NSA Is Probably Withholding Details of the Alleged Burisma Hack from Congress

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Over the weekend, Adam Schiff and other impeachment managers started alleging that the NSA is withholding information about Ukraine from the Intelligence Committees and impeachment team.

“And I’ll say something even more concerning to me, and that is the intelligence community is beginning to withhold documents from Congress on the issue of Ukraine,” Schiff said. “The NSA, in particular, is withholding what are potentially relevant documents to our oversight responsibilities on Ukraine, but also withholding documents potentially relevant that the senators might want to see during the trial.”

Schiff added: “There are signs that the CIA may be on the same tragic course. We are counting on the intelligence community not only to speak truth to power, but to resist pressure from the administration to withhold information from Congress because the administration fears that they incriminate them.”

An Intelligence Committee official later said, “Both the NSA and CIA initially pledged cooperation, and it appears now that the White House has interceded before production of documents could begin.”

Schiff had dropped the claim, at times, in his presentation to the Senate and to the press.

But in his stem-winding close last night, he mentioned the alleged Burisma hack in a way that strongly suggests that’s what NSA is withholding.

Now we just saw last week a report that Russia tried to hack, or maybe did hack, Burisma. Okay. I don’t know if they got in. I’m trying to find out. My colleagues on the Intel Committee, House and Senate, we’re trying to find out, did the Russians get in? What are the Russian plans and intentions? Well, let’s say they got in. And let’s say they start dumping documents to interfere in the next election. Let’s say they start dumping some real things they hacked from Burisma, let’s say they start dumping some fake things they didn’t hack from Burisma, but they want you to believe they did. Let’s say they start blatantly interfering in our election again, to help Donald Trump. Can you have the least bit of confidence that Donald Trump will stand up to them and protect the national interest over his own personal interest? You know you can’t.

Schiff’s speech was a planned show-stopper, climax, thus far, of the impeachment trial. It is highly unlikely Schiff included this mention, with the detail that he and both the Intelligence Committees are trying to figure out whether Burisma really got hacked, without very good reason.

But it also goes to the power of information war.

When NYT first reported that GRU had hacked Burisma, I had two thoughts.

The hackers fooled some of them into handing over their login credentials, and managed to get inside one of Burisma’s servers, Area 1 said.

“The attacks were successful,” said Oren Falkowitz, a co-founder of Area 1, who previously served at the National Security Agency. Mr. Falkowitz’s firm maintains a network of sensors on web servers around the globe — many known to be used by state-sponsored hackers — which gives the firm a front-row seat to phishing attacks, and allows them to block attacks on their customers.

“The timing of the Russian campaign mirrors the G.R.U. hacks we saw in 2016 against the D.N.C. and John Podesta,” the Clinton campaign chairman, Mr. Falkowitz said. “Once again, they are stealing email credentials, in what we can only assume is a repeat of Russian interference in the last election.”

[snip]

To steal employees’ credentials, the G.R.U. hackers directed Burisma to their fake login pages. Area 1 was able to trace the look-alike sites through a combination of internet service providers frequently used by G.R.U.’s hackers, rare web traffic patterns, and techniques that have been used in previous attacks against a slew of other victims, including the 2016 hack of the D.N.C. and a more recent Russian hack of the World Anti-Doping Agency.

“The Burisma hack is a cookie-cutter G.R.U. campaign,” Mr. Falkowitz said. “Russian hackers, as sophisticated as they are, also tend to be lazy. They use what works. And in this, they were successful.”

First, this attribution is not (yet) as strong as even the first attribution that GRU had hacked the DNC, to say nothing of the 30 non-government sources for that attribution since laid out in the GRU indictment and the Mueller Report. There’s good reason to remain cautious about this attribution until we get more than one not very well established contractor attributing the hack.

But to some degree, it doesn’t matter whether GRU hacked Burisma and whether they took documents with plans to leak them during the election. Indeed, disinformation may explain why this was an easily identifiable hack, whether done by GRU or someone else. Because the news that someone appearing to be GRU targeted Burisma in early November — when it was clear Trump would be impeached for extorting Volodymyr Zelensky to get dirt on Burisma — serves a clear purpose. It adds evidence that Trump is owned by Russia and, after the Senate doesn’t vote to remove him, will demonstration that Republicans don’t much give a damn that he is owned by Russia.

To be clear: There’s abundant evidence that Russia does have leverage over Trump, and more is likely to be forthcoming.

But that’s far more valuable, for Russia, if that’s public and if the Republicans in the Senate sanction it.

And that may explain why NSA is withholding the information, if indeed that’s what they’re withholding. In the same way that the FBI went to great lengths to withhold a letter they believed to be disinformation suggesting that Loretta Lynch would fix the Hillary investigation, information that appears to add to the already abundant case that Russia is in the tank for Trump. Given the stakes, that doesn’t justify it. But at this point, GRU wouldn’t need to hack Burisma for any point — the hack itself, in the middle of the impeachment investigation, is enough to lay a marker on Donald J. Trump.

He belongs to the GRU, the hack says, whether or not he does anything affirmatively to confirm that claim. But if the NSA is withholding that detail, it would seem to confirm the point.

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Joshua Schulte Spoke Positively of Edward Snowden the Day Snowden Came Forward

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Here I thought that Joshua Schulte’s lawyers had finally come up with a decent argument, that Paul Rosenzweig’s testimony would be pointless to prove that Schulte, in choosing to leak to WikiLeaks, intended to damage the US because the government would have to prove Schulte knew of WikiLeaks when he allegedly first stole the CIA documents in May 2016.

But after pointing out that Schulte’s lawyers already blew their chance to make that argument, in a response the government  then pointed out how bad this argument is: because Schulte’s lawyers have already admitted that, “of course, Mr. Schulte knew” about Chelsea Manning’s leaks.

As an initial matter, the defendant’s Reconsideration Motion directly contradicts the argument he made in his original motions in limine concerning Mr. Rosenzweig’s testimony. The defendant argues in the instant motion that Mr. Rosenzweig’s testimony should not be admitted because there is no evidence that the defendant knew of, for example, Chelsea Manning’s disclosures to WikiLeaks. In his original opposition to the Government’s motions in limine, however, the defendant argued the exact opposite:

Next, the government says that it intends to introduce evidence of Mr. Schulte’s “knowledge of [Ms.] Manning’s leak.” Gov. Res. 11. The release of documents by Ms. Manning was front page news in every major news publication for numerous days. Of course, Mr. Schulte knew about it; so did everyone else who picked up a newspaper. It is not clear what the expert would have to add to this information. (Dkt. 242 at 44).

Worse, the government lays out not just that Schulte wrote about both Manning’s leaks to WikiLeak and Edward Snowden’s leaks, but discloses that they intend to introduce those chats at trial.

Moreover, even setting aside the dubious assertion that a member of the U.S. intelligence community could have been completely unaware of WikiLeaks’ serial disclosures of classified and sensitive information and the resulting harm, the Government’s proof at trial will include evidence that the defendant himself was well aware of WikiLeaks’ actions and the harms it caused. For example, WikiLeaks began to disclose classified information Manning provided to the organization beginning in or about April 2010, including purported information about the United States’ activities in Afghanistan. In electronic chats stored on the defendant’s server, the defendant discussed these disclosures. For example, on August 10, 2010, the defendant wrote in a chat “you didn’t read the wikileaks documents did you?” and, after that “al qaeda still has a lot of control in Afghanistan.” In addition, on October 18, 2010, the defendant had another exchange in which he discussed Manning’s disclosures, including the fact that the information provided was classified, came from U.S. military holdings, and that (according to the defendant) it was easy for Manning to steal the classified information and provide it to WikiLeaks. Similarly, in a June 9, 2013 exchange, the defendant compared Manning to Edward Snowden, the contractor who leaked classified information from the National Security Agency, and stated, in substance and in part, that Snowden, unlike Manning, “didnt endanger in [sic] people.”

Effectively, the government is going to show that Schulte — who like Snowden worked at both CIA and NSA (though in reverse order) — had decided the day that Snowden revealed himself that he hadn’t endangered someone.

I suggested in this post that the government appears to be preparing to use Schulte as an exemplar of an ongoing conspiracy, complete with their reliance on organized crime precedents.

[T]he government is preparing to argue that Schulte intended to harm the United States when he leaked these files to WikiLeaks, a stronger level of mens rea than needed to prove guilt under the Espionage Act (normally the government aims to prove someone should have known it could cause harm, relying on their Non-Disclosure Agreements to establish that), and one the government has, in other places, described as the difference between being a leaker and a spy.

To make that argument, the government is preparing to situate Schulte’s leaks in the context of prior WikiLeaks releases, in a move that looks conspicuously like the kind of ongoing conspiracy indictment one might expect to come out of the WikiLeaks grand jury, one that builds off some aspects of the existing Assange indictment.

That is, the government appears to be using Schulte to lay out their theory — rolled out in the wake of the Vault 7 leaks — that WikiLeaks is a non-state hostile intelligence service.

To be sure, there’s nothing in the least bit incriminating about talking about Snowden in real time. But it will make it a lot easier to hold Schulte accountable for leaking stuff in a far more damaging way in 2016 than Snowden did in 2013.

As I disclosed in 2018, I provided information to the FBI in 2017.

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Joshua Schulte’s Plans from Jail: “#TopSecret#FuckYourTopSecret”

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In response to an order from Judge Paul Crotty, the government laid out what evidence it wants to use from prison notebooks seized from accused Vault 7 leaker Joshua Schulte’s jail cell. The whole filing is –as all descriptions of these notebooks have been — utterly damning.

For example, the filing explains a reference the government had earlier made: that Schulte had made reference to non-public information about what WikiLeaks had received in the Vault 7 leak. Schulte wrote a note sometime in July 2018 suggesting that if “you” needed help, they should ask WikiLeaks for Schulte’s “code.”

“Ask WikiLeaks” (014099) (undated): In the middle of the page, the defendant writes, “If you need help ask WikiLeaks for my code.”3 The defendant’s direction to consult WikiLeaks about his “code” is admissible as Nonpublic Information Evidence, because it is a statement that WikiLeaks is in possession of source code for tools upon which the defendant worked and that are contained in the back-up file that was stolen, even though WikiLeaks has not publicly disclosed that it possesses any source code for all of the tools. Schulte’s knowledge of non-public aspects of the information that was given to WikiLeaks helps to demonstrate that he was the one who gave that information to WikiLeaks in the first place.

Schulte wrote this in the second person, suggesting he was advising (or planning to advise) someone to use source code he wrote. He is known to have worked on obfuscation tools and a remote USB exfiltration tool. If he did intend that as instruction, he assumed the person in question would have been able to consult directly with WikiLeaks. It’s unclear to what end Schulte was imagining advising someone to use obfuscation or hacking tools written for the CIA.

In any case, the government claims that’s proof that Schulte knows exactly what was in WikiLeaks’ possession.

A later entry suggests Schulte and someone else — “we” — were trying to compromise email, possibly his own CIA email.

“What We Expect to Find in Emails” (014136) (undated): At the top of this page, the defendant writes “What we expect to find in emails.” On the remainder of the page, the defendant writes a list of items, many of which contained classified information. This portion of the Blue Notebook is admissible as Intent Evidence and MCC Classified Information Evidence, because it shows the defendant cataloguing classified information that, if publicly disclosed, would likely be harmful to the United States. Indeed, some of the categories of information identified by the defendant on this page—such as certain operations—is the same as the classified information contained in the Fake Authentication Tweet, which serves to show that the defendant’s intent was to collect these materials for dissemination, not for any legitimate purpose related to his defense.

Later, the letter describes a part of Schulte’s planned Information War on the United States, probably dating to late August or early September 2018, one he wanted to roll out in a tweet with the hash tag, “#TopSecret#FuckYourTopSecret.”

Over these three pages, Schulte wrote the following. At the top of the first page, Schulte wrote “#TopSecret#FuckYourTopSecret,” and under that draws an arrow to the phrase “or dump the secrets here:”. At the top of the page Schulte also wrote “establish credibility,” and, underneath that appears another version of the Fake Authentication Tweet. Later, the defendant recommends to U.S. intelligence agency employees to “send all your govt’s secrets here: WikiLeaks” until the U.S. government “honors” their service. As with the last entry, this is entry contains MCC Classified Information Evidence in the form of the Fake Authentication Tweet. In addition, the instruction to intelligence agency employees to give their “secrets” to WikiLeaks is Intent Evidence.

Effectively, the government seems to be arguing, Schulte planned to use a Twitter account in the name of Jason Bourne to encourage US intelligence agency employees to leak information to WikiLeaks, something Julian Assange did himself in a post-Snowden 2013 speech. Not only does this suggest Schulte was shifting into recruitment mode, but it validates the motive the government claims he himself had for leaking the CIA’s hacking tools, because the CIA didn’t “honor” his service. That’s one of the classic recruitment motives (of money, ideology, compromise, and ego, the latter).

These parts of Schulte’s prison notebooks, then, suggest he was doing more than just posting his blogposts and sharing a CIA network diagram from jail. He was at least imagining he might use tools he wrote for the CIA to steal emails full of classified secrets and also recruit others to feed WikiLeaks with more classified information over Twitter.

Schulte’s team, in one of the only filings they’ve submitted that makes a decent point in Schulte’s defense, finally offered an explanation for why this may not be as damning as it looks.

In yet another bid to get Paul Rosenzweig’s testimony showing how Schulte’s actions fit into a pattern that make look WikiLeaks look like a criminal organization, they argue that Rosenzweig’s testimony that leaking to WikiLeaks would exhibit an intent to damage the US could only work if the government first proved that Schulte knew how WikiLeaks worked.

The Court ruled, in relevant part, that “[a]n understanding of the WikiLeaks organization and how it operates is directly relevant to the allegation that, In transmitting Classified Information to WikiLeaks, Schulte intended or had reason to believe there would be injury to the United States.” Dkt. 256, at 4. This ruling makes sense only if the government first presents foundational evidence showing that Mr. Schulte knew how WikiLeaks was organized and operated. Absent such evidence showing what Mr. Schulte knew, expert testimony about these subjects would be totally disconnected from—and therefore would have no bearing on—Mr. Schulte’s state of mind.

[snip]

Here, absent proof that Mr. Schulte was aware of how WikiLeaks was organized or functioned, Mr. Rosenzweig’s testimony about those subjects, even if accurate and admissible under Fed. R. Evid. 702, would be irrelevant to what Mr. Schulte “intended or had reason to believe” when he allegedly leaked information to WikiLeaks in 2016. As in Kaplan, it would be error to admit this testimony without the required connection to what Mr. Schulte actually knew.

The same principle applies to Mr. Rosenzweig’s purported testimony about harm ostensibly caused by prior WikiLeaks revelations. If Mr. Schulte did not know in 2016 about the prior revelations or the harm they supposedly caused to the United States, any expert testimony about those revelations and resulting harm is irrelevant (and unfairly prejudicial under Rule 403).

In earlier filings, the government has made much of the fact that August 4, 2016 is the first or one of the first times Schulte ever searched Google for information on WikiLeaks. And, trust me, this guy recorded everything in his Google searches. So, the defense could argue, Schulte didn’t even begin to learn about the outlet he had leaked to until three months after he leaked the files to them (nevermind how he figured out how to get it to them).

This only works to limit the applicability of Rosenzweig’s testimony for the CIA leaks, not the leaks and attempted leaks from MCC. Plus, Schulte’s claim to have been part of Anonymous — whether or not it’s true — would amount to a claim that he operated in an environment where he would have learned of WikiLeaks in chatrooms. But it’s not clear the government could prove that.

Whether or not they can show Schulte’s actions are part of a longer campaign by WikiLeaks to encourage intelligence professionals to leak to WikiLeaks to avenge slights by the government, the notebooks are even more damning than the government has previously revealed.

As I disclosed in 2018, I provided information to the FBI on issues related to the Mueller investigation.

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Lev Parnas Says Bill Barr Should Recuse … But Doesn’t Say Why

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In this post, I laid out why Lev Parnas’ current publicity tour may not be as insane, from a defense standpoint, as it seems. I laid out how Barr would have significant ability to protect potential co-conspirators of Parnas — starting with Rudy and extending to Rudy’s client. I explained how Barr’s veto authority over some of this might limit Parnas’ ability to cooperate his way out of his legal problems, and at the very least increases the chance he’s stuck holding the bag for various plots that include far more powerful people. Most interesting, however, were the ways Parnas hinted at but stopped short of implicating Barr in the plot by suggesting,

  • He had been told, by Rudy and others, they had spoken to Barr about all this
  • He had witnessed Rudy and others speaking to Barr about all this
  • He might have texts proving Barr’s involvement, but couldn’t remember whether that was the case or not

To be clear: Parnas is obscuring the degree to which he insinuated himself in Trump’s circles to make all this possible. He is pretending everything he did was ordered by powerful Americans, when the evidence suggests otherwise. So it might not serve justice for him to try to cooperate with prosecutors (because he could well be the most responsible). But I’m beginning to understand how pursuing this angle might be a reasonable defensive approach.

Today, Parnas’ lawyer Joseph Bondy just sent a request to Barr requesting his recusal, copying it to his docket.

It actually flubs the argument it tries to make about how impeachment relates to this criminal case, describing how both the July 25 Trump-Zelensky call transcript and the whistleblower complaint mention Barr over and over, without mentioning that Parnas and Igor Fruman were also incorporated in the whistleblower complaint by repeated reference to this article, which includes the influence peddling for which the grifters were already indicted. That is, the case is far stronger than this letter lays out, because both Parnas and Barr were named in the whistleblower complaint.

Worse still, this letter doesn’t talk about any of the things Bill Barr’s DOJ has done that obstructed full investigation of the complaint:

  • Scoping the assessment of the complaint to specifically avoid connecting the complaint to the investigation of Parnas and Fruman
  • Not sharing the complaint, as required by MOU, with the FEC, which would have led the FEC to tie the complaint to the pre-existing investigation it had of Parnas and Fruman
  • Getting OLC to invent reason to withhold the complaint from Congress, which if it had been successful would have prevented all investigation of these activites

In short, the actions of DOJ overseen by Barr, not just his mention in the complaint and ties to Victoria Toensing and Joe DiGenova, mandate his recusal. But for some reason (perhaps because that would be more aggressive than even Bondy is willing to go), Bondy doesn’t include those actions.

Most interestingly, Bondy doesn’t include any of the allegations Parnas had made publicly about Barr’s potential more direct role. Nor does he answer the question of whether or not Parnas has texts more directly implicating Barr.

What Bondy does do, in the wake of the press blitz he has choreographed, is note that “evidence has been brought to light linking you further to your long-time colleagues Victoria Toensing and Joseph DiGenova, as well as to Mr. Giuliani, which undoubtedly creates at least the public appearance of a conflict of interest.” I mean, there is, absolutely, the appearance of a conflict of interest, but Bondy was the one who brought all that evidence to light!

Finally, though, Bondy suggests, with uncertain veracity, that SDNY has done things that suggest a purported conflict has already harmed Parnas.

In addition to harmful perceptions, this conflict of interest appears to have caused actual harm to Mr. Parnas who, given delays in the production of discovery in his federal case, was rendered unable to comply with a duly-issued congressional subpoena in time for congressional investigators to make complete use of his materials or properly assess Mr. Parnas as a potential witness. Furthermore, prosecutors have, thus far, refused to meet with Mr. Parnas and to receive his information regarding the President, Mssrs. Giuliani, Toensing, DiGenova and others–all of which would potentially benefit Mr. Parnas if he were ever to be convicted and sentenced in his criminal case.

For better and worse, getting FBI to image a bunch of phones and return them to a defendant within three months including two major holidays is not that long a wait. It took two months before Special Master Barbara Jones first started making privilege designations in the Michael Cohen case (involving one of the same prosecutors), and that was an even more politically sensitive case than this one. So while mentioning the delay is useful for Democrats (especially when the Senate tries to refuse to hear Parnas’ testimony because it didn’t get turned over in time), and valuable from a defense standpoint as it lays groundwork for appeal, it’s not a real injury on the part of prosecutors.

With regards to prosecutors’ refusal to meet with Parnas about cooperating against his possible co-conspirators, as the WSJ reported yesterday, late last year Bondy failed to convince SDNY that Parnas was not — as accused in his indictment — directed by a still-unnamed Ukrainian official to try to oust Marie Yovanovitch.

At a meeting with prosecutors from the Manhattan U.S. attorney’s office late last year, people familiar with the matter say, Mr. Parnas’s attorney disputed that he pushed for the removal of the U.S. ambassador to Ukraine at the behest of a Ukrainian official—one of the charges in the campaign finance indictment.

This is another way of saying that Parnas is unwilling to plead to the allegations in the existing indictment, and may also suggest that while Parnas is happy to incriminate Rudy and his American buddies, he’s not willing implicate his original boss, whoever that might be. So prosecutors likely have good reason not to meet with Parnas to hear him implicate Rudy and friends (not least, because they already have this documentary evidence that implicates them anyway, and now Parnas is providing whatever testimony they might need on the Rachel Maddow Show).

Bondy is absolutely right: Bill Barr should have recused from this — and all review of the whistleblower complaint — back in August when it was clear he was named. Even assuming Barr took no action on any of this influence peddling, this goes well beyond just the appearance of conflict to known participation in known events — such as the meeting with Rudy that DOJ admitted to only last week after covering it up for months — that merit recusal.

But Bondy is also being less than candid with his letter, playing the public docket as much as he is making a real legal request.

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Lev Parnas Wouldn’t Reveal Whether He Has Receipts on Bill Barr

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I suggested in this post that Lev Parnas appears to believe that how and when he was arrested was an attempt to silence him and force him to take the fall for Trump.

With that in mind, I want to reexamine why he might believe that coming forward now might help his defense.

Obviously, one thing he is trying to do — thus far unsuccessfully — is make it clear that in his actions regarding Ukraine, he is a co-conspirator with the President, Victoria Toensing, Joe DiGenova, and, of course, Rudy Giuliani. That doesn’t mean he didn’t insert himself into that role — by all appearances he did; that’s what his existing indictment is about, how he spent big money to insinuate himself into Trump’s immediate circle.

But since that time, Rudy, Toensing, and DiGenova took actions that might be deemed an overt act of a conspiracy. So did Trump, not least on July 25, 2019, on a call with President Zelensky. Implicating powerful Americans in his influence-peddling is particularly important because, if he can’t do that, he may be exposed to further charges. WSJ reports that, late last year, Parnas’ lawyer Joseph Bondy tried to convince prosecutors that Parnas did not “push[] for the removal of the U.S. ambassador to Ukraine at the behest of a Ukrainian official—one of the charges in the campaign finance indictment.” If Parnas can claim that anything he did after some point in 2018 — which otherwise might be deemed to be FARA violations, suborning perjury, Foreign Corrupt Practices Act violations, bribery, and more — he did with the approval of the President of the United States, he might be able to claim that those actions were the official foreign policy of the United States, which would basically be the same claim Trump is using to defend against impeachment.

None of that may matter, however, depending on what SDNY plans or is allowed to do.

After all, Barr had been briefed on this investigation since shortly after he was confirmed, probably indicating that SDNY deemed it a significant matter reflecting the sensitivities of an investigation into political figures including Pete Sessions, some Las Vegas politicians, Ron DeSantis, and the President’s SuperPAC. As such, Barr would receive advance notice before SDNY took steps against any of these political figures (and it would have to happen before pre-election blackouts kick in in August). The Criminal Division would need to approve any search or prosecution of an attorney, covering Rudy, Toensing, and DiGenova. Barr would have to approve any legal process targeting media figures like John Solomon or Sean Hannity, as he would have to approve their treatment as subjects of the investigation. And, just on Monday, Barr stated he will require Attorney General approval before DOJ or FBI can open a counterintelligence investigation into a presidential campaign (and Trump started his reelection campaign almost immediately upon inauguration).

In short, for SDNY to go after any of Parnas’ other known potential co-conspirators, aside from Fruman, Bill Barr or Criminal Division head Brian Benczkowski would have to approve.

That gives Barr veto power over including most of Parnas’ potential co-conspirators in an indictment with him. And he has made no secret that he was brought in to protect Trump from facing any legal consequences for his crimes.

For a time, it looked like Barr believed he couldn’t protect Rudy. But then Rudy loudly announced he had insurance.

“I’ve seen things written like he’s going to throw me under the bus,” Giuliani said in an interview with Fox News’ Ed Henry about the characterizations and comments made in the media about him and his relationship with the president. “When they say that, I say he isn’t, but I have insurance.”

And if Rudy’s actions are beyond legal sanction, then Parnas is left holding the bag, just like Michael Cohen appears to have been for hush payments he made on the orders of Trump. Indeed, while Parnas expressed some interest in cooperating with prosecutors, if prosecutors are barred from pursuing anyone more senior than Parnas, then there’s little for Parnas to offer.

Which brings us to Parnas’ expressed fear of Barr.

In the second installment of his Maddow interview, Parnas claimed he was doing all of this because he fears Barr — or deems Trump too powerful when he is protected by Barr.

PARNAS: The only reason – if you’ll take a look, and you know very well because you have been following, the difference between why Trump is so powerful now, and he wasn’t as powerful in ’16 and ’17 –

MADDOW: Uh-huh.

PARNAS: – he became that powerful when he got William Barr.

MADDOW: Yes.

PARNAS: People are scared. Am I scared? Yes, and because I think I`m more scared of our own Justice Department than of these criminals right now, because, you know, the scariest part is getting locked in some room and being treated as an animal when you did nothing wrong and – or when you’re not, you know, and that’s the tool they’re using.

I mean, just – because they’re trying (ph) to scare me into not talking and with God’s help, and with my lawyer next to me that I know will go bat for me no matter what, with the truth –

MADDOW: Yes.

PARNAS: – and I’m taking a chance.

That comment makes sense whether he believes Barr had him arrested to silence him or even just worries that Barr will protect everyone else. It would even make sense if — as is quite possible — Parnas is working for powerful Russians or Ukrainians who’ve been trying to control Trump by making him vulnerable.

There’s no doubt that abundant evidence can be shown that Barr is not just covering up, but actively obstructing any investigation into Trump’s actions. As I’ve noted repeatedly, Barr or one of his subordinates:

  • Scoped the assessment of the whistleblower complaint to ensure it wasn’t tied to the ongoing investigation of Parnas and Fruman in SDNY
  • Failed to share the whistleblower complaint with the FEC, which (if it were functional) could have imposed civil penalties for the illegal solicitation of campaign help
  • Had OLC invent a bullshit reason to withhold the complaint from Congress
  • Had Kerri Kupec exonerate Trump publicly, reportedly in response to a demand from Trump

Mind you, I’m the only one harping on this obstruction, but they’re still details that deserve more attention.

But that’s not how Parnas is focusing on Barr.

In his interview with Maddow, Parnas twice alleged that he had seen Barr receiving calls from Rudy and others on this stuff. First, he said that Rudy and Toensing and DiGenova had told him they were engaging Barr on this project.

MADDOW:  Did Rudy Giuliani tell you he had spoken to the attorney general specifically about Ukraine?

PARNAS:  Not only Rudy Giuliani. I mean, Victoria and Joe, they were all best friends. I mean, Barr was – Attorney General Barr was basically on the team.

He then expanded on that to say, first, that he witnessed conversations between the lawyers and Barr, and then, less convincingly, claimed that “Barr had to have known everything. I mean, it’s impossible.”

PARNAS:  I personally did not speak to him, but I was involved in lots of conversations that Joe diGenova had with him in front of me, Rudy had with him in front of me, and setting up meetings with Dmytro Firtash’s team. I was involved in that.

MADDOW:  Do you know if Rudy Giuliani was ever in contact with Mr. Barr, specifically about the fact that he was trying to get Ukraine to announce these investigations into Joe Biden?

PARNAS:  Oh, absolutely.

MADDOW:  Mr. Barr knew about it?

PARNAS:  Mr. Barr had to have known everything. I mean, it’s impossible.

MADDOW:  Did Rudy Giuliani tell you he had spoken to the attorney general specifically about Ukraine?

PARNAS:  Not only Rudy Giuliani. I mean, Victoria and Joe, they were all best friends. I mean, Barr – Barr was – Attorney General Barr was basically on the team.

Claiming “Barr had to have known everything,” while seemingly consistent with the public actions of Barr’s DOJ, is not going to be strong enough to get Barr, personally, in trouble.

Though it is worth noting that (in the same way that Devin Nunes unforgot speaking to Parnas as Parnas started rolling out receipts), CNN reported that Barr had attended a meeting where Rudy pitched the case of the Venezuelan paying for the grift long after he had to have known Rudy was under criminal investigation.

The Giuliani meeting at the Justice Department in September became public months ago in the wake of the arrest of two Giuliani associates, Lev Parnas and Igor Fruman, who were working on Giuliani’s Ukraine mission for the President.

Brian Benczkowski, assistant attorney general for the criminal division, issued a public statement at the time expressing regret for holding the meeting and saying he wouldn’t have met with Trump’s personal lawyer had he known about Giuliani’s role in the ongoing investigation.

But department officials didn’t mention then that Barr was also in the meeting. Barr was at the meeting for about 10 minutes and had dropped in to greet other lawyers who worked alongside Giuliani to represent the Venezuelan businessman, according to a Justice Department official. His presence is also notable because Justice officials have said he was briefed after taking office in February on the investigation by Manhattan federal prosecutors into Parnas and Fruman, and the connections with Giuliani.

There’s almost certain to be more, though. When Maddow asked Parnas whether he knew whether Barr ever spoke with any of the Ukrainians that Parnas was grifting (the question I’ve been asking for some time), he claimed not to recall, even though the entire point of his interview was to talk about how he had come forward out of fear of Bill Barr.

MADDOW:  Do you know if Attorney General William Barr every [sic] spoke with any Ukrainian officials?

PARNAS:  I don’t recall at this moment. I’d have to look at my text messages and see.

There is absolutely no way that Parnas did not know, when he gave this answer, whether he has proof that Barr was personally involved with the three Ukrainians who have spoken to John Durham. None.

Which likely means Parnas does have proof that, contrary to every denial DOJ has issued since they started issuing very carefully crafted denials since September 25, Barr did interact with the corrupt Ukrainians Rudy was teeing up.

Parnas kept receipts, for just the moment when his grifting on behalf of Trump and his associates can do damage. Those receipts might, conservatively, make additional charges from SDNY more difficult. They might even make a cooperation deal possible.

But it sure sounds like something even crazier. Parnas apparently believes Barr makes Trump something he hadn’t been before, protecting Trump in a way he hadn’t been. But that’s only true if Parnas can’t produce proof that Barr is part of this conspiracy.

In other words, whatever the reality, Parnas appears to be dribbling out the receipts implicating the people that SDNY prosecutors work for in an attempt to either increase the chances of cooperating out of his indictment or at least raising the costs of any further charges.

Perhaps a more interesting question is why SDNY prosecutors permitted Parnas to launch this media campaign. They didn’t have to: Parnas got permission to modify the protective order on this stuff so he could release it, and they may have had to question Robert Hyde earlier than they otherwise intended to because of the publicity surrounding Parnas’ texts with Hyde. SDNY might be doing it to encourage a criminal target to run his mouth and say something incriminating. They might have done it for counterintelligence reasons, to see who responded to this media campaign. But it’s also possible that SDNY is happy for Parnas to expand the possible scope of their own investigation by making it harder for Barr to protect Rudy and others.

The suspense, though, has to do with that non-committal answer Parnas gave about whether he has any texts directly implicating the Attorney General of the United States. A defendant being prosecuted by the Department of Justice was asked whether he had proof that the top law enforcement officer in the country was personally implicated in his corrupt influence peddling.

And Parnas is not telling. Yet.

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Useful But Not Sufficient: FBI’s FISA Fix Filing

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As one of her last acts as presiding FISA judge, Rosemary Collyer ordered the government to explain how it will ensure the statement of facts in future FISA applications don’t have the same kind of errors laid out in the DOJ IG Report on Carter Page.

THEREFORE, the Court ORDERS that the government shall, no later than January 10, 2020, inform the Court in a sworn written submission of what it has done, and plans to do, to ensure that the statement of facts in each FBI application accurately and completely reflects information possessed by the FBI that is material to any issue presented by the application. In the event that the FBI at the time of that submission is not yet able to perform any of the planned steps described in the submission, it shall also include (a) a proposed timetable for implementing such measures and (b) an explanation of why, in the government’s view, the information in FBI applications submitted in the interim should be regarded as reliable.

DOJ and FBI submitted their response on Friday. (This post lays out new revelations about the FISA process in it.) While I think there are useful fixes, most laid out in FBI Director Chris Wray’s response to the IG Report itself, the fixes are insufficient to fix FISA.

The filing largely focuses on the institution and evolution of the current accuracy review process. It promises to review the memorandum guiding that process (though doesn’t set a deadline for doing so), and adds some forms and training to try to ensure that FBI Agents provide DOJ all the information that the lawyers should include in an application to FISA. One of those forms — pertaining to human sources — seems important though might lead to counterintelligence problems in the future. Another, requiring agents to provide all exculpatory information, may improve the process. But fundamentally, DOJ and FBI assume that the process they currently use just needs to be improved to make sure it works the way they intend it to.

They’re probably insufficient to fix the underlying problems in the Carter Page FISA application.

The FISA Fix Filing is based on faulty assumptions

I say that, first of all, because the FISA Fix Filing adopts certain assumptions from the DOJ IG Report that may not be valid. The FISA Fix Filing assumes that:

  • FBI was responsible for all the errors on the Carter Page application
  • The right people at FBI had the information they needed
  • The Carter Page application was an aberration

The IG Report ignored where DOJ’s National Security Division contributed to errors

As I note in this post, possibly because of institutional scope (DOJ IG cannot investigate DOJ’s prosecutors), possibly because of its own confirmation bias, the IG Report held the FBI responsible for all the information that was known to investigators, but not included in the Carter Page FISA applications. Yet the report showed that at least two of the things it says should have been included in the Page applications — Page’s own denials of a tie with Paul Manafort, and Steele’s own derogatory comments about Sergei Millian — were shared with DOJ’s Office of Intelligence, which writes the applications. Indeed, Rosemary Collyer even noted the latter example in her letter. It also shows DOJ’s National Security Division had confirmed a fact — that Carter Page had no role in the platform change at the RNC — before FBI had.

Because the FISA Fix Filing assumes FBI is responsible for everything mistakenly excluded from the applications, the proposed fixes shift even more responsibility to FBI, requiring agents, with FBI lawyers, to identify the information that should be in an application. But if — as the IG Report shows — sometimes FBI provides the relevant information but it’s not included by the lawyers, then ensuring they provide all the relevant information won’t be sufficient to fix the problem.

The focus on FBI to the detriment of NSD has one other effect. NSD includes few changes to their behaviors in the FISA Fix Filing (largely limited to training and inadequate accuracy reviews). And where they do consider changes, they do not — as ordered by the court — set deadlines for themselves.

The IG Report barely noted the import of the failure to share information in timely fashion

The IG Report deviates radically from almost twenty years of after-action reports that have consistently advocated for more sharing of national security information. It recommends that Bruce Ohr be disciplined for doing just that. Perhaps to sustain that bizarre conclusion, the IG Report focuses almost no attention on an issue that is critical to fixing the problems in the Carter Page applications: ensuring that the people submitting a FISA application have all the information available to the US government. The IG Report showed a 2 month delay before the Crossfire Hurricane team obtained the Steele reports, a month delay in getting feedback from State Department official Kathleen Kavalec, and delays in obtaining the full extent of Bruce Ohr’s knowledge on the dossier, all of which contributed to the delayed vetting of the dossier. But the IG Report doesn’t explore why this happened. And the FBI FISA Fix only addresses it by reminding agents to consult with other agencies.

In another of the 17 problems with the FISA applications, the people submitting the applications apparently did not learn that Christopher Steele had admitted meeting with Yahoo in court filings.

According to the Rule 13 Letter and FBI officials, although there had been open source reporting in May 2017 about Steele’s statements in the foreign litigation, the FBI did not obtain Steele’s court filings until the receipt of Senators Grassley and Graham’s January 2018 letter to DAG Rosenstein and FBI Director Christopher Wray with the filings enclosed. We found no evidence that the FBI made any attempts in May or June 2017 to obtain the filings to assist a determination of whether to change the FBI’s assessment concerning the September 23 news article in the final renewal application.

In other instance (as noted above), while NSD had affirmative knowledge that Carter Page had not been involved in the change to the RNC platform, FBI had a different view, yet this issue was not resolved to fully discount the claim in FISA applications. The IG Report also faults FBI managers (but never NSD ones) for not aggressively questioning subordinates to get a full sense of problems with the applications. All of these are information sharing problems, not errors of transparency. Making the case agent fill out forms about what he or she knows will have only limited effect on ensuring that those agents obtain all the information they need, because if they don’t know it, they won’t know to look for it.

With the Crossfire Hurricane investigation, that problem was exacerbated by the close hold of the investigation (most notably by running the investigation out of Main Justice) and, probably, by the urgency of investigating an ongoing attack while it’s happening, which likely led personnel to focus more on collecting information about the attack than exculpatory information.

The FISA Fix Filing includes a vaguely worded document describing technological improvements — including a workflow document that sounds like bureaucratic annoyance as described — that suggest FBI is considering moving some of this to the cloud.

Corrective Action #11 requires the identification and pursuit of short- and long-term technological improvements, in partnership with DOJ, that aid in consistency and accountability. I have already directed executives in the FBI’s Information Technology Branch leadership to work with our National Security Branch leadership and other relevant stakeholders to identify technological improvements that will advance these goals. To provide one example of a contemplated improvement, the FBI is considering the conversion of the revised FISA Request Form into a workflow document that would require completion of every question before it could be sent to OI. The FBI proposes to update the Court on its progress with respect to this Corrective Action in a filing made by March 27, 2020.

It’s still not clear this would fix the problem (it’s still not clear how Bruce Ohr would have shared the information he had in such a way that he wouldn’t now be threatened with firing for doing so, for example). And for a close hold investigation like this, such a cloud might not work. But it would be an improvement (if FBI could keep it secure, which is a big if).

The FISA Fix Filing does have suggests to improve information sharing. But because the scope of the problem, as defined in the IG Report, doesn’t account for information that simply doesn’t get to the people submitting the application, it’s not clear it will fix that problem.

No one knows whether the Page applications are an aberration or not

Finally, no one yet knows whether the Carter Page application was an aberration, and thus far, no one at DOJ has committed to finding out. DOJ IG has committed to doing an audit of the Woods Procedure process that failed in the Carter Page case (and the FISA Fix Filing committed to respond to any findings from that).

The Government further notes that the OIG is conducting an audit of FBI’s process for the verification of facts included in FISA applications that FBI submits to the Court, including an evaluation of whether the FBI is in compliance with its Woods Procedures requirements. The Department will work with the OIG to address any issues identified in this audit.

Yet everyone involved admits that the most serious problems with the Page applications consisted of information excluded from the application, not inaccurate information in it.

Many of the most serious issues identified by the OIG Report were … [when] relevant information is not contained in the accuracy sub-file and has not been conveyed to the OI attorney.

Doing an audit of the Woods Procedures, then, does not test the conclusion that Page’s applications are an aberration, and therefore does not test whether more substantive fixes are necessary.

DOJ IG has considered doing more — and PCLOB suggested last year they might get involved (though technically, their counterterrorism scope wouldn’t even permit them to look at counterintelligence cases like Page’s) — but thus far there’s no plan in this filing to figure out of this is a broader problem.

The existing oversight for FISA may be inadequate

There are several reasons to believe that the existing oversight regime for FISA may be inadequate.

As noted, the existing IG plan to audit the Woods Procedure is insufficient to identify whether the existing FISA Fix Filing is sufficient to fix the problem. Also as noted above, the jurisdiction of DOJ’s IG, because it cannot review the actions of prosecutors, might not (and in this case, pretty demonstrably did not) adequately review all parts of the process, because it could not subject NSD attorneys to the same scrutiny it did FBI.

Then there are shortcomings to NSD’s oversight regime — shortcomings that Judge James Boasberg — the new presiding FISA Judge and so the just now in charge of overseeing these fixes — already highlighted in an opinion on problems with Section 702 queries.

As the FISA Fix Filing describes, OI (the same office that the IG Report let off when it received information but did not include it in applications) does a certain number of oversight reviews each year. But they don’t do reviews in every FBI field office (to which FBI devolved the FISA application process some years ago), and they don’t do accuracy reviews at every office where they do an oversight review.

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

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

As Boasberg noted in his 702 opinion last year, this partial review may result in problems going unaddressed for years.

Personnel from the Office of Intelligence (OI) within the Department of Justice’s National Security Division (NSD) visit about half of the FBI’s field offices for oversight purposes in a given year. Id at 35 & n 42. Moreover OI understandably devotes more resources to offices that use FISA authorities more frequently, so those offices [redacted] are visited annually, id at 35 n. 42, which necessitates that some other offices go for periods of two years or more between oversight visits. The intervals of time between oversight visits at a given location may contribute to lengthy delays in detecting querying violations and reporting them to the FISC. See, e.g., Jan. 18, 2019, Notice [redacted] had been conducting improper queries in a training context since 2011, but the practice was not discovered until 2017).

Furthermore, OI’s review of a subset of a subset of applications targeting Americans only reviews for things included in the application, not things excluded from it.

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

DOJ admits that this is a problem, and considers doing a check for the kind of information excluded from Carter Page’s applications, but doesn’t commit to doing so and (again, unlike FBI) doesn’t give itself a deadline to do so.

Admittedly, these accuracy reviews do not check for the completeness of the facts included in the application. That is, if additional, relevant information is not contained in the accuracy sub-file and has not been conveyed to the OI attorney, these accuracy reviews would not uncover the problem. Many of the most serious issues identified by the OIG Report were of this nature. Accordingly, OI is considering how to expand at least a subset of its existing accuracy reviews at FBI field offices to check for the completeness of the factual information contained in the application being reviewed. NSD will provide a further update to the Court on any such expansion of the existing accuracy reviews.

Improving these oversight reviews will have a salutary effect on all FISA authorities, not just individualized orders. Since Boasberg has already identified the inadequacies of the current reviews, I would hope he’d ask for at least an improved oversight regime.

Treating alleged subpoenas like they’re not subpoenas

There’s a change promised that I’m unsure about: Chris Wray’s voluntary decision to subject Section 215 and pen register orders to heightened accuracy reviews.

Currently, the accuracy of facts contained in applications for pen register and trap and trace surveillance pursuant to 50 U.S.C. § 1841 , et seq. , or applications for business records pursuant to 50 U.S. C. § 1861 , et seq. , must, prior to submission to the Court, be reviewed for accuracy by the case agent and must be verified as true and correct under penalty ofpeijury pursuant to 28 U.S.C. § 1746 by the Supervisory Special Agent or other designated federal official submitting the application. Historically, the Woods Procedures described herein have not been formally applied by the FBI to applications for pen register and trap and trace surveillance or business records. As discussed in the FBI Declaration, FBI will begin to formally apply accuracy procedures to such applications and proposes to update the Court on this action by March 27, 2020.

FBI has, for years, told the public these are mere grand jury subpoena equivalents, and so the privacy impact is not that great. That Wray thinks these need accuracy reviews suggests they’re more intrusive than that, in which case by all means FBI should add these reviews.

But as I suggested in this post, some of the problems with the Carter Page applications might have been avoided had the Crossfire Hurricane team obtained call records from both Page and George Papadopoulos early in the process, which would not only have confirmed Page’s accurate claim that Paul Manafort never returned his emails (undermining a key claim from the dossier), but it would have revealed Papadopoulos’ interactions with suspect Russian asset Joseph Mifsud, thereby pinpointing where the investigative focus should have been (and making it a lot harder for Papadopoulos to obstruct the investigation in the way he did). The IG Report doesn’t ask why this didn’t happen, but it seems an important question because if the FBI chose not to use ostensibly less intrusive legal process because existing Section 215 applications are not worth the trouble, then making the purportedly less-intrusive applications even more onerous will only lead to a rush to use full FISA, as appears to have happened here.

Further breaking the affiant-officer of the court relationship

One of the more insightful observations from the IG Report described how OI attorneys and FBI agents applying for FISA orders don’t work as closely as prosecutors and agents on a normal case.

NSD officials told us that the nature of FISA practice requires that OI rely on the FBI agents who are familiar with the investigation to provide accurate and complete information. Unlike federal prosecutors, OI attorneys are usually not involved in an investigation, or even aware of a case’s existence, unless and until OI receives a request to initiate a FISA application. Once OI receives a FISA request, OI attorneys generally interact with field offices remotely and do not have broad access to FBI case files or sensitive source files. NSD officials cautioned that even if OI received broader access to FBI case and source files, they still believe that the case agents and source handling agents are better positioned to identify all relevant information in the files.

The proposed FISA fixes seem to derive from this OI viewpoint, that because OI don’t work closely with agents they need to replace cooperation that is often inadequate on normal criminal investigations with a process that has even less cooperation for applications that are supposed to have a higher degree of candor.

The FISA Fix Filing seems to envision FBI lawyers picking up this slack, but especially since DOJ devolved the application process to Field Agents some years ago, it’s not clear, at all, why this would result in better lawyering.

Formalizing the role of FBI attorneys in the legal review process for FISA applications, to include identification of the point at which SES-level FBI OGC personnel will be involved, which positions may serve as the supervisory legal reviewer, and establishing the documentation required for the legal review;

[snip]

Corrective Action #7 requires the formalization of the role of FBI attorneys in the legal review process for FISA applications, to include identification of the point at which SES-level FBI OGC personnel will be involved, which positions may serve as the supervisory legal reviewer, and establishing the documentation required for the legal reviewer. Through this Corrective Action, the FBI seeks to encourage legal engagement throughout the FISA process, while still ensuring that case agents and field supervisors maintain ownership of their contributions.

As it is, the FISA process requires a more senior agent to be the affiant on an application, which in at least one of the Page applications, resulted in someone who had less knowledge of the case making the attestation under penalty of perjury.

It may be that these changes go in the opposite direction from where FISA should go, which would be closer to the criminal warrant model where a judge will have an FBI affiant who anticipates taking the stand at a trial (and therefore needs to retain his or her integrity to avoid damaging the case), and an office of the court signing off on applications (whom judges can sanction directly). That is, by introducing more layers and absolving OI from some of the direct responsibility for the process, these proposed changes may make FISA worse, not better.

Remarkably, the court might consider something far more effective.

On Friday, Boasberg appointed David Kris as amicus for this consideration. Kris literally wrote the book on all this, in addition to writing the 2001 OLC memo that eliminated the wall between the intelligence collected under FISA and the prosecutions that arise out of them. In a recent podcast, he mused that the way to fix all this may be to give defendants review of their applications, something always envisioned by Congress, but something no defendant has done. That — along with a more robust oversight process — seems like it has a better chance of changing the way the FBI and DOJ approach FISA applications than adding a bunch more checklists for the process.

The frothy right is in a lather over Kris’ appointment, which is a testament to how little these people (up to and especially Devin Nunes) understand FISA. But he has the institutional clout to be able to recommend real fixes to FISA, rather than a bunch of paperwork to try to make the Woods Procedure to work the way it’s supposed to.

DOJ could, voluntarily, provide review to more defendants. Alternately, Congress could mandate it in whatever bill reauthorizes Section 215 this year. Or Kris could suggest that’s the kind of thing that should happen.

Update: David Kris submitted his recommendations to Boasberg. Like me, he finds Wray’s plan useful but not sufficient. Like me he notes that the agents doing the investigation should be the ones signing off on affidavits (and he suggests the FISC review more applications until new procedures are in place). Kris also focuses on cultural changes that need to happen.

One thing he doesn’t do is review DOJ’s role (though he does argue that part of this stems from conflict between DOJ and FBI).

He also notes that DOJ has not imposed deadlines for itself.

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Steve Bannon’s 302 of Laughter and Forgetting

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I want to wade through some half truths Steve Bannon told in his second Mueller interview, because it serves as a useful baseline to understand what has happened since, including Bannon’s testimony in Roger Stone’s trial.

Bannon had, according to the unredacted entries on a list of all Mueller FBI 302s, interviews with Mueller’s team on four days:

  • February 12, 2018 (26 pages)
  • February 14, 2018 (37 pages)
  • October 26, 2018 (16 pages; the interview list lists three different interviews, but they are likely just copies of the same one)
  • January 18, 2019 (4 pages)

The report (called a 302), notes, and backup for the February 14, 2018 interview were released via FOIA just before the Stone trial.

I knew — when this interview was first released — that he was shading the truth, because there was already public evidence that contradicted the story he told back in it and prosecutors caught him in a number of forgetfulness and omissions even within the interview. His Stone testimony and some other 302s released since that time make that even more clear. Which makes how he told the original half truths particularly interesting, as it points to several topics, at least some of which remain under investigation, where Bannon tried to obscure the truth.

Finding the line between false statements and being ousted from the right wing

Consider the background to the interview. Through the entire time he worked on the campaign and in the White House, Bannon was at odds with Jared Kushner, which ultimately led to his ouster from the White House in August 2017. In early January 2018, Michael Wolff’s Fire and Fury, which rather obviously relied heavily on Bannon as a source, came out. Among the incendiary claims Bannon was described as making in the book was that Don Jr’s acceptance of the June 9 meeting was “treasonous.” Even though he issued a sort of apology, Bannon was still ousted from Breitbart, cut off from the wingnut gravy train that is key to his power. Days later, Mueller used Bannon’s comments as an opportunity to subpoena him, long after obtaining testimony from similarly situated people in the investigation (Mueller may have waited because of the evidence Bannon had been part of some back channels during the transition). Between the time Mueller subpoenaed Bannon and he testified with Mueller, he testified to HPSCI, effectively previewing a story he knew would be shared with the White House. All those events likely made Bannon want to tell a story that backed off the inflammatory claims he shared with Wolff, while still hewing closely enough to the truth to avoid prison.

This was a long interview. The report extends 37 pages, the longest of any Mueller interview report noted.

The beginning focuses on obstruction. After five redacted pages, the interview discusses Trump’s disdain for Jeff Sessions. Five pages later, the interview remained focused on Trump’s obstruction, having moved onto his efforts to fire Mueller.

Several pages later, it moved to the June 9 meeting. Bannon said he had no knowledge of the meeting at the time it happened (remember, he joined the campaign in August 2016), which made it easy for him to accuse Jared of treason, since he was uninvolved.

Bannon can’t decide whether he got Manafort fired or tried to protect him

But Bannon’s response to and insulation from the June 9 meeting is important background to where things start to get interesting, an apparent attempt to get Kushner fired in the wake of the June 9 meeting revelations.

On page 14 of the interview, Bannon got shown a July 24 email (PDF 174), which shows him forwarding a July 24, 2017 story implicating Jared in Russian money laundering to someone at Breitbart, telling them not to touch it yet. But the subsequent conversation makes it clear that Bannon was preparing to try to get Jared fired in the wake of the June 9 meeting revelation.

Bannon’s explanation to Mueller’s team was totally nonsensical, not least because he doesn’t appear to address the article at all, but important for everything that came after. He talks about what happened when he joined the campaign.

Bannon knew Kushner was on vacation off the coast of Croatia with a Russian billionaire when Bannon took over the campaign. Kushner was with Wendy Deng, the Russian billionaire, and the Russian’s girlfriend. Bannon said his friends in the intelligence community said the girlfriend was “questionable.” Bannon called Kushner and told him to come back from vacation. They had 85 days to go, no money and they needed Kushner to come back and fire Paul Manafort.

Both by date — 85 days before the election would be — and by public reporting, Bannon is referring to something that happened in mid-August 2016, when Ivanka and Jared were pictured on David Geffen’s boat off of Dubrovnik, probably a hit piece meant to suggest that Kushner was really a Democrat. Later, the frothy left had, in 2017, made much of the fact that Dmitry Rybolovlev was in Dubrovnik at the same time Kushner was. But in his interview, Bannon was basically answering a question about a hit piece from the weeks before he was ousted by making a claim that he had had to recall Kushner from that vacation in Dubrovnik at a time the campaign was failing to fire Paul Manafort.

Two pages later, the interview turns to how Bannon get set up with Trump in the first place — both how he had earlier been aligned with other outsider candidates and then swooped in in August 2016 to take over the campaign. The notes, but not the report itself, reveals that he got to know Sam Nunberg pretty well. The narrative loops through discussions of Cruz and Lewandowski, includes discussions from June 2016, then turns back to where Bannon anachronistically put his answer to the previous question: to what sorry shape the campaign was in when he took over in mid-August.

At the time Trump was 16 points down, the campaign had no organization, no money, 75% of the population through the country was in decline, they were working with the “deplorables,” and  Bannon had a 100% certitude that they would win. Bannon believed that the big task was to give people permission to vote for Trump as commander in chief.

Bannon’s story shifts immediately back to how he ousted Manafort, but this time he tells a story that differs from what he told Mueller just pages earlier.

The next day Bannon met with Manafort, which was the same time that the news about the “Black Ledger” was breaking. Bannon was at campaign headquarters when Manafort told Bannon to come up to Trump Tower. When Bannon arrived, Manafort showed him something about a NY Times story about the “Black Ledger” and $15 million dollars from the Ukraine. Bannon asked when this story was coming out. Manafort replied that he had known about the story coming out for approximately 2 months and had not gotten involved in it. Bannon subsequently told Trump to keep Manafort, to not fire him, and to keep him around for a couple of weeks. Bannon called Kushner, and asked him to get back in order to do something publicity wise to counteract the negative press surrounding the story. Trump had asked Bannon at one time about “what was this thing with Manafort out of the Ukraine,” and they talked for approximately 15 minutes on it. Trump was never linked with other Russian news stories at the time, and he believed Manafort was a promoter. Trump was more worried about how they [sic] story made them look. Bannon believed that Trump talked with Manafort about the story.

Just pages earlier, Bannon had claimed he called Kushner back to fire Manafort; here he said he called Kushner back to do publicity to make it feasible to keep him on.

Bannon claims not to remember how Prince scripted Trump’s answers on Russia for the last debate

Then the interview moves to Erik Prince.

Remember, this interview takes place against he background of Mueller’s efforts to figure out Bannon’s role in sending Prince to set up a back channel with Kirill Dmitriev in the Seychelles. But rather than go there, the interview focuses on whether whether Prince had scripted the answers on Russia that Trump used in the final debate on October 19, 2016.

Bannon explained that he had never had a conversation with Prince about foreign policy with respect to the Trump campaign. Then, prosecutors asked him about a series of documents that proved him wrong:

  • Some talking points Prince sent on September 8, 2015 (PDF 181), effectively pitching his services, which Bannon forwarded to Corey Lewandowski
  • An email exchange showing Bannon forwarding those talking points, Bannon following up (after just having spoken to Prince) asking whether Lewandowski had read the Prince brief, Lewandowski responding they were meeting with Flynn shortly, followed by Bannon offering Prince to brief Trump
  • An email showing Bannon setting up an interview (possibly with Prince) regarding the GOP spat over Section 215 in December 2015
  • A January 14, 2016 where Bannon gave Prince a reference for someone he described as Muslim who was living in India, possibly suggesting Prince should hire him
  • A March 17, 2016 email showing Bannon inviting Prince on his show and trying to set up another Prince-Trump meeting
  • A May 23, 2016 email with Prince suggesting Trump meet with Oleg Hladkovskyy, then the National Security Advisor of Ukraine, who was being hosted by a Prince friend who was in the aerospace business
  • An October 18, 2016 email (PDF 196) from Prince suggesting that, “Mr. T should introduce, an alternative narrative” on Russian election interference by arguing that Putin and Lavrov, “know your weaknesses and your penchant for recklessness, ignoring rules and regulations, which has provided a treasure trove of sensitive information while you were Secretary of State” (!!!)
  • A November 16, 2016 email from Mark Corallo that Prince forwarded to Bannon showing that Corallo was fluffing Bannon with reporters, with the explanation, “We are getting you more PR help”

In response to seeing these documents, Bannon claimed to forget almost all of it.

He professed to not remembering whether Prince had briefed Trump in September 2015, and claimed — the written record notwithstanding — that he spoke to Prince infrequently. He then claimed to not remember whether Prince had come on his show but excused it because Prince was “on the right;” he doesn’t appear to have answered whether Prince briefed Trump. Bannon did not remember the Hladkovskyy pitch, but explained that by saying Prince “as someone with a good relationship with Trump.” Bannon appears to have responded to the Prince advice on how to change the Russian narrative — what the original question was directed towards — by suggesting that campaign headquarters were “loosey goosey” meaning Prince may have come in with free reign during the period Bannon was the campaign CEO (meaning that Bannon couldn’t be pinned down as the exclusive via which Prince scripted that question). Bannon claimed not to remember Prince going out of his way to help Bannon get good PR.

In other words, Mueller’s team first asked Bannon if he had been the channel for Prince to inject policy views — specifically the view that the US should partner with Russia to go after ISIS — into the campaign. Bannon said no. And then prosecutors showed him a bunch of emails showing that’s probably what happened, including Prince offering a scripted answer about Russia for the last debate.

The MBZ back channel

Mueller’s prosecutors then moved to another of the sensitive things Bannon had a role in: the meeting with Mohammed bin Zayed during the transition.

The story goes back to a meeting Trump had with Abdel Fattah el-Sisi, something George Papadopoulos had claimed credit for. Bannon gave Kushner the credit. He claimed he didn’t know if they talked about Russia. He also claimed that if he met George Nader, they did little more than shake hands (Bannon would retain ties with Nader for quite some time after this).

There’s a heavily redacted paragraph that, in the notes, clearly involves George Nader. Given his role in brokering the meeting between Prince and Dmitriev, that may be what the passage is about.

Bannon then claims that he last heard from Nader two or three months earlier (that is, late 2017), but that Nader hadn’t reached out to him about being forced to testify to Mueller the month earlier.

Bannon remembers Rick Gerson

Immediately after catching Bannon forgetting how central he was to channeling Prince into the campaign (above), he was asked about Rick Gerson, who would play a key role, with Kirill Dmitriev, in scripting the initial phone call between Trump and Putin. When he was first asked, Bannon said he didn’t remember him.

Then, after the Nader discussion, he was shown a picture, and Bannon recognized that he was Kushner’s hedge fund buddy whom he had referenced earlier. There are two redacted paragraphs, after which Bannon is again asked whether he spoke to Nader about his testimony. Bannon claimed to have learned of Nader’s testimony from the newspaper, “but then said that he could be wrong.” It seems like prosecutors knew it was wrong.

Bannon disclaims any knowledge of Trump’s Russian business ties

After over two redacted pages, the interview then turns to the Trump Tower Russia deal. Bannon started by blaming Michael Cohen for the shit he protected Trump from (a particularly notable comment since Wolff had reported him claiming that Cohen had “taken care of” a “hundred women” during the campaign).

Bannon described Cohen as the kind of guy who thought it would be a good idea to send $130,000 to Stormy Daniels.

Bannon was then shown a document about Trump Tower (which was not released in the FOIA). In response, he tried to claim he had no knowledge of Trump having any business deals.

Bannon was told “zero” deals involving Russia and the Trump Organization. Candidate Trump would say he didn’t know any Russians and there was no collusion. This came up during the campaign a couple of times. Bannon never asked Trump about any Russian business deals. In regard to the emails [sic] reference to Felix Sater, Bannon stated that this went back to the House Intelligence Committee, that they had a signed term sheet in December 2015 on Trump Tower Moscow. This was a big deal to Bannon, and Bannon described it as a “big reveal.”

Mostly, they’re asking Bannon about the cover story that wouldn’t be exposed as such for months after this interview. But it’s significant because before and after the question, Bannon claimed that when Manafort’s Russian ties were creating problems in August 2016, he had no knowledge that Trump had ties to Russia.

After a number of redacted paragraphs, the interview turns to Bannon’s knowledge — which he had reportedly bragged about to Wolff — of the Stormy Daniels payment. Bannon claimed, dubiously, to have spoken to Breitbart people about the payment (which happened while he was CEO of the campaign), but not anyone on the campaign. This dubious claim is of particular interest given that, shortly after Cohen was raided two months after this interview, Bannon started pushing to fire Rod Rosenstein to end the investigation.

Then the discussion returns to Trump’s Russian business deals. After twice already claiming that he had no knowledge of Trump’s Russian business ties, Bannon then admitted:

  • Having read stories from March and April in 2016 on the topic, but not discussing them with anyone on the campaign
  • Learning, while he was on the campaign, of the Dmitry Rybolovlev purchase of Trump’s mansion, but accepting Trump’s “plausible” explanation for it
  • Learning the limited hangout Trump Tower story, but reaching out to people at The Intercept, Fox, the Guardian, and ABC, and because they had no knowledge of it, thinking no further of it
  • Claiming to have “never talked to Trump on how he thought all these stories on his business dealings with Russia was absurd”

Bannon was then shown an email (this is out of order, in the back-up section starting at PDF 234) where he had asked Cohen about claims about Sergey Millian, which he didn’t remember getting, nor does he remember discussing it with the campaign, even though he included Kellyanne Conway, Jared, Stephen Miller, and two other people in his question to Cohen about it. It consisted of a September 22, 2016, response from Sergei Millian to an FT reporter on how sanctions affected deals with Russia, a follow-up four days later, followed by a specific disavowal on September 27 that he had worked, personally, for Trump. Millian forwarded it to Cohen that same day, and Cohen forwarded it to the campaign, misstating what Millian said as a disavowal of any relationship. When Bannon asked what the context was, Jared responded by explaining that Hillary was playing commercials claiming that Trump wasn’t releasing his taxes to hide his ties to Russian oligarchs.

Effectively, Bannon made a not very credible case, one undermined by the documentary record, that he never learned — and never asked about — the Russian business ties of his boss.

But her emails and those other emails and other emails still

Much of the rest of the interview focuses on at least five different uses of emails, oppo research, and social media during the campaign: Cambridge Analytica, Bannon’s own oppo research, Hillary 33,0000 emails, Papadopoulos’ advance notice of the Russian operation, and Stone’s activities. One interesting aspect of this is the way the interview seems to shift back and forth between these seemingly distinct issues, starting with Sam Nunberg, going through Cambridge Analytica and the 33,000 emails, then returning to Stone. That may be because this section is heavily redacted (much of it for ongoing investigative reasons, and not just the parts pertaining to Stone), but it also may have to do with the fact that Bannon’s role went from outside purveyor of junk oppo research and lackey of the Mercers to the guy leading the campaign. Remember, the Mercers funded both Bannon’s Government Accountability Institute and CA. While it’s not yet clear why, the way in which these two streams collapsed in August 2016 remains important.

First, Bannon was asked about a June 5, 2015 email from Barbara Ledeen (PDF 199) sharing her proposal to find Hillary’s missing 33,000 emails (which was specifically pitched in terms of opposition research, not — in Ledeen’s function on SJC — as an oversight goal). The Bates stamp on it suggests it came from his response to subpoena. Bannon said that was part of his work on Government Accountability Institute, and was part of his effort to package allegations about the Clinton Foundation into the book, Clinton Cash, that would go on to be the basis of an FBI investigation during the campaign.

Next, Bannon explained an August 4, 2015 email to Bannon saying that Lewandowski had “just confirmed green light on Trump :-)))”. It pertained to voter targeting, but the data operation people were not retained.  Bannon seems to have responded to this 2015 email by explaining that someone from Cambridge Analytica introduced Bannon to Ivanka and Jared after Ted Cruz withdrew in May 2016, which was the first time he met them.

Next, Bannon was asked about a June 12, 2016 email from someone in the UK (PDF 226). Based on the length of some of the redactions, Alexander Nix was almost certainly involved. The email pitched Bannon meeting with someone while on a trip to the UK in the next two weeks to discuss the Super PAC. Bannon responded “Love it,” but in the interview he claimed not remembering talking to what is almost certainly Nix about this meeting. Parts of this email are redacted under the b7ABC exemption, reflecting an ongoing investigation in November when it was released.

Then Bannon was asked whether he had worked with George Papadopoulos on setting up the meeting with al-Sisi as a way to ask if he had heard Papadopoulos’ information about Russian dirt. Bannon claimed that Flynn would be on the hook for the al-Sisi meetings Papadopoulos was floating, so he didn’t need to interact with Papadopoulos.

Importantly, Bannon said he “had all the dirt he needed from Clinton Cash and Uranium One,” so he didn’t need “any more dirt from ‘clowns’ like Papadopoulos and Clovis.” This is an important issue: Bannon claimed, back in February 2018, that he believed there was a finite amount of dirt needed between the dirt he had invented and the dirt others — the Russians — were offering. By saying he already had his own dirt, he was effectively disavowing an interest in dirt that came from Russia and suggesting they were separate. Note, too, that the answer is particularly interesting because when Papadopoulos told Alexander Downer about the Russian offer, he mentioned that the campaign already had a ton of dirt, which presumably would have been Bannon’s.

It appears, given his name appearing in the notes but not in unredacted form in the 302, that the discussion then turned to Sam Nunberg, who may have sent Bannon an email on January 7, 2016 — long before Bannon joined the campaign — referring to the “Data Guy in Trump Tower.” Bannon thought the name in the email was wrong though did remember meeting a “data guy” there in January 2016. He thought Nunberg did a great job running the campaign by himself for a year (which is interesting because he seemed to have a good relationship with Lewandowski, who was nominally running it).

Bannon is then shown two emails which were not released in FOIA, at least one of which pertains to CA. His responses are redacted under ongoing investigation exemptions.

Bannon then explained that in August 2016, Kushner was in charge of the digital campaign and fundraising, and “the campaign had almost no cash and they were receiving only a small amount from online contributions.” Thus, he repeats the refrain he used at the beginning of the interview, but this time in the specific context of social media and online fundraising.

The interview then turns to an April 20, 2016 email (this is out of order at PDF 239) showing what may be Bannon following up on a meeting by referring to someone else, with the interlocutor asking to call the next day. Bannon claimed not to remember that email.

Bannon is then shown a May 4, 2016 email (which seems to be an automatically forwarded text) that came from Cambridge Analytica. The CA sender described someone — either Ken Cuccinelli or someone who worked for him — being a “total pretender,” because “We worked on our very first pilot program with him in 2013.” Bannon believed that this pertained to an earlier email he had been shown (one of the ones not released under FOIA), and explained that “Cambridge Analytica claimed they could help micro-target voters on Facebook.” He goes on to discuss a project for CA.

The interview turns to two more emails, not provided under FOIA, withheld under the ongoing investigations exemptions.

The next refers to an email to someone dated August 26, 2016, asking if the recipient (by redaction length, this could be Stone) could talk because Bannon Had some ideas.

Bannon claimed not to remember what the ideas in question were. As noted, it was withheld as part of an ongoing investigation.

The next document was from Ted Malloch, dated August 30, 2016, who offered up the idea that Trump should hand Hillary an indictment during the first debate. Malloch said he’d been “in constant touch with the campaign” though the rest is redacted. Bannon claimed to have no contact, apparently with Malloch though possibly with Jerome Corsi (who was in contact with him at the time).

Bannon was shown another email, about which there was a short entirely redacted description. Then the interviewers took a 10 minute break. He was asked about the email again, and there was an extensive description, per the notes, possibly integrating two more issues. Whatever the email was, it is a significant part of this interview, redacted for ongoing investigations.

But it likely pertains to Stone, because Bannon claimed he was interested in the 33,000 emails, but not the John Podesta information.

Bannon was always interested in the missing 33,000 emails, but was not interested in the John Podesta information since he believed it was not going to impact the election. Bannon clarified that he was talking to [several sentences redacted] Bannon was interested in the verified 33,000 emails and how it related to Uranium One. Bannon might have talked with [redacted] at one time, about the 33,0000 emails. After Bannon came onto the campaign, it got into Candidate Trump’s “head” that the 33,000 emails might be important. Trump was focused on “crooked Hillary” and the Uranium One story, and thought the 33,000 missing emails might unlock it. They never discussed that the Russians might have them. Bannon thought that some hackers in Bulgarian might have them. There was not much of a response from Trump and every now and then he would bring up the 33,000 emails. One time when the Podesta emails were released, Trump asked if it was a big deal. Bannon [redacted] with Trump. Flynn or Kellogg might have had a disc on finding the 33,000 emails. Bannon though Flynn might have had an idea about using an outside company and finding the 33,000 missing emails. If it was anything cyber related, Bannon would always refer to Bannon and the cyber guys. Bannon did not think the WikiLeaks releases were that big of a deal, the important information was the 33,000 missing emails. Kellogg thought the same thing, and he was not a cyber guy. Priebus and Miller had talked about the 33,000 missing emails.

There’s a lot that’s obvious invention here (notably that no one thought Russia might have the 33,000 emails and that Bannon wasn’t interested in the WikiLeaks releases). But I’m particularly interested in the degree to which Bannon again pitches these things as unrelated — the 33,000 emails are one thing, the WikiLeaks releases are another. When Bannon joined the campaign, after all, Roger Stone was bragging about how the following dumps would be the missing emails.

The interview then turned to a discussion of the way the Podesta emails came out jut as the Billy Bush tape came out, with Bannon claiming that he “never thought the Podesta releases were a big deal.”

The interview then reviews three more emails, the discussion of one of which is redacted for ongoing investigations but the email itself appears largely unredacted in the backup.

This is, then, an email about debate prep for the same October 19 debate where Erik Prince appears to have scripted Trump’s answer on Russia, though this time there’s a reference to “Our friend in FL,” which might be Stone.

The next email and discussion is not redacted. It pertains to a Prince fundraiser, which leads Bannon to disavow any coordination issue. As I’ll discuss in a follow-up, we know that Prince was fundraising for Stone at this time, which did pose coordination problems. The issue was supposed to come up at Stone’s trial, but did not.

Then Bannon is asked about the September 21 email via which Trump Jr sends a link to a WikiLeaks site (though Bannon was forwarded the email — he didn’t get it directly). The discussion of the email is not interesting. But Bannon’s disavowals on WikiLeaks, again, have been refuted by his subsequent testimony, including during Stone’s trial.

Bannon did not remember anyone else in contact with WikiLeaks. There was discussion during the campaign on how WikiLeaks could impact the race. Bannon did not think anyone had any ideas on where WikiLeaks had got their information. Bannon did not remember anyone reaching out to [redacted, almost certainly Stone], WikiLeaks, or any other intermediary to see what information might be coming.

Indeed, Bannon’s claims were almost immediately challenged in the interview, when Bannon was asked about the November 5, 2016 thread that started with Paul Manafort sending Jared a memo warning that Hillary would,

move immediately to discredit the [Trump] victory and claim voter fraud and cyber-fraud, including the claim that the Russians have hacked into the voting machines and tampered with the results.

Jared forwarded it to Bannon and David Bossie, in response to which Bannon said,

We need to avoid this guy like the plague.

They are going to try and say the Russians worked with wiki leaks to give this victory to us.

Paul is a nice guy but can’t let word get out he is advising us.

In response to being shown an email where he suggests Manafort was advising the campaign (the Mueller Report reveals that Rick Gates, in an interview just two days before this one, had revealed that Manafort told Gates he was still speaking with Trump, Kushner, and Bannon himself), Bannon claimed he,

was not aware of any instances of Manafort advising, or being involved in the campaign after his ouster.

Then, Bannon claimed that,

Candidate Trump never said to Bannon that he was in contact with [redacted, almost certainly Stone] or Manafort.

The substantive part of the interview ends, then, with Bannon making a tie between Manafort and (almost certainly) Stone that admits a tie between Stone and WikiLeaks that Bannon would later testify to, repeatedly, under oath, even while disclaiming any tie to Stone, even though emails would prove that false.

Bannon tells Mueller want to obtain warrants for

The last major paragraph of the interview lays out Bannon’s claims about his communications habits, including:

  • Bannon had three cell phones but did not use either the campaign one or the “secure” one provided by the Federal government to ensure his communications remained secure
  • He didn’t use the campaign iPad much
  • He had no idea that his cell phone had been set up to not archive text messages (which is pertinent because his messages with Prince got deleted)
  • He claimed not to use secure apps during the campaign and transition, but got ProtonMail and Signal not long before leaving the White House
  • Bannon never used Slack, though Breitbart did
  • Bannon got Wickr on Prince’s recommendation, but used Signal with other people
  • He claimed not to know of all the people using secure apps
  • After having just said he primarily used his personal cell phone, Bannon claimed not to have used his personal phone for White House business
  • Bannon several times disclaimed any discussion of the importance of keeping his text messages to comply with the Federal Records Act
  • Bannon said he primarily used his White House email to do business, but then described using his “arc-ent” one, but claimed they got archived a the White House

This language would be particularly useful for prosecutors to use in warrants.

But it’s also important for another reason. Most, if not all, of the referenced Bates stamps in this interview were clearly Steve Bannon’s own production, what he turned over himself. But we know of at least two key emails that don’t appear in this interview, either because they’re redacted, or because Bannon didn’t turn them over. One is an August 18, 2016 email from Stone, sent immediately after Bannon was publicly announced to be joining the campaign, promising Bannon he knew how to win the election. Another is an exchange from October 4 2016, showing Bannon showing great interest in WikiLeaks, in contradiction to the unredacted parts of his testimony. Plus, there’s a text from Bannon’s assistant, Andrea Preate, congratulating Stone after WikiLeaks stomped on the Access Hollywood tape.

To the extent that Mueller relied in this interview (and the earlier one, two days earlier) on Bannon’s production — and it’s not clear whether that’s what happened or not — it would leave the possibility that Bannon didn’t turn over things that were clearly responsive to any Mueller subpoena.

Again, we don’t know whether that happened or not. But Bannon’s unredacted testimony is inconsistent with exchanges with Stone we know were documented. And, as mentioned above, when Cohen was raided, Bannon lost it, pushing to fire Rosenstein after he had told Jared that firing Comey was the stupidest political decision in modern history.

As I disclosed in 2018, I provided information to the FBI on issues related to the Mueller investigation. And as a reminder, a significant part of my PhD work involved Czech literature. 

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The Republican Party Is No Longer the Party of Personal Responsibility

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In a cynical speech that, if we’re lucky, will be an effort to deescalate militarily by imposing more sanctions on Iran (which is not a good thing but far better than the alternative), Trump just pre-blamed Barack Obama for the failures most experts predict and have correctly predicted will come from Trump’s Iran policy. He suggests, falsely, that the current escalation is the result of Obama’s peace deal, rather than the demonstrable result of his suspension of it.

Iran’s hostilities substantially increased after the foolish Iran nuclear deal was signed in 2013, and they were given $150 billion, not to mention $1.8 billion in cash. Instead of saying “thank you” to the United States, they chanted “death to America.” In fact, they chanted “death to America” the day the agreement was signed.

Then, Iran went on a terror spree, funded by the money from the deal, and created hell in Yemen, Syria, Lebanon, Afghanistan, and Iraq. The missiles fired last night at us and our allies were paid for with the funds made available by the last administration. The regime also greatly tightened the reins on their own country, even recently killing 1,500 people at the many protests that are taking place all throughout Iran.

The very defective JCPOA expires shortly anyway, and gives Iran a clear and quick path to nuclear breakout. Iran must abandon its nuclear ambitions and end its support for terrorism. The time has come for the United Kingdom, Germany, France, Russia, and China to recognize this reality.

I’ll leave it to others to unpack how dishonest this claim, both with respect to what JCPOA did and what has led to the increase in tension since Trump reversed our commitment to it.

But it exists in a larger context in which the Trump’s supporters are both refusing to take responsibility for their own actions, including but not limited to their support for Trump, but also doing so by pre-blaming Democrats.

This has been going on for the entirety of the Trump Administration (indeed, arguably it has been going on for at least 15 years). But with respect to Iran, it has consisted of:

  • Blaming Obama’s successful peace deal for the effects of Trump’s own rejection of it
  • Claiming Trump couldn’t brief Democrats on the Soleimani assassination because otherwise they would leak
  • Suggesting that Democrats’ past impeachment of Trump will have a future effect on his ability to respond to the crisis he created with the assassination

Let me be clear: I don’t think Trump assassinated Soleimani to distract from impeachment. I think he assassinated Soleimani because he’s a narcissist who responds to slights by lashing out, and his top advisors Mark Esper and Mike Pompeo are committed to Raytheon, Rapture, and a dangerously escalatory Iran policy, and so in this case did not rein in the natural result of arming someone with Trump’s narcissism, which is to use force where diplomacy would be more effective.

But here we are, with a dead Iranian general and fewer allies in the Middle East and few adults running policy, which may well be a recipe for disastrous things to come.

Trump (and his supporters’) refusal to take responsibility for their own actions is particularly toxic in this context because his policies and incompetent implementation of them are highly likely to fail, and the only way Trump can sustain support while presiding over obvious and foreseeable failures is to blame some other entity, which in this case includes Democrats and Iranians. And the only way for him to continue failing policies even while it’s clear they are failing is to pretend they’re not the cause of the failure.

Trump’s excuses for not briefing the Gang of Eight are particularly worrisome. It’s bad enough he didn’t do so, both for Constitutional and practical reasons. Even Richard Burr or Mitch McConnell might have advised Trump to take a more moderate approach. And had Trump briefed Nancy Pelosi, Adam Schiff, or Chuck Schumer, any one of them might have said something to make it clear that if he did this and it blew up in his face, they would make it clear to the public that he had made the decision against their advice. Our system of briefing the Gang of Eight on covert operations is a terrible way to vet military and intelligence operations (not least because you don’t get in those positions unless you’re a hawk). But in this instance, it might have made Trump worry about being shamed if he ignored the advice. It also would have offered Trump the ability — one George Bush used aggressively to survive his scandalous embrace of torture and illegal wiretapping — to claim there was bipartisan awareness of the actions, which might make it more likely to craft a bipartisan response if things do start to go south.

But Trump doesn’t like the humiliation of hearing advice he doesn’t like, and so he didn’t brief  the Gang of Eight beforehand.

He owns this decision, and all its consequences, because he chose to make the decision without following the norm that would allow him to share the blame.

But that raises the stakes for him to find scapegoats. It’s a feedback loop, where his refusal to listen to competent advice increases the likelihood of stupid decision and his defensiveness about admitting all that, thereby raising the stakes on having scapegoats still further.

And that, in turn, raises the aggressiveness he needs to direct at his scapegoats. Democrats (and Iranians and NATO) must not be wrong. They must be disloyal or traitors or Jew-ridden socialist countries or terrorists. Indeed, that’s likely one of the reasons why Trump so readily adopts inflammatory slurs with no basis in fact: because he has to dehumanize his scapegoats, to make sure no one thinks too much about what function that scapegoating plays.

It’s all a recipe for increasing violence.

And at the core, on the Soleimani assassination, the case that Trump is responsible is not just obvious — best embodied by his refusal to brief the Gang of Eight even while telegraphing his attack to his cronies at Mar-a-Lago — but a root cause of why he wants to build his scapegoats in from the start.

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Nunes Memo v Schiff Memo: Neither Were Entirely Right

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As I noted, I spent much of the last month wading through the DOJ IG Report on Carter Page. Back when the IG Report came out, a bunch of people — largely Devin Nunes flunkies — declared, incorrectly and apparently without close review, that the IG Report shows that Devin Nunes was right and Adam Schiff was wrong in their memos from 2018.

The reality is that both were talking past each other, with Nunes trying to make the Steele dossier stand in for and discredit the entire investigation, and Schiff trying to point out that the Steele dossier did not predicate the entire Russia investigation. Nunes made dishonest claims about the Ohrs and Comey’s briefing of the Steele dossier to Trump. Schiff wrongly defended the FBI’s treatment of the September 23, 2016 Michael Isikoff story and overstated the known reliability of the dossier at the time of the memo, to which additional details were added by the IG Report.

Schiff overstates both the predicted and actual efficacy of the FISA collection, which is something it’d be nice to see both parties return to. Though it has long been evident that the FBI and the IC generally often continues surveillance (and surveillance programs) past their point of usefulness, the Intelligence Committees do a piss poor job of challenging such collection.

Before I compare the two, though, consider that both memos came before almost a year of parallel investigations (one conducted by House Republicans, another conducted by the DOJ IG) into the process. Even Nunes was not aware when he wrote his memo of some of the problems identified in the IG Report. I say that with great confidence, not least because I spoke with a Republican who had read the FISA application closely months after the Nunes memo was written who told me there was so much else in Carter Page’s FISA application that approval of the application was not a close call even with concerns about the dossier; the person changed his opinion after that time. In other words, when both parties released a memo about the Carter Page application in early 2018, neither side knew of some of the problems revealed in the IG Report. That’s actually evident from the things Nunes does not complain about in his memo (though he may remain silent about Page’s past relationship with CIA for classification reasons), and it means some of Schiff’s assurances about the dossier have been proven inaccurate since.

This post will conduct a paragraph-by-paragraph assessment of the letters that uses the IG Report, with one key exception, as arbiter of accuracy. The exception is DOJ IG’s conclusions on (but not facts presented about) Bruce Ohr, as that is one area where DOJ IG can be shown to misrepresent the record.

Nunes Memo

¶1-4: The introductory paragraphs of the Nunes memo lays out when FBI obtained FISA orders on Page and who approved them. These details are true, though uncontroversial. From there, Nunes adopts an outline of allegations that are either less sound or inaccurate:

¶5 (marked as 1):

“The dossier was essential:”

The IG Report said the FBI lawyer said ” the Steele reporting in September ‘pushed it over’ the line in terms of establishing probable cause,” and generally the IG Report shows that FBI would not have initiated the FISA process without the dossier, though by the time the application was approved FBI had collected more damning information on Page.

The IG Report describes five things substantiated probable cause against Page:

  • Russia’s effort to influence the election
  • The Papadopoulos report
  • Page’s past history with Russia, including his Gazprom dealings, his serial recruitment by Russian intelligence officers, his comments about what he had told the FBI
  • The Steele allegations
  • His enthusiasm about being offered a “blank check” to start a pro-Russian think tank on his July trip to Russia

“Steele was a longtime FBI source:” Steele had been known to Bruce Ohr and Andrew McCabe via mutual interest in combatting organized crime since the 2000s. Ohr first introduced Steele to an FBI handler in 2010. He was formally opened as a CHS in 2013, though the two sides disagreed about the terms of that relationship.

Steele was paid over $160K, to obtain derogatory research: True, but not part of the IG Report. The Nunes memo doesn’t note that Steele was paid $95,000 by the FBI, none of it for dossier-related work.

¶ 6, 7 (marked as 1a and 1b): “Neither the initial applications nor the renewals disclose the role of the DNC, Clinton campaign, or any party/campaign in funding Steele’s efforts, even though the political origins of the Steele dossier were then known to senior DOJ and FBI officials:” The footnote disclosing this did not name any Democrat, but it wouldn’t have in any case. It did say that,

[Steele], who now owns a foreign business/financial intelligence firm, was approached by an identified U.S. person, who indicated to [Steele] that a U.S.-based law firm had hired the identified U.S. person to conduct research regarding Candidate #l’s ties to Russia (the identified U.S. person and [Steele] have a long-standing business relationship). The identified U.S. person hired [Steele] to conduct this research. The identified U.S. person never advised [Steele] as to the motivation behind the research into Candidate #l’s ties to Russia. The FBI speculates that the identified U.S. person was likely looking for information that could be used to discredit Candidate # 1 ‘s campaign.

The political origins of the dossier were suspected by senior FBI and DOJ officials before the first application. After that, they had far more specific knowledge of it, thanks largely to Bruce Ohr. The FBI did not disclose its enhanced understanding of the nature of the project in reauthorizations, though some of the people involved believed the initial footnote remained adequate.

“The FBI had separately authorized payment to Steele for the same information.” It wasn’t the same information. FBI authorized Steele to be paid if he completed taskings focused on the subjects of the investigation, but they offered that in the (false) expectation he’d offer them information exclusively. He was not, ultimately, paid for this.

¶8 (marked as 2): “The Carter Page FISA application also cited extensively a September 23, 2016, Yahoo News article by Michael Isikoff … This article does not corroborate the Steele dossier because it is derived from information leaked by Steele himself.”

This entirely misstates the point of the Yahoo inclusion, which was to include Page’s denials.

Evans told the OIG that 01 included the reference to the September 23 Yahoo News article in the FISA application solely because it was favorable to Carter Page and not as corroboration for the Steele reporting in the application. According to Evans, the application’s treatment of the article was favorable to Page in three respects: (1) the application described statements in the article that the campaign distanced itself from Page and minimized his role as an advisor; (2) the application stated that Page denied the allegations in the news article in a letter to the Director; and (3) as described below, the application made clear that the people who financed Steele’s reporting were likely the same source for the information in the article.

While it is true that the FISA application did not attribute the quote to Steele (not even after FBI learned he had been the source from Bruce Ohr), the application did attribute it to Glenn Simpson.

Given that the information contained in the September 23rd News Article generally matches the information about Page that [Steele] discovered during his/her research, the FBI assesses that [Steele’s] business associate or the law firm that hired the business associate likely provided this information to the press.

¶9, 10 (marked as 2a and 2b): “Steele was suspended and then terminated as an FBI source for what the FBI defines as the most serious of violations–an unauthorized disclosure to the media of his relationship with the FBI. … Steele should have been terminated for his previous undisclosed contacts with Yahoo.”

This is correct, insofar as Steele was closed for cause because he disclosed that he had shared information with the FBI, which amounted to being a control problem.

Strzok told the OIG that the FBI closed Steele “because he was a control problem. We did not close him because we thought he was [a] fabricator.” According to Strzok, Steele’s decisions to discuss his reporting with the media and to disclose his relationship with the FBI were “horrible and it hurt what we were doing, and no question, he shouldn’t have done it.”

But there are more serious violations, such as breaking the law.

However, a CHS must be closed for cause “if t here is grievous action by the CHS or a discovery of previously unknown facts or circumstances that make the individual unsuitable for use as a CHS.”97 Reasons that justify closing a CHS for cause include commission of unauthorized illegal activity, unwillingness to follow instructions, unreliability, or serious control problems. 98

Also, Steele’s decision to share the information, while utterly stupid from a HUMINT standpoint, was not actually a violation of any warning the FBI had given him, since he disclosed information he had collected for someone else.

Steele’s handling agent said that Steele should have been closed for cause because of the attention he was attracting for himself, but he recognized that Steele was not leaking information he had collected for the FBI (and the IG Report didn’t find any orders that he not speak to the press, either).

Handling Agent 1 told us that he understood why Steele would believe in September 2016 that he did not have an obligation to discuss his press contacts with him given that: (1) Steele’s work resulted from a private client engagement; and (2) Handling Agent 1 told Steele on July 5 that he was not collecting his election reporting on behalf of the FBI. However, Handling Agent 1 ‘s view was that while it was obvious that Fusion GPS would want to publicize Steele’s election information, it was not apparent that Steele would be conducting press briefings and otherwise interjecting himself into the media spotlight. Handling Agent 1 told us that he would have recommended that Steele be closed in September 2016 if he had known about the attention that Steele was attracting to himself. According to Handling Agent 1, Steele should have had the foresight to recognize this fact and the professionalism to afford Handling Agent 1 an opportunity to assess the situation. However, we are unaware of any FBI admonishments that Steele violated by speaking to third parties, including the press, about work that he had done solely for his firm’s clients and where he made no mention of his relationship with the FBI.

[snip]

According to Handling Agent 1, while Steele appeared to follow the directions of Fusion GPS, he did not treat his other client – the FBI – fairly. According to Handling Agent 1, if Steele “had been straight with the FBI,” he would not have been closed as a CHS.

¶11 (marked as 3): Before and after Steele was terminated as a source, he maintained contact with DOJ via … Bruce Ohr.

This is true, but it was part of a 10 year relationship based on sharing information about organized crime, and this information included non-dossier related information on Trump (focused on Oleg Deripaska’s double game offers to offer evidence against Paul Manafort) and other Russian (including doping) and non-Russian matters.

The IG Report makes the same kinds of errors in its portrayal of Ohr as the FISA Application does about Page, effectively arguing Ohr should be disciplined for the kind of information sharing DOJ and FBI have insisted they need to encourage since 9/11.

Ohr said, “Steele said he ‘was desperate.'”

This is true, though the IG Report shows (but then misrepresents) that Ohr specifically said this was an ideological desperation, not a political one: “but was providing reports for ideological reasons, specifically that “Russia [was] bad;”

¶12 (marked as 3a): “During this same time period, Ohr’s wife was employed by Fusion GPS to assist in the cultivation of opposition research on Trump … the Ohrs’ relationship with Steele and Fusion GPS was inexplicably concealed from the FISC.”

This is dishonest. Nellie Ohr’s last day working as a contractor for Fusion was September 24, 2016, so she was no longer employed by Fusion at the time of the first Page application or at the time when Ohr was helping FBI vet the dossier. The IG Report does not say their relationship should have been disclosed to the FISC, nor should it have been, as Nellie Ohr’s research was a separate stream from Steele’s.

¶13 (marked as 4):

“corroboration of the Steele dossier was in its ‘infancy’ at the time of the initial Page application.”

This is true, but that is not unusual in the FISA context.

Evans and other witnesses told us that the fact that the source information in the FISA application had not yet been corroborated was not unusual in the FISA context

DOJ assessed the reliability of this information, for the first application, by assessing Steele’s reliability and including information on his subsources. His past as an MI6 officer gave him more credibility than other sources might have had. All the applications misstated what Steele’s handling agent had said about the degree to which his past reporting had been corroborated.

“a source validation report … assessed Steele’s reporting as only minimally corroborated.”

The source validation that found Steele’s reporting to be minimally corroborated was done in March 2017, after the first two FISA applications and the Trump briefing.

“Yet in early January 2017, Director Comey briefed President-elect Trump on a summary of the Steel dossier, even though it was–according to his June 2017 testimony–‘salacious and unverified.'”

This is an utterly dishonest attack. As noted, the validation review referred to here took place two months after Comey briefed Trump on the dossier. And Comey briefed Trump on it largely because it was salacious, out of desire to warn Trump about what was out there.

“McCabe testified … that no surveillance warrant would have been sought from FISC without the Steele dossier.”

McCabe said something different to the IG when asked about this quote and this discrepancy remains unresolved.

McCabe told us that he did not recall his exact testimony, but that his view was that the FBI would have “absolutely” sought FISA authority on Carter Page, even without the Steele reporting, based upon Page’s historical interactions with known Russian intelligence officers and the fact that Page told known Russian intelligence officers about the FBI’s knowledge of those interactions. However, McCabe also told us that he was not privy to the discussions that took place between attorneys in FBI OGC and Case Agent 1 on the sufficiency of the evidence to establish probable cause before the Crossfire Hurricane team received Steele’s election reports. McCabe said he could not speculate as to whether the FBI would have been successful in obtaining FISA authority from the FISC without the inclusion of the Steele reporting.

Schiff Memo

¶1-4: Introductory matter, including an assertion that ODJ would have been remiss if they had not sought a FISA warrant. The IG Report showed that while there was no question about investigating Page’s ties to Russia, there was some question about the efficacy of the FISA application.

According to Evans, he raised on multiple occasions with the FBI, including with Strzok, Lisa Page, and later McCabe, whether seeking FISA authority targeting Carter Page was a good idea, even if the legal standard was met. He explained that he did not see a compelling “upside” to the FISA because Carter Page knew he was under FBI investigation (according to news reports) and was therefore not likely to say anything incriminating over the telephone or in email. On the other hand, Evans saw significant “downside” because the target of the FISA was politically sensitive and the Department would be criticized later if this FISA was ever disclosed publicly.

¶5: “Steele’s raw intelligence reporting did not inform the FBI’s decision to initiate its counterintelligence investigation in late July 2016. In fact, the FBI’s closely held investigative team only received Steele’s reporting in mid-September.”

This is true. The FBI opened the investigation on July 31 based off the Australian tip, and the Crossfire Hurricane team only got the Steele dossier information on September 19.

¶6-7:

“Multi-pronged rational for surveilling Page” There were five things the first Page application used to establish probable cause, as noted above.

“no longer with the Trump campaign” True.

“narrow use of information from Steele’s sources about Page’s specific activities … did not otherwise rely on Steele’s reporting, including any ‘salacious’ allegations about Trump” This is a bit cynical, because while the FBI did not use all the reports they had gotten from Steele (including the pee tape allegation), the Page application used the specific references to Page plus more general allegations about cooperation between Russia and Trump.

Specifically, the following aspects of Steele’s Reports 80, 94, 95, and 102 were used to support the application:

  • Compromising information about Hillary Clinton had been compiled for many years, was controlled by the Kremlin, and the Kremlin had been feeding information to the Trump campaign for an extended period of time (Report 80);
  • During his July 2016 trip to Moscow, Carter Page attended a secret meeting with Igor Sechin, Chairman of Rosneft and close associate of Putin, to discuss future cooperation and the lifting of Ukraine-related sanctions against Russia; and a secret meeting with Igor Divyekin, another highly placed Russian official, to discuss sharing compromising information about Clinton with the Trump campaign (Report 94);
  • Page was an intermediary between Russia and the Trump campaign’s then manager (Manafort) in a “well-developed conspiracy” of cooperation, which led, with at least Page’s knowledge and agreement, to Russia’s disclosure of hacked DNC emails to Wikileaks in exchange for the Trump campaign’s agreement to sideline Russian intervention in Ukraine as a campaign issue (Report 95); 267 and
  • Russia released the DNC emails to Wikileaks in an attempt to swing voters to Trump, an objective conceived and promoted by Carter Page and others (Report 102).

“interaction with Russian officials during the 2016 campaign … FBI interviewed Page in March 2016.” It is both true that Page’s actual interactions with Russian officials — including the offer of an “open checkbook” to open a pro-Russian think tank during his July 2016 trip — and his comments to the FBI in March 2016 were part of the case for probable cause.

“DOJ also disclosed” It is true DOJ disclosed Steele’s prior relationship and the details of his termination as a source — though at first they incorrectly only said he had been suspended — but they did not supplement the application with details of the Fusion project as they became known after the first application.

¶8-10: Repetition of the opening blather.

¶11-13: The investigation was started based off Australia’s tip about Papadopoulos and by the time the Crossfire Hurricane team received dossier information on September 19, they had already opened investigations against 4 Trump people, Page, Papadopoulos, Flynn, and Manafort [the other three names of which are redacted]. That’s true. Here’s what the government told FISC about the Papadopoulos tip:

In or about March 2016, George Papadopoulos [footnote omitted] and Carter Page (the target of this application) were publicly identified by Candidate #1 as part of his/her foreign policy team. Based on reporting from a friendly foreign government, which has provided reliable information in the past … the FBI believes that the Russian Government’s efforts are being coordinated with Page and perhaps other individuals associated with Candidate #l’s campaign. In or about July 2016, the above-referenced friendly foreign government provided information to a senior official within the U.S. [government] regarding efforts made by the Russian Government to influence the 2016 U.S. Presidential election. Specifically, according to this information, during a meeting in or about April 2016 between officials of the friendly foreign government and George Papadopoulos … Papadopoulos suggested that Candidate #l’s campaign had received some kind of suggestion from Russia that Russia could assist with the anonymous release of information during the campaign that would be damaging to another candidate for U.S. President (Candidate #2). It was unclear whether Papadopoulos or the Russians were referring to material acquired publicly or through other means. It was also unclear from this reporting how Candidate #l’s campaign reacted to the alleged Russian offer. Nevertheless, as discussed below, the FBI believes that election influence efforts are being coordinated between the RIS and Page, and possibly others.

Note the Schiff memo supplements what the government told FISC and what FBI knew at the time with information from Papadopoulos’ plea deal, though by October 2016, the FBI had come to learn outlines of Papadopoulos’ interactions with Mifsud via an informant.

¶14: Details about the Page applications. As corrected these claims are true. The Schiff memo doesn’t list the judges, but they are:

  • September application: Rosemary Collyer, W appointee
  • January application: Michael Mosman, W appointee
  • April application: Anne Conway, Poppy appointee
  • June application: Raymond Dearie, Reagan appointee

Note that the Schiff memo describes both electronic surveillance and physical search; the IG Report hides the latter. The physical search authorization is important because that provided FBI authorization to obtain Page’s stored communications, including emails.

¶15: FISA was not used to spy on the campaign. True, but the use of physical surveillance would permit the FBI to obtain stored communication, and it’s not public whether the specific minimization procedures adopted by FISC limited the access to emails Page sent while on the campaign.

¶16-17: Page’s connections to Russian Government and intelligence officials. To the extent this information is public, this is largely true (though it’s probably more accurate to state that one of the Russians indicted, Victor Podobnyy, attempted to recruit Page, and he talked about it with a second). We now know, however, that an earlier attempted recruitment happened with the knowledge of CIA, and there’s no allegation that Page hid his willingness to share information with Russian intelligence officers until 2017. That raises problems for claims he was secretly working with Russian spies.

¶18: Page’s suspicious activity during the 2016 campaign. To the extent this is public, it does reflect what FBI told FISC. The memo doesn’t deal with real questions about the allegations about whom Page met with in Russia. There’s still no corroboration that Page met with anyone named Divyekin (indeed, Dmitry Peskov affirmatively chose not to set up a meeting for him with the Kremlin), but the IG Report reveals that the people who brought Page to Moscow provided RUMINT that he had met with Igor Sechin. The Mueller Report concluded Page’s activities in Moscow “were not fully explained.”

¶19: Subsequent renewals. Much of this discussion is redacted, though it’s clear it provides details of Page’s December trip to Moscow, where he met with the Deputy Prime Minister again, and probably refers to Page’s meeting with the VP of Gazprombank in Singapore.

This table shows the new claims made in each FISA application described in the IG Report.

It’s not clear that Page’s denials in the HPSCI interview are as damning as Schiff makes out, as some of them amounted to denials of claims in the dossier than have not been proven. The IG Report would go on to describe other denials from Page that were provably true, denials that did not get included in reauthorization applications.

¶20: The Court-approved surveillance of Page allowed FBI to collect valuable information. Publicly, Michael Horowitz has suggested this is not the case. But the IG Report admits that that investigation team “did not review the entirety of the FISA [intelligence collected by] targeting Carter Page. We reviewed only those [redacted] under FISA authority that were relevant to our review.”

The Report suggests that the reality is that the first two, and possibly three, warrants were useful, as they captured Page interacting with Russia in suspicious ways, but that the fourth and maybe the third application were far less useful, in part because by that point Page knew he was being surveilled and by that point he was no longer a key player in Trump’s orbit.

¶21-22: DOJ was transparent with the Court about Steele’s sourcing. The Schiff memo accurately describes the footnote used to inform the court of the political nature of Steele’s project. It doesn’t describe that FBI didn’t amend that description as more information became known, though there is disagreement over whether more was necessary.

¶23: DOJ explained the FBI’s reasonable basis for finding Steele credible. The Schiff memo accurately describes how DOJ described Steele. But it doesn’t note that the reauthorizations did not reflect questions FBI had come to raise about the credibility of the dossier, nor does it note (and it probably wasn’t known) that the applications used language from an intelligence report rather than from Steele’s handling agent to describe the degree to which his past reporting had been corroborated, and as a result overstated that.

¶24-25: FBI properly notified FISC after it terminated Steele as a source. As a minor point, in the first reauthorization, FBI said Steele had been suspended rather than closed, when he had actually been closed. More seriously, the Schiff memo badly understates how obvious it should have been that Steele had a role in Michael Isikoff’s October 21 story (though, as noted, the FBI attributed the story to Simpson in any case).

¶26: The FBI never paid Steele for the dossier. Here, the two memos are talking past each other dishonestly. The FBI did authorize Steele to be paid for any exclusive reporting on specific taskings, but what he provided was always his work for Fusion.

¶27: DOJ appropriately provided the Court with a comprehensive explanation of Russia’s election interference, including … Papadopoulos. This is largely true. The IG Report complains that FBI didn’t include Papadopolous’ really damning admissions to informants, but the FBI correctly deemed the denials he made (and Joseph Mifsud’s denials) to be inaccurate, so had they been included they would have been included to substantiate deceit.

¶28: DOJ made proper use of news coverage. The unredacted claims are all true (though don’t account for FBI’s failures to identify Isikoff’s article as coming from Steele).

¶29-30: The Majority’s reference to Bruce Ohr is misleading.

This passage states that Ohr’s meeting with the Crossfire Hurricane team happened after the FISA application, which is true, but it doesn’t mention a meeting had with Andrew McCabe (not Crossfire Hurricane) days before the FISA application. The McCabe meeting included reporting from Steele (whom Ohr had spoken to the previous day) and Simpson; I argue, however, that the precipitating reason for the meeting had to do with Oleg Deripaska, which the IG Report inaccurately treats as synonymous with the Steele dossier (though it’s problematic for other reasons).

Also, the Schiff memo speaks of “debriefs” without describing the multiple meetings.

The Schiff memo correctly calls the Nunes memo on insinuating that because Ohr worked with Sally Yates and Rod Rosenstein that meant there was a conspiracy; in fact, the IG Report argues he should be disciplined because he didn’t provide them enough notice of what he was doing.

The evidence in the IG Report backs Schiff’s conclusion — that Ohr’s contacts with the Crossfire Hurricane team amounted to debriefing about Steele’s project — more than it backs its own.

¶31: Strzok and Page’s text messages are irrelevant to the FISA application. That is true. The IG Report found,

As part of this review, in order to determine whether there was any bias in the investigative activities for Crossfire Hurricane that we reviewed, we asked agents and analysts assigned to the case about the roles Strzok and Page played in the Crossfire Hurricane investigation and their level of involvement in decision making. With respect to Strzok, these witnesses told us that while he approved the team’s investigative decisions during the time he was in the supervisory chain of command for the investigation, he did not unilaterally make any decisions or override any proposed investigative steps. Priestap, in addition to telling us that it was his (Priestap’s) decision to initiate the investigation, told us that to his knowledge, Strzok was not the primary or sole decision maker on any investigative step in Crossfire Hurricane. Further, as described above, in January 2017, the Crossfire Hurricane cases were divided between two operational branches within CD, and Strzok no longer supervised the Carter Page investigation, which was transferred to Operations Branch II, CD-1, under the supervision of then DAD Boone. In this report, we describe those occasions when Strzok was involved in investigative decisions.

With respect to Lisa Page, witnesses told us that she did not work with the team on a regular basis or make any decisions that impacted the investigation.

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Joshua Schulte’s Three Lawyer Monte

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For at least five months, accused Vault 7 leaker Joshua Schulte has been trying one after another ploy to avoid or delay his trial next month. But his latest move isn’t even very clever.

The problem, for Schulte, is that after he submitted a pro se filing attacking the government’s case that included classified information, his lawyers tried to get him to stop by telling him to write his complaints in notebooks instead. He did so and marked the notebooks “Attorney-Client,” but included things that could in no way be considered as such (such as passwords to Proton Mail accounts he used to email people outside of jail). So after the government discovered he had a cell phone in jail and searched his cell, they discovered the notebooks, where he had basically confessed to his past and ongoing crimes. As the government wrote in a later motion, that information includes:

(i) admissions by the defendant relating to his disclosure of classified information to WikiLeaks (such as the identification of information provided to WikiLeaks that has not yet been disclosed by WikiLeaks); (ii) admissions by Schulte with respect to his plan to disseminate additional classified information illegally from the MCC (such as his declaration of a so-called “information war” and notations of plans to, for example, schedule postings on various social media accounts he created from jail); (iii) false exculpatory statements; (iv) evidence connecting Schulte to contraband cellphones and electronic communications accounts (such as notations to install encrypted messaging applications on contraband cellphones or to delete “suspicious emails” from covert accounts used by Schulte while at the MCC); and (v) writings prepared for public dissemination that include classified information (such as draft tweets written by the defendant as one of his alleged former CIA colleagues who claimed to be able to exonerate the defendant and who recounted information about CIA activities to “authenticate” the author).

Since then, he has been trying to make that evidence unavailable for trial.

First, last June, he tried to suppress it (and the Proton Mail emails accessed with the passwords he stored in there) on Fourth Amendment grounds, which Judge Paul Crotty denied last October, in part because the FBI’s use of a wall team to sort out the non-privileged material demonstrated good faith.

Then, in August, Schulte’s lawyers informed the judge they had provided some kind of advice that led him to believe he could write down classified information in his prison notebooks, and asked that the judge sever the charges tied to his attempts to leak classified information from jail from the charges tied to his alleged leak of the Vault 7 documents to WikiLeaks, something that would have made the MCC admissions of guilt unavailable for his main trial. In September, Judge Crotty denied that motion, pointing out that the lawyer who gave the purportedly bad advice is not on Schulte’s trial team and so could testify.

Then, in October, his lawyers asked to be relieved of defending Schulte altogether, or at least asked for the judge to appoint a Curcio counsel to determine whether there is a conflict. On November 6, Judge Crotty appointed a Curcio counsel.

Meanwhile, also in October, Schulte’s lawyers said they were buried preparing for trial and needed help and asked that he appoint another lawyer to help them, James Branden, which Judge Crotty immediately did. That soon looked like a ploy, because Branden — who had said he’d be able to handle the schedule — wrote a letter in November asking for a six month adjournment saying he couldn’t handle the schedule. In the letter, he said he had not, in the interim month, met with Schulte. He also said he couldn’t elaborate on the need for a delay until December 9 because he was on vacation until then. Crotty was none too impressed with that, and denied that motion in December (though extended the trial date by three weeks.

On December 13, Schulte’s public defenders wrote the judge and said they decided their advice to Schulte meant they had to be relieved on ineffective assistance of counsel grounds.

On December 18, they held the Curcio hearing, and Judge Crotty (who had previously described ways to get the exculpatory evidence admitted at trial) denied the request to be relieved.

Last week, Schulte’s public defenders wrote Judge Crotty saying they could no longer defend Schulte because it would mean providing ineffective counsel, and also noting that they may have engaged in misconduct, meaning that Schulte’s decision to present the evidence would reflect badly on his trial lawyers. (Again, the lawyer who gave the bad advice will not be his trial lawyer.)  The next day they wrote against stating that, even though to adopt this ineffective assistance of counsel defense, he’d have to waive privilege on the current set of lawyers, he did not waive privilege.

The government responded to this second letter laying out all the case law that says if you’re going to argue ineffective counsel, you need to share what the bad advice is. In it, they called bullshit on Schulte’s claim that he really relied on his lawyers’ counsel.

For example, the Government has described to the defense how, if the defendant offered his counsel’s testimony, the Government would likely rely on recorded prison calls in which the defendant criticized defense counsel’s advice, including, for example, calls in which the defendant stated that he would “go around” Ms. Shroff to disclose information to the media, despite her objections to this strategy.

They also note that Schulte claims he needs this testimony to prove his innocence but is willing to wait years, under SAMs, to get it.

The Curcio counsel, Sean Maher, wrote as well last week, repeating that he believes the public defenders need to be relieved, because he can’t advise Schulte on whether or not he should call both lawyers to testify, thereby waiving privilege and necessitating getting new lawyers. He argues Schulte needs new lawyers to decide whether he needs to jettison his current lawyers. He ends his letter by explaining that he doesn’t have enough information to advise Schulte on that point.

Only conflict-free counsel who has a full sense of the case — the classified and unclassified discovery, the complicated forensic information, and knowledge of what other witnesses, including rebuttal witnesses, might say — should advise Mr. Schulte on this matter.

What seems to have dropped out of this conversation is that Schulte has another lawyer who can’t fathomably be said to have this conflict, James Branden, who in spite of his December vacation has nevertheless had over two months to get up to speed, the amount of time he originally said it’d take to prepare for trial. Branden is in a position to decide whether Schulte’s claim he got bad advice and so did what he said on recorded jail house conversations that he would ignore he wouldn’t do will hold with a jury.

Schulte is pretending he has two sets of lawyers: the ones he claims gave him shitty advice, which led him to try to record what he must be preparing to claim is just an imaginary Information War entirely within the bounds of his prison notebooks, and the Curcio counsel appointed to tell him — absent any context — whether that means they can’t represent him anymore.

But he’s got a third lawyer who has curiously dropped out of this discussion, Branden, who hasn’t signed his name to a filing since he asked for an adjournment (though he attended the Curcio hearing, so would be competent to provide the kind of advice that Maher says no one is available to provide).

Likely, if asked, Branden would note that claiming his lawyers told him to commit everything to his prison notebooks wouldn’t much help him (even ignoring his Non-Disclosure Agreements that commit him alone to protecting classified information), because Schulte allegedly shared classified information in public documents outside of his prison notebooks, in defiance of the advice the government says he got and ignored from Shroff.

I guess Schulte is hoping if he moves the three cards in his hand around fast enough, Judge Crotty — who he has attacked in a pro se filing Shroff probably told him not to file — won’t see that there are actually three and not two cards in his hand.

Three lawyer monte, with all the lawyers paid for by taxpayers, ostensibly in the name of a fair defense.

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