an update on COVID-19. After explaining how they’re modeling the virus, she said that the model they’re using says our peak (presumably meaning Grand Rapids and environs, not Michigan as a whole) would be in early May.

[W]e are closely studying our models, which include learnings and data from across the state, country and world. These models project the spread of COVID-19 and enable us to estimate how many people in our communities will need hospitalization and intensive care services. They also allow us to understand the collective resources that would then be necessary to serve those needs. These are just estimates and we hope for the best, but our job is to plan for the worst.

At present, based on the information available, the rate of growth of deaths from COVID-19 in Michigan is at least as fast as New York, if not faster. The modeling for our area shows that, at its current rate, we would exceed demand for hospital and intensive care services in early May and this would last many, many weeks. This peak in cases would be more than our health care system, or any health care system, could handle.

That conflicts with the IHME projection for the state by several weeks.

I thought, at first, that that might just reflect the fact that cases in my county, Kent County, have been increasing at a more gradual pace than in SE MI. That is, it might reflect that our curve is flatter than the state as a whole, and while Kent is the state’s fourth biggest county, the population of those hardest hit county still dwarfs ours.

Except that Governor Whitmer has twice used the same estimate for our curve — early May. In both a press conference yesterday and in a town hall, she and MI’s Chief Medical Executive Joneigh Khaldun said our peak will be a month from now, not a week.

Maybe Whitmer and Spectrum and everyone else are trying to prepare for the worst. Or maybe they’re seeing something in the state-level data that is not making it into the public data IHME is using.

A physician leader at a major academic medical school in the south walked me through some of what the IHME model may not fully incorporate, based on what he’s seeing in a hard-hit city: how long patients are kept on ventilators.

As you know I am exec leadership at a large University Hospital, so I have access to our Covid data.

I suspect one of the factors driving the later projected peaks is related to estimates of time in hospital. While some non-critical patients are admitted and discharged over 3-7 days, the ones admitted to the ICU are taking much longer to move.

The peak of detecting infection precedes the peak need for hospitalization by 7-10 days.

If you look at the IMHE data, their curves for hospitalization and need for ICU and ventilators are temporally aligned. I think this is going to be very wrong.

The issue is that once a patient is in the ICU or on a ventilator, they stay for a very long time, remaining on the ventilator. Since mid-March, we have intubated numerous patients. 10% have been extubated, 20% have died, and 70% remain intubated and are still parked in the ICU.

Thus the peak need for ICU/Ventilator curve should probably be pushed back several weeks as the tail end of the infections will just accumulate more ICU/vent need in the weeks subsequent to the infection/hospitalization peaks. I suspect the local governments are figuring this out, and the math guys at IMHE have not plugged this factor into their models yet.

The burden on health care capacity will persist long after the infections abate- necessitating much longer control measures to avoid and reemergence in volume.

If this is right, then it may reflect differing goals. Whitmer and Spectrum Health need to identify how many ventilators they’ll need for how long, whereas the federal government needs to identify how long it’ll take to get the first wave of people who’ve contracted the virus either into hospitals or through the period of contagion. Though if that’s right, it may explain why Jared Kushner and others at the White House think governors are exaggerating the number of ventilators they need: because Kushner isn’t accounting for how long a patient stays on a ventilator.

But if Michigan is right and IHME is wrong, it matters that the White House has largely endorsed the IHME model. Even ignoring the possibility that IHME is not sufficiently accounting for the time patients spend on ventilators, there are parts of the projections that do not match reality. The IHME model assumes every state will have a stay-at-home order, but a bunch still don’t and the White House recommendations still fall far short of that. The IHME model assumes everyone will remain on stay-at-home until June (an assumption it made far more prominent on its site after the White House endorsed the model), but Trump promised it would be just 30 more days. While IHME uses deaths to project the curve — justifiably treating that as a more reliable measure of COVID rates than tested positives — there’s reason to believe that even death rates are unreliable (for example, some areas are showing spiking pneumonia deaths not otherwise attributed to COVID-19).

As it is, Trump promised that everything would start to get better in two weeks (though later in his presser, he admitted it might be three weeks). He did so while falsely suggesting that the IHME projections match the recommendations of his White House, which they don’t.

But if hard-hit states like NY (for which IHME has already significantly adjusted its model) and MI are as much as a month out from peak, then Trump’s rosy projections could, once again, lead to recklessness.

Larry Hogan, Ralph Northam, and Muriel Bowser Asked for a Federal Testing Site … Two Weeks Ago

Maryland Governor Larry Hogan has been one of the most proactive governors — of either party — in his response to the COVID-19 crisis. But until yesterday, he nevertheless had not issued a stay at home order yet. He did so yesterday. By the end of the day, Virginia Governor Ralph Northam and DC Mayor Muriel Bowser had done the same.

In Hogan’s statement announcing the stay-at-home order, he emphasized the import of workers within the DC Metro Area in sustaining the country’s national security, both those generally considered national security workers (he mentioned NSA and CyberCommand) and those specifically fighting this virus (he mentioned NIH and FDA).

In that context, Hogan mentioned that two weeks ago, Northam, Bowser, and he asked the President to designate DC Metro as a priority for response to the crisis, including by setting up a federal testing site so federal workers have a way to avoid getting their colleagues sick.

Two weeks ago, the three of us sent a joint letter to the President requesting that the national capital region be designated as a priority location for a federally supported COVID-19 testing site.  The Washington region is where national leaders are actually fighting this battle for the nation, and this region is about to be hit with the virus in the same way that some other major metropolitan areas have been.

We are home to more than 404,000 federal workers in Maryland, D.C., and Virginia.  The NIH and FDA are headquartered in Maryland, and these agencies are on the front lines of the battle against the coronavirus.

Maryland is also home to institutions that are critical to the security of our nation, including the NSA and the U.S. Cyber Command.

Last week four employees at Fort Meade tested positive for COVID-19.

Federal workers at these institutions and all agencies of the federal government are and will continue to be getting sick.  And a major outbreak among our critical federal workforce could be catastrophic, crippling the national response.

In his statement, Hogan didn’t explicitly say that Trump had not yet delivered on that Federal testing site. But by end of day, Hogan published an op-ed with Michigan Governor Gretchen Whitmer — President Trump’s current target of choice. In it, he repeated his request for a Federal testing site.

Keep “mission critical” federal workers healthy: While millions of Americans have begun working from home, “mission critical” federal employees and contractors are still reporting to work every day. More than 400,000 federal workers are based in the national capital region of Washington, Maryland and Virginia, including workers at the National Institutes of Health and FEMA. We can’t risk them getting sick when the nation is depending on their work and expertise to fight the pandemic. President Trump can help by establishing a federal testing site in the national capital region — an important step to identify sick federal workers and prevent them from infecting their colleagues.

I’m in flyover country, and I’m loathe to imagine that DC’s workers are any more important than my neighbors.

Nevertheless, the entire point of doing social distancing, for those of us who are either non-essential or can work from home, is to limit exposure for those who either need to keep vital parts of our economy running (like doctors and nurses, Amazon delivery drivers, and grocery store workers) or those who need to protect the country in other ways, even including the NSA.

Hogan’s comments yesterday suggest that President Trump didn’t even manage something really obvious and manageable: to make sure that critical federal workers have a way to ensure that they don’t infect other federal workers before they become symptomatic.

Indeed, hours after Hogan’s declaration, in Trump’s daily COVID rally, the President repeatedly bragged about our testing regime and — in yet another question from Yamiche Alcindor he tried to dodge — not only misstated the population of Seoul (possibly misreading the elevation for Seoul in its Wikipedia entry for its population), but also blamed Obama, and then insisted our testing is better than any other country’s.

Q Thank you, Mr. President. You said several times that the United States has ramped up testing. I’ll just talk a little quicker — or a little louder.

Mr. President, you said several times that the United States has ramped up testing, but the United States is still not testing per capita as many people as other countries like South Korea. Why is that? And when do you think that that number will be on par with other countries?

And Dr. —

THE PRESIDENT: Yeah, well, it’s — it’s very much on par.

Q Not per capita —

THE PRESIDENT: Look — look — per capita. We have areas of country that’s very tight. I know South Korea better than anybody. It’s a — very tight. Do you know how many people are in Seoul? Do you know how big the city of Seoul is?

Q But the question is about (inaudible).

THE PRESIDENT: Thirty-eight million people. That’s bigger than anything we have. Thirty-eight million people all tightly wound together.

We have vast farmlands. We have vast areas where they don’t have much of a problem. In some cases, they have no problem whatsoever. We have done more tests. What I didn’t — I didn’t talk about per capita. We have done more tests, by far, than any country in the world, by far.

Our testing is also better than any country in the world. And when you look at that, as simple as that looks, that’s something that’s a game changer, and every country wants that. Every country.

So rather than asking a question like that, you should congratulate the people that have done this testing, because we inherited — this administration inherited a broken system, a system that was obsolete, a system that didn’t work. It was okay for a tiny, small group of people, but once you got beyond that, it didn’t work.

We have built an incredible system to the fact, where we have now done more tests than any other country in the world. And now the technology is really booming.

I just spoke to — well, I spoke to a lot. I’m not going to even mention. I spoke to a number of different testing companies today, and the job that they’ve done and the job that they’re doing is incredible.

But when Abbott comes out and does this so quickly, it’s really unreal. In fact, one company, I have to say, that stands out in the job — and I think I can say this; I don’t want to insult anybody else — but Roche. Roche has been incredible in the testing job they’ve done. And they’re ramping it up exponentially. It’s up, up, up, up. And you should be saying congratulations instead of asking a really snarky question, because I know exactly what you mean by that.

You should be saying congratulations to the men and women who have done this job, who have inherited a broken testing system, and who have made it great. And if you don’t say it, I’ll say it. I want to congratulate all of the people. You have done a fantastic job.

And we will see you all tomorrow. Thank you very much. Thank you. Thank you.

In a call with governors yesterday, Trump claimed that he hadn’t “heard about testing in weeks.”

The subtext of yesterday’s decision by the DC metro region’s elected leadership is that Trump couldn’t even manage a no-brainer request made two weeks ago that would help to keep this country’s most essential workers safe. Sure, Larry Hogan didn’t say that explicitly. But by partnering with someone whose complaints are sure to get noticed, Hogan made it clear that Trump is still failing to deliver on the most obvious requests.

Trump Threatens to Withhold Disaster Declaration for Michigan because Gretchen Whitmer Was Mean to Him

Update: According to NBC’s Geoff Bennett, Trump has now approved the request.

Last night, Donald Trump suggested that he might withhold a disaster declaration for Michigan requested by Governor Whitmer on March 26 because he doesn’t like Governor Whitmer’s public comments about the Federal government’s failures.

“We’ve had a big problem with the young — a woman governor. You know who I’m talking about — from Michigan. We don’t like to see the complaints,” President Trump told Sean Hannity during a FOX News interview on Thursday.

Gov. Whitmer has been openly critical of the federal response to the coronavirus outbreak, voicing her frustration with not having enough COVID-19 test kits and a lack of “clear and concise guidance from the federal government.”

The comments from President Trump come on the same day Gov. Whitmer requested a major disaster declaration for Michigan over the coronavirus outbreak.

“She doesn’t get it done, and we send her a lot. Now, she wants a declaration of emergency, and, you know, we’ll have to make a decision on that,” President Trump continued. “I don’t know if she knows what’s going on, but all she does is sit there and blame the federal government.”

Here are the states for which Trump has declared an emergency with the number of positive cases on the date Trump made that declaration and the party of their governor.

As of yesterday, Michigan has had 2,856 people test positive for COVID-19. Dr. Deborah Birx pointed to SE Michigan’s Wayne County (which includes Detroit and the mostly working class suburbs), along with Cook County, IL, as the alarming hotspots in the country.

And yet Trump doesn’t want to approve a disaster declaration because a girl was mean to him.

Trump’s Blame the Governors Strategy and Rural Roulette

The other day, I laid out how, even if Trump wants to open the country back up by Easter, at least fifteen governors may prevent him, including OH’s Republican governor Mike DeWine, who in the wake of Trump’s comments tweeted out defending his approach again. The WaPo did a similar piece this morning, confirming that the governors aren’t on board with Trump’s hopes.

That said, it’s clear that Trump plans to pressure governors, not just to do his bidding, but also to demand fealty before he heeds their pleas for help. Ultimately, it may be a bid to blame the upcoming crisis on the governors — disproportionately Democrats — struggling most directly with the crisis.

And that could work.

Though I doubt it, for a number of reasons. As US numbers continue to spike, it’s likely the governors who’ve taken more aggressive stances (with the possible but very notable exception of Andrew Cuomo, largely because of NYC’s density) will be able to show significantly better outcomes than those states that have adopted a hybrid approach, shutting down affected cities but not the entire state, to say nothing of those who were doing nothing (this Politico piece shows what each state has done or, in the case of OK and MS, not done at all).

Right now, almost all the identifiable clusters are in big cities, with both the international travel and density that would lead to early exposure. But some (not all — Detroit is an exception) of those cities actually have relatively low levels of the preexisting conditions that make the population more susceptible to the virus and more likely to have an extreme case if they get it. By contrast, much of America’s more rural areas have a higher instance of those pre-existing conditions. And those rural areas don’t have the hospital beds, much less ICU rooms, to treat seriously ill patients. This map, from an MIT project, shows where current outbreaks are and where particularly vulnerable populations are for the country as a whole.

That means in states where governors have not imposed state-wide stay at home orders, there’s a significant risk that clusters will arise in areas that are less prepared to deal with an outbreak. Effectively, the governors who’ve adopted such an approach are playing “rural roulette,” assuming that a focus on the cities will mitigate the biggest risks, even though the rural areas would be easily overwhelmed even with a smaller number of infections.

And that may have an important dynamic given the election. A number of the key swing states — MN, WI, MI, OH — have instituted full state stay-at-home orders. But many of the rest — PA, FL, NC, CO, GA, TX — have not. And in some of the states where that decision is riskiest — GA, FL, and AZ — there’s a Republican governor adopting those strategies in part to adhere to Trump’s views.

Take Georgia. It has had an outbreak in the more rural southwest part of the state, and municipalities are trying to force Governor Brian Kemp to impose a state-wide shutdown.

But the rest of the state has high incidences of some of the preconditions that make the population particularly susceptible to infection. In other words, while Atlanta has the medical resources (including CDC) to respond to the medical crisis, Georgia is already exhibiting an atypical pattern of rural spread in ways that might make Kemp’s refusal to do a state-wide order particularly costly. (As I was writing this, Kemp announced that schools will remain closed through April 24, which suggests he may be budging on a state-wide approach.)

Then there’s Florida.

Jim here.

As the New York Times notes, the municipalities of Miami and Miami Beach have stay home or shelter in place orders that went into effect this week. Also, Alachua, Leon, Orange and Pinellas Counties have stay home orders. Note that while Orange County holds most of the Orlando metro area, Pinellas is only the St. Petersburg portion of the Tampa Bay region. Tampa is in Hillsborough and the population stays fairly high going north into Pasco and south into Manatee and Sarasota Counties.

A very interesting aspect of the Alachua County stay home order, which went into effect here at 12:01 am Tuesday, is that, as noted in the Gainesville Sun, “Non-medical businesses may only allow one customer inside per 1,000 covered square feet, per an Alachua County emergency order.” Here is the line outside a grocery store Tuesday morning in the Sun’s photo accompanying the article:

As the Tampa Bay Times notes, despite multiple public health authorities pleading for a statewide shutdown, DeSantis has instead been listening almost exclusively to business interests, and their message to him has been exactly the one Fox News and Trump have been flogging:

The Florida Chamber of Commerce have spoken frequently with the governor and his staff, urging him not to take drastic measures that might shut down the state’s economy. The Florida Restaurant and Lodging Association has been asking for ways to help their industries stay afloat.

Their message: don’t let the cure be worse than the disease.

But this is ignored:

Public health experts say that a three-week limit on public movement is required to stop the spread of the virus, and they point to a statistical model that shows that Florida may have only one week to act before hospitals become overwhelmed.

Instead, he hears a Republican telling him just how responsible he is to ignore the public health requests:

Sen. Tom Lee, R-Thonotosassa, said DeSantis was under “a tremendous amount of pressure,” but the idea he’s making decisions based on politics — and not public health — was “irresponsible.”

“He’s hearing from a lot of self-interested actors right now who are acting out of self-preservation,” Lee said. “With every executive order, there’s another industry being impacted. Those people are pretty aggressive and pretty vocal, and I think he’s done a pretty good job of ignoring all that.”

What could go wrong?

/Jim

In Florida, on top of the vacation traffic that DeSantis only belatedly shut down, it has significant numbers of seniors and its rural, more vulnerable communities do not have the beds to treat patients in if an outbreak happens (the gray circles here are senior facilities).

To make things worse, DeSantis is not sharing information about which senior facilities have had positive cases, which is likely to lead to clusters outside of locked down areas that lead to community infection. So on top of the rural/urban mix, DeSantis has the likelihood of a breakout at senior facilities.

It’s not just Republican governors who’ve adopted a hybrid strategy though: Pennsylvania Governor Tom Wolf  locked down PA’s major counties without imposing stay at home in their more rural areas. PA is going to experience the community spread of the Eastern Seaboard; it’s a real question what happens as the virus spreads west from the Philadelphia metro area. Plus, it also has a concentration of senior facilities (the family member I’m most worried about now is stuck in one until April 1 fighting several other preexisting conditions).

In bmaz’s Arizona, something that has the possibility of being worse is happening: Republican Governor Doug Ducey is using his authority to prevent cities from imposing more stringent stay at home orders. Thus far, this order strives only to impose a state-wide standard for what amounts to essential businesses (something that has led to confusion even in states with full state-wide orders). Most of his businesses match those adopted by state-wide orders. His order specifically includes golf courses (but not their restaurant facilities) as essential businesses, which I this is reasonable, in AZ, in the name of exercise; bmaz says that the crowds on urban hiking trails, which are also exempted, are far worse. Ducey’s order could override school closures.

Or, the order as a whole could suggest he’s being pushed closer to where other states are, full stay at home orders.

Arizona faces a particular rural challenge, but one Ducey can’t manage: the Native American reservations, which already have cases and which have a real dearth of health resources. But they’re sovereign.

North Carolina’s Democratic Governor Roy Cooper is another person who is having to be pressured to impose a more stringent state-wide stay at home order.

If states can access adequate testing, it’s still unproven whether state-wide or city-by-city orders will be most effective (though the testing is clearly not there yet).

What is clear, however, is that there will be at least as much political pressure on the states that have incomplete stay at home orders as those with statewide orders. And that just happens to include many of the states where November’s election will be decided.

Update: Trump has just sent a letter to governors suggesting the Feds are going to roll out new standards for identifying high and low risk counties, suggesting he wants to adopt the piecemeal shutdowns of the states discussed here. Such a regime will make orders like Doug Ducey and Mississippi Governor Tate Reeves’ orders standardizing shut-downs at the state level dangerous in a way they aren’t now, because both cite Trump’s guidelines for protective measures.

Trump Considers Getting Hospitals Ventilators Nationalization But a Bailout for Him and His Rich Buddies Necessity

Yesterday, Trump sent remarkably mixed signals in his press conference. He was asked whether he was going to use the Defense Production Act to address the shortage in key medical supplies. He replied by suggesting that using DPA to push manufacturers to prioritize urgently needed supplies amounts to nationalization.

We’re a country not based on nationalizing our business. Call a person over in Venezuela, ask them how did nationalization of their businesses work out? Not too well. The concept of nationalizing our business is not a good concept.

He went on to suggest his Administration doesn’t know who could fill urgent needs, which sounds like a confession that he shouldn’t have fired the pandemic experts.

Later however, Trump treated the socialization of big business losses — of his big business losses — as an acceptable step to save great businesses. After Seung Min Kim asked whether Trump would commit that none of the funds from a $500 billion bailout of big businesses would go to his company, he complained that he hasn’t been thanked for things like taking no salary. He ultimately said he would see, the kind of deferral he often uses to avoid saying yes.

He returned to his complaints later in the presser. In response to a question about whether he had sold stock, he first lied, and claimed that he didn’t own any. He rambled for minutes complaining about being booed. Ultimately, however, he complained about how much it cost rich people to run for office.

A big part of the reason the economy had to be shut down is because Trump did not respond in January when he was warned of the pandemic. And now he’s treating taking steps to provide medical workers the equipment they need as some kind of socialism but bailing himself out as a necessity.

How the Concord Management Prosecution Fell Apart

The frothy right and anti-Trump left both politicized DOJ’s decision to dismiss the single count of conspiracy charged against Concord Management and Concord Catering in the Russian troll indictment that Mueller’s team obtained on February 16, 2018. The right — including the President — and the alt-Left are falsely claiming the prosecution against all the trolls fell apart and suggesting this undermines the claims Russia tampered in the 2016 election.

The mainstream left speculated, without any apparent basis, that Bill Barr deliberately undermined the prosecution by classifying some of the evidence needed to prove the case.

The politicization of the outcome is unfortunate, because the outcome raises important policy questions about DOJ’s recent efforts to name-and-shame nation-state activities in cyberspace.

The IRA indictment intersects with a number of important policy discussions

The decision to indict the Internet Research Agency, its owner Yevgeniy Prigozhin, two of the shell companies he used to fund Internet Research Agency (Concord Management and Concord Catering, the defendants against which charges were dropped), and twelve of the employees involved in his troll operations intersects with three policy approaches adopted in bipartisan fashion in recent years:

  • The use of indictments and criminal complaints to publicly attribute and expose the methods of nation-state hackers and the vehicles (including shell companies) they use.
  • A recent focus on Foreign Agents Registration Act compliance and prosecutions in an attempt to crack down on undisclosed foreign influence peddling.
  • An expansive view of US jurisdiction, facilitated but not limited to the role of the US banking system in global commerce.

There is — or should be — more debate about all of these policies. Some of the prosecutions the US has pursued (one that particularly rankles Russia is of their Erik Prince equivalent, Viktor Bout, who was caught in a DEA sting selling weapons to FARC) would instill outrage if other countries tried them with US citizens. Given the way Trump has squandered soft power, that is increasingly likely. While DOJ has obtained some guilty pleas in FARA cases (most notably from Paul Manafort, but Mike Flynn also included his FARA violations with Turkey in his Statement of the Offense), the FARA prosecutions of Greg Craig (which ended in acquittal) and Flynn’s partner Bijan Kian (which ended in a guilty verdict that Judge Anthony Trenga overturned) have thus far faced difficulties. Perhaps most problematic of all, the US has indicted official members of foreign state intelligence services for activities (hacking), though arguably not targets (private sector technology), that official members of our own military and intelligence services also hack. That’s what indictments (in 2014 for hacks targeting a bunch of victims, most of them in Pittsburgh and this year for hacking Equifax) against members of China’s People’s Liberation Army and Russia’s military intelligence GRU (both the July 2018 indictment for the hack-and-leak targeting the 2016 election and an October 2018 one for targeting anti-doping organizations) amount to. Those indictments have raised real concerns about our intelligence officers being similarly targeted or arrested without notice when they travel overseas.

The IRA indictment is different because, while Prigozhin runs numerous mercenary activities (including his Wagner paramilitary operation) that coordinate closely with the Russian state, his employees work for him, not the Russian state. But the Yahoo indictment from 2017 included both FSB officers and criminal hackers and a number of the hackers DOJ has otherwise indicted at times work for the Russian government. So even that is not unprecedented.

The indictment did serve an important messaging function. It laid out the stakes of the larger Russian investigation in ways that should have been nonpartisan (and largely were, until Concord made an appearance in the courts and started trolling the legal system). It asserted that IRA’s efforts to thwart our electoral and campaign finance functions amounted to a fraud against the United States. And it explained how the IRA effort succeeded in getting Americans to unwittingly assist the Russian effort. The latter two issues, however, may be central to the issues that undid the prosecution.

Make no mistake: the IRA indictment pushed new boundaries on FARA in ways that may raise concerns and are probably significant to the decision to drop charges against Concord. It did so at a time when DOJ’s newfound focus on FARA was not yet well-established, meaning DOJ might have done it differently with the benefit of the lessons learned since early 2018. Here’s a shorter and a longer version of an argument from Joshua Fattal on this interpretation of FARA. Though I think he misses something about DOJ’s argument that became clear (or, arguably, changed) last fall, that DOJ is not just arguing that the trolls themselves are unregistered foreign agents, but that they tricked innocent Americans into being agents. And DOJ surely assumed it would likely never prosecute any of those charged, unless one of the human targets foolishly decided to vacation in Prague or Spain or any other country with extradition treaties with the US. So the indictment was a calculated risk, a risk that may not have paid off.

But that’s why it’s worth understanding the decision to drop the prosecution based off the record, rather than presumptions about DOJ and the Russia investigation.

Just the funding side of the conspiracy to defraud indictment got dropped

The first step to understanding why DOJ dropped the charges is to understand what the two Concord entities were charged with. The indictment as a whole charged eight counts:

  • Conspiracy to defraud the United States for preventing DOJ and FEC from policing our campaign finance and election system (and State for issuing visas)
  • Conspiracy to commit wire fraud and bank fraud by using stolen identities to open financial accounts with which to evade PayPal’s security
  • Six counts of aggravated identity theft for stealing the identities of Americans used in the wire and bank fraud

The wire and bank fraud charges remain untouched by DOJ’s decision. If any of those defendants shows up in court, DOJ remains fully prepared to hold them accountable for stealing Americans’ identities to thwart PayPal’s security protocols so as to fool Americans into doing Russia’s work. Such an identity theft prosecution would not rely on the aggressive FARA theory the Concord charge does.

Even still, most of the conspiracy to defraud (ConFraudUS) charge remains.

The two Concord entities were only named in the ConFraudUS charge. The overt acts involving Concord entail funding the entire operation and hiding those payments by laundering them through fourteen different affiliates and calling the payments “software support.”

3. Beginning as early as 2014, Defendant ORGANIZATION began operations to interfere with the U.S. political system, including the 2016 U.S. presidential election. Defendant ORGANIZATION received funding for its operations from Defendant YEVGENIY VIKTOROVICH PRIGOZHIN and companies he controlled, including Defendants CONCORD MANAGEMENT AND CONSULTING LLC and CONCORD CATERING (collectively “CONCORD”). Defendants CONCORD and PRIGOZHIN spent significant funds to further the ORGANIZATION’s operations and to pay the remaining Defendants, along with other uncharged ORGANIZATION employees, salaries and bonuses for their work at the ORGANIZATION.

[snip]

11. Defendants CONCORD MANAGEMENT AND CONSULTING LLC (Конкорд Менеджмент и Консалтинг) and CONCORD CATERING are related Russian entities with various Russian government contracts. CONCORD was the ORGANIZATION’s primary source of funding for its interference operations. CONCORD controlled funding, recommended personnel, and oversaw ORGANIZATION activities through reporting and interaction with ORGANIZATION management.

a. CONCORD funded the ORGANIZATION as part of a larger CONCORD-funded interference operation that it referred to as “Project Lakhta.” Project Lakhta had multiple components, some involving domestic audiences within the Russian Federation and others targeting foreign audiences in various countries, including the United States.

b. By in or around September 2016, the ORGANIZATION’s monthly budget for Project Lakhta submitted to CONCORD exceeded 73 million Russian rubles (over 1,250,000 U.S. dollars), including approximately one million rubles in bonus payments.

c. To conceal its involvement, CONCORD labeled the monies paid to the ORGANIZATION for Project Lakhta as payments related to software support and development. To further conceal the source of funds, CONCORD distributed monies to the ORGANIZATION through approximately fourteen bank accounts held in the names of CONCORD affiliates, including Glavnaya Liniya LLC, Merkuriy LLC, Obshchepit LLC, Potentsial LLC, RSP LLC, ASP LLC, MTTs LLC, Kompleksservis LLC, SPb Kulinariya LLC, Almira LLC, Pishchevik LLC, Galant LLC, Rayteks LLC, and Standart LLC.

Concord was likely included because it tied Prigozhin into the conspiracy, and through him, Vladimir Putin. That tie has been cause for confusion and outright disinformation during the course of the prosecution, as during pretrial motions there were two legal fights over whether DOJ could or needed to say that the Russian state had a role in the operation. Since doing so was never necessary to legally prove the charges, DOJ didn’t fight that issue, which led certain useful idiots to declare, falsely, that DOJ had disclaimed any tie, which is either absurd misunderstanding of how trials work and/or an outright bad faith representation of the abundant public evidence about the ties between Prigozhin and Putin.

By including Concord, the government asserted that it had proof not just that IRA’s use of fake identities had prevented DOJ and the FEC from policing electoral transparency, but also that Putin’s go-to guy in the private sector had used a series of shell companies to fund that effort.

By dropping the charges against the shell companies, that link is partly broken, but the overall ConFraudUS charge (and the charge against Prigozhin) remains, and all but one of the defendants are now biological persons who, if they mounted a defense, would also face criminal penalties that might make prosecution worth it. (I believe the Internet Research Agency has folded as a legal institution, so it would not be able to replay this farce.)

Going to legal war with a shell company

As noted, the indictment included two shell companies — Concord Management and Concord Catering — among the defendants in a period when Russia has increasingly pursued lawfare to try to discredit our judicial system. That’s precisely what happened: Prigozhin hired lawyers who relished trolling the courts to try to make DOJ regret it had charged the case.

As ceded above, DOJ surely didn’t expect that anyone would affirmatively show up to defend against this prosecution. That doesn’t mean they didn’t have the evidence to prove the crimes — both the first level one that bots hid their identities to evade electoral protections, and the second level conspiracy that Prigozhin funded all that through some shell companies. But it likely means DOJ didn’t account for the difficulties of going to legal war against a shell company.

One of the two explanations the government offered for dropping the prosecution admits that the costs of  trying a shell company have come to outweigh any judicial benefits.

When defense counsel first appeared on behalf of Concord, counsel stated that they were “authorized” to appear and “to make representations on behalf” of Concord, and that Concord was fully subjecting itself to the Court’s jurisdiction. 5/9/18 Tr. 5 (ECF No. 9). Though skeptical of Concord’s (but not counsel’s) asserted commitments at the initial appearance, the government has proceeded in good faith—expending the resources of the Department of Justice and other government agencies; incurring the costs of disclosing sensitive non-public information in discovery that has gone to Russia; and, importantly, causing the Court to expend significant resources in resolving dozens of often-complex motions and otherwise ensuring that the litigation has proceeded fairly and efficiently. Throughout, the government’s intent has been to prosecute this matter consistent with the interests of justice. As this case has proceeded, however, it has become increasingly apparent to the government that Concord seeks to selectively enjoy the benefits of the American criminal process without subjecting itself to the concomitant obligations.

From the start, there were ongoing disputes about whether the shell company Concord Management was really showing up to defend against this conspiracy charge. On May 5, 2018, DOJ filed a motion aiming to make sure that — given the uncertainty that Concord had been properly served with a summons, since, “Acceptance of service is ordinarily an indispensable precondition providing assurance that a defendant will submit to the jurisdiction of the court, obey its orders, and comply with any judgment.” Concord’s lawyers responded by complaining that DOJ was stalling on extensive discovery requests Concord made immediately.

Next, an extended and recurrent fight over a protective order for discovery broke out. Prigozhin was personally charged in the indictment along with his shell company. The government tried to prevent defense attorneys from sharing discovery deemed “sensitive” with officers of Concord (Prighozhin formally made himself an officer just before this effort started) who were also defendants without prior approval or at least a requirement such access to take place in the United States, accompanied by a defense attorney lawyer. That fight evolved to include a dispute about whether “sensitive” discovery was limited to just Personally Identifiable Information or included law enforcement sensitive information, too (unsurprisingly, Concord said it only wanted the latter and even demanded that DOJ sift out the former). The two sides established a protective order at start. But in December, after the government had delivered 4 million documents, of which it deemed 3.2 million “sensitive,” Concord renewed their demand that Prighozhin have access to discovery. They trollishly argued that only Prigozhin could determine whether the proper translation of the phrase “Putin’s chef” meant he was the guy who cooked for Putin or actually Putin’s boss. At this point, the US started filing sealed motions opposing the discovery effort, but did not yet resort to the Classified Information Procedures Act, meaning they still seemed to believe they could prove this case with unclassified, albeit sensitive, evidence.

Shortly thereafter, DOJ revealed that nothing had changed to alter the terms of the original protective order, and in the interim, some of the non-sensitive discovery (that is, the stuff that could be shared with Prigozhn) had been altered and used in a disinformation campaign.

The subsequent investigation has revealed that certain non-sensitive discovery materials in the defense’s possession appear to have been altered and disseminated as part of a disinformation campaign aimed (apparently) at discrediting ongoing investigations into Russian interference in the U.S. political system. These facts establish a use of the non-sensitive discovery in this case in a manner inconsistent with the terms of the protective order and demonstrate the risks of permitting sensitive discovery to reside outside the confines of the United States.

With a biological defendant, such a stunt might have gotten the defendant thrown in jail (and arguably, this is one of two moments when Judge Dabney Friedrich should have considered a more forceful response to defiance of her authority). Here, though, the prosecution just chugged along.

Perhaps the best proof that Prigozhin was using Concord’s defense as an intelligence-collecting effort came when, late last year, Concord demanded all the underlying materials behind Treasury’s Office of Foreign Assets Control decision to sanction Prigozhin and his companies. As Friedrich noted in her short notation denying the request, OFAC’s decision to sanction Prigozhin had nothing to do with the criminal charges against Concord. Nevertheless, Prigozhin used the indictment of his shell companies in an attempt to obtain classified information on the decision leading to sanctions being imposed on him.

Prigozhin’s goal of using his defense as a means of learning the US government’s sources and methods was clear from the first discovery request. That — and his unwavering efforts to continue the trolling operations — likely significantly influenced the later classification determination that contributed to DOJ dropping the case.

The government intended to try this case with unclassified information

That’s the other cited reason the government dismissed this case: because a classification determination made some of the evidence collected during the investigation unavailable as unclassified information.

[A]s described in greater detail in the classified addendum to this motion, a classification determination bearing on the evidence the government properly gathered during the investigation, limits the unclassified proof now available to the government at trial. That forces the prosecutors to choose between a materially weaker case and the compromise of classified material.

At the beginning of this case, the government said that all its evidence was unclassified, but that much of it was sensitive, either for law enforcement reasons or the privacy of victims in the case.

As described further in the government’s ex parte affidavit, the discovery in this case contains unclassified but sensitive information that remains relevant to ongoing national security investigations and efforts to protect the integrity of future U.S. elections. At a high level, the sensitive-but-unclassified discovery in this case includes information describing the government’s investigative steps taken to identify foreign parties responsible for interfering in U.S. elections; the techniques used by foreign parties to mask their true identities while conducting operations online; the relationships of charged and uncharged parties to other uncharged foreign entities and governments; the government’s evidence-collection capabilities related to online conduct; and the identities of cooperating individuals and, or companies. Discovery in this case contains sensitive information about investigative techniques and cooperating witnesses that goes well beyond the information that will be disclosed at trial.

Nevertheless, after the very long and serial dispute about how information could be shared with the defendant noted above (especially Prigozhin, as an officer of Concord), later in the process, something either became classified or the government decided they needed to present evidence they hadn’t originally planned on needing.

This is one way, Barr critics suggest, that the Attorney General may have sabotaged the prosecution: by deeming information prosecutors had planned to rely on classified, and therefore making key evidence inaccessible for use at trial.

That’s certainly possible! I don’t rule out any kind of maliciousness on Barr’s part. But I think the available record suggests that the government made a good faith classification decision, possibly in December 2019 or January 2020, that ended up posing new difficulties for proving the case at trial. One possibility is that, in the process of applying a very novel interpretation of FARA to this prosecution, the types of evidence the government needed to rely on may have changed. It’s also possible that Prigozhin’s continued trolling efforts — and maybe even evidence that his trolling operations had integrated lessons learned from discovery to evade detection — made sharing heretofore sensitive unclassified information far more damaging to US national security (raising its classification level).

As discussed below, the record also suggests that the government tried to access some evidence via other means, by subpoenaing it from Concord. But Concord’s ability to defy subpoenas without punishment (which gets back to trying to prosecute a shell company) prevented that approach.

The fight over what criminalizes a troll conspiring to fool DOJ (and FEC)

Over the course of the prosecution, the theory of the ConFraudUS conspiracy either got more detailed (and thereby required more specific kinds of evidence to prove) or changed. That may have contributed to changing evidentiary requirements.

Even as the dispute about whether Concord was really present in the court fighting these charges, Concord’s lawyers challenged the very novel application of FARA by attacking the conspiracy charge against it. This is precisely what you’d expect any good defense attorney to do, and our judicial system guarantees any defendant, even obnoxious Russian trolls who refuse to actually show up in court, a vigorous defense, which is one of the risks of indicting foreign corporate persons.

To be clear: the way Concord challenged the conspiracy charge was often frivolous (particularly in the way that Concord’s Reed Smith lawyers, led by Eric Dubelier, argued it). The government can charge a conspiracy under 18 USC § 371 without proving that the defendant violated the underlying crimes the implementation of which the conspiracy thwarted (as Friedrich agreed in one of the rulings on Concord’s efforts). And on one of the charged overt acts — the conspiracy to hide the real purpose of two reconnaissance trips to the US on visa applications — Concord offered only a half-hearted defense; at trial DOJ would likely have easily proven that when IRA employees came to the US in advance of the operation, they lied about the purpose of their travel to get a visa.

That said, while Concord never succeeded in getting the charges against it dismissed, it forced DOJ to clarify (and possibly even alter) its theory of the crime.

That started as part of a motion to dismiss the indictment based on a variety of claims about the application of FARA to conspiracy, arguing in part that DOJ had to allege that Concord willfully failed to comply with FECA and FARA. The government argued that that’s not how a ConFraudUS charge works — that the defendants don’t have to be shown to be guilty of the underlying crimes. Concord replied by claiming that its poor trolls had no knowledge of the government functions that their secrecy thwarted. Friedrich posed two questions about how this worked.

Should the Court assume for purposes of this motion that neither Concord nor its coconspirators had any legal duty to report expenditures or to register as a foreign agent?

Specifically, should the Court assume for purposes of this motion that neither Concord nor its co-conspirators knowingly or unknowingly violated any provision, civil or criminal, of FECA or FARA by failing to report expenditures or by failing to register as a foreign agent?

The government responded by arguing that whether or not the Russian trolls had a legal duty to register, their deception meant that regulatory agencies were still thwarted.

As the government argued in its opposition and at the motions hearing, the Court need not decide whether the defendants had a legal duty to file reports with the FEC or to register under FARA because “the impairment or obstruction of a governmental function contemplated by section 371’s ban on conspiracies to defraud need not involve the violation of a separate statute.” United States v. Rosengarten, 857 F.2d 76, 78 (2d Cir. 1988); Dkt. No. 56, at 9-13. Moreover, the indictment alleges numerous coordinated, structured, and organized acts of deception in addition to the failure to report under FECA or to register under FARA, including the use of false social media accounts, Dkt. No. 1 ¶¶ 32-34, 36, the creation and use of U.S.- based virtual computer infrastructure to “mask[] the Russian origin and control” of those false online identities, id. ¶¶ 5, 39, and the use of email accounts under false names, id. ¶ 40. The indictment alleges that a purpose of these manifold acts of deception was to frustrate the lawful government functions of the United States. Id. ¶ 9; see also id. ¶ 5 (alleging that U.S.-based computer infrastructure was used “to avoid detection by U.S. regulators and law enforcement”); id. ¶ 58 (alleging later obstructive acts that reflect knowledge of U.S. regulation of conspirators’ conduct). Those allegations are sufficient to support the charge of conspiracy to defraud the United States regardless of whether the defendants agreed to engage in conduct that violated FECA or FARA because the “defraud clause does not depend on allegations of other offenses.”

Friedrich ruled against the trolls, except in doing so stated strongly that the government had conceded that they had to have been acting to impair lawful government functions, though not which specific relevant laws were at issue.

Although the § 371 conspiracy alleged does not require willfulness, the parties’ disagreement may be narrower than it first appears. The government concedes that § 371 requires the specific intent to carry out the unlawful object of the agreement—in this case, the obstruction of lawful government functions. Gov’t’s Opp’n at 16 (“Because Concord is charged with conspiring to defraud the United States, . . . the requisite mental state is the intent of impairing, obstructing, or defeating the lawful function of any department of government through deception.” (internal quotation marks omitted)). Further, the government agrees that to form the intent to impair or obstruct a government function, one must first be aware of that function. See Hr’g Tr. at 40 (“[Y]ou can’t act with an intent to impair a lawful government function if you don’t know about the lawful government function.”). Thus, Concord is correct—and the government does not dispute—that the government “must, at a minimum, show that Concord knew what ‘lawful governmental functions’ it was allegedly impeding or obstructing.” Def.’s Mot. to Dismiss at 22; Def.’s Reply at 5. Here, as alleged in the indictment, the government must show that Concord knew that it was impairing the “lawful functions” of the FEC, DOJ, or DOS “in administering federal requirements for disclosure of foreign involvement in certain domestic activities.” Indictment ¶ 9. But Concord goes too far in asserting that the Special Counsel must also show that Concord knew with specificity “how the relevant laws described those functions.” Def.’s Mot. to Dismiss at 22; Def.’s Reply at 5. A general knowledge that U.S. agencies are tasked with collecting the kinds of information the defendants agreed to withhold and conceal would suffice.

Then Concord shifted its efforts with a demand for a Bill of Particulars. The demand itself — and the government’s opposition — included a demand for information about co-conspirators and VPNs, yet another attempt to get intelligence rather than discovery. But Friedrich granted the motion with respect to the application of FECA and FARA.

In other words, it will be difficult for the government to establish that the defendants intended to use deceptive tactics to conceal their Russian identities and affiliations from the United States if the defendants had no duty to disclose that information to the United States in the first place. For that reason, the specific laws—and underlying conduct—that triggered such a duty are critical for Concord to know well in advance of trial so it can prepare its defense.

The indictment alleges that the defendants agreed to a course of conduct that would violate FECA’s and FARA’s disclosure requirements, see Indictment ¶¶ 7, 25–26, 48, 51, and provides specific examples of the kinds of expenditures and activities that required disclosure, see id. ¶¶ 48– 57. Concord, 347 F. Supp. 3d at 50. But the indictment does not cite the specific statutory and regulatory disclosure requirements that the defendants violated. Nor does it clearly identify which expenditures and activities violated which disclosure requirements. Accordingly, the Court will order the government to:

  • Identify any statutory or regulatory disclosure requirements whose administration the defendants allegedly conspired to impair, along with supporting citations to the U.S. Code, Code of Federal Regulations, or comparable authority.
  • With respect to FECA, identify each category of expenditures that the government intends to establish required disclosure to the FEC. See, e.g., Indictment ¶ 48 (alleging that the defendants or their co-conspirators “produce[d], purchase[d], and post[ed] advertisements on U.S. social media and other online sites expressly advocating for the election of then-candidate Trump or expressly opposing Clinton”) (emphasis added)). The government must also identify for each category of expenditures which disclosure provisions the defendants or their co-conspirators allegedly violated.
  • With respect to FARA, identify each category of activities that the government intends to establish triggered a duty to register as a foreign agent under FARA. See, e.g., id. ¶ 48 (same); id. ¶ 51 (alleging that the defendants or their coconspirators “organized and coordinated political rallies in the United States” (emphasis added)). The government must also identify for each category of activities which disclosure provisions the defendants or their co-conspirators allegedly violated.

In a supplemental motion for a bill of particulars, Concord asked which defendants were obliged to file with DOJ and FEC.

That came to a head last fall. In a September 16, 2019 hearing, both sides and Friedrich discussed at length precisely what the legal theory behind the conspiracy was. On Friedrich’s order, the government provided Concord a list of people (whose names were redacted) that,

the defendants conspired to cause some or all of the following individuals or organizations to act as agents of a foreign principal while concealing from those individuals that they were acting as agents of a foreign principal [who should register under FARA].

That is, whether or not this was the original theory of the case, by last fall the government made it clear that it wasn’t (just) Prigozhin or his trolls who needed to register; rather, it was (also) the Americans who were duped into acting and spending money on their behalf. But because they didn’t know they were working on behalf of a foreign principal, they did not register.

Meanwhile, in a motion for clarification, the government argued that it had always intended to include foreigners spending money in the indictment. Friedrich held that that had not actually been included in the original indictment.

These two issues — the claim that duped Americans would have had to register if they knew they were working with a foreign agent, and the need to strengthen the assertion about foreign campaign expenditures — forced the government to go back and supersede the original indictment.

DOJ obtains a superseding indictment with more specific (and potentially new) theories of the case

On November 8, 2019, the government obtained a superseding indictment to include language about foreign donations that Friedrich had ruled was not in the original indictment and language covering the duped Americans who had unknowingly acted as agents of Russian trolls.

New language in the superseding indictment provided more detail of reporting requirements.

¶1 U.S. law also requires reporting of certain election-related expenditures to the Federal Election Commission.

[snip]

U.S. also imposes an ongoing requirement for such foreign agents to register with the Attorney General.

The paragraph explaining the means of the ConFraudUS added detail about what FEC, DOJ, and State functions the trolls’ deceit had thwarted.

¶7 In order to carry out their activities to interfere in the U.S. political and electoral processes without detection of their Russian affiliation, Defendants conspired to obstruct through fraud and deceit lawful functions of the United States government in monitoring, regulating, and enforcing laws concerning foreign influence on and involvement in U.S. elections and the U.S. political system. These functions include (a) the enforcement of the statutory prohibition on certain election-related expenditures by foreign nationals; (b) the enforcement of the statutory requirements for filing reports in connection with certain election-related expenditures; (c) the enforcement of the statutory ban on acting as an unregistered agent of a foreign principal in the United States; (d) the enforcement of the statutory requirements for registration as an agent of a foreign principal (e) the enforcement of the requirement that foreign national seeking entry into the United States provide truthful and accurate information to the government. The defendants conspired to do so by obtaining visas through false and fraudulent statements, camouflaging their activities by foreign nationals as being conducted by U.S. persons, making unlawful expenditures and failing to report expenditures in connection with the 2016 U.S. presidential election, and failing to register as foreign agents carrying out political activities within the United States, and by causing others to take these actions.

These allegations were repeated in ¶9 in the section laying out the ConFraudUs count.

The superseding indictment added a section describing what FEC and DOJ do.

¶25 One of the lawful functions of the Federal Election Commission is to monitor and enforce this prohibition. FECA also requires that individuals or entities who make certain independent expenditures in federal elections report those expenditures to the Federal Election Commission. Another lawful government function of the Federal Election Commission is to monitor and enforce this reporting requirement.

[snip]

¶26 The U.S. Department of Justice enforces the Foreign Agent Registration Act (“FARA”), which makes it illegal to act in the United States as an “agent of a foreign principal,” as defined at Title 22, United States Code, Section 661(c), without following certain registration, reporting, and disclosure requirements established by the Act. Under FARA, the term “foreign principal” includes foreign non-government individuals and entities. FARA requires, among other things, that persons subject to its requirements submit periodic registration statements containing truthful information about their activities and income earned from them. One of the lawful government functions of the Department of Justice is to monitor and enforce this registration, reporting, and disclosure regime.

In perhaps the most interesting addition, the superseding indictment also added language to include the actions of unwitting Americans.

¶48 …and caused unwitting persons to produce, purchase, and post advertisements on U.S. social media and other online sites expressly advocating for the election of then-candidate Trump or expressly opposing Clinton. Defendants and their co-conspirators did not report these expenditures to the Federal Election Commission, or register as foreign agents with the U.S. Department of Justice, nor did any of the unwitting persons they caused to engage in such activities.

The superseding indictment repeated this “unwitting” language in ¶51.

This superseding indictment is significant for two reasons, given the dismissal of the count against the two Concord defendants. First, the possibly changed theory of the conspiracy may have changed what evidence the government needed to prove the crime. For example, it may be that DOJ has evidence of IRA employees acknowledging, for the period of this indictment, that spending money on these activities was illegal, whether or not they knew they had to report such expenditures. It may be that DOJ has evidence of communications between the trolls and actual Americans they otherwise wouldn’t have had to rely on. It may be that DOJ has evidence about the regulatory knowledge of those same Americans about their own reporting obligations. Some of this evidence might well be classified.

Just as importantly, if Bill Barr wanted to jettison this prosecution, he could have done so last November by refusing to permit the superseding indictment. That likely would have undermined the case just as surely (and might have led Friedrich to dismiss it herself), and would have been far better for Trump’s messaging. Moreover, from that point in time, it would have been clear that trial might introduce evidence of how three Trump campaign officials coordinated (unknowingly) with the Russian trolls, something bound to embarrass Trump even if it posed no legal hazard. If Barr had wanted to undermine the prosecution to benefit Trump, November would have been the optimal time to do that, not February and March.

While it’s not clear whether this superseding indictment changed certain evidentiary challenges or not, three key strands of activity that seem to have resulted in the dismissal started only after the superseding: an effort to authenticate digital evidence on social media activity, an effort to subpoena some of that same evidence, and the CIPA process to try to substitute for classified information.

The government goes to some lengths to try to pre-approve normally routine evidence

The last of those efforts, chronologically, may hint at some of the evidentiary issues that led DOJ to drop the case.

In a motion submitted on February 17, the government sought to admit a great deal of the social media and related forensic data in the case. In many trials, this kind of evidence is stipulated into evidence, but here, Concord had been making it clear it would challenge the evidence at trial. So the government submitted a motion in limine to try to make sure it could get that evidence admitted in advance.

Among the issues raised in the motion was how the government planned to authenticate the IP addresses that tied the IRA trolls to specific Facebook and Twitter accounts and other members of the conspiracy (Prigozhin, Concord, and the interim shell companies) to each other. The government redacted significant sections of the filing describing how it intended to authenticate these ties (see, for example, the redaction on page 8, which by reference must discuss subscriber information and IP addresses, and footnote 7 on page 9, the redaction pertaining to how they were going to authenticate emails on page 16, the very long redaction on how they would authenticate emails between IRA and Concord starting on page 17, and the very long redaction on how they were going to authenticate Prigozhin to the IRA starting on page 21).

Concord got special permission to write an overly long 56-page response. Some of it makes it clear they’re undermining the government’s efforts to assert just that, for example on IP addresses.

IP addresses, subscriber information, and cookie data are not self-authenticating. The first link in the government’s authentication argument is that IP addresses,6 subscriber information, and cookie data are self-authenticating business records under Rules 803(6) and 902(11). But the cases the government cites are easily distinguishable and undercut its argument.

6 The IP addresses do not link an account to a specific location or fixed address. For example, for the Russian IP addresses the government indicates that they were somewhere within the city of St. Petersburg, Russia.

[snip]

It should come as no surprise then, given the lack of reliability and untrustworthiness in social media evidence such as that the government seeks to introduce, that the case law forecloses the government’s facile effort at authentication of content here. Unlike Browne, Lewisbey, and the other cases cited above, the government has offered no social media accounts bearing the name of any alleged conspirator and no pictures appearing to be a conspirator adorning such page.7 Nor has the government pointed to a single witness who can testify that she saw a conspirator sign up for the various social media accounts or send an email, or who can describe patterns of consistency across the various digital communications to indicate they come from the same source.

7 The government has indicated to Concord that it intends to introduce at trial Fed. R. Evid. 1006 summaries of IP address records, apparently to create the link between the social media accounts and IRA that is not addressed in the motion. See Ex. B, Jan. 6, 2020 letter. Despite repeated requests from undersigned counsel, the government has identified the 40 social media accounts for it intends to summarize but has not provided the summaries or indicated when it will do so.

Some of this is obviously bullshit, particularly given the government’s contention, elsewhere, that Concord (or IRA, if it was a typo) had dedicated IP addresses. Mostly, though, it appears to have been an attempt to put sand in the wheels of normal criminal prosecution by challenging stuff that is normally routine. That doesn’t mean it’s improper, from a defense standpoint. But given how often DOJ’s nation-state indictments rely on such forensic evidence, it’s a warning about potential pitfalls to them.

The government resorts to CIPA

Even while the government had originally set out to prove this case using only unclassified information, late in the process, it decided it needed to use the Classified Information Procedures Act. That process is where one would look for any evidence that Barr sabotaged the prosecution by classifying necessary evidence (though normally the approval for CIPA could come from Assistant Attorney General for National Security Division John Demers, who is not the hack that Barr is).

In October 2019, Friedrich had imposed a deadline for CIPA if the government were going to use it, of January 20, 2020.

On December 17, the government asked for a two week delay, “to ensure appropriate coordination within the Executive Branch that must occur prior to the filing of the motion,” a request Friedrich denied (even though Concord did not oppose it). This was likely when the classification determination referenced in the motion to withdraw was debated, given that such determinations would dictate what prosecutors had to do via CIPA.

On January 10, 2020, the government filed its first motion under CIPA Section 4, asking to substitute classified information for discovery and use at trial. According to the docket, Friedrich discussed CIPA issues at a hearing on January 24. Then on January 29 and February 10, she posted classified orders to the court security officer, presumably as part of the CIPA discussion.

On February 13, the government asked for and obtained a one-day extension to file a follow-up CIPA filing, from February 17 to February 18, “to complete necessary consultation within the Executive Branch regarding the filing and to ensure proper supervisory review.” If Barr intervened on classification issues, that’s almost certainly when he did, because this happened days after Barr intervened on February 11 in Roger Stone’s sentencing and after Jonathan Kravis, who had been one of the lead prosecutors in this case as well, quit in protest over Barr’s Stone intervention. At the very least, in the wake of that fiasco, Timothy Shea made damn sure he ran his decision by Barr. But the phrase, “consultation within the Executive Branch,” certainly entertains consultation with whatever agency owned the classified information prosecutors were deciding whether they could declassify (and parallels the language used in the earlier request for a filing extension). And Adam Jed, who had been part of the Mueller team, was added to the team not long before this and remained on it through the dismissal, suggesting nothing akin to what happened with Stone happened here.

The government submitted its CIPA filing on the new deadline of February 18, Friedrich issued an order the next day, the government filed another CIPA filing on February 20, Friedrich issued another order on February 28.

Under CIPA, if a judge rules that evidence cannot be substituted, the government can either choose not to use that evidence in trial or drop the prosecution. It’s likely that Friedrich ruled that, if the government wanted to use the evidence in question, they had to disclose it to Concord, including Prigozhin, and at trial. In other words, that decision — and the two earlier consultations (from December to early January, and then again in mid-February) within the Executive Branch — are likely where classification issues helped sink the prosecution.

It’s certainly possible Bill Barr had a key role in that. But there’s no explicit evidence of it. And there’s abundant reason to believe that Prigozhin’s extensive efforts to use the prosecution as an intelligence-gathering exercise both for ongoing disinformation efforts and to optimize ongoing trolling efforts was a more important consideration. Barr may be an asshole, but there’s no evidence in the public record to think that in this case, Prigozhin wasn’t the key asshole behind a decision.

DOJ attempts to treat Concord as a legit party to the court’s authority

Even before that CIPA process started playing out, beginning on December 3, the government pursued an ultimately unsuccessful effort to subpoena Concord. This may have been an attempt to obtain via other means evidence that either had been obtained using means that DOJ had since decided to classify or the routine authentication of which Concord planned to challenge.

DOJ asked to subpoena a number of things that would provide details of how Concord and Prigozhin personally interacted with the trolls. Among other requests, the government asked to subpoena Concord for the IP addresses it used during the period of the indictment (precisely the kind of evidence that Concord would later challenge).

3. Documents sufficient to identify any Internet Protocol address used by Concord Management and Consulting LLC from January 1, 2014 to February 1, 2018.

Concord responded with a load of absolute bullshit about why, under Russian law, Concord could not comply with a subpoena. Judge Friedrich granted the some of the government’s request (including for IP addresses), but directed the government to more narrowly tailor its other subpoena requests.

On December 20, the government renewed its request for other materials, providing some evidence of why it was sure Concord had responsive materials. Concord quickly objected again, again wailing mightily. In its reply, the government reminded Friedrich that she had the ability to order Concord to comply with the subpoena — and indeed, had gotten Concord’s assurances it would comply with orders of the court when it first decided to defend against the charges. It even included a declaration from an expert on Russian law, Paul Stephan, debunking many of the claims Concord had made about Russian law. Concord wailed, again. On January 24, Friedrich approved the 3 categories of the subpoena she had already approved. On January 29, the government tried again, narrowing the request even to — in one example — specific days.

Calendar entries reflecting meetings between Prigozhin and “Misha Lakhta” on or about January 27, 2016, February 1, 2016, February 2, 2016, February 14, 2016, February 23, 2016, February 29, 2016, May 22, 2016, May 23, 2016, May 28, 2016, May 29, 2016, June 7, 2016, June 27, 2016, July 1, 2016, September 22, 2016, October 5, 2016, October 23, 2016, October 30, 2016, November 6, 2016, November 13, 2016, November 26, 2016, December 3, 2016, December 5, 2016, December 29, 2016, January 19, 2017, and February 1, 2017.

Vast swaths of the motion (and five exhibits) explaining why the government was sure that Concord had the requested records are sealed. Concord responded, wailing less, but providing a helpful geography lesson to offer some alternative explanation for the moniker “Lakhta,” which the government has long claimed was the global term for Prigozhin’s information war against the US and other countries.

But the government fails to inform the Court that “Lakhta” actually means a multitude of other things, including: Lake Lakhta, a lake in the St. Petersburg area, and Lakhta Center, the tallest building in Europe, which is located in an area within St. Petersburg called the Lakhta-Olgino Municipal Okrug.

On February 7, Friedrich largely granted the government’s subpoena request, approving subpoenas to get communications involving Prigozhin and alleged co-conspirators, as well as records of payments and emails discussing them.  That same day and again on February 21, Concord claimed that it had communicated with the government with regards to the subpoenas, but what would soon be clear was non-responsive.

On February 27, the government moved to show cause for why Concord should not be held in contempt for blowing off the subpoenas, including the request for IP addresses and the entirety of the second subpoena (for meetings involving Prigozhin and records of payments to IRA). Concord wailed in response. The government responded by summarizing Concord’s response:

Concord’s 18-page pleading can be distilled to three material points: Concord’s attorneys will not make any representations about compliance; Concord will not otherwise make any representations about compliance; and Concord will not comply with a court order to send a representative to answer for its production. The Court should therefore enter a contempt order and impose an appropriate sanction to compel compliance.

Friedrich issued an order that subpoena really does mean subpoena, demanding some kind of representation from Concord explaining its compliance.  In response, Prigozhin sent a declaration partly stating that his businesses had deleted all available records, partly disclaiming an ability to comply because he had played games with corporate structure.

With respect to category one in the February 10, 2020 trial subpoena, Concord never had any calendar entries for me during the period before I became General Director, and I became General Director after February 1, 2018, so no searches were able to be performed in Concord’s documents. Concord did not and does not have access to the previous General Director’s telephone from which the prosecution claims to have obtained photographs of calendars and other documents, so Concord is unable to confirm the origin of such photographs.

He claimed to be unable to comply with the request for IP addresses because his contractors “cannot” provide them.

In order to comply with category three in the trial subpoena dated January 24, 2020, in Concord’s records I found contracts between Concord and Severen-Telecom JSC and Unitel LLC, the two internet service providers with which Concord contracted between January 1, 2014 and February 1, 2018. Because these contracts do not identify the internet protocol (“IP”) addresses used by Concord during that period, on January 7, 2020 I sent letters on behalf of Concord to Severen-Telecom JSC and Unitel LLC transmitting copies of these contracts and requesting that the companies advise as to which IP addresses were provided to or used by Concord during that period. Copies of these letters and English translations, as well as the attached contracts, are attached as Exhibits 2 and 3. Severen-Telecom JSC responded in writing that the requested information cannot be provided. A copy of Severen-Telecom JSC’s letter and an English translation are attached as Exhibit 2. Unitel LLC responded that information regarding IP addresses cannot be provided. A copy of Unitel LLC’s letter and an English translation of is attached as Exhibit 3. Accordingly, Concord does not have any documents that could be provided in response to category three (3) of the January 24, 2020 subpoena.

The government responded by pointing out how bogus Prigozhin’s declaration was, not least his insistence that any oligarch like him would really be the person in charge of his companies’ record-keeping. It also described evidence — which is redacted — that Concord had an in-house IT provider at the time (though notes that “as the Court knows, it appears that Concord [sic; this is probably IRA] registered and maintained multiple dedicated IP addresses during the relevant time period”). It further noted that the date that Prigozhin claimed his company started destroying records after 3 months perfectly coincided to cover the start date of this subpoena. In short, it provided fairly compelling evidence that Prigozhin, after agreeing that his company would be subject to the authority of the court when it first filed an appearance in the case, was trolling the court from the safety of Russia.

On March 5, Judge Friedrich nevertheless allowed that bullshit response in her court and declined to hold Concord in contempt. Eleven days later, the government moved to dismiss the case.

The government files the motion to dismiss before the evidentiary dispute finishes but after the subpoena and CIPA fail

On March 16 — 17 days after what appears to be the final CIPA order and 11 days after Friedrich declined to hold Concord or Prigozhin in contempt, and one day before the government was due to file a follow-up to its motion in limine to authenticate normally routine evidence in the case — the government moved to dismiss the case.

While it’s unclear what evidence was deemed to be classified late in the prosecution (likely in December), it seems fairly clear that it affected (and possibly was a source or method used to collect) key forensic proof in the case. It’s also unclear whether an honest response to the government’s trial subpoenas would have replaced that evidence.

What is clear, however, is that there is sufficient explanation in the public record to support the government’s explanation — that Prigozhin was using the prosecution to reap benefits of obtaining information about US government efforts to thwart his activities without risking anything himself. And whether or not the government would be able to prove its case with the classification and CIPA decisions reflected in the docket, the trial itself would shift more evidence into the category of information that would get shared with Prigozhin.

None of that disproves that Barr sabotaged the case. But it does provide sufficient evidence to explain why DOJ dismissed the case, without assuming that Barr sabotaged it.

Other cases of interest

As noted above, not only do the identity theft related charges remain, but so does the ConFraudUS case for all the biological defendants, including Prigozhin. It may be that, given the opportunity to imprison Prigozhin in the highly unlikely event that he ever showed up in the US for trial, the classification trade-offs would be very different.

But there are three other legal issues of interest, given this outcome.

First, there’s one more unsurprising detail about the superseding indictment: It also included an end-date, January 2018. That’s not surprising because adding later activities probably would presented all sorts of problems given how advanced the trial was last November. But it’s also significant because it means double jeopardy would not attach for later activities. So the government could, if the calculus on classification ever changed, simply charge all the things Prigozhin and his trolls have been doing since January 2018 in an indictment charged under its revised theory.

That’s particularly significant given that, in September 2018, prosecutors in EDVA charged Prigozhin’s accountant, Elena Alekseevna Khusyaynova. Even at the time, I imagined it might be a vehicle to move the IRA prosecution if anything happened to it in DC. Unsurprisingly, given that she’s the accountant at the center of all this, the Khusyaynova complaint focused more closely on the money laundering part of the prosecution. Plus, that complaint incorporated evidence of Prigozhin’s trolls reveling in their own indictment, providing easy proof of knowledge of the legal claims DOJ made that didn’t exist for the earlier indictment. None of that would change the calculus around classified evidence (indeed, some of the overt acts described in the Khusyaynova complaint seem like the kind of evidence that Prigozhin would have turned over had he complied with the Concord subpoena. So there is another vehicle for such a prosecution, if DOJ wanted to pursue it.

Finally, Prigozhin has not succeeded with all his attempts to wage lawfare in support of his disinformation efforts. In January, he lost his bid to force Facebook to reinstate his fake news site, Federal Agency of News, based off an argument that because Facebook worked so closely with the government, it cannot exercise its own discretion on its private site. As I laid out here, the suit intersected with both the IRA indictment and Khusyaynova complaint, and engaged in similar kinds of corporate laundry and trollish bullshit. The decision was a no-brainer decision based on Section 230 grounds, giving providers immunity when they boot entities from their services. But the decision also confirms what is already evident: when it comes to shell companies in the business of trolling, thus far whack-a-mole removals have worked more consistently than seemingly symbolic prosecution.

DOJ may well revisit how it charged this to try to attach a FARA liability onto online disinformation. But ultimately the biological humans, not the corporation shells or the bots, need to be targeted.

Une FAQ Utile

(My friend Meor and @rafi0t have traslated my Covid-19 FAQ into French for the francophones out there- QN; Ed: for those who missed the English version the first time, it is here.)

1. Vais-je mourir?

Oui, malheureusement, tout le monde meurt.

2. Non, je veux dire est ce que je vais mourir du Covid 19?

Ah, ça! Probablement pas. La plupart des personnes touchées et malades présentent des symptômes assez mineurs. Par mineur, comprends que ta vie ne sera pas en danger direct, mais ça ne sera pas non plus une expérience très agréable. Selon les estimations actuelles, 80% des cas sont mineurs, 20% nécessitent une intervention médicale et quelque part entre 0,7% et 5% peuvent causer le décès ou s’en rapprocher suffisamment pour avoir une lumière brillante pointée dans leur direction.

3. Tu parles d’une expérience de mort imminente pour 5% des gens?

Non, je parle de l’éclairage d’hôpital, il est tellement lumineux et désagréable! Ça me donne mal à la tête à chaque fois. Ne peuvent-ils pas utiliser des ampoules aux teintes plus chaudes?

4. Je pose les questions ici.

Soit. Désolée, continue.

5. Est ce que beaucoup de personnes devront être hospitalisées?

Il semblerait. La plupart des personnes de plus de 70 ans et des personnes souffrant de problèmes de santé auront besoin de ce qu’on appelle des «soins de soutien». Ils sont dits “de soutien” car nous n’avons pas de remède ou de traitement direct contre ce virus. Ce que nous pouvons faire c’est maintenir la personne en vie pendant qu’elle se bat pour créer suffisamment d’anticorps, tuant ainsi les virus en balade en son intérieur. Concrètement, cela peut signifier un supplément d’oxygène, une surveillance par le personnel de santé, voire carrément un respirateur pour le patient.

6. Que faisons-nous à propos du trop grand nombre de personnes devant se rendre à l’hôpital en même temps?

C’est précisément le scénario cauchemardesque que nous essayons d’éviter, en mettant en oeuvre ce que les épidémiologistes appellent le ralentissement, pour réduire le taux de personnes qui se rendent à l’hôpital. Pour ralentir la propagation du virus, tu peux te laver les mains, nettoyer les surfaces autour de toi (plus de détails bientôt) et éviter de te rapprocher des autres personnes à l’extérieur. Mais les maires, les députés, les administrations scolaires et les autres autorités en charge de ces espaces où de nombreux gens sont proches peuvent faire beaucoup plus : en annulant les événements, en encourageant le travail à domicile, en fermant les écoles et les universités et en limitant le nombre de personnes autorisées à se rassembler ainsi que leur proximité.
Chaque endroit où le public se réunit devient un lieu où le virus passe d’une personne à l’autre. C’est essentiel car, si nous pouvons ralentir la propagation, la file d’attente pour les si confortables lits des soins intensifs sera équilibrée dans le temps et tout le monde ne se précipitera pas sur des respirateurs comme c’était Black Friday version santé.

Voici un excellent graphique expliquant ce que nous essayons de faire avec toutes ces distanciations sociales et le lavage des mains, en particulier le lavage des mains. Ai-je mentionné l’importance de se laver les mains?

The pokey curve is uncontrolled infections, the smooth, slower curve we want is what we want by delaying the spread.

La courbe en pointe correspond à des infections sans aucun contrôle, la courbe lisse et plus lente est ce que nous essayons d’accomplir en retardant la propagation.

7. Pourquoi n’avons-nous pas de remède? Je dois souffler dans les bronches de qui à ce propos?

Écoute, nous vivons dans une telle époque des merveilles, de duplicité politique et d’inepties qu’on pourrait se dire, dès que’un mauvais événement arrive, “Il ne peut que s’agir de négligence ou de malveillance”. Le fait est que la nature peut toujours nous botter le cul à tout moment. Ce n’est la faute de personne, c’est le genre de chose à laquelle les êtres humains ont dû faire face bien avant que nous soyons… humains.

8. Il doit bien y avoir quelqu’un sur qui crier quoi quelque chose?

Ne t’inquiète pas : Il y en a! Les autorités comme les personnes les plus banales peuvent faire beaucoup pour ralentir la propagation de cette maladie et rendre le traitement plus efficace.
Sur le plan personnel, tu peux crier après tes enfants / colocataires / parents / etc. de se laver les mains pendant 20-30 secondes plusieurs fois par jour, avant et après être sorti, avant de préparer la nourriture, d’utiliser les toilettes, de toucher de la nourriture, de se toucher le visage, d’éternuer, de tousser, de cracher ou de jurer…

9. Attends, jurer?

Oh, ça ne peut pas faire de mal.

10. Ah. ok. Continue.

Tu peux aussi nettoyer régulièrement les surfaces touchées fréquemment – pense poignées de porte, de tiroirs, comptoirs, interrupteurs, claviers, boutons, robinets … la boite de pétri ambulante qu’est ton téléphone portable, regarde simplement les espaces qui t’inquiètent, publics ou privés et pense aux endroits que les gens touchent, où ils toussent, éternuent ou qu’ils lèchent.

11. LÈCHENT? Tu sais quoi, je ne veux pas savoir. Avec quoi dois-je tout nettoyer? Alcool, eau de javel, feu?

Toutes ces choses fonctionneront, mais honnêtement, le savon ou les nettoyants de surface de base sont très bien. Les lingettes désinfectantes sont idéales pour un nettoyage rapide et pour les téléphones portables, mais tu peux aussi utiliser un nettoyant ménager habituel, vaporisé en bonne quantité puis bien essuyé avec de l’essuie tout, y compris ton téléphone portable dégoûtant. Le savon (détergent) est nickel aussi. En fait, c’est souvent mieux que l’alcool ou le peroxyde d’hydrogène. Il faut se souvenir d’une chose, ce coronavirus, SARS-CoV-2, a un seul brin d’ARN et quatre protéines spécialisées toutes soutenues par une bi-couche lipidique qui maintient le paquet ensemble. Le fait d’avoir une enveloppe virale lipidique le rend sensible aux détergents…

12. Tu peux arrêter de nerder?

Pardon. Si tu mets du savon sur le virus et que tu frottes un peu, il éclate, puis il disparaît.

13. Wow!

N’est-ce pas? Tu peux bien sûr y mettre le feu, y verser de l’alcool ou autre produit de ton choix, mais il suffit de quelque chose qui dissout la graisse et de quelques petits va-et-vient. Et là, tu peux imaginer ces minuscules petites boules hérissées éclater et déverser leurs minuscules petites tripes partout. C’est une chouette image. Ça donne envie de tout frotter.

Le gel hydroalcoolique fonctionne de la même façon, bien qu’il soit moins efficace que du savon ordinaire. Il y a toutes sortes de produits de nettoyage, mais ce bon vieux savon fait parfaitement l’affaire. Tu ne veux pas non plus utiliser des produits qui dessèchent et provoquent des gerçures dans la peau – toute tâche sanguinolente est un point d’entrée. Cela pourrait également signifier que tu devrais te procurer de quoi garder tes mains douces, souples et exemptes de trous superflus.

En bref, et très sérieusement, lave-toi les mains avec du savon et de l’eau et ne te touche pas le visage. C’est à peu près la meilleure chose que chacun puisse faire!

Voici une vidéo de Baby Shark avec des danseurs montrant la bonne technique de lavage des mains, et en voici une autre. Internet regorge de ce type de choses…

14. D’accord, mais revenons à la partie où je vais crier sur des gens à ce sujet.

Bien sûr. Le virus se transmet d’une personne à l’autre par les microgouttelettes que nous toussons, éternuons ou même expirons. Cela inclut potentiellement nos larmes, nos crachats, notre sang et nos affaires dans la salle de bain. Ça fait beaucoup de moyens de transmission interpersonnels, et cela signifie que nous devons nous tenir éloignés les uns des autres pour ralentir la propagation de ce virus.
Tu peux alpaguer les responsables locaux et autres organisateurs d’événements pour faire annuler ou reporter les rassemblements impliquant des contacts assez étroits entre personnes, y compris ceux qui concernent des enfants. Les écoles, les conférences, les services religieux et d’autres annulations d’événements publics sont déjà en cours et elles devraient se multiplier. Tu peux alerter avec véhémence les autorités locales à ce sujet!

15. Qu’en est-il des tests?

Oh, tu peux crier à plein poumons à ce sujet!
Les tests, en particulier aux États Unis, ont été ridicules. Le dépistage généralisé est l’un des meilleurs moyens de cartographier et donc de contenir toute épidémie, notamment lorsque de nombreuses personnes (en particulier les enfants) semblent présenter des symptômes bénins, il est encore plus important d’avoir des tests largement disponibles.
Idéalement, les tests devraient être accessibles à tous au sein d’une zone infectée. La Corée du Sud a effectué des tests, la Chine a rendu une grande partie de ses tests obligatoires.
Dans la plupart des cas, si tu as le virus, il te suffit de le savoir pour que tu sois confiné chez toi jusqu’à ce qu’il passe. Mais si tu ignore être porteur du virus, tu peux le répandre, ce qui est exactement ce que font de nombreuses personnes qui se sont vues refuser le test aux États-Unis, en Australie, au Japon et bien d’autres pays. Tester uniquement les personnes les plus malades confirme leur propre situation, mais ne renseigne pas sur la façon dont le virus pourrait se propager en ce moment. Les personnes très malades ne se promènent plus vraiment en toussant. À certains égards, il est moins important de savoir si les très malades ont le virus que de connaître les malades qui marchent encore, peuvent en être atteints… et le transmettre!
Quelle que soit la cause du retard des tests aux États-Unis, l’excuse n’est pas assez bonne.

16. Covid 19 est-il la faute de Trump / Mitch McConnell / Nancy Pelosi / Jay Inslee / Gavin Newsom / Rush Limbaugh / Etc.?

Honnêtement, au moment où nous sommes, peu importe le ou les fautifs. “La maison est en feu et nous devons l’éteindre.” comme dit l’adage. Nous pourrons découvrir qui blâmer quand ce sera réglé. L’urgence est de commencer à tester le plus largement et le plus rapidement possible et de transmettre ces informations aux différentes communautés pour les aider à prendre des décisions basées sur de bonnes données, et de façon compréhensibles.
De plus, pour être prudent, ne lèche pas les pangolins que tu rencontres.

17. Comment puis-je faire en sorte que mon oncle / ma mère / mon enfant / moi-même arrête de FLIPPER COMPLÈTEMENT à ce sujet?

Si tu lis ceci, tu n’es probablement pas un professionnel de la santé travaillant en première ligne de la réponse ou un administrateur qui planifie la logistique dans ta région. Tu n’as donc tout bonnement pas besoin de connaître les dernières nouvelles et spéculations sur Covid 19. Ce qui vaut vraisemblablement pour ton enfant, ton conjoint, ton cousin ou ton chat. Informé c’est bien, mais noyé dans l’information et paralysé émotionnellement c’est mal.
Choisis un moment de la journée pour recevoir tes nouvelles sur Covid 19, puis … arrête.
Si c’est vraiment nécessaire pour toi, vas-y et vérifie deux fois par jour.
Si des gens en parlent autour de toi, parle de la bonne procédure pour se laver les mains et du nettoyage des surfaces jusqu’à ce qu’ils n’en puissent plus. Personne ne veut parler autant de nettoyage des mains comme des surfaces, sauf moi, peut-être.

Si tu as affaire à un être cher qui pique une crise, mets en place une activité : un jeu de société, un film, quelque chose qui procure une pause. Débranche accidentellement ton accès Internet pendant un certain temps. Si tu as le sentiment que tu dois faire quelque chose, nettoie la maison, cela ne peut pas faire de mal. Imprime des affiches sur le lavage des mains et place-les dans les salles de bain que tu visites. Varie tes activités et surtout parle d’autres sujets. Le monde tourne toujours, il y a des livres à lire et des films à regarder et des choses à faire : avoir peur de Covid 19 n’est pas ton travail à plein temps.

18. Est-ce l’Apocalypse Zombie?

Non, ce n’est qu’un énième virus chiant qui cause une mauvaise infection pulmonaire. Il y en a beaucoup, mais parce que celui-ci est nouveau, pour nos organismes comme nos chercheurs, nous n’avons aucune immunité. Ça va être difficile et triste pendant un moment.

19. Tu vois ce que je veux dire. Ce virus… Est-ce l’état profond ou une arme biologique échappée d’un laboratoire maléfique du gouvernement? Est-ce que le virus SARS-CoV-2 sera joué par Dwayne «The Rock» Johnson un jour, quand la vérité sera révélée?

Oh Seigneur, OK, tu gardais cette question pour la fin. Permets-moi de te dire à quel point ce genre de chose est aussi ennuyeux qu’inévitable.
Ce nouveau virus appartient à une famille de virus appelés coronavirus. Ils ont été découverts dans les années 1960. La plupart d’entre eux provoquent des symptômes du rhume courants. Ce sont des virus à ARN génétiquement similaires, mais tu peux presque les considérer comme de simples machines pour injecter de l’ARN dans certaines cellules qui en font ensuite involontairement des copies. Mais rien de tout cela n’est très précis, et les erreurs pénètrent constamment dans la prochaine génération de virus à ARN, c’est ainsi que nous nous retrouvons avec de nouveaux virus. C’est à peu près aussi malveillant que des Roombas qui se reproduisent: un peu malveillant certes, mais aussi un peu stupide. Les nouveaux virus émergents provoquant des épidémies sont inévitables, ils se produisent non seulement depuis plus longtemps que l’humanité, mais avant même que nous soyons des animaux.
Et non seulement la création d’une arme biologique virale qui tue principalement les personnes âgées et les personnes immunodéprimées est impossible avec la technologie actuelle, elle n’est pas non plus particulièrement utile.

Ce n’est pas le seul nouvel agent infectieux que nous verrons, ce n’est même pas le seul que nous ayons vu ces dernières années – SRAS, MERS, SIDA, H1N1, Ebola, SARM, ce sont tous de nouveaux (plus ou moins) agents infectieux contre lesquels nous nous battons. Alors que nous perturbons les habitats et envahissons les grottes des chauves-souris, les virus et les bactéries qui ne sont pas déjà allés dans notre corps finiront par tenter le coup. La plupart d’entre eux échoueront et nous ne saurons jamais rien de leurs tentatives, dans notre corps, à la recherche de quelque chose sur quoi s’accrocher. Mais de temps en temps, l’un de ces minuscules salauds cochera les bons numéros du Loto. C’est la raison même de l’existence des domaines scientifiques et cliniques de l’épidémiologie. Nous avons tendance à l’oublier, en pleine époque de techno-merveilles, mais la nature est toujours le boss de fin.

20. C’est déprimant et un peu décevant.

Je sais. Peut-être pouvons-nous demander à Dwayne Johnson de jouer le Dr Tedros Adhanom, chef de l’Organisation mondiale de la santé (OMS) qui démonterait les gens refusant de se soumettre à des tests et exigeant que le public soit autorisé à rentrer chez lui et à pratiquer la distanciation sociale.

21. Okay, c’est une idée terrible pour un film. Et soit, ce n’est pas un complot secret du gouvernement. Si je ne suis même pas un zombie, comment savoir si j’ai Covid 19?

Les symptômes à surveiller sont la fièvre, l’essoufflement (difficulté à respirer) et la toux.

22a. Whoa attends exactement ce que je-slash-la personne qui lit ceci à côté de moi a! QU’EST-CE QUE JE FAIS MAINTENANT?!

Tout d’abord, calme toi. Ceux-ci peuvent être des symptômes courants de la grippe, et heureusement, la grippe (avec son taux de mortalité beaucoup plus faible) est encore plus courante. Mais si tu te trouves dans une zone de transmission ou si tu as récemment voyagé dans une zone où une épidémie s’est déclarée, cela vaut la peine de se faire dépister si des tests sont disponibles. Si tu es malade, ne vas pas à l’hôpital ni chez le médecin, tu mettrais d’autres personnes en danger. Appelle ton médecin ou la ligne d’urgence dédiée et dis-leur pourquoi tu penses que tu pourrais avoir Covid 19.
Si tu es très malade et que tu devras te rendre à l’hôpital, appelle une ambulance et préviens les que tu soupçonnes une infection par le Covid 19. Ainsi, ils pourront se présenter avec le bon équipement pour assurer ta sécurité et celle des autres.

22b. J’ai un nez qui coule et un mal de gorge et je me sens généralement un peu merdique.

On se calme. J’ai ça aussi, c’est un rhume. C’est pourquoi cette FAQ est si tardive.

23. Est-ce que tout cela disparaîtra quand il fera plus chaud?

Eh bien… c’est difficile à dire. Version courte, la réponse est non, mais c’est peut-être possible? Cela dépend en grande partie de la façon dont le virus du SRAS-CoV-2 survit sur les surfaces, et il ne survit pas aussi longtemps sur des surfaces chaudes, ou n’aime pas être frappé par les rayons UV du soleil. Cela pourrait, en théorie, réduire l’infectiosité globale de la maladie, mais nous n’en savons rien pour l’instant.

24. J’ai une très bonne assurance maladie, ça veut dire que je suis cool, non?

Oh, désolé, mais pas cette fois. Le principal problème est de savoir si nous pouvons ralentir le virus suffisamment pour nous assurer que les lits d’hôpitaux et les services qui y travaillent ne sont pas pleins et débordés lorsque tu en auras besoin.
Quelle que soit la qualité de ton assurance maladie, si les hôpitaux n’arrivent pas à traiter suffisamment rapidement les personnes malades et que l’épidémie est en expansion, tu vas devoir attendre… et les conséquences peuvent être douloureuses. Ai-je trop parlé de se laver les mains?

25. Pourquoi les enfants sont-ils immunisés? Pourquoi ne souffrent-ils pas comme nous tous?

Compliqué, mais allons-y. Les enfants ne sont pas immunisés : ils attrapent le virus dans le même délai et l’ont probablement aussi longtemps que nous les adultes. Ils ne semblent tout simplement pas avoir beaucoup de symptômes. Si tu mets un coton-tige dans leur nez, tu pourras détecter le virus, mais ils ne présentent pas de signe de maladie. Quant à savoir pourquoi… Ils pourraient avoir très peu d’activité virale et ainsi répandre le virus comme de minuscules et adorables Mary Typhoïde partout sur leurs grands-parents. Il y a beaucoup de choses que nous ignorons encore totalement sur ce virus ou ce qu’il fait dans le monde. C’est nouveau, c’est difficile à gérer. De nombreux articles sortent, de nombreux scientifiques se ruent sur toutes les données dont nous disposons. La recherche sur Covid 19 est peut-être l’une des seules choses à voyager plus vite que le virus en question, mais il reste encore beaucoup à comprendre.

26. Quelle distance sociale dois-je pratiquer?

Cela dépend en partie de toi. Si tu es plus âgé, immunodéprimé ou à risque élevé, tu devrais probablement te préparer à rester à la maison pendant quelques semaines si le virus arrive en ville.
S’il est déjà en ville, évite les foules et les transports en commun bondés. Travaille à domicile si c’est possible et prépare toi à la fermeture des écoles.
Si tu es malade d’une autre maladie et que tu dois sortir, c’est le moment de porter un masque, un masque chirurgical est très bien.
Lave-toi les mains et ne te touche pas le visage.
Si tu es touché par le Covid 19, vraiment, ne sors pas. Essaye de te faire livrer tout ce dont tu as besoin jusqu’à ce que tu te rétablisses.

27. Une fois que j’irai mieux et que j’aurai vaincu le virus, je serai un super-héros invulnérable au coronavirus, non?

Eh bien, euh, il y a plus d’une souche du virus, et nous ne savons pas si avoir survécu à l’un d’eux confère une immunité générale. Jusqu’à ce que nous le sachions, tu devrais faire encore attention.

28. SÉRIEUSEMENT?!

Oui, nous en saurons probablement plus bientôt, mais comme je le répèté, c’est nouveau, nous sommes tous en processus de compréhension.
Pardon.

29. Il semblerait que je vive avec quelqu’un qui a le virus et que je doive m’en occuper, ou cette personne est dans une catégorie à risque et je m’inquiète de le leur transmettre.

Cela dépasse le cadre d’une FAQ sarcastique, mais je vais essayer.
Si tu vis avec une personne vulnérable, tu dois t’astreindre immédiatement à l’éloignement social, l’auto-isolement et suivre les mesures de sécurité.
Si tu prends soin de quelqu’un, c’est exactement la situation dans laquelle tu as besoin d’équipement de protection individuelle comme des masques N95, des gants, etc. Attention : tu dois ajuster les masques correctement. Les tutoriels Youtube sont tes amis.

30. Dois-je aller à l’école? Travailler? Puis-je quand même sortir manger? Ou obtenir la livraison? Je ne sais pas comment faire bouillir de l’eau…

Cela dépend en grande partie de ce qui se passe et de là où tu te trouves. Il devrait y avoir des annonces locales sur les écoles, le travail et les rassemblements qui aident à guider tes décisions, mais tu devras peut-être être plus prudent en fonction de ta propre situation de santé.

En ce qui concerne la préparation de plats, un repas cuisiné va tuer le virus, mais il serait bien que les personnes travaillant dans les cuisines commerciales portent des masques et se lavent beaucoup les mains. Si tu sors, ne vas pas pas dans un endroit bondé. Tu veux entre 1.5m et 2m entre chaque personnes, avec une bonne ventilation. Si tu reçois te fais livrer, assure toi que tes aliments sont chauds et traite les sacs et contenants comme s’ils étaient contaminés – lave-toi les mains, jette l’emballage, lave toi les mains à nouveau.

31. Que fais tu à ce sujet, toi, hein, Quinn?

(Version originale: Oh, mets mon argent là où est ma bouche, hein? (C’est une idée terrible, l’argent est presque toujours contaminé, alors j’utilise autant que possible ma carte de crédit)

Oh, faites ce que je dis pas ce que je fais? Mais je parle beaucoup, tu as vu…” Alors, je suis actuellement à San Francisco, où il n’y a pas (encore) de crise médicale mais nous avons une transmission communautaire. L’école de ma fille est toujours ouverte, ce qui me déplaît, mais pour l’instant elle s’y rend. Quand j’avais des symptômes de rhume, je portais un masque. Je vérifie régulièrement ma température, tout comme mes colocataires. Je me lave beaucoup les mains. J’essuie les surfaces très sensibles avec du détergent plusieurs fois par jour.

Ma fille et moi prenons des multi-vitamines. Certaines personnes pensent que le zinc peut aider, ou la vitamine D, ou C, ou quoi que ce soit, et honnêtement, personne ne le sait – c’est un nouveau virus! Ce dont je suis sûr, c’est que les carences aggravent la maladie et qu’un apport en multi-vitamine ne peut pas faire de mal. (Sauf que les hommes biologiques ne devraient pas prendre de vitamines pour femmes en raison du fer qu’ils contiennent.) Je sors encore et je fais quelques activités, mais je ne fais pas la queue ni ne m’approche des gens. Je suis allé à Safeway, j’ai vu des lignes et je suis sortie aussi sec. Je marche généralement pour me déplacer, mais je prendrais plutôt un tram presque vide. Je fais toujours des courses et je vois des gens promener des chiens. C’est bon, tant que nous restons bien éloignés les uns des autres. Quand je reviens… devine : je me lave les mains.

32. Où puis-je trouver des informations fiables et moins sarcastiques que cette FAQ?

L’Organisation mondiale de la santé dispose d’un site d’information sur ce nouveau coronavirus

L’Université Johns Hopkins gère également un excellent site informatif

… Ainsi qu’un tableau de bord indispensable pour suivre la progression du virus.

Worldometer (Worldometer appartient à une société appelée Dadax) est un très bon agrégateur avec une belle section sur les coronavirus.

En francais, Le gouvernement a une très bonne FAQ (moins marrante, mais plus complète.

Et le site de la santé publique a aussi beaucoup d’informations.

Recherche également des informations locales du lieu où tu te trouves. En espérant que les dirigeants des administrations locales sont ceux qui les connaissent le mieux.

Ai-je mentionné que tu devrais te laver les mains?

Flood activism Midlothian IL

Introduction To New Series: The Public And Its Problems by John Dewey

In my first post at this site, I said I’d write about neoiberalism. I have held to that for the most part, as you can see from my archive. I’d say that first post held up pretty well substantively (please ignore the ugly typos). My first big step was to read Thomas Kuhn’s The Structure of Scientific Revolutions, which I applied to a number of economic textbooks and papers. Then I looked at the history of the rise of neoliberal economics, mainly through books by Hannah Arendt, Karl Polanyi, and Thorstein Veblen, Eventually I shifted to a somewhat broader viewpoint, looking at books about the ideas of the sociologist Pierre Bourdieu and the Frankfort School, and ultimately read a book by a contemporary Marxist and a student of capitalism.

Along the way I looked at the work of William Stanley Jevons, the inventor of marginal utility theory. Jevons was a follower of Jeremy Bentham, and his work was explicitly intended to produce a calculus of utility for human beings. He invented marginal utility as a way to implement Utilitarianis. Marginal utility is a building block of neoclassical economics. Over time, economists and the rest of us forgot Jevon’s intention, and Bentham’s philosophy was buried under a dome of math and amusing little word pictures in textbooks. Much of economics works this way. People notice some correlation and turn it into a law. For a typical example, look at my posts on the Phillips Curve.

One idea I have repeated many times came from Philip Mirowski’s book, Never Let A Serious Crisis go To Waste: neoliberalism has a specific view of the nature of the person. Human beings are isolated utility maximizers, and nothing more. This view the logical extreme of utilitarianism. We get a good look at this view of the person when economists pitch Pareto optimality and Kaldor-Hicks optimality as justifications for market allocation of resources. Eventually I concluded that neoliberalism is simply the logical culmination of capitalism. Capitalism no longer serves society, society serves capitalism.

Along the way I suggested that we need a different economic theory, and a new political theory, I suggested the possibility of using FDR’s Four Freedoms as a starting place for a theory of political economy, and Modern Monetary Theory as a plausible form of economic theory. I turned to discussions of freedom and equality focusing on the work of Elizabeth Anderson. Most recently I read another current thinker, Bruno Latour. I gave a short primer on Pragmatism, on the ground that Elizabeth Anderson identifies as a Pragmatist. I see Latour as a pragmatist too, though I doubt he does. For what it’s worth, I also identify as a pragmatist. It’s the framework I use to evaluate these texts: do they offer useful tools for thinking about the human condition.

The Current Situation

In this election cycle, two of the Democratic Candidates stated their explanations of the causes of the problems facing this nation. Sanders blames the violently rich, the .1%, for the bulk of our problems. Warren blames corruption, using the term in the way Zephyr Teachout used it in her book Corruption In America. Warren meant that too many of us see leadership as an opportunity for personal gain, either directly, as with Trump, or indirectly, as with John Bolton’s “book” or some other grift. For me, it includes corporate officials who work against corrective legislation to maintain their profits, and who condone or ignore violations of law by the corporations they lead, knowing they won’t be punished personally. These central assertions explain the policies of the two candidates. These explanations are distinguishable, but certainly they don’t conflict.

Their explanations did not penetrate the fog of media coverage of the horse race and the 24-hour news cycle, even though both repeated their theory in every debate, every stump speech, every TV appearance, and every press conference. It’s as if the reporters and talking heads couldn’t conceive of a coherent discussion of causes of problems, or why certain issues were important, and why the candidates propose the policies they endorse. It’s no wonder the average voter couldn’t tell you what either stood for.

I think the deep problem is that people believe things that aren’t true. The government is not like a household. Taxes are not necessary for revenue. The market does not pay people what they are worth. There is no trickle-down. Balanced budgets are not an ideal. The economy does not tend towards equilibrium in the short or long term. There is no separation of the economy from politics. I suggested that part of the problem is that these are all ideas that are drummed into us by teachers, mentors, parents and politicians. These ideas form a barrier preventing most people from understanding the way things actually work.

Once upon a time we thought the internet would give people a platform on which we could as a group address our problems seriously, discuss the issues they raised, and come up with possible solutions. You can find some flashes of discussion among the voters on social media, but for the most part, that’s gone. Worse yet, the idea that good ideas might float up from the voters is gone. Warren and Sanders centered the experience of actual voters in their stump speeches; but those stories never penetrate the fog either. None of this is a reason to give up.

Coming Attractions

I plan to address parts of this problem. I’m going to start with a discussion of a seminal work by John Dewey, perhaps the most well-known Pragmatist. The book, The Public And Its Problems, is available online here. Here’s the Wikipedia entry, which will help explain the context.

Here’s a link to an important paper by Elizabeth Anderson, What Is the Point of Equality, which I discussed in several posts. In one way, this paper helps us see our way to a different future, and I’ll rely on it in future posts.

Personal Note

The pressing issues of this moment, COVID-19 and its repercussions in the economy and our personal lives, are a harsh reminder of our fragility. They drain a good bit of the pleasure out of life. I have had trouble focusing on the kinds of books I usually enjoy, and have been thinking of switching to beach reading even though Spring has yet to reach Chicago. The insane incompetence of this administration is getting to me, and seriously hurting millions of us. There’s no point in writing rage posts, or yelling at the kids to get out of the bars and into Netflix and vitamin C. I hope that having promised to take up this book, I will get past the 12 pages I’ve read so far.

Shelter in Place

In the final hours before the six-county Shelter in Place order came into effect in Northern California, signs went up, people gathered for last drinks, and the homeless tried to find warm places to sleep. Here are some scenes from San Francisco’s Mission District and the Castro, just before the order came into force.

Cliff's Hardware

Cliff’s Variety is a hardware and home goods store which has a cornerstone of the Castro area of San Francisco, even since before it was know as a haven to the gay community. Hardware stores will remain open, but many are limiting their hours and the number of people who can be in the store at any one time.

A San Francisco city worker disinfects a public bathroom late at night in the Castro area. Homelessness is prevalent in the area, and many homeless people rely on these public bathrooms for health and safety.

 

Orphan Andy’s, a diner in the Castro, shuts its doors following the Shelter in Place order.

The Purple Star cannabis dispensary serving customers lining up out the door as people prepare to hunker down in San Francisco’s Mission District.

A Mission District PrEP clinic is closed by the Covid-19 Shelter in Place order, putting people in the community more at risk for HIV transmission. PrEP stands for Pre-Exposure Prophylaxis, and is often given to people at high risk of exposure to HIV, like injection drug users, mixed status couples, and sex workers. PrEP therapies are highly effective at stopping the transmission of the virus, but only if taken daily.

 

 

 

 

Birite, a small high end grocery store near Mission-Delores. Late at night employees are chatting in the closed store, in advance of the Shelter in Place order. Stores have been jammed with people for the past week in San Francisco.

Markets are changing their hours and controlling access, trying to clean and stock shops while keeping their employees and customers safe.

The 24 hour Safeway announces new hours to give employees a chance to clean and stock the story.

 

 

 

 

 


A homeless man in a wheelchair makes his way along a dead-end street next to the 16th and Mission BART station in San Francisco. Having nowhere to go, the homeless are exempt from the Shelter in Place order. Governor Newsom of California has begun securing hotel rooms to bring the homeless inside, but it’s  a fraction of what’s needed to help with the enormous homeless population of the Bay Area.

Two bins in front of a salon in the Castro area of San Francisco protect a homeless sleeper. Salons won’t be among the essential services that can remain open under the Shelter in Place order, and their workers rarely have any form of paid time off.

Harvey’s restaurant and bar, name for Castro human rights legend Harvey Milk, serves a few last patrons before closing for all but delivery service.

Bars in the Mission District that were still open as the Shelter in Place order was about to take effect were often filled, with possibly unwise patrons trying to get in last drinks.

Schools in San Francisco, like Mission High School are closed until April, though it seems possible they won’t reopen for this school year as the pandemic progresses.

Take care of each other.

 

 

 

image_print