Putin’s Ghost: The Counterintelligence Calculus Not Included in the Obstruction Analysis

The Mueller Report does not include the investigation’s counterintelligence analysis. It says that explicitly here (see also this Ben Wittes report, though I think he gets a few things wrong).

From its inception, the Office recognized that its investigation could identify foreign intelligence and counterintelligence information relevant to the FBI’s broader national security mission. FBI personnel who assisted the Office established procedures to identify and convey such information to the FBI. The FBI’s Counterintelligence Division met with the Office regularly for that purpose for most of the Office’s tenure. For more than the past year, the FBI also embedded personnel at the Office who did not work on the Special Counsel’s investigation, but whose purpose was to review the results of the investigation and to send-in writing-summaries of foreign intelligence and counterintelligence information to FBIHQ and FBI Field Offices. Those communications and other correspondence between the Office and the FBI contain information derived from the investigation, not all of which is contained in this Volume. This Volume is a summary. It contains, in the Office’s judgment, that information necessary to account for the Special Counsel’s prosecution and declination decisions and to describe the investigation’s main factual results. [my emphasis]

These FBI Agents were only co-located for part of Mueller’s tenure, perhaps around the same time as the IRA indictment? And this description does not include the three NSD prosecutors described as detailees, Heather Alpino, Ryan Dickey, and Jessica Romero, as distinct from prosecutors originally assigned to Mueller.

Plus, we know there was always a counterintelligence focus to this investigation; all the initial subjects of it (Manafort, Page, Papadopoulos, and Flynn) were counterintelligence concerns. Other Trump associates got added in October 2017, but even there, the investigation into Michael Cohen started as a FARA investigation and Gates and probably others were brought in along with Manafort’s counterintelligence concerns. Then there’s Trump (who must have been brought in for obstruction, but I don’t think the report says how).

But the most significant thing that doesn’t show up in this report is whether Trump was undercutting the investigation as a favor to Russia, reportedly one of the concerns Rod Rosenstein had when he first hired Mueller. This report does not explicitly treat that concern, at all (to significant detriment to one area of its analysis, as I’ll show in a follow-up post).

That’s most evident in the way the report deals with Vladimir Putin in the post-inauguration period. The report itself invokes Putin at least 163 times, often describing the many different efforts to set up a meeting between Putin and Trump. But when Trump actually started meeting with top Russian officials — and Putin specifically — the report gets quiet.

We finally get a read-out of the January 28 phone call

Start with the phone call between Trump and Putin on January 28, 2017. The report describes that setting up this call was among the things Mike Flynn spoke to Sergey Kislyak about.

Flynn discussed multiple topics with Kislyak, including the sanctions, scheduling a video teleconference between President-Elect Trump and Putin, an upcoming terrorism conference, and Russia’s views about the Middle East.

That Kislyak asked him to set up the call was actually something Flynn told the FBI the truth about in his interview with the FBI. More importantly, the report reveals several details that previous reporting about the George Nader channel did not: first, the role of Jared Kushner’s hedge fund buddy Rick Gerson in that back channel with Kirill Dmitriev, and the role that a “reconciliation plan” that Dmitriev got to Kushner via Gerson played in that January 28 meeting.

On January 16, 2017, Dmitriev consolidated the ideas for U.S.-Russia reconciliation that he and Gerson had been discussing into a two-page document that listed five main points: (1) jointly fighting terrorism; (2) jointly engaging in anti-weapons of mass destruction efforts; (3) developing “win-win” economic and investment initiatives; (4) maintaining an honest, open, and continual dialogue regarding issues of disagreement; and (5) ensuring proper communication and trust by “key people” from each country. 1111 On January 18, 2017, Gerson gave a copy of the document to Kushner. 1112 Kushner had not heard of Dmitriev at that time. 1113 Gerson explained that Dmitriev was the head of RDIF, and Gerson may have alluded to Dmitriev’s being well connected. 1114 Kushner placed the document in a file and said he would get it to the right people. 1115 Kushner ultimately gave one copy of the document to Bannon and another to Rex Tillerson; according to Kushner, neither of them followed up with Kushner about it. 1116 On January 19, 2017, Dmitriev sent Nader a copy of the two-page document, telling him that this was “a view from our side that I discussed in my meeting on the islands and with you and with our friends. Please share with them – we believe this is a good foundation to start from.” 1117

Gerson informed Dmitriev that he had given the document to Kushner soon after delivering it. 1118 On January 26, 2017, Dmitriev wrote to Gerson that his “boss”-an apparent reference to Putin-was asking if there had been any feedback on the proposal. 1119 Dmitriev said, ” [w]e do not want to rush things and move at a comfortable speed. At the same time, my boss asked me to try to have the key US meetings in the next two weeks if possible.”1120 He informed Gerson that Putin and President Trump would speak by phone that Saturday, and noted that that information was “very confidential.”1121

The same day, Dmitriev wrote to Nader that he had seen his “boss” again yesterday who had “emphasized that this is a great priority for us and that we need to build this communication channel to avoid bureaucracy.” 1122 On January 28, 2017, Dmitriev texted Nader that he wanted “to see if I can confirm to my boss that your friends may use some of the ideas from the 2 pager I sent you in the telephone call that will happen at 12 EST,”1123 an apparent reference to the call scheduled between President Trump and Putin. Nader replied, “Definitely paper was so submitted to Team by Rick and me. They took it seriously!”1124 After the call between President Trump and Putin occurred, Dmitriev wrote to Nader that “the call went very well. My boss wants me to continue making some public statements that us [sic] Russia cooperation is good and important.” 1125 Gerson also wrote to Dmitriev to say that the call had gone well, and Dmitriev replied that the document they had drafted together “played an important role.” 1126 [my emphasis]

This was a meeting that the US side provided just a terse readout of (and, if I remember correctly, only after Russia released its readout). 27 months later, we’re learning that Dmitriev (whose bank was of questionable status because of sanctions) and convicted pedophile Nader were prepping the meeting less than an hour before it began (the report cites text messages between them from 11:05 and 11:11 AM the morning of the 12PM meeting, as well as texts involving Gerson). Between them, the two of them plus Gerson (none of whom had clearance) had a better sense of how the meeting went than the American public. Among the things they learned — but we did not — was that part of the reconciliation plan included “win-win” economic and investment initiatives pitched by the head of RDIF.

The lead-up to this meeting is the subject about which Steve Bannon and Erik Prince mysteriously lost the encrypted texts they exchanged discussing it.

While the report does describe this meeting in its assessment of links between Russians and Trump associates, it doesn’t focus on how it lines up with questions about firing Mike Flynn.

The correlation of Trump’s decision to fire Comey and his conversation with Putin

The report gets still more coy when it describes the role of a meeting with Sergey Lavrov and Sergey Kislyak the day after Trump fired Jim Comey. One of the most pregnant footnotes in the report (h/t Laura Rozen) notes that the May 10, 2017 meeting was planned in a call between Putin and Trump and confirmed the day Trump first dictated the Comey termination at Bedminster Golf Course.

468 SCR08_000353 (5/9/17 White House Document, “Working Visit with Foreign Minister Sergey Lavrov of Russia”); SCR08_001274 (5/10/17 Email, Ciaramella to Kelly et al.). The meeting had been planned on May 2, 2017, during a telephone call between the President and Russian President Vladimir Putin, and the meeting date was confirmed on May 5, 2017, the same day the President dictated ideas for the Comey termination letter to Stephen Miller. SCR08_001274 (5/10/17 Email, Ciaramella to Kelly et al.).

According to Don McGahn, in the leadup to Comey’s May 3 testimony to Congress, Trump told him that if Comey did not confirm that Trump was not under investigation it would “be the last straw” because it was “hurting his ability to … deal with foreign leaders.”

McGahn recalled that in the week leading up to the hearing, the President said that it would be the last straw if Comey did not take the opportunity to set the record straight by publicly announcing that the President was not under investigation.384 The President had previously told McGahn that the perception that the President was under investigation was hurting his ability to carry out his presidential duties and deal with foreign leaders.385

Trump brought up Comey at least 8 times with Bannon in the following two days, and Bannon warned Trump not to fire Comey.

Bannon recalled that the President brought Comey up with him at least eight times on May 3 and May 4, 2017 .399 According to Bannon, the President said the same thing each time: “He told me three times I’m not under investigation. He’s a showboater. He’s a grandstander. I don’t know any Russians. There was no collusion.”400 Bannon told the President that he could not fire Comey because “that ship had sailed.”401 Bannon also told the President that firing Comey was not going to stop the investigation, cautioning him that he could fire the FBI director but could not fire the FBI.402

On the 5th — the day (the report helpfully notes) the Russian meeting was confirmed — Trump dictated to Stephen Miller to start Comey’s termination letter by stating that the Trump-Russia story was fabricated.

[T]he President told Miller that the letter should start, “While I greatly appreciate you informing me that I am not under investigation concerning what I have often stated is a fabricated story on a Trump-Russia relationship – pertaining to the 2016 presidential election, please be informed that I, and I believe the American public – including Ds and Rs – have lost faith in you as Director of the FBI.”

Trump prohibited Miller from telling anyone at the White House about his plan to fire Comey.

All that would lead you to believe the report might make further note about this correlation, about the appearance (which had already been suggested, but the report makes far more clear) that Trump took action in advance of that meeting.

It doesn’t really. The description of the meeting does make clear that, in the wake of Trump’s comments to Lavrov boasting about firing Comey, the White House released a statement that incorporated and expanded on the language about Comey’s grandstanding from finalized Miller letter drafted at Bedminster.

In the morning on May 10, 2017, President Trump met with Russian Foreign Minister Sergey Lavrov and Russian Ambassador Sergey Kislyak in the Oval Office.468 The media subsequently reported that during the May 10 meeting the President brought up his decision the prior day to terminate Comey, telling Lavrov and Kislyak: “T just fired the head of the F.B.I. He was crazy, a real nut job. I faced great pressure because of Russia. That’s taken off. … I’m not under investigation.”469 The President never denied making those statements, and the White House did not dispute the account, instead issuing a statement that said: “By grandstanding and politicizing the investigation into Russia’s actions, James Comey created unnecessary pressure on our ability to engage and negotiate with Russia. The investigation would have always continued, and obviously, the termination of Comey would not have ended it. Once again, the real story is that our national security has been undermined by the leaking of private and highly classified information.”470 Hicks said that when she told the President about the reports on his meeting with Lavrov, he did not look concerned and said of Comey, “he is crazy.”471 When McGahn asked the President about his comments to Lavrov, the President said it was good that Comey was fired because that took the pressure off by making it clear that he was not under investigation so he could get more work done.472 [my emphasis]

What the report doesn’t mention, at all, is that Trump shared sensitive Israeli intelligence with the Russians at this meeting, an obvious counterintelligence concern.

Trump’s secret co-author on the June 9 meeting statement

An even more remarkable silence in the report pertains to the conversation Trump had with Putin at the G20 while his team was working on drafting the statement about the June 9 meeting.

The description of Trump’s actions on this matter are fairly superlative, with Hope Hicks describing Trump in what is best described as denial, refusing to be included in conversations about it, yet strongly suggesting that it was Trump making the comment — suggesting they could withhold the damning emails — that Mark Corallo later attributed to her. Hicks even describes Trump as committing what he considered the ultimate sin, not commenting on a story.

On July 7, 2017, while the President was overseas, Hicks and Raffel learned that the New York Times was working on a story about the June 9 meeting.695 The next day, Hicks told the President about the story and he directed her not to comment.696 Hicks thought the President’s reaction was odd because he usually considered not responding to the press to be the ultimate sin.697

The report then describes how (in what would have been in the wake of Trump’s first face-to-face meeting with Putin) Trump instructed her to claim the meeting was just about adoptions. It then describes Trump dictating a statement, watering down the offer of dirt to just adoptions, something that not even Don Jr was willing to put out.

Later that day, Hicks and the President again spoke about the story.698 Hicks recalled that the President asked her what the meeting had been about, and she said that she had been told the meeting was about Russian adoption.699 The President responded, “then just say that.”700

On the flight home from the G20 on July 8, 2017, Hicks obtained a draft statement about the meeting to be released by Trump Jr. and brought it to the President.701 The draft statement began with a reference to the information that was offered by the Russians in setting up the meeting: “I was asked to have a meeting by an acquaintance I knew from the 2013 Miss Universe pageant with an individual who I was told might have information helpful to the campaign.”702 Hicks again wanted to disclose the entire story, but the President directed that the statement not be issued because it said too much.703 The President told Hicks to say only that Trump Jr. took a brief meeting and it was about Russian adoption.704 After speaking with the President, Hicks texted Trump Jr. a revised statement on the June 9 meeting that read:

It was a short meeting. I asked Jared and Paul to stop by. We discussed a program about the adoption of Russian children that was active and popular with American families years ago and was since ended by the Russian government, but it was not a campaign issue at that time and there was no follow up. 705

Hicks’s text concluded, “Are you ok with this? Attributed to you.”706 Trump Jr. responded by text message that he wanted to add the word “primarily” before “discussed” so that the statement would read, “We primarily discussed a program about the adoption of Russian children.”707 Trump Jr. texted that he wanted the change because “[t]hey started with some Hillary thing which was bs and some other nonsense which we shot down fast. “708 Hicks texted back, “I think that’s right too but boss man worried it invites a lot of questions[.) [U]ltimately [d]efer to you and [your attorney] on that word Be I know it’s important and I think the mention of a campaign issue adds something to it in case we have to go further.” 709 Trump Jr. responded, “lfl don’t have it in there it appears as though I’m lying later when they inevitably leak something.” 710

The passage mentions nothing about Trump’s meeting, with no American aides, with Putin at the G20 dinner in between the first discussion of a statement about adoptions and the one Trump drafted personally.

Nor does the report, in repeated discussions of Trump’s unplanned interview with the NYT at which he admitted discussing adoptions with Putin that night, mention that admission.

Within hours of the President’s meeting with Lewandowski on July 19, 2017, the President gave an unplanned interview to the New York Times in which he criticized Sessions’s decision to recuse from the Russia investigation.630 The President said that “Sessions should have never recused himself, and if he was going to recuse himself, he should have told me before he took the job, and I would have picked somebody else.”631 Sessions’s recusal, the President said, was “very unfair to the president. How do you take a job and then recuse yourself? If he would have recused himself before the job, I would have said, ‘Thanks, Jeff, but I can’t, you know, I’m not going to take you.’ It’s extremely unfair, and that’s a mild word, to the president.”632 Hicks, who was present for the interview, recalled trying to “throw [herself] between the reporters and [the President]” to stop parts of the interview, but the President “loved the interview.”633

[snip]

On July 19, 2017, the President had his follow-up meeting with Lewandowski and then met with reporters for the New York Times. In addition to criticizing Sessions in his Times interview, the President addressed the June 9, 2016 meeting and said he “didn’t know anything about the meeting” at the time.734 The President added, “As I’ve said-most other people, you know, when they call up and say, ‘By the way, we have information on your opponent,’ I think most politicians – I was just with a lot of people, they said … , ‘Who wouldn’t have taken a meeting like that?”‘735

Trump’s admission that he spoke to Putin about adoptions in the same interview where he prepared the ground to fire Sessions and insisted that everyone would take a meeting with foreigners offering dirt on your opponent would seem important to the discussion of whether in attempting to fire Sessions, Trump was obstructing not a criminal investigation into his own conduct, but a counterintelligence investigation into his own ties with Putin.

But the report not only doesn’t consider it, the report doesn’t mention it.

Nor does the report discuss some of the other bizarre Trump interactions with Putin, most of all the Helsinki meeting that took place in the wake of the release of the GRU indictment, leading Trump to yet again very publicly deny Russia’s role in the attack, that time in the presence of Putin himself.

Now, there may be very good constitutional reasons why the analysis of Trump’s weird relationship with Putin as President is not part of this report. The President is empowered with fairly unlimited authority to conduct foreign policy and to declassify information, which would cover these instances.

Plus, if Mueller conducted this analysis, you wouldn’t want to share that publicly so the Russians could read it.

But it must be noted that the report doesn’t answer what a lot of people think it does: whether Trump has been compromised by Russia, leading him to pursue policies damaging to US interests. Let me very clear: I don’t think Trump is a puppet being managed by Vladimir Putin. But contrary to a great number of claims that this report puts those concerns to rest, the report does the opposite. With the limited exception of the suggestion of a tie between firing Comey and the meeting with Lavrov, the report doesn’t even mention the key incidents that would be the subject of such analysis.

If anything, new details released in this report provide even further reason to think Trump obstructed the Russian investigation to halt the counterintelligence analysis of his ties with Russia. But the report itself doesn’t ever explicitly consider whether that’s why Trump obstructed this investigation.

Update: As TC noted, one thing the report does include is the detail that during a period he was trying to fire Sessions, Trump wanted him to limit Mueller’s mandate to future elections, which would have the effect of limiting the investigation into Russia’s crime as well as any potential exposure of his own.

During the June 19 meeting, Lewandowski recalled that, after some small talk, the President brought up Sessions and criticized his recusal from the Russia investigation.605

The President told Lewandowski that Sessions was weak and that if the President had known about the likelihood of recusal in advance, he would not have appointed Sessions.606 The President then asked Lewandowski to deliver a message to Sessions and said “write this down.” 607 This was the first time the President had asked Lewandowski to take dictation, and Lewandowski wrote as fast as possible to make sure he captured the content correctly.608 The President directed that Sessions should give a speech publicly announcing: I know that I recused myself from certain things having to do with specific areas. But our POTUS . .. is being treated very unfairly. He shouldn’t have a Special Prosecutor/Counsel b/c he hasn’t done anything wrong. I was on the campaign w/ him for nine months, there were no Russians involved with him. I know it for a fact b/c I was there. He didn’t do anything wrong except he ran the greatest campaign in American history.609

The dictated message went on to state that Sessions would meet with the Special Counsel to limit his jurisdiction to future election interference:

Now a group of people want to subvert the Constitution of the United States. T am going to meet with the Special Prosecutor to explain this is very unfair and let the Special Prosecutor move forward with investigating election meddling for future elections so that nothing can happen in future elections.610

emptywheel’s Mueller Report coverage

The Significance of Trump’s Obstruction of Investigation of His Family’s Campaign Finance Crimes, Plural

How “Collusion” Appears in the Mueller Report

Putin’s Ghost: The Counterintelligence Calculus Not Included in the Obstruction Analysis

Working Twitter Threads on the Mueller Report

The Trump Men and the Grand Jury Redactions

Mueller’s Language about “Collusion,” Coordination, and Conspiracy

The Many Lies and Prevarications of Bill Barr

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

The Many Lies and Prevarications of Bill Barr

Here’s the report. Use this thread to comment. (Here’s a searchable copy.)

Here’s a transcript of Bill Barr’s speech, once again spinning the Mueller Report. Effectively, what he did was pretend that “collusion” was the same thing as conspiracy, and having done so judge that the President didn’t obstruct justice because he was frustrated.

Repeats the sentence fragment without giving us the sentence

In Barr’s memo, he quoted a sentence fragment to claim that Mueller didn’t find any efforts to conspire with Russia. But then, as now, Barr only quoted part of the full sentence.

As you will see, the Special Counsel’s report states that his “investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”

We don’t know what the first half of that sentence says, and it may well be damning.

Turns Trump campaign’s unknowing coordination into no collusion

In the paragraph on the IRA, Barr emphasizes that no Trump people knowingly coordinated with the IRA trolls.

But the Special Counsel found no evidence that any Americans – including anyone associated with the Trump campaign – conspired or coordinated with the Russian government or the IRA in carrying out this illegal scheme.  Indeed, as the report states, “[t]he investigation did not identify evidence that any U.S. persons knowingly or intentionally coordinated with the IRA’s interference operation.”  Put another way, the Special Counsel found no “collusion” by any Americans in the IRA’s illegal activity.

We know that three Trump campaign officials unknowingly coordinated with the IRA’s interference operation. That’s not knowing collusion. But Barr overstates the Trump campaign innocence.

Turns no conspiring on the hack into no collusion

One of the most egregious instances of Barr’s word games comes when he turns the fact that Trump didn’t help hack the DNC into “no collusion.’

But again, the Special Counsel’s report did not find any evidence that members of the Trump campaign or anyone associated with the campaign conspired or coordinated with the Russian government in its hacking operations.  In other words, there was no evidence of Trump campaign “collusion” with the Russian government’s hacking.

No one ever thought that Trump’s flunkies hacked the DNC. But Trump did encourage it. Which is collusion, according to some definitions of the goddamned meaningless term.

Clears Trump of “collusion” because Roger Stone’s “collusion” was legal

This passage, which talks about the publication of the WikiLeaks documents, engages in further word games.

The Special Counsel’s investigation also examined Russian efforts to publish stolen emails and documents on the internet.  The Special Counsel found that, after the GRU disseminated some of the stolen materials through its own controlled entities, DCLeaks and Guccifer 2.0, the GRU transferred some of the stolen materials to Wikileaks for publication.  Wikileaks then made a series of document dumps.  The Special Counsel also investigated whether any member or affiliate of the Trump campaign encouraged or otherwise played a role in these dissemination efforts.  Under applicable law, publication of these types of materials would not be criminal unless the publisher also participated in the underlying hacking conspiracy.  Here too, the Special Counsel’s report did not find that any person associated with the Trump campaign illegally participated in the dissemination of the materials.

Even Donald Trump “encouraged” the dissemination of the WikiLeaks documents. But the Stone indictment shows that he had some success at optimizing the release of the emails. Here, Barr shifts to emphasizing that the Trump campaign involvement in the dissemination was not illegal — effectively admitting that the Trump campaign “colluded,” but then saying because it wasn’t illegal collusion it’s no big deal.

Falsely claims that no Trump associate conspired with a Russian

Barr summarizes Mueller’s investigation into the links between Russians and Trump’s associates by claiming none of them engaged in a conspiracy to violate US law involving Russian linked persons.

Finally, the Special Counsel investigated a number of “links” or “contacts” between Trump Campaign officials and individuals connected with the Russian government during the 2016 presidential campaign.  After reviewing those contacts, the Special Counsel did not find any conspiracy to violate U.S. law involving Russia-linked persons and any persons associated with the Trump campaign.

This is outright false. Paul Manafort pled guilty to a conspiracy to money launder and violate FARA; Konstantin Kilimnik was involved in that. That conspiracy went through 2016. And Kilimnik was named a co-conspirator with Manafort on his 2018 witness tampering.

Leans on “collusion” as basis for his obstruction analysis

At the beginning of Barr’s discussion of obstruction of justice, he relies on “collusion,” not conspiracy.

After finding no underlying collusion with Russia, the Special Counsel’s report goes on to consider whether certain actions of the President could amount to obstruction of the Special Counsel’s investigation.

Admits some of Trump’s acts amount to obstruction

Barr says that he and Rosenstein disagreed that some of the instances of obstruction Mueller analyzed were obstruction.

Falsely claims that the House Judiciary Committee doesn’t have a constitutionally proper claim to grand jury information

Finally, then Barr pretends that by letting members of Congress access the report — save grand jury material — that is legally sufficient.

Given the limited nature of the redactions, I believe that the publicly released report will allow every American to understand the results of the Special Counsel’s investigation.  Nevertheless, in an effort to accommodate congressional requests, we will make available to a bipartisan group of leaders from several Congressional committees a version of the report with all redactions removed except those relating to grand-jury information.  Thus, these members of Congress will be able to see all of the redacted material for themselves – with the limited exception of that which, by law, cannot be shared. [my emphasis]

The House Judiciary Committee has a constitutionally proper claim to that grand jury material to conduct an impeachment inquiry. Claiming that it cannot be shared legally is both historically and legally false.

Our Lady of Paris

[NB: Check the byline, thanks! /~Rayne]

Once upon a time way back in the day when I was still wet behind the ears, I was a draftsman. I worked with architects and structural engineers drawing all kinds of buildings and structures, from public schools to bridges, churches to foundries.

There was nothing like the unlimited promise of virgin vellum beneath my graphite, waiting to become something realized in two dimensions before it became real in three dimensions. I still miss that feeling, watching the crisp expanse of white and grey lines become a building I would eventually see built across town.

You can imagine what a structure like the Notre-Dame of Paris means to someone who made a living working with designers, builders, and craftsmen responsible for buildings used by the public. What an immense challenge she must have been to the artisans of her time, all working together to make this incredible monument to human skill and dedication.

It has also meant a lot to me because some of my antecedents were French and Catholic. My family can trace them through church records to the 16th century and the religious wars which destroyed earlier churches and ravaged Notre-Dame at one time. Their lives were shaped in some way by the politics that worked through the French Catholic church and Notre-Dame.

Some of my family lived within sight of the cathedral at Rouen; others lived within sight of the cathedral at Poitiers, both of them built using similar flying buttress architecture like that of Notre-Dame de Paris. Though not all my family were Catholic at the time, it was a family member who was very tight with the church who was selected to assist and travel with the brethren of the Society of Jesus in what would become Quebec. Were it not for this relationship between this ancestor and the church, I would not be here writing this in North America today. There are millions of us across the country who share similar heritage.

A day after the fire started, what’s left after the flames’ destruction looks better than it could have though I remain skeptical about the scale of loss. I haven’t worked with restoration of structures this old, but I’ve worked on recovery for a number of projects, some of which were damaged during construction and repairs. They are nearly always more challenging than initial estimates.

At this point I want to interject and make a point about Glenn Beck’s utterly ignorant and irresponsible remark yesterday, intended to stir religious hate. He knows jack shit about construction and restoration, let alone how to care for 800-year-old antiques. Anything he says is uninformed on this topic.

It would have been incredibly easy for the cathedral to catch fire during repairs. If you’ve ever run a power saw and hit something metal, you know sparks are a realistic risk. There could have been problems with electrical equipment; we don’t know if there was any aged wiring installed in the roof.

Nor was this France’s “9/11 moment” as Beck called it. This wasn’t a terrorist embedded in a construction crew, working diligently for months to assemble a massive scaffolding platform around the flèche (spire) of the Notre-Dame, taking down the copper statues, waiting for the perfect moment to drop a match out of religious hate. What idiotic poppycock.

Meanwhile, within reach of aged tapestries, hundreds of votive candles continued to burn in the nave throughout the fire. Sure, Beck, it was a terrorist on the roof when a determined terrorist could simply have walked in through the massive Portal of the Judgement smack in the middle at the west end of the cathedral.

Construction accidents like this happen. I’ve worked on projects that had major failures, most often due to contractors unintentionally skipping a step in the project plan, and the investigation afterward can be grueling. It’s why these kinds of restoration jobs can be difficult to bid out — imagine trying to underwrite this particular job.

What will make this restoration job different and possibly easier is the wealth of accumulated knowledge from other church fires and restorations — like Sweden’s Katarina Church or the cathedral of Reims — as well as data gathered about the Notre-Dame

One data source certain to be employed is the digital scans made of Notre-Dame by art historian Andrew Tallon. Though he died in 2018, his work documenting the cathedral’s structure will live on in the restoration to come. Thank goodness for his personal obsession with Notre-Dame assured a digitized image which also indicated structural weakness from centuries of aging before the fire which must be repaired.

Some of aging, reported on last year, had already been under repair — and here we are, faced with an even larger repair.

At least this time the repairs may last longer than the ones done after Victor Hugo wrote the Hunchback of Notre Dame. France has begun a campaign to phase out fossil fuel vehicles with Paris leading the way. Air pollution has hastened the decline of buildings like the Notre-Dame as emissions are acidic and eat at structures. By this summer diesel vehicles 20 years old or older will be banned from Paris; eventually, all fossil fuel vehicles will be banned from Paris by 2030 and all of France by 2040.

Perhaps by then the reconstruction of Notre-Dame de Paris will be completed to face a cleaner future.
_______

What burned yesterday:

This graphic isn’t particularly good quality but it does a reasonable job of depicting the greatest portion of the building affected by fire — the roof trusses above the stone vaulted ceiling as well as the metal cladding.

Here is another older drawing of the Notre-Dame in cross section (source unknown):

What we don’t know yet is how much of roofing over the aisle/gallery on each side of the cathedral may have been involved or damaged by water used on the roof above. Nor do we know how much of any flammable items were damaged inside the church, from pews to the organ, nor do we yet know the full scale of the damage to the church’s once-magnificent stained glass windows. It appears the famous Rose windows may have been saved.

This link shows the Notre-Dame’s metal roof — note the grey lead in contrast to the verdigris copper statuary which had thankfully been removed from around the flèche during the ongoing repairs. The lead has all melted or vaporized.

Note also in the image at this link the stonework shows decay; the basic-to-neutral Lutetian limestone has been softened by acid rain caused by air pollution. Let’s hope the reconstruction project will address these problems at the same time as they have begun to threaten the stability of the structure.

And no matter what you hear about the reconstruction project to come, it’s still too soon for an assessment as the stones are likely still warm and have not fully cooled to pre-fire temperatures. Rapid cooling of the stone may continue the fire’s damage, causing cracks into which water and pollution can settle and expand, breaking stones.

It is, however, a perfect time to talk about funding the work ahead and whether the work will duplicate the original as much as possible or incorporate contemporary technology to ensure a longer span of time between future repairs.

This is an open thread. Do bring all your discussion about Notre-Dame de Paris here, though.

The Many Sided Stone: The Investigation Is Not Over

While we have been talking about how good and done Robert Meuller’s investigation is, a slew of filings and other reports relating to Roger Stone in the last few days remind us that the fruits of his investigation are definitely not done.

Roger Stone’s cry for help

As background, consider this cry for help, in a local, as opposed to the kind of national media outlets that had recently hung on Roger’s every word. In it, he describes the burden of spending all his money on defense attorneys.

“The worst part of this is being broke,” he said on the SiriusXM program that airs weekdays on the Faction Talk channel 103.

“I’ve lost my home, my insurance, what little savings I had, my ability to make a living because people pay me to write and talk, and of course the things they want me to write and talk about are the very things I’m not allowed to talk and write about. In the blink of an eye you can lose everything.

“I have to pay everything I have to lawyers. And I could no longer pay the rent in the property that I was in. I moved from a nine-bedroom house to a one-bedroom apartment. Had to do the move myself with my wife renting a truck. On the last day of the move in kind of a freak accident the truck slips out of gear and rolls over my wife’s ankle, breaking it.”

More interestingly, Stone claims he hasn’t spoken with Donald Trump for almost two years (he doesn’t say whether his attorneys have spoken to Trump’s attorneys).

“I’ve known him for 40 years. We’re very good friends. I don’t agree with everything he does, I agree with a lot of what he does,” Stone said. Stone said Trump was at his wedding, and he at two of Trump’s weddings; he was at the funerals for Trump’s parents, and is friendly with his sister. “I do miss him.”

He also complains that Alex Jones is not selling T-shirts for him.

“I am grateful for Alex Jones for giving me a platform. He is a friend of mine. I like the guy, I like hanging out with him. I do not agree with everything he says, I agree with some of the things he says. He probably doesn’t agree with everything I say. But you know, the check would be nice.”

While I’m sure Stone exaggerates his financial straits, I’m also sure they’re considerable. These two specific calls for help, though (especially in the wake of allegations that InfoWars may have been providing hush money to Jerome Corsi), are especially interesting.

Stone’s throw of the dice

Meanwhile, the lawyers that are bankrupting Stone have been busy, filing six challenges to his indictment last night, several of them meritorious, the others not. The motions include:

  1. A bid to throw out the prosecution on several grounds designed to appeal to William Barr’s prejudices
  2. A demand for the full Mueller report based on some specious (appeals to Bill Barr) and some justified bases (prosecutorial decisions on Jerome Corsi and Randy Credico)
  3. A motion to enjoin his prosecution based on a claim that Congress hadn’t funded this Special Counsel investigation
  4. A motion to dismiss based on the claim that Mueller violated separation of powers by charging him for lying to HPSCI without a formal referral
  5. A request for discovery to support a selective prosecution claimed designed, in large part, to accuse Randy Credico of lying to the grand jury
  6. A renewed objection to having his case judged by Amy Berman Jackson along with the GRU hackers

He seems to be pursuing several strategies (beyond just throwing a bunch of spaghetti against the wall).

Embarrass Credico

The first is to use the motions process to discredit the witnesses against him. That’s most true of a passage of his selective prosecution motion that accuses Credico of lying to the grand jury.

Another witness, Randy Credico lied about speaking to Assange and Assange’s lawyer to federal agents. It is curious that the Special Counsel found one aspect of Credico’s interactions with Stone so compelling that it made its way into Stone’s Indictment. In Paragraph 14(e) of the Indictment, the Special Counsel quotes the conversation between Stone and Credico from Credico’s radio show of August 23, 2016. Stone and Credico have a discussion regarding communications with the “head of Organization 1.” Yet, astonishingly, in Credico’s testimony to the Grand Jury (DOJ-3500-RC-000111) Transcript Page 44, Lines 7-22, Credico tells the Grand Jury that on the very show they quote, Stone and Credico never discussed the head of Organization 1. For unknown reasons and the precise reason why discovery is mandated in these situations, the Special Counsel elected not to charge Credico with lying to the Grand Jury, something expressly within their regulatory authority.

Later in his testimony, Credico says that prior to his interview with presidential candidate Gary Johnson on September 10, 2016, that he had never spoken to Stone about WikiLeaks or Assange.3 This is a demonstrated lie as according to the text messages between Stone and Credico that Stone voluntarily released, and the Special Counsel possessed. As early as August 19, 2016, Credico was bragging to Stone that he had a connection to Assange and that it was through Margaret Kunstler, Esq., an attorney represented to be on Julian Assange’s legal team. There is no indication based on the initial review of discovery provided by the government that the Grand Jury was ever informed of Credico’s lies regarding the August 23d radio interview.

It’s unclear whether Stone’s representation of Credico’s grand jury testimony is fair. But if it is, the selective prosecution claim provides a way to discredit Credico.

Appeal to Barr and Trump

Then there’s a series of arguments that appear to be an attempt to appeal to Bill Barr’s prejudices, and through him, Trump. There’s the separation of powers argument about the lack of a criminal referral that suggests — incorrectly — that Mueller would have needed to rely on Adam Schiff’s testimony to assess whether and how Stone lied in his testimony (as a matter of courtesy, HPSCI shared informal copies of the transcripts with the IC) and claims — probably ridiculously — that an equivalent example of Barr’s contention that the president can’t be guilty of obstruction without committing the underlying crime is also true for the President’s rat-fucker. Stone repeats this argument in his demand for the full Mueller report, claiming that it will show there was no “collusion,” which therefore means he couldn’t obstruct anything.

The most novel of these arguments, however, is that the President — and his campaign from before he was elected!! — can’t be investigated under the Take Care Clause. This is mostly bullshit, a dime store version of Bill Barr’s own opininion excusing many kinds of obstruction for the President. Trump will like it best where Stone argued that investigating all links with Russia inhibited Trump’s ability to conduct foreign policy.

The Mueller Appointment grants the Special Counsel the authority to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.” Accordingly, every action taken by President Trump since he formed his campaign with regard to the United States’ relationship with Russia has been second guessed as evidence of “collusion,” or a conspiracy between Trump and Putin.20 Many have asserted that Putin has some form of control over Trump.21 The Special Counsel investigation has stimulated this second guessing, significantly undermining the President’s ability to conduct foreign policy with regard to Russia. The Special Counsel investigation hog-ties the President in the execution of his foreign policy.

The Mueller Appointment not only hobbles the President’s ability to conduct a rational foreign policy with regard to Russia, it undermines his ability to deal with every world leader. No President can deal effectively with the heads of other nations when he is the subject of a Department of Justice investigation that is prominently being portrayed in the press as imminently removing him from office. Counterparts will be inhibited in reliance on a President who may not serve out his term

This is bait for the frothy right. More importantly, it treats Roger Stone as the President for investigative purposes when according to both him and the President he wasn’t even formally part of the campaign for the key periods under investigation.

This is mostly spaghetti throwing for the frothy right, but there’s no telling what will happen if some of the nuttier GOP judges latch on to one of these strands of spaghetti.

Engage in graymail

Stone repeats his demand for the full Mueller report in several ways — first in a bid for the report itself, then as the “prologue” to a bunch of mostly spurious attacks on Mueller’s authority (some of which have already been rejected in the larger Mueller investigation). This is graymail. Of course Stone is not going to get the full report, which includes grand jury material unrelated to his prosecution and descriptions of ongoing investigations likewise unrelated to his prosecution. But he probably does have a good case to claim that he should get the parts that will be redacted for us that pertain to him.

Misstate Barr’s citation of Mueller’s findings

I’m perhaps most interested in the way Stone engages in Russian hack trutherism. For example, his first justification for needing the full Mueller report — even before he claims to need to know why Credico and Corsi weren’t charged — is to understand Mueller’s “assumption” that Russia hacked the Democrats (something that Stone himself admitted until August 2016, when it became inconvenient).

His lawyers must be allowed to review the Report in its entirety because it contains the government’s evidence and conclusions on matters essential to Stone’s defense. Starting with the base assumptions by the Special Counsel that Russians hacked the Democratic National Committee, Democratic Congressional Campaign Committee, and Clinton Campaign email databases (see Indictment, ¶¶ 1-3, 7, 18, 20, 39);

And in Stone’s bid to get his case reassigned, he makes several misrepresentations of the public record. For example, he claims Barr’s representation of Mueller’s finding said there was no evidence of “collusion” between Trump’s associates and Russia.

The Office of the Special Counsel has since concluded its investigation and has found that there is no evidence of collusion between Russia and those associated with the presidential campaign of Donald J. Trump.

Barr addressed only conspiracy and coordination, and all the language is consistent with Mueller not finding enough evidence to charge it, while finding some evidence.

Stone also claims that prosecutors have claimed that his case is associated with the GRU indictment only because communications between Stone and Guccifer 2.0 were obtained with the GRU warrants.

Previously, however, opposing counsel designated this case as related to that of United States of America v. Netyksho, et al. (1:18-cr-00215-ABJ), because the government claimed that communications between Guccifer 2.0 and Stone were obtained from the Netyksho search warrant.

If they said specifically that, then it was in private. In public, the government said this:

The defendant’s false statements did not arise in a vacuum: they were made in the course of an investigation into possible links between Russian individuals (including the Netyksho defendants), individuals associated with the dumping of materials (including Organization 1), and U.S. persons (including the defendant).

[snip]

In the course of investigating that activity, the government obtained and executed dozens of search warrants on various accounts used to facilitate the transfer of stolen documents for release, as well as to discuss the timing and promotion of their release. Several of those search warrants were executed on accounts that contained Stone’s communications with Guccifer 2.0 and with Organization 1.

Even ignoring that Stone seems to cede that at least one of the number of warrants referred to in that filing included his communications with Guccifer 2.0, it’s even more amusing that Stone ignores WikiLeaks — I wonder if they took it out after Julian Assange got arrested?

Stone then misstates another thing Barr said, claiming he claimed no American citizens conspired with “Russian agents.”

[T]he Department of Justice has concluded that there was no conspiracy between Russian agents and any American citizen, including Roger Stone, this “connection” is unsubstantiated.

What the Barr memo actually says about the hack-and-leak operation is,

Special Counsel did not find that the Trump campaign, or anyone associated with it, conspired or coordinated with the Russian government in these efforts, despite multiple offers from Russian-affiliated individuals to assist the Trump campaign.

Barr’s statement only refers to the Russian government, not possible Russian cut-outs like WikiLeaks, and only discusses Americans with ties to Trump.

Stone then claims that the GRU indictment claims no American was part of the conspiracy.

Additionally, the only document filed in Netyksho, the Indictment, states no American was part of the conspiracy charged. There is nothing left to “connect” Roger Stone to.

It doesn’t name any Americans, but also doesn’t say no Americans were part of the conspiracy. Here’s what it says about the conspirators.

[The defendants] were GRU officers who knowingly and intentionally conspired with each other, and with persons known and unknown to the Grand Jury (collectively the “Conspirators”),

Stone’s effort to get a new judge is not going to work in any case. Which leads me to wonder why he repeatedly misstates the public record.

In any case, assuming normal judicial review, Stone’s request for more of the Mueller report might have promise and he could get some thoughtful briefing on a few of the other claims. But most of this is wall-splat for specific audiences: Trump, Barr, and the frothy right.

Andrew Miller claims he has been mooted

Meanwhile, as expected, Stone associate Andrew Miller just requested an en banc review of the DC Circuit ruling that he needs to testify against Stone. Along with the arguments he already lost on, he is now asking the court to find out whether the government really still needs his testimony, arguing (in part) that Mueller’s authority has expired.

Since the subpoena issued to Mr. Miller was for the purpose of obtaining evidence related to Mr. Stone’s connection with WikiLeaks, Julian Assange, and Guccifer 2.0, it would appear that the Special Counsel would no longer need Mr. Miller’s testimony regarding that subject matter. Nevertheless, the next business day, Monday, January 28, 2019, undersigned counsel was advised by the Special Counsel’s office that it believed the case to be a live controversy since the grand jury was still active, though it was not apparent whether the grand jury or its foreperson was consulted as to any continued interest in hearing Mr. Miller’s testimony. 3

On March 22, 2019, Special Counsel submitted his final report to Attorney General Barr pursuant to the Special Counsel regulations, 28 C.F.R. 600.8(c), concluding his investigation, explaining his prosecutions and declinations, and finding that no conspiracy or coordination took place between the Trump campaign or any aides associated with the campaign and Russia regarding interference with the 2016 campaign or hacking the emails of Hillary Clinton or the DNC. 4 No further indictments are expected. According to Justice Department spokesperson Kerri Kupec, “The investigation is complete.”5 Thus, like Cinderella’s carriage that turned into a pumpkin at midnight, Special Counsel Mueller’s authority expired. Accordingly, the intervening events described above that have occurred since the issuance of the subpoena in question over nine months ago, strongly, if not definitively, demonstrate Mr. Miller’s testimony regarding Mr. Stone is no longer required nor can be legally obtained. Thus, this Court should invite the government’s views to verify whether this case continues to be a live controversy or is moot to assure itself that it continues to possess judicial power to adjudicate the instant petition for rehearing and suggestion for rehearing en banc and any subsequent action in this appeal

3 Notably, while the mandate was stayed as is the usual practice until 7 days after the time for the filing a petition for rehearing had expired or after disposition of any timely filed petition (45 days from the decision, or April 12), the Special Counsel had the right to ask the Court to issue the mandate ever since February 26 if Mr. Miller’s testimony was needed. The Special Counsel declined to do so. [my emphasis]

This is really just decoration on an en banc review that will be denied, but along the way he’s fishing for information about where else prosecutors (including the DC AUSAs who’ve been involved since Stone’s indictment, at least) are headed.

Mueller may be done but prosecutors are not

Which brings us, finally, to this response from prosecutors (signed by two DC AUSAs, Jonathan Kravis and Michael Marando, from the Stone team and Aaron Zelinsky from the Mueller team) in response to what is fairly characterized as a media request for all outstanding warrant materials in the Mueller investigation, with a focus on Stone. After getting two extensions, one because the attorneys involved in it were involved in a press of other work, one to transition to the DC AUSAs who’d take over because Mueller was done, the government today issued a narrowly targeted (to Stone) response.

After introducing the scope of the investigation as it proceeded from Comey’s March 20, 2017 scope to Mueller’s May 17, 2017 scope to his March 22, 2019 closure, the government response then stated the media request in remarkably narrow terms, focused just on Stone.

The movants seek to unseal search warrant materials related to the Stone prosecution. Specifically, the movants seek unsealing of “warrants, applications, supporting affidavits, and returns relating to all search or seizure warrants relevant to the prosecution of Roger J. Stone, Jr.” Doc. 4, at 2 (Order) (quoting Media Coalition Mem. 1). 2 It is unclear whether the movant’s request is limited to warrants issued pursuant to Rule 41 or also includes warrants under the SCA. In an abundance of caution, the government is treating the request as covering both categories. It is similarly unclear whether the reference to “warrants relevant to the Prosecution of Roger J. Stone, Jr.” means only warrants to search Stone’s property and facilities or includes other warrants that were executed as part of the same line of investigation. Again, in an abundance of caution, the government is treating the request as covering both categories.3

2 In places, the movant more broadly references warrant materials pertaining to “the Russia investigation” (Mot. 1, 4; Mem. 4) and once references “Manafort records” (Mot. 3). Consistent with this Court’s March 1, 2019 order (Doc. 4, at 2), and the movants’ detailed description of the records sought, see Mem. 4-5, the government understands those references as context for this specific request to unseal records related to the prosecution of Stone. See Mot. 1, 3, 4; Mem. 1, 4, 5.

Yes, it makes a big show of interpreting the media request broadly to interpret the request as both a request for Rule 41 and Stored Communication Act warrants and both Stone’s property and others (though again, they remarkably blow off all requests for anyone but Stone). But then they get to footnote 3, which reveals that there were warrants targeting entirely different people that ended up “merely happen[ing] to yield evidence that concerns Stone.”

3 The government does not understand the request to include warrants that were not related to Stone or that line of investigation but that merely happened to yield evidence that concerns Stone and is being provided to him in discovery.

This is a fairly remarkable disclosure, that the government obtained warrants thinking they were getting one thing that “merely happened to yield evidence that concerns Stone.” Particularly when you consider the earlier discussion of the “multiple lines” of Mueller’s investigation, some of which have been spun off.

The Special Counsel’s investigation has involved multiple lines of inquiry. Many have been handled in the Special Counsel’s Office. But the Special Counsel has also referred a number of matters to other offices in the government for investigation.

[snip]

On March 22, 2019, the Special Counsel notified the Attorney General that he had completed his investigation into Russian interference in the 2016 presidential election. The Special Counsel, however, referred a number of matters to other offices in the Department of Justice. Those matters remain ongoing.

The filing claims, again, that this is an ongoing investigation, with stuff still being handled by “other offices and entities,” plural,

As explained, although the Special Counsel has concluded his work, the Special Counsel referred a number of matters that are ongoing and are being handled by other offices and entities. Disclosure of the warrant materials threatens the harms that courts have catalogued in holding that the First Amendment provides no right of access to search warrant materials in ongoing investigations.

Nor would it make sense to recognize a right of access automatically once any indictment has been returned. In complex investigations, such as this one, where a single warrant may have relevance to interconnected lines of investigation, that test would fail to take into account tangible investigative harms from disclosure. An indictment does not end an overall investigation, for example, when a defendant is potentially involved in activities with other subjects or targets, and the warrant in question seeks evidence bearing on that joint activity, but the defendant has been charged only with a subset of his conduct under investigation. The probability of a continuing investigation post-indictment grows when the search targets are linked to other persons of interest by ties to a single organization, common associates, or coordinated activities. Disclosure of warrant materials could reveal sources, methods, factual and legal theories, and lines of investigation extending beyond the charged conduct.

It suggests a “single warrant may have relevance to interconnected lines of investigation” (I assume those targeting Rick Gates are one example), then specifically says an indictment, like that targeting Stone, “does not end an overall investigation” perhaps because the “defendant has been charged only with a subset of his conduct under investigation” and he “is potentially involved in activities with other subjects or targets … linked to other persons of interest by ties to a single organization, common associates, or coordinated activities.”

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

The Logistics of the Julian Assange Indictment

The extradition request and indictment have been pending while Vault 7 and Roger Stone have percolated

According to a BuzzFeed report from yesterday’s bail hearing in London, Julian Assange’s extradition warrant was dated December 22, 2017.

That means the extradition request came amid an effort by Ecuador to grant him diplomatic status after which he might be exfiltrated to Ecuador or Russia; the extradition request came the day after the UK denied him diplomatic status.

Ecuador last Dec. 19 approved a “special designation in favor of Mr. Julian Assange so that he can carry out functions at the Ecuadorean Embassy in Russia,” according to the letter written to opposition legislator Paola Vintimilla.

“Special designation” refers to the Ecuadorean president’s right to name political allies to a fixed number of diplomatic posts even if they are not career diplomats.

But Britain’s Foreign Office in a Dec. 21 note said it did not accept Assange as a diplomat and that it did not “consider that Mr. Assange enjoys any type of privileges and immunities under the Vienna Convention,” reads the letter, citing a British diplomatic note.

Both events came in the wake of the revocation of Joshua Schulte’s bail after he got caught using Tor, in violation of his bail conditions. And the events came days before Donald Trump’s longtime political advisor Roger Stone told Randy Credico he was about to orchestrate a blanket pardon for Assange.

In early January, Roger Stone, the longtime Republican operative and adviser to Donald Trump, sent a text message to an associate stating that he was actively seeking a presidential pardon for WikiLeaks founder Julian Assange—and felt optimistic about his chances. “I am working with others to get JA a blanket pardon,” Stone wrote, in a January 6 exchange of text messages obtained by Mother Jones. “It’s very real and very possible. Don’t fuck it up.” Thirty-five minutes later, Stone added, “Something very big about to go down.”

The indictment used to submit an extradition request yesterday was approved by an EDVA grand jury on March 6, 2018, 13 months ago and just a few months after the extradition request.

That means the indictment has been sitting there at EDVA since a few days before Mueller obtained warrants to obtain the contents of five AT&T cell phones, one of which I suspect belongs to Roger Stone (see this post for a timeline of the investigation into Stone). The indictment has been sitting there since a few weeks before Ecuador first limited visitors for Julian Assange last March. It has been sitting there for three months before the government finally indicted Joshua Schulte, in June 2018, for the leak of Vault 7 files they had been pursuing for over a year (see this post for a timeline of the investigation into Schulte). It was sitting there when, in July, Mueller rolled out an indictment referring to WikiLeaks as an unindicted co-conspirator with GRU on the 2016 election hacks, without charging the organization. It was also sitting there last July when David House testified about publicizing Chelsea Manning’s case to the grand jury under a grant of immunity. It was sitting there when Schulte got videotaped attempting to leak classified information from jail, making any prosecution far easier from a classified information standpoint; that happened right around the time Ecuador ratcheted up the restrictions on Assange. It had been sitting there for 10 months by the time Mueller indicted Roger Stone for lying about optimizing the WikiLeaks release of documents stolen by Russia, again while naming but not charging WikiLeaks. It had been sitting there for 11 months when Chelsea Manning first got a subpoena to testify before an EDVA grand jury, and a full year before she went public with her subpoena. It had been sitting there for over a year when Mueller announced he was finishing on March 22; likewise it has been sitting there ever since Bill Barr announced Trump’s team hadn’t coordinated with the Russian government but remained silent about coordination with WikiLeaks.

In short, the indictment has been sitting there for quite some time and the extradition warrant even longer, even as several different more recent investigations appear to be relentlessly moving closer to WikiLeaks. It has been sealed, assuming it’s the same as the complaint the existence of which was accidentally revealed late last year because, “due to the sophistication of the defendant and the publicity surrounding the case, no other procedure is likely to keep confidential the fact that Assange has been charged.”

There’s a somewhat obvious reason why it got indicted when it did. As WaPo and others have pointed out, the eight year statute of limitations on the CFAA charges in the indictment would have run last year on March 7, 2018.

But that doesn’t explain why DOJ decided to charge Assange in this case, when Assange’s actions with Vault 7 appear far more egregious, or why the indictment is just being unsealed now. And it doesn’t explain why it got released — without any superseding allegations — now, even while WaPo and CNN report more charges against Assange are coming.

Here’s what I suspect DOJ is trying to do with this indictment.

The discussion of cracking the password takes place as Manning runs out of files to share

First, consider these details about the indictment. As I noted earlier, the overt act it charges as a conspiracy is an agreement to crack a password.

On or about March 8, 2010, Assange agreed to assist Manning in cracking a password stored on United States Department of Defense computers connected to the Secret Internet Protocol Network, a United States government network used for classified documents and communications, as designated according to Executive Order No. 13526 or its predecessor orders.

[snip]

The portion of the password Manning gave to Assange to crack was stored as a “hash value” in a computer file that was accessible only by users with administrative-level privileges. Manning did not have administrative-level privileges, and used special software, namely a Linux operating system, to access the computer file and obtain the portion of the password provided to Assange.

Cracking the password would have allowed Manning to log onto the computers under a username that did not belong to her. Such a measure would have made it more difficult for investigators to identify Manning as the source of disclosures of classified information.

More specifically, the overt act relates to some exchanges revealed in chat logs that have long been public, dating to March 2010 (see this post for a timeline of some related activities from this period, but not this chat; this post describes a chronology of Manning’s alleged leaks). This is a period when Manning had already leaked things to WikiLeaks, including the Collateral Murder video they’re in the process of editing during the conversation and the Iraq and Afghan war logs that were apparently a focus of the David House grand jury testimony.

In the logs, Manning asks whether WikiLeaks wants Gitmo detainee files (a file that, in my opinion, was one of the most valuable leaked by Manning). Assange isn’t actually all that excited because “gitmo is mostly over,” but suggests the files may be useful to defense attorneys (they were! to some of the same defense attorneys defending Assange now!) or if Afghanistan heats up.

Manning says she’s loading one more archive of interesting stuff.

This appears to be the Gitmo files.

Manning explicitly says that’s all she’s got, and then talks about taking some years off to let heat die down, even while gushing about the current rate of change.

Some hours later, amid a discussion about the status of the upload of the Gitmo files that are supposed to be the last file she’s got, Manning then asks Assange if he’s any good at cracking passwords.

He says he has, “passed it onto our lm guy.”

Two days later Assange asks for more information on the hash, stating (as the indictment notes) that he’s had no luck cracking it so far. Then there’s a six day break in the chat logs, at least as presented.

The next day Assange floats getting Manning a crypto phone but then thinks better of it.

These chat logs end the next day, March 18, 2010. As the indictment notes, however, it’s not until ten days later, on March 28, 2010, that Manning starts downloading the State cable files.

Following this, between March 28, 2010, and April 9, 2010, Manning used a United States Department of Defense computer to download the U.S. Department of State cables that WikiLeaks later released publicly.

It’s unclear whether Assange ever cracked the password — but the chat log suggests he involved another person in the conspiracy

Most people have assumed, given what the indictment lays out, that Assange never succeeded in cracking the password. I have no idea whether he did or not, but I’m seeing people base that conclusion on several faulty assumptions. (Update: HackerFantastic notes that Assange couldn’t have broken this password, but goes on to describe how using other code it might be possible; that’s interesting because Manning was alleged to have added additional software onto the network after the initial Linux device, on May 4, 2010.)

First, some people assume that if Assange had succeeded in cracking the password, the indictment would say so. I’m not so sure. The indictment only needs to allege that Assange and Manning entered into a conspiracy — which the indictment deems a password cracking conspiracy — and took an overt act, whether or not the conspiracy itself was successful. The government suggests that Assange’s comment that he’s had “no luck so far” shows that he has taken an overt act, trying to crack it. Nothing else is required for the purposes of the indictment.

Further, several things about the chat log, as received, suggests there may be more going on in the background. There’s the six day gap after that conversation. There’s the contemplation of getting Manning a crypto phone. And then the chat logs as the government has chosen to release them end, though as the government notes, ten days after they end, Manning starts downloading the State cables.

But the record at least suggests that this conspiracy involves at least one more person, the “lm guy.” Maybe Assange was just falsely claiming to have a guy who focused on cracking certain kinds of hashes. Or maybe the government knows who he is.

The reference to him, however, suggests that there’s at least one more person in this conspiracy. The indictment notes there are “other co-conspirators known and unknown to the Grand Jury,” which is the norm for conspiracy indictments. But there are no other details of who else might be included.

Yes, this particular conspiracy is incredibly narrowly conceived, focused on just that password decryption. But there’s also the “Manner and Means of the Conspiracy” language that has (rightly) alarmed journalists so much, describing the goal of acquiring and sharing classified information that WikiLeaks could disseminate, and describing the operational security (Jabber and deleted chat logs) and inducement to accomplish that goal.

In other words, this indictment seems to be both an incredibly narrow charge, focused on a few Jabber conversations between Assange and Manning, and a much larger conspiracy in which Assange and other unnamed co-conspirators help her acquire and transmit classified documents about the US.

The logistics of the conspiracy prosecution(s)

Which brings me back to how this indictment might fit in amidst several larger, parallel efforts to prosecute WikiLeaks in the last 16 months.

This indictment may be the formalization of a complaint used as the basis for what seems to be a hastily drawn extradition request in December 2017, at a time when Ecuador and Russia were attempting to spring Assange, possibly in the wake of the government’s move to detain Schulte.

The indictment does not allege the full Cablegate conspiracy. David House testified months ago. And the government currently has Manning in jail in an attempt to coerce her to cooperate. That coercive force, by the way, may be the point of referencing the Espionage Act in the indictment: to add teeth to the renewed legal jeopardy that Manning might face if she doesn’t cooperate.

But what the indictment does — and did do, yesterday — is serve as the basis to get Assange booted from the embassy and moved into British custody, kicking off formal extradition proceedings.

As a number of outlets have suggested, any extradition process may take a while. Although two things could dramatically abbreviate it. First, Sweden could file its own extradition on the single remaining rape charge against Assange, which might get priority over the US request. Ironically, that might be Assange’s best bet to stay out of US custody for the longest possible time. Alternately, Assange could simply not contest extradition to the US, which would leave him charged in this bare bones indictment that even Orin Kerr suggests is a fairly aggressive charging of CFAA.

Barring either of those things happening, however, the US government now has one suspect in any conspiracy it wants to charge in the custody of a friendly country. It has accomplished that with entirely unclassified allegations, which means any other suspects won’t know anything more than they knew on Wednesday. Anything else it wants to charge — or any other moving parts it needs to pursue — it can now do without worrying too much that Assange will be put in the “boot” of a Russian diplomatic vehicle to be exfiltrated to Russia.

It has between now and at least May 2 — when Assange has his next hearing — to add any additional charges against Assange, while still having them charged under the Rule of Specialty before any possible extradition. It has maybe a month left on the Mueller grand jury.

Meanwhile, several things have happened recently.

First, in recent weeks two things have happened in the Schulte case. His lawyers made yet another bid to get the warrants that justified the initial searches excluded from the protective order. Schulte and his lawyers have been complaining about these warrants from the start, and Schulte’s public comments or leaks about them are part of what got him charged with violating his protective order. From description, it sounds like FBI was parallel constructing other information tying him to the Vault 7 leaks, and fucked up royally in doing so, introducing errors in the process (though the Hal Martin case makes me wonder whether the errors aren’t still more egregious). The government objected to this request, arguing that the warrants would disclose how the CIA stored its hacking documents and asserting that the investigation is definitely ongoing.

The Search Warrant Materials discuss, among other things, the way that the U.S. Intelligence Agency maintained a classified computer system that was integral to the Agency’s intelligence-gathering mission. Broadly disseminating that information would permit a host of potentially hostile actors to glean valuable intelligence about the way the U.S. Intelligence Agency maintained its computer systems or its security protocols, which would harm national security.

[snip]

The defendant’s abbreviated argument for de-designating the Search Warrant Materials is speculative, conclusory, and misguided. First, the defendant claims that the “time for investigation is long gone.” (Def. Let. at 1). The defendant is neither in a position to judge nor the arbiter of when it is appropriate for the Government to end its investigation into one of the largest-ever illegal disclosures of classified information. Simply put, while details are not appropriate for discussion in a public letter, the Government confirms that its investigation is not done and can supply the Court with additional information on an ex parte basis if the Court wishes.

Meanwhile, the government suggested severing the most recent charges — in which it has video surveillance showing Schulte leaking classified or protected information — from the underlying child porn and Vault 7 leaks.

As the Court is aware, trial in this matter is currently set for April 8, 2019. (See Minute Entry for August 8, 2018 Conference). To afford the parties sufficient time to prepare the necessary pretrial motions, including suppression motions and motions pursuant to the Classified Information Procedures Act (“CIPA”), the parties respectfully request that the Court adjourn the trial until November 4, 2019. The parties are also discussing a potential agreement concerning severance, as well as the order of the potentially severed trials. The parties will update the Court on severance and a pretrial motion schedule at or before the conference scheduled for April 10, 2019.

The defense didn’t weigh in on this plan, which (it would seem) would go a long way to eliminating the government’s parallel construction problem. They were supposed to talk about the severance issue in a hearing Monday, but it sounds like the only thing that got discussed was CIA’s refusal to comply with discovery. My guess is that Schulte will try to get those initial warrants and any fruit of them thrown out, and if that doesn’t work then maybe plead down to prevent a life sentence.

Meanwhile, Ecuador has taken steps to roll up people it claims have ties to Assange.

Tuesday, it fired a staffer in the embassy who had been extremely close to Assange (which may be how he learned about the plans to arrest him last week). Then, yesterday, Ecuador detained Swedish coder Ola Bini, alleging he was involved in some of the hacking they’ve accused Assange of. They also claim to know of two Russian hackers involved.

I have no idea if these developments are just Ecuador trying to cover-up corruption or real ties to WikiLeaks or perhaps something in between. There are no trustworthy actors here.

But — as William Arkin also notes — there’s an effort to test whether WikiLeaks has been at the front end of many of these leaks. Aside from WikiLeaks’ reported source for its Saudi Leaks files from Russia, Arkin focuses less on the reasons there are real questions about WikiLeaks’ relationship with Russia. I think we honestly won’t know which of the untrustworthy sides is being more trustworthy until we see the evidence.

Whichever it is, it seems that DOJ is poised to start building out whatever it can on at least one conspiracy indictment against WikiLeaks. The indictment and its implementation yesterday seems primarily to have served as a way to lock down one part — the most volatile one — of the equation. What comes next may assuage concerns about the thinness of this indictment or it may reveal something far more systematic.

In the meantime, Assange is represented by some great lawyers, both in the UK and here. Which at least increases the chances any larger claims DOJ plans to roll out will be tested aggressively.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

The Assange Indictment and The Rule of Specialty

Alright, as most of you have discovered, Julian Assange had his asylum status revoked by Ecuador, and officers of the Met (and presumably Scotland Yard too) were allowed into the Ecuadoran Embassy in London to effectuate arrest of Assange. Don’t be fooled by the breathless cable news coverage, the primary arrest warrant was the UK one from Assange’s 2012 jumping of bail conditions, not the extradition request by the US. In short, Assange would still be in custody right now irrespective of the US extradition request.

To flesh out the rest of Assange’s status, to the extent we currently know it, I will pilfer some of the reportage of the excellent Daniel Sandford of the BBC. Assange was presented immediately to Court One at the Westminster Magistrate’s Court where it was made clear that there were two warrants he was arrested on, not just the US request. Assange pled not guilty. He was NOT ordered to present evidence on his failure to surrender (which is appropriate if he declines). The judge presiding, Michael Snow nevertheless, and quite properly, found Assange guilty of the bail offense. Assange will appear in the higher level Southwark Crown Court for sentencing on the bail offense at a future date not yet specified. He will be back in the Westminster Magistrate’s Court, as of now by video link from his detention facility, on May 2nd regarding the extradition matter.

With that background out of the way, let’s look at the more significant US extradition case. First off, here is the EDVA indictment that was unsealed this morning. As you can see, it is for a single count of computer hacking conspiracy. I think most people expected all kinds of different counts, up to and including espionage crimes. Those were not included, nor were the issues from the Vault 7 case, that easily could have been indicted on outside of any real First Amendment issues.

So, while the indictment could have encompassed far many more charges and issues, it does not and is just this one count.

Why is that important?

Because legal commentators like Jeff Toobin on CNN are having a field day noting that there may be more charges forthcoming. And Shimon Prokupecz of CNN reports DOJ is indeed going to seek “additional charges” against Assange. And why is that important? Because of the Rule of Specialty.

I noted this from almost the first second on Twitter, but few other than Ken White (aka Popehat) seem to have caught on to how this doctrine will come into play in the case of Assange. It is a real issue, though we do not know how it will play out at this early stage of the extradition process.

The Doctrine of Specialty is a principle of International law that is included in most extradition treaties, whereby a person who is extradited to a country to stand trial for certain criminal offenses may be tried only for those offenses and not for any other pre-extradition offenses. Long ago and far away I argued this successfully, but that was in relation to the treaty between the US and Mexico. The Assange case obviously involves a different treaty, the US/UK Extradition treaty of 2003.

So, what does the United States of America and the United Kingdom of Great Britain and Northern Ireland Treaty of 2003 provide? Well, that is contained in Article 18, which reads as follows:

Rule of Specialty

1. A person extradited under this Treaty may not be detained, tried, or punished in the Requesting State except for:
(a) any offense for which extradition was granted, or a differently denominated offense based on the same facts as the offense on which extradition was granted, provided such offense is extraditable, or is a lesser included offense;
(b) any offense committed after the extradition of the person; or
(c) any offense for which the executive authority of the Requested State waives the rule of specialty and thereby consents to the person’s detention, trial, or punishment. For the purpose ofthis subparagraph:
(i) the executive authority of the Requested State may require the submission of the documentation called for in Article 8; and
(ii) the person extradited may be detained by the Requesting State for 90 days, or for such longer period of time as the Requested State may authorize, while the request for consent is being processed.

2. A person extradited under this Treaty may not be the subject of onward extradition or surrender for any offense committed prior to extradition to the Requesting State unless the Requested State consents.
3. Paragraphs 1 and 2 of this Article shall not prevent the detention, trial, or punishment of an extradited person, or the extradition of the person to a third State, if the person:
(a) leaves the territory ofthe Requesting State after extradition and voluntarily returns to it; or
(b) does not leave the territory ofthe Requesting State within 20 days of the day on which that person is free to leave.
4. I f the person sought waives extradition pursuant to Article 17, the specialty provisions in this Article shall not apply.

It is early, but Assange has specifically NOT waived extradition, and I do not expect that will change. In fact, he would be nuts to waive it. But look out for the US requesting the UK to waive the issue pursuant to Article 18(1)(c). I have no idea how the UK would treat such a request (nor whether it may have already been made). But give the UK credit, they take extradition conditions seriously and will not extradite where the death penalty is in play.

The death penalty could be an issue were Assange to be subsequently charged under 18 USC §794 (Espionage Act), which reads:

(a) Whoever, with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation, communicates, delivers, or transmits, or attempts to communicate, deliver, or transmit, to any foreign government, or to any faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States, or to any representative, officer, agent, employee, subject, or citizen thereof, either directly or indirectly, any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, note, instrument, appliance, or information relating to the national defense, shall be punished by death or by imprisonment for any term of years or for life, except that the sentence of death shall not be imposed unless the jury or, if there is no jury, the court, further finds that the offense resulted in the identification by a foreign power (as defined in section 101(a) of the Foreign Intelligence Surveillance Act of 1978) of an individual acting as an agent of the United States and consequently in the death of that individual, or directly concerned nuclear weaponry, military spacecraft or satellites, early warning systems, or other means of defense or retaliation against large-scale attack; war plans; communications intelligence or cryptographic information; or any other major weapons system or major element of defense strategy.

Now, frankly, I think the US, through the DOJ, would have no problem whatsoever stipulating that the death penalty is off the table for Assange. It is almost a given.

The real question is what becomes of the Assange case in light of the Rule of Specialty. Suppose any superseding indictment does not go into charges outside of the “computer offenses” specified in the current indictment, but seeks to add additional computer offenses in an attempt to increase the sentencing range? Does that violate the spirit of the Rule of Specialty?

There is a lot we simply do not know yet. But this doctrine, and how the US proceeds in light of it, needs to be watched closely as the Assange extradition matter proceeds, both in the UK, and once he is remanded to US custody.

The Roger Stone Indictment Proves Barr’s Memo Understates Trump Flunkies’ Complicity

I’ve made this point implicitly a few times, but it bears making explicitly. We have proof that Bill Barr’s memo spins the known contents of the Mueller Report to minimize the complicity of Trump’s flunkies. That’s because we can compare what we know about Roger Stone’s efforts to optimize the release of the emails Russia stole with the language used in the memo.

As alleged in sworn statements and his indictment, Stone’s actions include at least the following:

  • Around July 19, 2016: Fresh off dining with some Brexiteers, Stone calls Trump and tells him, “within a couple of days, there would be a massive dump of emails that would damage Hillary Clinton’s campaign,” to which Trump responds, “wouldn’t that be great.”
  • After July 22: A senior Trump campaign official “was directed” (the indictment doesn’t say by whom) to figure out from Stone what else would be coming
  • July 25: Stone emails Jerome Corsi and asks him to “get the pending WikiLeaks emails”
  • August 2: Corsi writes back and reflects knowledge that the emails would include Podesta ones and there would be two email drops, one shortly after he returned and one in October
  • October 4: After Assange has a press conference but doesn’t release any emails, Steve Bannon emails Stone and asks what happened, and Stone replies that WikiLeaks will release “a load every week going forward”
  • October 7: As the Podesta emails start to come out right after the Access Hollywood video — timing that Jerome Corsi has claimed Stone helped ensure — a Bannon associate texts Stone and says, “well done”

Now, none of that was itself charged as a crime. Stone was not charged with conspiring with WikiLeaks. But then, short of making an argument that WikiLeaks is a known agent of Russia — which the US government has never done — optimizing the WikiLeaks release is not a crime. But assuming that Corsi is correct that Stone got WikiLeaks to hold the Podesta release to dampen the impact of the Access Hollywood video, it is absolutely coordination. And even according to Stone — who believed Trump needed to avoid alienating women to win — dampening the release of the video influenced the election.

Now consider how this behavior falls into Barr’s supposed exoneration of Trump campaign involvement in the hack-and-leak.

First, there’s Barr’s truncated citation of a Mueller Report sentence. [my emphasis throughout]

As the report states: “[T]he investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”

Then a footnote defining what the word “coordinated” means in that sentence.

In assessing potential conspiracy charges, the Special Counsel also considered whether members of the Trump campaign “coordinated” with Russian election interference activities. The Special Counsel defined “coordinated” as an “agreement–tacit or express–between the Trump Campaign and the Russian government on election interference.”

Finally, there’s Barr’s own version.

The second element involved the Russian government’s efforts to conduct computer hacking operations designed to gather and disseminate information to influence the election. The Special Counsel found that Russian government actors successfully hacked into computers and obtained emails from persons affiliated with the Clinton campaign and Democratic Party organizations, and publicly disseminated those materials through various intermediaries, including WikiLeaks. Based on these activities, the Special Counsel brought criminal charges against a number of Russian military officers for conspiring to hack into computers in the United States for purposes of influencing the election. But as noted above, the Special Counsel did not find that the Trump campaign, or anyone associated with it, conspired or coordinated with the Russian government in these efforts, despite multiple offers from Russian-affiliated individuals to assist the Trump campaign.

The exoneration for coordination in Mueller’s language, at least, extends only to the Trump campaign, not to rat-fuckers working on the side (one of the things Mueller reportedly asked a lot of witnesses was precisely when and why Stone left the campaign). And at least according to this language, Mueller’s assessment of coordination extended only to coordination with the Russian government. So even if Mueller and the US government are getting close to labeling WikiLeaks a Russian entity, it still wouldn’t count for this assessment. Unsurprisingly, Barr relies on that language to give the Trump campaign a clean bill of health on the hack-and-leak side.

Most cynically, though, even after Barr acknowledges that the Russians used WikiLeaks to disseminate the stolen emails, the very next sentence doesn’t mention the charges Mueller brought against Stone for hiding his own (and through him, the campaign’s, including Donald Trump’s) coordination of the releases “for purposes of influencing the election.”

But we know Stone’s indictment has to be in the report. That’s because the report, by regulation, must list all Mueller’s prosecutorial decisions. So not only would Mueller describe that he indicted Stone, but he probably also explains why he didn’t include a conspiracy charge in Stone’s indictment (which probably relates primarily to First Amendment concerns, and not any illusions about WikiLeaks’ willing service for Russia on this operation). So it must be in the report. But Barr doesn’t mention that, indeed, the Trump campaign, through their associated rat-fucker, did actually coordinate on the hack-and-leak and did actually influence the election by doing so, they just didn’t coordinate directly with the Russian government.

On this matter, it’s crystal clear that Barr cynically limited his discussion of the report to obscure that Mueller had, indeed, found that the campaign “coordinated” on the hack-and-leak for purposes of influencing the election.

Barr has already demonstrated bad faith in his representation of Mueller’s findings. Which is why it is so alarming that — according to an uncharacteristically alarmed Peter Baker — DOJ plans to write a summary of Mueller’s report for Congress, not send over a redacted version of it.

Mueller’s full report has yet to be released, and it remained unclear if it ever would be. House Democrats have demanded that it be sent to them by next Tuesday, but the Justice Department outlined a longer schedule, saying that it will have its own summary ready to send to lawmakers within weeks, though not months.

Barr has already failed the test of whether he can summarize Mueller’s results in good faith.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

There’s a Decent Chance Jon Karl’s Source Is Being or Was Investigated for Obstruction

Jonathan Karl, ABC White House correspondent, reported yesterday with a certainty I’m hearing from none of the DOJ beat reporters that Mueller’s report will amount to nothing.

Sources familiar with the investigation believe there are no more indictments coming from the special counsel. If Mueller follows the guidance of the man who appointed him and supervised his investigation, he cannot publicly disparage those who have not been charged with a crime.

From that, he spun out a letter Rod Rosenstein wrote at a time when Republicans were trying to expose some bureau and CIA informants, and ignored the intent of the Mueller Report, to suggest that Mueller can’t say anything bad (in a confidential report to Bill Barr, not to Congress) about Trump.

[W]e don’t need to speculate on the scope – the man who appointed Mueller has already given us a potential road map on what to expect from the special counsel.

The bottom line: Do not expect a harsh condemnation of President Donald Trump or any of his associates if they have not been charged with crimes.

I said yesterday I have no idea what The Mueller Report will bring — or even if The Mueller Report is actually where we’ll learn about Mueller’s findings. I said that, while there’s abundant evidence of a conspiracy between Trump and the Russians, it may never get charged, including for reasons that have to do with DOJ’s treatment of sitting presidents. That remains true.

But what is also likely true is that at least one of Jonathan Karl’s sources saying that they “believe there are no more indictments coming from” Mueller is either currently or already has been investigated for obstruction.

That’s because the chief source of claims like this — particularly in reporting from White House correspondents — is one or another of Trump’s lawyers, especially Right Wing operative Jay Sekulow and TV lawyer Rudy Giuliani. And we now know that both would have at least been scrutinized for obstruction.

In Sekulow’s case, Michael Cohen says the lawyer edited his perjurious statement to Congress. And even in the Sekulow denial — as reported by ABC News — he denies just that he changed the timeline of Cohen’s statement, not that he edited it.

During a closed-door hearing with the House Intelligence Committee on Wednesday, Michael Cohen, the former personal attorney and fixer to President Donald Trump, shared documents and emails with committee members showing what he said were edits to the false statement he provided to Congress in 2017, in an effort to bolster his public testimony last week, according to two sources familiar with the matter.

Testifying publicly before the House Oversight Committee last week, Cohen said Trump’s current personal lawyer Jay Sekulow changed the former Trump loyalist’s statement to the House and Senate Intelligence Committees regarding the duration of discussions about the Trump Tower Moscow project before he submitted it to Capitol Hill.

Last week Sekulow denied the claims in a statement to ABC News.

“Today’s testimony by Michael Cohen that attorneys for the President edited or changed his statement to Congress to alter the duration of the Trump Tower Moscow negotiations is completely false.”

Mueller cited Cohen’s description of his communications with the White House in this period — and specifically the circumstances of preparing the statement — among the ways he helped the investigation.

Third, Cohen provided relevant and useful information concerning his contacts with persons connected to the White House during the 2017–2018 time period.

Fourth, Cohen described the circumstances of preparing and circulating his response to the congressional inquiries, while continuing to accept responsibility for the false statements contained within it.

With regards to Rudy, ABC News was among the outlets that recently provided details of what appears to be a pardon dangle to Cohen after he was raided.

In the weeks following the federal raids on former Michael Cohen’s law office and residences last April, President Donald Trump’s former lawyer and confidant was contacted by two New York attorneys who claimed to be in close contact with Rudy Giuliani, the current personal attorney to Trump, according to sources with direct knowledge of the discussions.

The outreach came just as Cohen, who spent more than a decade advocating for Trump, was wrangling with the most consequential decision of his life; whether to remain in a joint defense agreement with the president and others, or to flip on the man to whom he had pledged immutable loyalty. The sources described the lawyers’ contact with Cohen as an effort to keep him in the tent.

Yet for all the attention paid to what Cohen was willing to say about the president, his reluctance to answer a question about the last communications he had with Trump or someone acting on his behalf made news on its own. Cohen clammed up and claimed that federal prosecutors were actively probing that very issue.

“Unfortunately, this topic is something that’s being investigated right now by the Southern District of New York, and I’ve been asked by them not to discuss and not to talk about these issues,” Cohen said.

The sources familiar with the contacts said the two lawyers first reached out to Cohen late in April of last year and that the discussions continued for about two months. The attorneys, who have no known formal ties to the White House, urged Cohen not to leave the joint defense agreement, the sources told ABC News, and also offered a Plan B. In the event Cohen opted to exit the agreement, they could join his legal team and act as a conduit between Cohen and the president’s lawyers.

At one point in the discussions, one of the attorneys sent Cohen a phone screenshot to prove they were in touch with Giuliani, the sources said.

According to ABC’s sources, this matter is currently under investigation by SDNY.

I mean, it’s certainly possible that someone else is sourcing Karl’s seeming unique certainty about what will come of the Mueller report. It’s certainly possible that ABC’s White House correspondent has better sources at DOJ than all the DOJ reporters who say they don’t know. It’s certainly possible his sources don’t include someone that DOJ had at least reason to believe had participated in obstruction.

But if Karl’s sources are people that his own outlet has reported to be under investigation for obstruction, he ought to at least temper his certainty that they can be believed.

Update: Rudy has gone on the record with exactly the line that Karl regurgitated yesterday.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

The Predictable Result of Asymmetry in Terrorism Policing: Andrew McCabe’s Demise

I recently finished Andrew McCabe’s book.

It is very effective at what I imagine its intended purposes are. It provides some fascinating new details about the genesis of the Russian investigation. It offers a great introduction in how the FBI (at its best) can work. It gives a self-congratulatory version of McCabe’s career, including key events like the Najibullah Zazi and Boston Marathon investigations; even if McCabe had wanted to tell fully honest stories about those investigations, I’m sure the less flattering details wouldn’t have passed FBI’s publication review.

The book also says satisfyingly mean things about Trump, Jeff Sessions, and (more obliquely) Rod Rosenstein. (I think McCabe’s book release significantly explains the rumors reported as fact that Mueller’s report was imminent some weeks ago; that claim served, in part, to once again eliminate any pressure to fire Rosenstein immediately).

The latter of two, of course, implemented McCabe’s firing. McCabe’s excuse for lying to the Inspector General, which led to his firing, is one of the least convincing parts of the book (he admits he can’t say more because of his continued legal jeopardy, but he does raise it). That’s true, in part, because McCabe only deals with one of the conversations in question; there were a number of them. But he also excuses his chief lie because he was frazzled about learning of the Strzok-Page texts in the same conversation. I can understand that, but elsewhere, one of his digs against Rosenstein is how overwhelmed the Deputy Attorney General was in the wake of the Jim Comey firing. McCabe suggests, in that context, that because he had dealt with big stressful issues (like the Boston Marathon attack), he wasn’t similarly rattled. Which is why I find it disingenuous to use being frazzled for not being fully truthful to the Inspector General. Plus, virtually all defendants prosecuted for lying to the FBI (including George Papadopoulos, but not Mike Flynn, who is a very accomplished liar) are frazzled when they tell those lies; it’s a tactic the FBI uses to catch people unguarded.

I was most frustrated, however, by something that has become increasingly important in recent days: McCabe’s utter lack of awareness (at least in the book) of the import of the asymmetric focus on Islamic terrorism across his career.

After moving to counterterrorism in the mid-00s from working organized crime, McCabe became an utterly central player in the war on Islamic terror, founding the High Value Interrogation Group, and then leading the CT and National Security Divisions of FBI. He was a key player in investigations — like Zazi — that the FBI is rightly proud of.

But McCabe normalizes the choices made after 9/11 to pursue Islamic terrorism as a distinct danger. He (of course) whitewashes Jim Comey’s decision to retain the Internet dragnet in 2004 under an indefensible use of the PATRIOT Act. He argues that it is politically impossible to survive a failure to prevent an attack even though he managed the Boston Marathon attack, where FBI and NSA had some warning of Tamerlan Tsarnaev’s danger, but nevertheless got very little criticism as a result. Most remarkably, McCabe talks about Kevin Harpham’s attempted attack on the Martin Luther King Day parade, mentions as an aside that this was (obviously) not an Islamic terror attack, but offers no reflection on how Harpham’s attack undermines much of what he presents, unquestioningly, as a greater risk from Islamic terrorism (here’s a story on how Barack Obama did not get briefed on Harpham, a decision that may well have involved McCabe).

Granted, McCabe’s blind spots (at least in the book) are typical of people who have spent their lives reinforcing this asymmetry. You see it, too, in this utterly nonsensical paragraph in a largely ridiculous piece from Joshua Geltzer, Mary McCord, and Nick Rasmussen — all likewise accomplished players in the War on Just One Kind of Terrorism — at Lawfare.

The phrases “international terrorism” (think of the Islamic State and al-Qaeda) and “domestic terrorism” (think of the Oklahoma City bombing and the October 2018 shooting at a Pittsburgh synagogue) have often been a source of confusion to those not steeped in counterterrorism. The Islamic State has its roots internationally, but what makes it such a threat to Americans is, in part, its ability to influence domestic actors like Omar Mateen to kill Americans in domestic locations like Orlando, Florida. The group may be “international,” but its attackers and attacks can be, and have been, domestic—to tragic effect.

This paragraph, in a piece that admits the focus of their career has been wrong (and neglects to mention that Christchurch terrorist Brenton Tarrant named Donald Trump, along with Anders Behring Breivik, as an inspiration), suggests that the reason international terrorism is “such a threat” is because it can inspire domestic actors. The logic inherent to that paragraph is that terrorism carried out by “domestic terrorists,” inspired by a domestic white supremacist ideology is any less dangerous than terrorism carried out by people inspired by what is treated as an international ideology. International terrorism is worse than domestic terrorism, these experts argue, because it can lead to domestic terrorism.

Dead is dead. And given the significant number of white supremacists who have had experience in the military and greater tolerance for their training, white supremacists have the potential of being far more effective, as individuals, at killing than US-based Islamic terrorists.

One thing the Lawfare piece studiously avoids acknowledging is that what it calls “domestic” terrorism (the racist ideology of which they never describe) is an ideology significantly exported by the United States. Even in a piece that rightly calls for an equal focus on both white supremacist terrorism and Islamic terrorism, it ducks labeling the ideology in question. And while this WaPo piece does label the ideology in question, it bizarrely calls an attack in New Zealand carried out by an Australian a “domestic” attack.

The WaPo piece describes one problem with the asymmetric treatment of different kinds of terrorism: that governments don’t share intelligence about international violent racist ideology. In fact, in the US, such intelligence gets treated differently, if the FBI’s failure to track the networks around Frazier Glenn Miller and Eric Rudolph is any indication.

Ironically, that’s one reason that McCabe’s failure to track white supremacist terrorism in the same way he tracked Islamic terrorism led to his demise. While the network behind the election year operation that helped elect Trump involves a lot of Russians, it also clearly involves a lot of white supremacists like Nigel Farage (and David Duke), a network Russia exploited. Additionally, as I have argued (and at least one study backs) white supremacist networks provided the real fire behind the attacks on Clinton; Russia’s information operations had the effect of throwing more fuel on a blazing bonfire.

The other problem with the US government’s asymmetric treatment of terrorism is legitimacy. Labeling Islamic terrorism “foreign” and pursuing material support cases based partly on speech has had the effect of criminalizing some speech that criticizes US foreign policy, even well-deserved criticism about the effect of US killing of Muslims. By contrast, white supremacist speech, even that which  more aggressively advocates violence is treated as speech. Yes, deplatforming has begun to change that.

But we’re still not at a place where those who incite white supremacist violence are held accountable for it.

That’s how it was possible for a man to kick off a campaign by inventing lies about Mexican immigrants and how the entire Republican party, up to and including the new supposedly sane Attorney General, are permitted to pursue counterproductive policies solely so they can appear to demonize brown people.

Irrespective of the merit or not in the finding that Andrew McCabe lacked candor with the IG, he got treated the way he did because a man whose entire political career is based off feeding white resentment needed to appear to be a victim of Andrew McCabe. That act, by itself, was not about Trump’s white supremacist ideology. But it is a structure of power that is white supremacist (exacerbated by Trump’s narcissism).

We have a President Trump in significant part because this country has tolerated and even rewarded white supremacist ideology, institutionally ignoring that it poses as much of a risk as violent Islamic ideology. It would be really useful if people like Andrew McCabe spend some time publicly accounting for that fact.

The white supremacy that brought us the Trump presidency would not be possible if we had treated violent white supremacist terror as terror for the last twenty years.

The More Interesting Michael Cohen Redactions: On Viktor Vekselberg

The materials backing the raid on Michael Cohen released yesterday suggest — give the large swaths of redacted pagers — that the investigation into hush payments continues. But the filings also suggest something about Mueller’s investigation.

One of the earliest warrants, dated February 28, 2018, obtained access to a USB drive holding the contents of Cohen’s Gmail account from June 1, 2015 to November 14, 2017 and a business account handed to SDNY from Mueller. The Agent’s affidavit (starting at PDF 36), describes how Mueller got access to those accounts in support of false bank entries, money laundering, and two foreign agent charges, then substantiates the need to access the same information in support of conspiracy, false bank entires, and bank fraud charges.

SDNY does not cite FARA or 951 among the crimes it was investigating.

Nevertheless, the affiant describes how the government came to be interested in Cohen’s Essential Consulting account, an account at First Republic that he hid when negotiating how to deal with his taxi medallion business. The account must have come to Mueller’s attention because of the FARA/Foreign Agent interest.

Cohen started the account on October 26, 2016. We now know he did so to pay off Stormy Daniels, but even on February 28, 2018, SDNY did not include that among the crimes it was investigating. Cohen told the bank Essential Consulting was a real estate consulting company for which his clients would be domestic individuals, which was one of the false statements he made to his bank. The affidavit notes:

[T]here is probable cause to believe that Cohen’s statements and the intended purpose of the account and source of funds for the account were false. Specifically, the account was not intended to receive–and does not appear to have received–money in connection with real estate consulting work; in addition, the account has received substantial payments from foreign sources.

A redaction about a third of a page long follows.

Then, the affidavit describes how a forensic accountant determined the account was used for other purposes, describing five payments. Those payment amounts and sources were:

  • $583,332,98 from Columbus Nova LLC, which is an investment firm controlled by Viktor Vekselberg’s Renova Group
  • $999,800 from Novartis Instruments
  • $550,000 from AT&T
  • $600,000 from Korea Aerospace Industries (KAI)
  • $150,000 from Kazkommertsbank, a Kazakhstani bank, which was listed on accounts as BTA Bank

Following the description of Columbus Nova, there is a redaction.

The affidavit then describes that emails and interviews with people at AT&T and Novartis show that the payments were associated with political consulting and notes that they may violate FARA, which this affidavit was not intended to investigate.

the aforementioned payments to the Essential Consultants Account and MDC&A ostensibly were for political consulting work, including consulting for international clients on issues pending before the Trump Administration.10

10 Based on my review of public sources, I have learned that Cohen is not registered as a lobbyist or a person acting as an agent of foreign principals, as may have been required by the Foreign Agents Registration Act.

It then describes emails supporting that claim for just four of the five companies:

  • KAI
  • BTA
  • AT&T
  • Novartis

In other words, even in the first affidavit, the SDNY Agent includes Columbus Nova, but then drops that out when he substantiates that the account was used for something other than Cohen had told the bank. One way or another, any FARA exposure related to KAI and BTA were still in DC. But Columbus Nova was treated differently than the other foreign entities.

And the discussion of why remains redacted. That may be because nothing ever came of it — though almost $600K is hard to explain away. Remarkably, Republicans remained silent about this payment during Cohen’s congressional testimony, even while they made a big deal about his payments from KAI and BTA.

The 18 pages of still-redacted discussion of the hush payments is interesting, because it suggests SDNY continues to pursue that prosecution, a prosecution that features a recording of Donald Trump admitting criminal intent.

But the small redactions around the Columbus Nova payment are far more interesting.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

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