Why Republicans Launched the GSA Email Attack Now

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I think most people are missing the significance of why the Republicans launched their attack on the GSA over the weekend (this post is a summary of what we know, with updates).

That’s true, in part, because people are misunderstanding what the Trump for America team recently learned. It’s not — as many have claimed — that they only recently learned Mueller had emails beyond what TFA had turned over to Congress and through that to Mueller. As Axios reported, “Trump officials discovered Mueller had the emails when his prosecutors used them as the basis for questions to witnesses, the sources said.” That is, Mueller has been asking questions based off these emails for months.

The timing of this complaint — not the complaint itself — is key

What TFA only discovered last week, according to their letter, at least, is how Mueller obtained them — by asking, just like prosecutors reviewing government communications in the course of investigating possible violations of the Espionage Act always do, especially if the subjects of the investigation have access to classified documents.

We discovered the unauthorized disclosures by the GSA on December 12 and 13, 2017. When we learned that the Special Counsel’s Office had received certain laptops and cell phones containing privileged materials, we initially raised our concerns with Brandon Van Grack in the Special Counsel’s Office on December 12, 2017. Mr. Van Grack confirmed that the Special Counsel’s Office had obtained certain laptops, cell phones, and at least one iPad from the GSA – but he assured us that the Special Counsel’s investigation did not recover any emails or other relevant data from that hardware. During this exchange, Mr. Van Grack failed to disclose the critical fact that undercut the importance of his representations, namely, that the Special Counsel’s Office had simultaneously received from the GSA tens of thousands of emails, including a very significant volume of privileged material, and that the Special Counsel’s Office was actively using those materials without any notice to TFA.1 Mr. Van Grack also declined to inform us of the identities of the 13 individuals whose materials were at issue.

The government has great leeway to access government communications, as Peter Strzok, the former counterintelligence FBI Agent who just had his own communications leaked and then released to the world, would probably be all too happy to tell you. All the more so given allegations that files went missing from the Transition SCIF, just as Jared Kushner was talking about back channel communications with the Russians.

So what’s new is not that Mueller had the emails (about which no one has complained before). But that he obtained the email inboxes of 13 people, including Jared, from GSA without letting the Transition do their own review of what to turn over.

Trump’s team may face obstruction charges

As I made clear here, it appears that one reason the Trump people are so angry is that Mueller has probably caught them failing to turn over emails that are absolutely material to the investigation, such as KT McFarland’s “Thrown election” email. Whoever did these document reviews may now be exposed to obstruction charges for withholding such material, which in turn would give Mueller leverage over them for their own further cooperation.

[Update: I should have said, withholding emails will only be a problem if the Transition was otherwise obligated (say, by subpoena) to turn them over. Mueller did subpoena the campaign for a similar set of emails; but since he didn’t need to from GSA, he may not have here.]

Mueller has far more damning information on Jared than Trump’s folks expected

Just as importantly, Axios explicitly said the emails include Jared Kushner’s emails (indeed, given his public claims about how many people he spoke to during the transition, I wouldn’t be surprised if his was the email box that had 7,000 emails).

As I have shown, Jared has been approaching disclosure issues (at least with Congress) very narrowly, ignoring clear requests to turn over his discussions about the topic of the investigation, and not just with the targets of it. If Mueller obtained all his emails, he’d have those “about” emails that Jared purposely and contemptuously has withheld from others.

We know that Jared is a key interim Mueller target here (and Abbe Lowell’s search for a crisis communications firm to help sure suggests Jared’s defense team knows that too). We know he felt the need to explain how he went from responding to a personalized Vladimir Putin congratulatory email on November 9 to asking Dmitri Simes for Sergei Kislyak’s name.

Take, for example, the public statement prepared for testimony to congressional committees by the president’s son-in-law and adviser Jared Kushner. There, he revealed that on the day after the election, in response to a congratulatory email from Russian President Vladimir Putin, he asked the publisher of The National Interest, Dimitri Simes, for the name of Russia’s ambassador to the United States. “On November 9, the day after the election, I could not even remember the name of the Russian ambassador,” Kushner claimed. “When the campaign received an email purporting to be an official note of congratulations from President Putin, I was asked how we could verify it was real. To do so, I thought the best way would be to ask the only contact I recalled meeting from the Russian government, which was the ambassador I had met months earlier, so I sent an email asking Mr. Simes, ‘What is the name of the Russian ambassador?’”

We also know that Mueller’s team has expressed some skepticism about Kushner’s previous public claims — and I would bet money this includes that email.

CNN recently reported, however, that in an interview conducted in the weeks before Flynn’s plea deal, “Mueller’s team asked Kushner to clear up some questions he was asked by lawmakers and details that emerged through media reports.” So Mueller’s team may now have doubts about the explanation Kushner offered for his interest in speaking with Kislyak as one of the first things he did after his father-in-law got elected.

If Mueller has all Jared’s emails and those emails disclose far more about the negotiations with all foreign powers conducted during the transition (including with Bibi Netanyahu on settlements, but obviously also with Russia), and Trump’s people recognize those emails expose Jared to serious charges, then of course they’re going to complain now, as the expectation that Mueller might soon indict Kushner grows.

Mueller has an outline of places where Trump was personally involved

Most importantly, consider what those morons laid out: they want to claim that these emails from the transition period — emails they insist were not government emails — are protected by Executive Privilege.

The legal claim is ridiculous; as I and far smarter people have noted, you don’t get Executive Privilege until you become the actual Executive on inauguration day.

But that they made the claim is telling (and really fucking stupid).

Because that tells us which emails Trump officials believe involve communications directly with Trump. The KT McFarland email, which we know was written from Mar-a-Lago, is a case in point. Did they withhold that because they believe it reflects a conversation with Trump? If so, then we know that Trump was personally involved in the orders to Mike Flynn to ask the Russians to hold off on retaliating for Obama’s sanctions. It might even mean that the language attributed to McFarland — about Russia being the key that unlocks doors, efforts to “discredit[] Trump’s victory by saying it was due to Russian interference, “thrown elections,” and Obama boxing Trump in — is actually Trump’s own language. Indeed, it does sound like stuff he says all the time.

And given that the emails include “speculation about vulnerabilities of Trump nominees, strategizing about press statements, and policy planning on everything from war to taxes,” it might even reflect Trump’s own explanations of why — for example — he couldn’t nominate Flynn to be CIA Director because of his ties to Russia and Turkey.

In the wake of his plea agreement, Flynn’s surrogate made it clear that Trump ordered him to carry out certain actions, especially with Russia. That’s likely a big reason why, in the wake of the Flynn plea, Trump’s people are now squawking that Mueller obtained these emails, emails that may lay out those orders.

Heck. These emails might even reflect Trump ordering Flynn to lie about his outreach to Russia.

Maybe that’s why Trump’s aides have promised to demand Mueller return the emails in question.

All of which is to say, there are things about these emails that explain why this attack is coming now, beyond just a generalized effort to discredit Mueller. The attack is designed to discredit specific avenues of investigation Mueller clearly has in hand. And those avenues reveal far more about the seriousness of the investigation than anything Ty Cobb is willing to claim to appease the President.

That said, the attack is probably too little, too late.

Trump Appears to Have Withheld the KT McFarland Email about the “Thrown Election”

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This post explains what appears to be the real reason for the fake outrage about Mueller obtaining information from GSA: by doing so, he appears to have obtained proof that the Transition was withholding emails material to the investigation. Go to this post for a more general summary of what we know about the claim. 

Here’s the letter that Trump For America lawyer sent to Congress to cause a big hullabaloo about how Robert Mueller obtained transition period emails. I unpacked it in this Twitter thread and commented on it in an update to this post.

But this passage deserves a separate post, because it seems to go to the heart of why the Republicans are spewing propaganda like this.

Additionally, certain portions of the PTT materials the Special Counsel’s Office obtained from the GSA, including materials that are susceptible to privilege claims, have been leaked to the press by unknown persons. Moreover, the leaked records have been provided to the press without important context and in a manner that appears calculated to inflict maximum reputational damage on the PTT and its personnel, without the inclusion of records showing that PTT personnel acted properly – which in turn forces TFA to make an impossible choice between (a) protecting its legal privileges by keeping its records confidential and (b) waiving its privileges by publicly releasing records that counteract the selective leaks and misguided news reports. In short, since the GSA improperly provided them to the Special Counsel’s Office, the PTT’s privileged materials have not only been reviewed privately by the Special Counsel’s Office without notification to TFA – they have also been misused publicly.

Kory Langhofer is insinuating — without quite risking the claim — that after GSA shared certain emails with Robert Mueller’s office, “unknown persons” leaked them to the press. The insinuation is that Mueller’s team leaked them.

I can think of just one set of emails that fit this description: emails from KT McFarland that provided proof that Mike Flynn lied to the FBI about his conversations with Sergei Kislyak on December 29, 2016. The NYT quoted extensively from them in a December 2 story.

Among other things, McFarland stated in the emails that Russia “has just thrown the U.S.A. election to” Trump.

On Dec. 29, a transition adviser to Mr. Trump, K. T. McFarland, wrote in an email to a colleague that sanctions announced hours before by the Obama administration in retaliation for Russian election meddling were aimed at discrediting Mr. Trump’s victory. The sanctions could also make it much harder for Mr. Trump to ease tensions with Russia, “which has just thrown the U.S.A. election to him,” she wrote in the emails obtained by The Times.

[snip]

Mr. Obama, she wrote, was trying to “box Trump in diplomatically with Russia,” which could limit his options with other countries, including Iran and Syria. “Russia is key that unlocks door,” she wrote.

She also wrote that the sanctions over Russian election meddling were intended to “lure Trump in trap of saying something” in defense of Russia, and were aimed at “discrediting Trump’s victory by saying it was due to Russian interference.”

“If there is a tit-for-tat escalation Trump will have difficulty improving relations with Russia, which has just thrown U.S.A. election to him,” she wrote.

Contrary to Langhofer’s suggestion, NYT made some effort to mitigate the damage of McFarland’s comment seemingly confirming the Trump team knew the election had been stolen, including speaking to a White House lawyer about it.

It is not clear whether Ms. McFarland was saying she believed that the election had in fact been thrown. A White House lawyer said on Friday that she meant only that the Democrats were portraying it that way.

And while NYT’s explanation that they got the emails “from someone who had access to transition team communications” certainly could include Mueller’s team among the culprits, it could also include GSA officials themselves or — even more likely — a former Trump official with a grudge. At least three were CCed on the email in question: Bannon, Priebus, and Spicer.

Mr. Bossert forwarded Ms. McFarland’s Dec. 29 email exchange about the sanctions to six other Trump advisers, including Mr. Flynn; Reince Priebus, who had been named as chief of staff; Stephen K. Bannon, the senior strategist; and Sean Spicer, who would become the press secretary.

In other words, Langhofer uses the leak as an excuse to suggest wrong-doing by Mueller, when other possibilities are far more likely.

But consider the other implication of this: Langhofer is suggesting that this email chain (which included no named active lawyers, nor included Trump directly, though they were written in Trump’s presence at Mar a Lago) is “susceptible to privilege claims.” He is further suggesting that GSA is the only way this email could have been released (ignoring, of course, the Bannon/Priebus/Spicer) options.

If that’s right, then he’s suggesting that Trump was involved in this email chain directly. There’s no reason to believe he was CCed. But since the emails were written from Mar-a-Lago, it’s likely he was consulted in the drafting of the emails.

In addition, Langhofer is also admitting that Trump’s team didn’t release these emails directly — at least not to Congress.

Emails which couldn’t be more central to the point of Mueller’s investigation.

Did the GOP just admit that Trump withheld this email? Because if so, it suggests the “thrown election” comment is far more damning than the NYT laid out.

Update: It’s not clear whether Mueller ever tried to obtain these records via GSA (though it’s possible FBI obtained emails before the inauguration). But this, from the letter, makes it clear at least Congress had made requests, which led TFA to try to take GSA out of the loop even though SCO had a document preservation request.

In order to comply with congressional document production requests, TFA ordered from the GSA electronic copies of all PTT emails and other data. Career GSA staff initially expressed concern that providing copies of PTT emails to TFA might violate a document preservation request that the GSA had received from the Special Counsel’s Office.

Withholding this email from Congress would be particularly problematic, as McFarland testified in conjunction with her now-frozen nomination to be Ambassador to Singapore that she knew nothing about Flynn’s communications with Kislyak. h/t SS

Update: Ah, this explains how Mueller was getting emails: via voluntary production, along with everything the Transition was giving Congress. Which means the email was withheld, and this October subpoena was an attempt to see whether they’d cough it up on their own.

Special counsel Robert Mueller’s team in mid-October issued a subpoena to President Donald Trump’s campaign requesting Russia-related documents from more than a dozen top officials, according to a person familiar with the matter.

The subpoena, which requested documents and emails from the listed campaign officials that reference a set of Russia-related keywords, marked Mr. Mueller’s first official order for information from the campaign, according to the person. The subpoena didn’t compel any officials to testify before Mr. Mueller’s grand jury, the person said.

The subpoena caught the campaign by surprise, the person said. The campaign had previously been voluntarily complying with the special counsel’s requests for information, and had been sharing with Mr. Mueller’s team the documents it provided to congressional committees as part of their probes of Russian interference into the 2016 presidential election.

[snip]

Mueller’s team had previously issued subpoenas individually to several top campaign officials, including former campaign chairman Paul Manafort and former national security adviser Mike Flynn.

[Correction: I’ve been corrected on this passage, which makes it clear this is about campaign emails, not transition ones. But I assume he made parallel requests for all three phases of Trump organization.]

Update: Mueller’s spox, Peter Carr, issued a statement saying, “When we have obtained emails in the course of our ongoing criminal investigation, we have secured either the account owner’s consent or appropriate criminal process.” Given what I’ve laid out here, I actually think “C” may have been the case:

  • Subpoena to Flynn, obtain voluntary compliance for specific things as well as evidence shared with Congress prior to August
  • In August (perhaps after being alerted to withheld documents by Priebus/Spicer/Bannon/Papadopoulos?) obtain emails from GSA, technically the device owners
  • In October, subpoena for Russian-related emails from the same ~13 people

Trump Transition Team Outraged To Be Treated as Transition Team!!

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This is a general post on the GOP claim Mueller improperly obtained emails from ~13 Transition officials, updated as new news comes available. This post explains what is really going on: the Transition appears to have withheld emails — including the KT McFarland one referring to the election as having been “thrown” — and Mueller obtained proof they were withholding things. 

Both Fox News and Axios have pieces reflecting the outrage!!! among Trump people that they got asked questions about emails they thought they had hidden from Mueller’s investigation. Axios reveals that Mueller obtained the full contents of 12 accounts (Reuters says 13), one including 7,000 emails, from people on the “political leadership” and “foreign-policy team;” it says it includes “sensitive emails of Jared Kushner.”

Fox reveals that a transition lawyer wrote Congress today claiming that it was unlawful for government employees to turn over emails hosted on government servers for a criminal investigation.

A lawyer for the Trump presidential transition team is accusing Special Counsel Robert Mueller’s office of inappropriately obtaining transition documents as part of its Russia probe, including confidential attorney-client communications and privileged communications.

In a letter obtained by Fox News and sent to House and Senate committees on Saturday, the transition team’s attorney alleges “unlawful conduct” by the career staff at the General Services Administration in handing over transition documents to the special counsel’s office.

Officials familiar with the case argue Mueller could have a problem relating to the 4th Amendment – which protects against unreasonable searches and seizures.

Kory Langhofer, the counsel to Trump for America, wrote in the letter that the the GSA “did not own or control the records in question.”

But, Langhofer says, Mueller’s team has “extensively used the materials in question, including portions that are susceptible to claims of privilege.”

And Axios explains that the Trump people actually sorted through this stuff. “The sources say that transition officials assumed that Mueller would come calling, and had sifted through the emails and separated the ones they considered privileged.”

I’m really looking forward to hearing the full story about this, rather than just this partisan spin. For example, I’m interested in whether Mueller realized via some means (perhaps from someone like Reince Priebus or Sean Spicer — update, or George Papadopoulos) that the White House had withheld stuff that was clearly responsive to his requests, so he used that to ask GSA to turn over the full set.

I’m also interested in how they’ll claim any of this was privileged. The top 13 political and foreign policy people on the Trump team might include (asterisks mark people confirmed to be among those whose accounts were obtained):

  1. Pence
  2. Bannon
  3. Jared*
  4. Flynn*
  5. KT McFarland
  6. Spicer
  7. Priebus
  8. Nunes
  9. Sessions
  10. Seb Gorka
  11. Stephen Miller
  12. Hope Hicks
  13. Ivanka
  14. Don Jr
  15. Rebekah Mercer
  16. Kelly Anne Conway
  17. Rudy Giuliani
  18. Steven Mnuchin
  19. Rick Gates
  20. Corey Lewandowski
  21. Tom Bossert

Just one of those people — Sessions — is a practicing lawyer (and he wasn’t, then), and he wasn’t playing a legal role in the transition (though both Sessions and Nunes may have been using their congressional email, in which case Mueller likely would show far more deference; update: I’ve added Rudy 911 to the list, and he’d obviously qualify as a practicing lawyer). Though I suppose they might have been talking with a lawyer. But I would bet Mueller’s legal whiz, Michael Dreeben, would point to the Clinton White House Counsel precedent and say that transition lawyers don’t get privilege.

Furthermore, Trump wasn’t President yet! This has come up repeatedly in congressional hearings. You don’t get privilege until after you’re president, in part to prevent you from doing things like — say — undermining existing foreign policy efforts of the actually still serving President. So even if these people were repeating things Trump said, it wouldn’t be entitled to privilege yet.

Finally, consider that some of these people were testifying to the grand jury months and months ago. But we’re only seeing this complaint today. That’s probably true for two reasons. One, because Mueller used the emails in question (most notably, the emails between McFarland and Flynn from December 29 where they discussed Russian sanctions) to obtain a guilty plea from Flynn. And, second, because Republicans are pushing to get Trump to fire Mueller.

Update: I’ve added Pence, Don Jr., Ivanka, Hope Hicks, Kelly Anne Conway, Rudy Giuliani, Steven Mnuchin back in here.

Update: Here’s more from Reuters.

Langhofer, the Trump transition team lawyer, wrote in his letter that the GSA’s transfer of materials was discovered on Dec. 12 and 13.

The FBI had requested the materials from GSA staff last Aug. 23, asking for copies of the emails, laptops, cell phones and other materials associated with nine members of the Trump transition team response for national security and policy matters, the letter said.

On Aug. 30, the FBI requested the materials of four additional senior members of the Trump transition team, it said.

The GSA transfer may only have been discovered this week (probably as a result of Congress’ investigation). But the witnesses had to have known these emails went beyond the scope of what the transition turned over. And the request date definitely is late enough for Mueller to have discovered not everything got turned over, perhaps even from George Papadopoulos, who flipped in late July.

Update: One more thing. Remember that there were worries that transition officials were copying files out of a SCIF. That, by itself, would create an Insider Threat concern that would merit FBI obtaining these emails directly.

Update: Here’s a report dated June 15 on a transition lawyer instructing aides and volunteers to save anything relating to Russia, Ukraine, or known targets (Flynn, Manafort, Page, Gates, and Stone).

Update: AP reports that Flynn was (unsurprisingly) among those whose email was obtained.

Update: Here’s the letter. I unpacked it here. It’s a load of — I believe this is the technical term — shite. First, it stakes everything on PTT not being an agency. That doesn’t matter at all for a criminal investigation — Robert Mueller was no FOIAing this stuff. It then later invokes a bunch of privileges (the exception is the attorney client one) that only come with the consequent responsibilities. It then complains that Mueller’s team didn’t use a taint team.

Perhaps the craziest thing is they call for a law that would only permit someone to access such emails for a national security purpose — as if an espionage related investigation isn’t national security purpose!

Update: Chris Geidner got GSA’s side of the story. Turns out they claim the now dead cover up GC didn’t make the agreement the TFA lawyer says he did. In any case, GSA device users agreed their devices could be monitored.

“Beckler never made that commitment,” he said of the claim that any requests for transition records would be routed to the Trump campaign’s counsel.

Specifically, Loewentritt said, “in using our devices,” transition team members were informed that materials “would not be held back in any law enforcement” actions.

Loewentritt read to BuzzFeed News a series of agreements that anyone had to agree to when using GSA materials during the transition, including that there could be monitoring and auditing of devices and that, “Therefore, no expectation of privacy can be assumed.”

Update: Mueller’s spox, Peter Carr, issued a statement saying, “When we have obtained emails in the course of our ongoing criminal investigation, we have secured either the account owner’s consent or appropriate criminal process.”

Poot and POTUS Plan to Move Beyond the Mueller Investigation

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I think people are misunderstanding something that happened the other day when Trump called Vladimir Putin. As the press reports, Trump initiated the call. The remarkably brief readout from the White House makes it clear Trump called to thank Putin for saying nice things about the economy (many have taken that as Trump’s declaration that he values such flattery, which is no doubt true, but Trump didn’t write the readout).

President Donald J. Trump spoke with President Vladimir Putin of Russia today.  President Trump thanked President Putin for acknowledging America’s strong economic performance in his annual press conference.

The two presidents also discussed working together to resolve the very dangerous situation in North Korea.

The even briefer formal readout from the Russian side (and this is unusual for them) said only,

Vladimir Putin had a telephone conversation with US President Donald Trump at the initiative of the American side.

Though reports state that the Kremlin said the men also discussed US-Russian ties.

The Kremlin said Thursday the two men discussed US-Russia ties and increasing tensions on the Korean peninsula, an issue that Putin chastised the United States for in earlier comments.

Other reports note that HR McMaster did not participate in the call.

The leaders talked for about 10 minutes, and national security adviser H.R. McMaster didn’t participate in the call, a White House official said.

So Trump saw reports that Putin mentioned him in his annual press conference, and called him up to comment about it, without an adult present.

Of course (as Politico notes but doesn’t focus on), Putin’s reference to Trump’s alleged success with the economy isn’t the most pointed thing he said in his press conference. Here’s the full exchange between ABC’s Terry Moran and Putin.

Terry Moran: Thank you, Mr President. Terry Moran with ABC News.

First, in the United States investigations by Congress, the Department of Justice and the media have uncovered a very large number of contacts between Russian citizens associated with your government and high officials of the Trump campaign. And some of those officials are now being prosecuted for lying about those contacts. All this is not normal. And many Americans are saying where there is that much smoke there must be fire. How would you explain to Americans the sheer number of contact between the Trump campaign and your government?

And second, if I may. It has almost been a year since Donald Trump has been elected president. You praised Donald Trump during the campaign. What is your assessment of Donald Trump as president after one year? Spasibo.

Vladimir Putin: Let us begin with the second part of your question. It is not for me to evaluate Donald Trump’s work. This should be done by his electorate, the American people. But we do see some major achievements, even over the short period he has been in office. Look at the markets, which have grown. This is evidence of investors’ trust in the US economy. This means they trust what President Trump is doing in this area. With all due respect to President Trump’s opposition in the United States, these are objective factors.

There are also things he would probably like to do but has not been able to do so far, such as a healthcare reform and several other areas. By the way, he said his intentions in foreign policy included improving relations with Russia. It is clear that he has been unable to do this because of the obvious constraints, even if he wanted to. In fact, I do not know if he still wants to or has exhausted the desire to do this; you should ask him. I hope that he does and that we will eventually normalise our relations to the benefit of the American and Russian people, and that we will continue to develop and will overcome the common and well-known threats, such as terrorism, environmental problems, weapons of mass destruction, crises around the world, including in the Middle East, the North Korean problem, etc. There are many things we can do much more effectively together in the interests of our people than we are doing them now. Actually, we can do everything more effectively together.

Terry Moran: How would you explain the connection between the government, your government, and the Trump campaign? How would you explain it to Americans?

Vladimir Putin: (In English.) I see, I see. (In Russian.) You know that all this was invented by the people who stand in opposition to Mr Trump to present his work as illegitimate. It seems strange to me, and I mean it, that the people who are doing this do not seem to realise that they are damaging the internal political climate in the country, that they are decimating the possibilities of the elected head of state. This means that they do not respect the people who voted for him.

How do you see any election process worldwide? Do we need to ban any contacts at all? Our ambassador has been accused of meeting with someone. But this is standard international practice when a diplomatic representative and even Government members meet with all the candidates, their teams, when they discuss various issues and development prospects, when they want to understand what certain people will do after assuming power and how to respond to this. What kind of extraordinary things did anyone see in this? And why should all this take on the nature of spy mania?

You have watched the investigation on social media. The share of Russian corporate advertising makes up less than 0.01 percent, with that of American companies totaling 100, 200 and 300 percent. It is simply incomparable. But, for some reason, even this is seen as excessive. This is some kind of gibberish.

The same can be said about the situation with our media outlets, including RT and Sputnik. But their share in the overall information volume is negligible, as compared to the share of global US media outlets all over the world and in Russia. And this is seen as a threat. Then what about freedom of the media? This is actually a cornerstone, on which American democracy itself is based.

All of us should realise that someone succeeds and someone does not. We need to draw conclusions from this and move on, instead of pouncing on one another like animals. We need to think about this and draw conclusions.

Moran starts by noting that Trump’s people are now being prosecuted for lying about contacts with Russians, and asks why there were so many contacts. He then invites Putin to comment on Trump’s success.

Putin responds by saying it’s not his place to evaluate Trump’s success (elsewhere in the press conference Putin made grand show of respecting Russia’s democracy, too), but then goes ahead and does so, claiming that the economy is an “objective” success of Trump’s.

Moran has to prod him to get a direct answer on the second point. Putin repeats a Republican talking point — that the investigation “was invented by the people who stand in opposition to Mr Trump to present his work as illegitimate” — and complains about this “spy mania.” But then he doesn’t address the allegations that Russian spies were cozying up to Trump’s officials, not just its ambassador; he instead focuses on the social media investigation (and rightly points out that Russian social media had just a fraction of the impact of equally problematic right wing social media manipulation).

It’s the middle bit — what might have been Putin’s first response to Moran’s question about the investigation — that I suspect elicited Trump’s call to Putin.

I do not know if he still wants to or has exhausted the desire to do this; you should ask him. I hope that he does and that we will eventually normalise our relations to the benefit of the American and Russian people.

Having gotten Trump’s attention with a bullshit compliment, Putin then asked, “do you still want to go steady?”

Putin’s question — do you still want to normalize relations — came against the background of increasing Russian challenges in Syria, the theater where, even according to Jared Kushner’s public comments, the Russia-Trump cooperation was supposed to first bear fruit.

“On Dec. 13, two Russian Su-25s flew into coordinated coalition airspace on the east side of the Euphrates River near Abu Kamal, Syria,” the spokesman said, “and were promptly intercepted by two F-22A Raptors providing air cover for partner ground forces conducting operations to defeat ISIS.”

The U.S. jets used chaff, flares, and other maneuvers to “persuade the Su-25s to depart,” said the spokesman, and also made repeated calls on N emergency channel to the Russian pilots. Coalition leaders also contacted Russians on the ground along the deconfliction line. After 40 minutes, the Russians flew back to the west side of the Euphrates.

The U.S. and Russia verbally agreed in early November that Russian aircraft would stay west of the Euphrates and American jets would stay east. According to the spokesman, since the Russians are now crossing the river six to eight times a day, “it’s become increasingly tough for our pilots to discern whether Russian pilots’ actions are deliberate or if these are just honest mistakes.”

“Are you still interested,” Putin asked, while making it clear Russia could make Trump’s life far more difficult that it is currently doing.

And Trump got on the phone and said … we don’t know what he said, but we can sure guess.

In the wake of it, Trump’s team leaked details of their request to meet with Robert Mueller next week to find out whether the probe will, as Ty Cobb has absurdly been claiming for some time, be drawing to a close.

President Donald Trump’s private lawyers are slated to meet with special counsel Robert Mueller and members of his team as soon as next week for what the President’s team considers an opportunity to gain a clearer understanding of the next steps in Mueller’s probe, according to sources familiar with the matter.

While the lawyers have met with Mueller’s team before and might again, the sources believe the upcoming meeting has greater significance because it comes after the completion of interviews of White House personnel requested by the special counsel and after all requested documents have been turned over. Mueller could still request more documents and additional interviews. No request to interview the President or the vice president has been made, sources tell CNN.

But Trump’s team, led by John Dowd and Jay Sekulow, is hoping for signs that Mueller’s investigation is nearing its end, or at least the part having to do with the President. Their goal is to help Trump begin to emerge from the cloud of the ongoing investigation, several of the sources explained. The sources acknowledge that Mueller is under no obligation to provide any information and concede they may walk away with no greater clarity.

If such a meeting does occur, it will come amid the rumors that Trump plans to fire Mueller. Either Mueller finishes up and gives Trump an all clear, and soon, the message seems to be, or Trump will ensure Mueller can’t report the opposite.

Putin wants to get on with things, with making good on his investment in Donald Trump. And in response to that message, Trump made moves towards trying to end the investigation that would show such a plan would be the quid pro quo for Putin’s help getting Trump elected.

The Many Gaps and Inconsistencies in Natalia Veselnitskaya’s Story, Starting with Ike

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In this post, I laid out the latest attempt from one-time Trump and current Aras Agalarov lawyer Scott Balber to craft an unincriminating story for the June 9 Trump Tower meeting. In general, Balber has gone to great lengths to provide innocent explanations for digital tracks suggesting the meeting was incriminating, and especially to deny that Agalarov — who orchestrated the meeting — had any direction from Putin.

In this post, I’m going to look at what Natalia Veselnitskaya (who, as I’ve noted, met with Balber sometime before October, which is where the documents she admits to first got introduced to the public) wrote in her statement to Chuck Grassley back in November, because she makes some really interesting dodges.

To start with, Veselnitskaya defines certain things so as to be able to deny certain relationships.

First, she distinguishes between Glenn Simpson and Fusion, admitting to a relationship with the former but not the latter.

I did not work with Fusion GPS, I know Glenn R. Simpson, whom since 2014 I have viewed as an individual investigator-analyst, a former investigative journalist with a long record of service and experience gained by a team of lawyers for point tasks that arose in connection with the preparation for trials, interrogations under case 13-civ-06326 the United States of America v. Prevezon Holdings Ltd. et al., initiated by Browder through the US Attorney’s Office with reference to my client. In my perception, it was Glenn R. Simpson who worked on the Prevezon Case, as to in what capacity – either as an individual or as a company – it was of no interest to me. I do not have any documents as to Fusion GPS.

[snip]

Glenn Simpson was hired by lawyers from Baker Hostetler, as well as other people who worked on the case. Some of them I have never even met. I used to receive reports from Glenn Simpson – CC-ed on all the lawyers working on the case.

[snip]

I didn’t work with Fusion GPS. In my study, analysis and documents I partly used the information obtained in December 2014 from Glenn Simpson within the scope of his services on legal research of Browder’s corporate relations, and his links to the United States, to serve a subpoena on him.

Importantly, she denies a claim made by Fox to have met with Simpson before and after the June 9 meeting.

So, on June 8, in the evening, I arrived in New York. On June 9, I attended the second district court hearing on Browder’s complaint and worked on some other issues. On June 10, I went to Washington to coordinate our position with our key lawyer in Washington.

[snip]

No, there had been no contacts with him on specified dates. Last week Fox News 38 referring to a confidential source reported that I met with Glenn Simpson before and after the meeting with Trump’s son, and that “but hours before the Trump Tower meeting on June 9, 2016, Fusion co-founder and ex-Wall Street Journal reporter Glenn Simpson was with Veselnitskaya in a Manhattan federal courtroom, in a hearing on the DOJ’s claim against Prevezon Holdings, a Cyprus company owned by a Russian businessman Denis Katsyv.” This statement does not reflect the reality.

[snip]

I met Glenn Simpson on the as-needed basis, as well as whenever he came to the office to see the lawyers.

The distinction may have the primary function of divorcing her relationship with (and the presence at the meeting of) Rinat Akhmetshin from Fusion and the Christopher Steele dossier. She claims that Akhmetshin’s presence at the meeting was tied to his role in an anti-Magnitsky NGO, with no involvement of Prevezon attorneys Baker Hostetler.

If the question is how he was introduced at the meeting on June 9, then as a consultant of the Human Rights Fund for relations with Congress.

This seems inconsistent with her reference to his having an NDA with her — who is the NDA with?

Most incredibly, Veselnitskaya distinguishes between meeting with Don Jr — a friend of a friend, she explains it as — and the Trump campaign.

Meeting on June 9, 2016, was not a “meeting with the Trump campaign”. My understanding is, this was to have been a private meeting with Donald Trump, Jr., – a friend of my good acquaintance’s son on the matter of assisting me or my colleagues in informing the Congress members as to the criminal nature of manipulation and interference with the legislative activities of the US Congress.

[snip]

No [she did not have advance knowledge of the other attendees], except for those people who had come with me and the person I was going to (Trump, Jr.), I did not have the slightest idea that someone else would be present at the meeting.

[snip]

No. I did not meet with the “Trump campaign”. At the meeting with Donald Trump, Jr. I had a reference in my own handwriting (see Exhibit 1.1), which I was ready to leave to Mr. Trump, Jr., should he need it. But to offer or provide this information was pointless, because as I understood during the meeting, Mr. Trump, Jr. was not at all aware of my request and could not help me at all.

Having done that, Veselnitskaya is in a position to deny knowing certain things: any involvement in tampering with the election and any tie to the Fusion dossier.

The additions she makes to three responses reinforce this focus. First, when asked whether she has any information on the Russian influence operation, to which she says, “Nor do I know anyone who would be in possession of such documents or knew about something like that.” She also doesn’t know who in the Russian government would know of her involvement. “Not that I know about. If so, who? Why were they briefed? What was their role?” And whether she knows Christopher Steele, to which she responds, “I do not know Christopher Steele. I first heard of him from US media.”

With that frame, here’s how Veselnitskaya explains the genesis of her meeting.

I had never asked anyone for a meeting with the Trump team.

Nor did I ask to organize namely a meeting with Donald Trump, Jr., it was enough for me to hand over a reference outlining the request (see Exhibit 1.1). Around the end of May 2016, during a conversation with a good acquaintance of mine, being my client, Aras Agalarov on a topic that was not related to the United States, I shared the story faced when defending another client, Denis Katsyv, about how terribly misled the US Congress had been by the tax defrauder William Browder, convicted in Russia, who, through his lobbyists and his close-minded rank-and-file Congress staffers, succeeded in adopting the Act in the name of a person whom Browder practically hardly ever knew.

I considered it my duty to inform the Congress people about it and asked Mr. Agalarov if there was any possibility of helping me or my colleagues to do this. I do not remember who of us was struck by the idea that maybe his son could talk about this with Donald Trump, Jr., who, although a businessman, was sure to have some acquaintances among Congress people. After my conversation with Mr. Agalarov, I prepared a reference in case it would be necessary to hand over the request – to support the hearings in the Subcommittee in the US House Committee on Foreign Affairs as to the Magnitsky’s and Browder’s story, scheduled for mid-June. I was ready to hand over the reference, talk on the phone, or meet personally.

Note, later in her answers, she claims to guard client confidentiality closely, even beyond things covered by privilege. But here, she claims to have discussed Katsyv’s plight with Agalarov.

And even though Aras Agalarov was crucial to organizing this meeting, Veselnitskaya claims to have no knowledge of any other involvement he had (which is something Balber has been trying to reinforce throughout).

All I know is that Aras Agalarov asked his son Emin Agalarov to enquire if Donald Trump, Jr. could help with my request. I am not aware of any further actions of Emin.

In the passage above, note how she obscures whether the Magnitsky/Ziff document released publicly (a report Putin parroted on October 19) got written in advance for the meeting or to lobby Congress with. Curiously, in this day of digital creation, she claims she doesn’t know precisely what day she drafted it (even thought the publicly released copy is dated May 31 on the Russian version).

A note about the meeting that I prepared in Moscow on or about May 31, 2016 for its possible handover to any interested party

That claim is critical given that — in a previous Scott Balber installment — the preexistence of this document involved an exchange between Veselnitskaya and the Prosecutor General, Yuri Chaika, offered up to explain why Rob Goldstone told Don Jr she had a tie to the Crown Prosecutor. She denies he had any involvement in the meeting and in he descriptions of involvement with him doesn’t describe the report.

I have no relationship with Mr. Chaika, his representatives, and institutions, other than those related to my professional functions of a lawyer. As a lawyer of Denis Katsyv, since 2013 I have sent several appeals to the Russian Federation General Prosecutor’s Office requesting documents within my legal powers, and also filed applications to verify the information about Mr. Browder’s activities in Russia that resulted in the wrongful seizure of my client’s assets in the USA and Switzerland, received answers, analyzed them and addressed them anew, should I be refused answers or provision of documents – I appealed to the court.

That’s important because she can offer no explanation for the reference, in Rob Goldstone’s email to Don Jr, to the Crown Prosecutor.

I do not know what Mr. Goldstone was talking about. Given what I know, I can assume that Mr. Agalarov might tell him a little about me, mentioning that I had previously worked in the prosecutor’s office, and the information I wanted to tell in the US Congress had also been reported by me before to the General Prosecutor’s Office of Russia and it was confirmed there. Having compiled this, the musical producer (as I learnt more than a year later) could either confuse everything, or intentionally make everything look intriguing so that the meeting could take place.

Another timing detail, Veselnitskaya denies remembering when she learned the meeting for which she claims to have made handouts would be a meeting, though she claims it was after she arrived in the US.

I do not remember from whom and at what time I first heard that I could personally express my request (see Exhibit 1.1) during at the meeting.

[snip]

I do not remember the moment when I first heard that I could personally make my request during a meeting. Nor do I exactly remember who told me about it. But upon arrival in New York in the evening of June 8, 2016, in my e-mail box I found a letter from a certain Goldstone, who notified me of the time and place of the meeting with Donald Trump, Jr. In this correspondence Aras Agalarov’s colleague, Irakli Kaveladze, who had been living in the United States for a long time and to whom I left my mail for contacts, was mentioned in the copy.

[snip]

I do not remember discussing it with anyone before I found out that there would be a meeting. This was an alternative way of communicating the request and I did not insist on a meeting. The day I was told that I would be met by Trump, Jr. (everything that I was able to restore in my memory, confirmed by mail from Goldstone – this could take place when I was already in New York), I informed Denis Katsyv about this.

This description raises real questions about Ike Kaveladze. Here’s the email Veselnitskaya said she received when she landed; note that, as publicly released, the reference to Kaveladze has been hidden, though it may be what the reference to “both” is. Note, the shift of the meeting from 3 to 4 is also not included in the email chain; Goldstone learned the change needed to be made by 10:34AM on June 8.

The apparently obscured reference to Kaveladze is particularly interesting given how she describes inviting Samochernov to attend as her translator on the morning of the meeting.

On the day of the meeting – June 9, I asked my interpreter – Anatoly Samochernov, and my colleague who had previously worked on the Prevezon Case – Rinat Akhmetshin, who was also a registered lobbyist for the Human Rights Accountability Global Initiative Foundation (HRAGI), and dealt with issues on behalf of the Foundation in the US Congress, which I planned to talk about at the meeting with Donald Trump, Jr. Both are US citizens. I informed Goldstone about them on June 9, which is confirmed by my correspondence.

Akhmetshin was reportedly in NYC for a theater production, but she apparently learned he’d be in town by 9:24.

Rinat Akhmetshin, who arrived that day in New York for an evening performance of Russian theatre stars.

Her description of Kaveladze’s role (remember, he’s represented by Balber) is particularly curious, in that she admits he was ostensibly there to serve as translator, which was unneeded since she had brought her own.

[She and Kaveladze] got acquainted first by phone when I was in Moscow. I met him personally first on June 9 shortly before the meeting.

[snip]

We had a phone call and met at a café, I do not remember where and at what café. I told him briefly what I knew about the Browder case, about the Ziffs and their possible support when lobbying his interests in the United States.

[snip]

I can suppose, he attended the meeting as a translator, however, as I was with a translator he was just sitting and listening.

The curious silences about Kaveladze are all the more interesting given that, unlike Veselnitskaya, he knew that Manafort and Kushner would be there and that dirt on Hillary would be dealt. And based on that description, he flew to NYC from LA.

Curiously, Veselnitskaya says neither Paul Manafort nor Jared Kushner were introduced at the meeting.

I came to the meeting with Anatoly Samochornov, a translator, Irakly Kaveladze, a lawyer of my client who helped to arrange for the meeting, Rinat Akhmetshin, my colleague who was working with me on the Prevezon case. We were met by a big, stout man who introduced himself as Rob and escorted us on the elevator to the boardroom. I saw two men in the boardroom – one of them introduced himself as Donald Trump Jr., while the other did not introduce himself. Another young man entered the boardroom a little later and left it shortly afterwards. I found out much later that the two unidentified gentlemen were P. Manafort and J. Kushner.

Laying all this out, it’s not so much that it doesn’t make sense (though there are clear gaps).

It’s that even with all of Scott Balber’s efforts, there’s still no explanation for why Kaveladze attended this meeting. Given Balber’s significant efforts to minimize Agalarov’s role in the meeting — and his denials that Agalarov might have ties directly to Putin — I find the failure to explain that notable.

Scott Balber’s Sixth Attempt to Craft the June 9 Meeting Story

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I’ve been tracking the considerable effort one-time Trump lawyer and current Agalarov lawyer Scott Balber has made to craft a legit story for the June 9 Trump Tower meeting. Heretofore, he has done so on five occasions:

  1. A meeting between Rinat Akhmetshin and Ike Kaveladze (the latter of whom Balber represents as an employee of Agalarov) in Moscow in June 2017, just as Jared Kushner and Paul Manafort were both belatedly disclosing the meeting to various authorities; this story appears to have been an attempt to pre-empt the damage that would be done when Akhmetshin’s involvement became public
  2. A Balber trip sometime before October to Russia to coordinate a story with and get documents from Natalia Veselnitskaya to back her version of the talking points she reportedly shared with Trump’s people
  3. Another October story, this “revealing” that Veselnitskaya’s research came from (or actually was shared with) Russian prosecutor Yuri Chaika, but insisting (per Balber) that Agalarov had no ties with the prosecutor
  4. Balber filling in a hole in the story for Goldstone: he told the Daily Beast that after his client Ike Kaveladze saw an email (from whom he doesn’t describe) indicating that Jared Kushner, Paul Manafort, and Don Jr would be at the meeting, he called a close associate of Goldstone’s (and a former employee of Balber’s client), Roman Beniaminov, to find out what the meeting was about. That’s the first he learned — at least as far as he told congressional investigators — that the meeting was about dealing “dirt” on Hillary.
  5. Balber insisting that Rob Goldstone’s email calling the news of the DNC hack and leak “eerie” “odd because hacking was never discussed in the meeting and it was not consistent with what was discussed.”

Number Six:

Balber’s back in this story, revealing that Rob Goldstone (who I believe had meetings with all major investigations in DC this week) offered to set up a meeting between Putin and Trump in July 2015. Balber insists that such a thing couldn’t really happen because his client can’t just set up meetings with Putin.

About a month after Donald Trump launched his presidential bid, a British music promoter suggested his Russian pop-star client could arrange for the new candidate to meet with Russian President Vladi­mir Putin, according to an email obtained by The Washington Post.

The July 2015 offer by publicist Rob Goldstone came about a year before he set up a meeting for Trump’s eldest son with a Russian lawyer who he said had incriminating information about Democratic candidate Hillary Clinton.

Goldstone’s overture came as he unsuccessfully urged Trump to travel to Moscow later that year to attend a birthday celebration for his client’s father.

“Maybe he would welcome a meeting with President Putin,” Goldstone wrote in a July 24, 2015, email to Trump’s longtime personal assistant, Rhona Graff. There is no indication Trump or his assistant followed up on Goldstone’s offer.

[snip]

Scott Balber, an attorney for the pop star, Emin Agalarov, said Agalarov asked Goldstone to invite Trump to his father’s party but was not aware that the publicist dangled the possibility of meeting with Putin.

“It is certainly not the case that Emin Agalarov can arrange a meeting with Vladi­mir Putin for anybody,” Balber said.

In case you haven’t figured out, I think this is all an elaborate cover story to obscure what actually went on in the meeting and what the understanding about it was. Now that Goldstone has testified, this may start to fall apart.

In fact, I’m going to try to finish my last piece of analysis on this, because it may start falling apart that quickly.

Yes, in Gartenlaub, FBI Was Hunting for Child Porn in the Name of Foreign Intelligence Information

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Over at Motherboard, I’ve got a piece on the Keith Gartenlaub hearing in the Ninth Circuit on December 4. Gartenlaub was appealing his conviction for possession of child porn, in part, based on the argument that the government shouldn’t have been able to look for child porn under the guise of searching for foreign intelligence information.

As I note, the public hearing seems to have gone reasonably well for Gartenlaub, with a close focus on how the US v Comprehensive Drug Testing precedent in the 9th Circuit, which requires searches of digital media to be appropriate to the purpose of the search, might limit searches for Foreign Intelligence Information.

Anthony Lewis, arguing for the government, suggested that FISA was different from the Rule 41 context; in FISA, he argued, specificity would be handled by post collection minimization procedures.

Anthony Lewis, arguing for the government, responded to Gartenlaub’s argument with vague promises that the minimization procedures—rules that FISA imposes on data obtained under the statute—would take care of any Fourth Amendment concerns. “The minimization procedures themselves really supply the answer in the FISA context,” Lewis said. Accessing data found during a search “simply operates differently in the FISA context, in which there is a robust set of procedures that exist on the back end of the search through acquisition, retention, and dissemination that is simply unlike what happens in a Rule 41 context.”

Lewis argued (and this is not in the post) that because FISA permits the sharing of criminal information, minimization procedures would always using evidence of a crime found in a search.

If it is evidence of a crime, then the minimization procedures — the statute does not call for it to be minimized. There are other procedures in place, some of which I can’t discuss in this open proceeding, but there are procedures in place that limit the use of that. Some of them are in the statute itself that Attorney General approval is required in order to use information obtained or derived from FISA.

The judges didn’t seem convinced. Each judge on the panel voiced a theory by which they could rule for Gartenlaub (which is different from giving him any kind of relief).

Judge Ronald Gould worried that if the government found evidence that wasn’t foreign intelligence but revealed something urgent—he used the example of a serial killer’s next targets throughout the hearing—it would need a way to use that information. Gartenlaub’s attorney John Cline and amicus lawyer Ashley Gorski, arguing for the ACLU, both noted an exigent circumstance exception could justify the use of the information on the hypothetical serial killer.

Judge Lawrence Piersol, a senior district court judge from Idaho, seemed to imagine district court judges providing individualized review on whether the information was reasonably obtained in a FISA-authorized search, possibly with the involvement of the court’s own cleared experts.

Judge Kim Wardlaw, who sat on the en banc panel for the Ninth Circuit precedent in question, asked why, when the government saw “a whole database [that] obviously suggests child porn” it couldn’t “go get another warrant?” So she seemed to favor a system where the government would have to get a criminal warrant to obtain child porn. That would present very interesting questions in this case, however, since the government obtained a criminal warrant based on probable cause that Gartenlaub was sharing information on Boeing intellectual property with China before it executed the FISA-authorized search that discovered the child porn.

But (also not in the post) Piersol added another example — one that has direct relevance for the most prominent investigation in the country implicating FISA, the Mueller investigation, which indicted FISA target Paul Manafort for what amounts to money laundering.

What about instead if you’re going through and looking for foreign intelligence information and you find a tremendous number of financial transactions which looks like it could well be money laundering. What do you do with that? Nothing? I mean, you just go ahead and prosecute it? You don’t have to worry about the fact that you weren’t looking for that?

Sure, Manafort’s not in the Ninth, but the judges sure seem inclined to limit the government’s ability to use a FISA order to troll through digital devices to find evidence of a crime that they can then use — as they did with Gartenlaub and are trying to do with Manafort — to coerce cooperation from the defendant. Depending on how they framed such a limit, it might seriously limit how the government enacted other FISA authorities in the circuit (which of course includes Silicon Valley — though any secondary searches would take place in Maryland or some other NSA facility); of very particular import, it would affect how the government implements its 2014 exception, whereby the NSA collects location obscured data (including entirely domestic communications) but then purges all but that which can be retained, including for criminal purposes, after the fact.

Which is why it’s so troubling that — as has happened in the last case where a defendant had a good argument to look at his FISA materials — the panel asked Lewis to stick around for an ex parte session.

Things were going swimmingly, that is, up until Wardlaw’s last comments to the government’s lawyer, Lewis. As he finished, she said she had no further questions, but added, “We’re going to ask you to stay after the hearing, to be available for us.” Lewis responded, “Understood, your honor,” as if he (and the people whose bags were sitting behind his counsel’s table but who were not themselves present) had advance warning of this. “Understood,” Lewis repeated again.

That was the first Gartenlaub’s team learned of the secret meeting the panel of judges had planned.

So after having presented a lackluster argument, Lewis was going to get a chance, it appears, to argue his case without Gartenlaub’s lawyers present, to be able to argue that not even Ninth Circuit precedent can limit the government’s authority to search with no limits in the name of national security.

There’s apparently precedent for this. Cline, who worked on the appeal of a defendant who almostgot FISA review, Adel Daoud, said the appeals court judges booted him and the other defense lawyers out of the courtroom for a similar ex parte hearing in that case too.

“The Seventh Circuit cleared the courtroom after the public argument and then allowed only government attorneys back in for the classified, ex parte session,” he said.

The session would not only give Lewis a chance to make further argument that the law envisions finding criminal evidence and using it to flip targets, but also to explain why, if the panel ruled in the direction it appeared they might, it would cause problems with other NSA collection.

Here’s the thing though — and the reason why an ex parte proceeding is so problematic here.

If given the chance, Gartenlaub would be able to argue in fairly compelling manner that the government set out to find things like child porn. That’s because one of the first steps of a forensics search — according to Gartenlaub’s forensics expert, Jeff Fischbach, who attended the hearing — is to set what you’re looking for. There’s a button to exclude all images and videos; by turning it off you vastly accelerate the search. And in Gartenlaub’s case, the government claimed to be looking for very specific kinds of foreign intelligence information: Boeing intellectual property, or any materials suggesting that Gartenlaub was dealing in same. The IP would have been CAD drawings stolen in digital form, not images. So to search what the government claimed it wanted to search for, there would have been no reason to search through any videos or photos. Which would have excluded finding the decade old child porn lying unopened on the hard drive.

As Wardlaw (who had been on the CDT panel) laid out,

The main problem we had was that in CDT, the government was authorized to look at the files pertaining to certain individuals — I believe Barry Bonds — and instead, they went further, and looked at the drug testing files for other baseball players. So that search was not authorized. They were not the subjects of the warrant and the warrant was circumscribed that way. Here, the warrant is any foreign intelligence data, it’s not narrower than that.

We don’t actually know (and it’s likely Wardlaw doesn’t either, at this point). But the government claimed to be searching for very specific things, tied to very specific claims of stolen IP from Boeing. Yet they necessarily designed their search to find far more than that. Which is how they found no foreign intelligence, but instead unopened child porn.

How Does the Strzok Text Dump Differ from Jim Comey’s July 5, 2016 Speech?

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I’m a bit bemused by the response to DOJ’s release of the texts between Peter Strzok and Lisa Page. As Rod Rosenstein testified before HJC yesterday, the release came after notice to Strzok and Page through their lawyers. The release of the texts came with the approval of DOJ IG Michael Horowitz — who says the investigation into the underlying conduct may last through spring. And Rosenstein strongly implied he wanted them released, taking responsibility for it (while claiming not to know whether Jeff Sessions had a role in their release).

As he explained to Trey Gowdy — who, like a number of Republicans, claimed to be at a loss of what to say to constituents who asked “what in the hell is going on with DOJ and the FBI” — the release of the texts proves that any wrongdoing will be met with consequences.

Gowdy: What happens when people who are supposed to cure the conflict of interest have even greater conflicts of interests than those they replace? That’s not a rhetorical question. Neither you nor I nor anyone else would ever sit Peter Strzok on a jury, we wouldn’t have him objectively dispassionately investigate anything, knowing what we now know. Why didn’t we know it ahead of time, and my last question, my final question — and I appreciate the Chairman’s patience — how would you help me answer that question when I go back to South Carolina this weekend?

Rosenstein: Congressman, first of all, with regard to the Special Counsel, Mr. Strzok was already working on the investigation when the Special Counsel was appointed. The appointment I made was of Robert Mueller. So what I’d recommend you tell your constituents is that Robert Mueller and Rod Rosenstein and Chris Wray are accountable and that we will ensure that no bias is reflected in any actions taken by the Special Counsel or any matter within the jurisdiction of the Department of Justice. When we have evidence of any inappropriate conduct, we’re going to take action on it. And that’s what Mr. Mueller did here as soon as he learned about this issue — he took action — and that’s what I anticipate the rest of our prosecutors, the new group of US Attorneys, our Justice Department appointees. They understand the rules and they understand the responsibility to defend the integrity of the Department. If they find evidence of improper conduct, they’re going to take action.

So Congressman, that’s the best assurance I can give you. But actually, there’s one other point, which is you should tell your constituents that we exposed this issue because we’re ensuring that the Inspector General conducts a thorough and effective investigation, and if there is any evidence of impropriety, he’s going to surface it and report about it publicly.

I actually think Rosenstein did a much better job than others apparently do, yesterday, at distinguishing between the Strzok texts (which apparently were on DOJ issued cell phones and, in spite of having Hillary investigation subject lines may not have been logged into Sentinel) and the political views of Andrew Weissmann or the past representation of Jeannie Rhee. Furthermore, he repeatedly said he would only fire Mueller for cause, and made it clear there had been no cause. Several times he talked about how closely he has worked with Mueller, such as on the scope of what gets included in his investigation (even while defending the charges against Manafort as appropriately included).

That said, I wonder how Rosenstein distinguishes, in his own mind, what he did in approving the release of the texts from an ongoing investigation and what Jim Comey did on July 5, 2016, when he gave a press conference about why Hillary Clinton had not been charged. While Rosenstein’s biggest complaint in his letter supporting the firing of Comey was that he substituted his decision for that of prosecutors, he also argued that the Department shouldn’t release derogatory information gratuitously.

Compounding the error, the Director ignored another longstanding principle: we do not hold press conferences to release derogatory information about the subject of a declined criminal investigation. Derogatory information sometimes is disclosed in the course of criminal investigations and prosecutions, but we never release it gratuitously. The Director laid out his version of the facts for the news media as if it were a closing argument, but without a trial. It is a textbook example of what federal prosecutors and agents are taught not to do.

In response to skeptical question at a congressional hearing, the Director defended his remarks by saying that his “goal was to say what is true. What did we do, what did we find, what do we think about it.” But the goal of a federal criminal investigation is not to announce our thoughts at a press conference. The goal is to determine whether there is sufficient evidence to justify a federal criminal prosecution, then allow a federal prosecutor who exercises authority delegated by the Attorney General to make a prosecutorial decision, and then – if prosecution is warranted – let the judge and jury determine the facts. We sometimes release information about closed investigations in appropriate ways, but the FBI does not do it sua sponte.

In some ways this is worse because of the off chance that Inspector General Michael Horowitz finds that these texts don’t merit some kind of response; the investigation is not finished yet.

That said, I actually do think there’s a difference: Strzok and Page are department employees, rather than subjects of an external investigation. DOJ exercises awesome power, and usually DOJ is releasing the texts of private citizens in this kind of embarrassing way.

Even former clearance holders seem surprised that these texts were discovered. It is unbelievable to me how few people understand the great liberty that counterintelligence investigators like Strzok can have in obtaining the communications of investigative targets like he has now become, particularly during leak or insider threat investigations. That may not be a good thing, but it is what other targets have been subjected to. So I think it reasonable to have FBI’s own subject to the same scrutiny, for better and worse.

I do think it worthwhile for DOJ to show that it will hold people accountable for improper actions.

Plus, aside from one August comment — which we may obtain more context on when Horowitz does finish this investigation — about an “insurance” policy against Trump, the texts simply aren’t that damning (though they do raise questions about Strzok’s role in the investigation). Strzok agrees with Rex Tillerson, after all, that Trump is an idiot.

So as far as that goes, I’m actually okay with Rosenstein’s release of these texts.

Except I worry about something else.

I actually worry less about Mueller getting fired than just about every other Trump opponent on the planet. Rosenstein seems intent to let him do his work, and (notably at several times during the hearing) seems to agree with the gravity of the investigation. Trump can’t get to Mueller without taking out Rosenstein (and Rachel Brand). And I actually think Rosenstein has thus far balanced the position of a Republican protecting a Republican from Republican ire fairly well. I expect the next shoes Mueller drops — whenever that happens — will change the tone dramatically.

What bothers me most about the release of these texts, however, is that they are a response to the same pressure that Comey was responding to (and which he thought he was smart enough to manage, just as Rosenstein surely thinks he can handle it here).

They are a response — from the same people who ran the Benghazi investigation then ignored DOJ’s prosecution of the Benghazi mastermind — to a willingness to challenge the very core of DOJ functionality, all in a bid to politicize it.

Perhaps Rosenstein is right to bide his time — to create space for Mueller to drop the next few shoes — with the release of the Strzok texts.

But at some point, Republicans need to start calling out Republicans for the damage they’re doing to rule of law with this constant playing of the refs, this demand for proof that Democrats aren’t getting some advantage through the rule of law. If those next shoes don’t have the effect I imagine, it may be too late.

The Ohrs’ Activities Raise New Questions about the December 13 Dossier Report

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In recent days, Republicans have leaked details about the actions of Bruce and Nellie Ohr with respect to the Fusion GPS dossier on Trump. Yesterday, Glenn Simpson confirmed those details in a filing in Fusion’s efforts to prevent the House Intelligence Committee from obtaining more details about Fusion’s finances.

The bank records reflect that Fusion contracted with Nellie Ohr, a former government official expert in Russian matters, to help our company with its research and analysis of Mr. Trump[.]

[snip]

I disclosed that I met with Bruce Ohr, at his request, after the November 2016 election to discuss our findings regarding Russia and the election[.]

In short, this revelation means that Fusion employed the wife of then Associate Deputy Attorney General Bruce Ohr to conduct research on Trump’s Russian ties. Ohr met with Christopher Steele before the election, and met with Simpson after the election.

This probably means that this reference, in HPSCI’s request for documents, is to Nellie Ohr.

Which in turn would man that Fusion paid Ohr on March 22, April 6, May 25, July 13, August 2, September 1, October 5, November 1.

That would mean the payments to Steele are either item 2 or 4 in this analysis. That’s significant because both of those entities received payments in January.

I’m interested in all that for two reasons. First, the record conflicts on whether DOJ ever paid Steele.

WaPo reported that Steele had reached a verbal agreement that the FBI would pay him to continue his investigation of Russia’s involvement with Trump after still unnamed Democrats stopped paying him after the election. CNN then reported that FBI actually had paid Steele for his expenses. Finally, NBC reported Steele backed out of the deal before it was finalized.

If Ohr met with Steele after the election (and after Perkins Coie reportedly stopped paying for Steele’s work), it means it’s possible DOJ paid him, contrary to some reports. Steele has claimed (in otherwise dubious court filings) that he was neither pair nor affirmatively solicited information for the last report, dated December 13.

The December 13 report was by far the most inflammatory one, alleging that Trump’s campaign paid for the hack of the DNC. It’s also at the center of some of the lawfare surrounding the dossier, Webzilla’s multiple lawsuits.

This is by no means definitive. But the circumstances of the December 13 report will come out one way or another. Thus far, the story about it is bad. And it could get far worse.

Why Is Russia Finally Letting (Dubious) Details of Its Involvement in DNC Hack Out?

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In recent days there have been a number of stories in Russia implicating the FSB (note, not GRU) in issues related to the DNC hack. First, there was this article from The Bell, claiming that the four Russian treason defendants (two of whom were FSB officers) are being prosecuted because they provided inside information to the US about GRU’s involvement in the DNC hack.

But it is impossible to identify which specific cyber group or groups were responsible for last year’s Democratic National Committee hack based on technical traces alone, four cyber experts polled by The Bell confirmed. To prove specifically that the GRU was involved, U.S. investigators would have needed inside sources — preferably with access to confidential state matters, one source explained. Mikhailov had that access.

Relations between intelligence agencies working on the cyber front were strained, one of Mikhailov’s acquaintances said. The FSB and GRU compete for funding and Mikhailov felt the FSB carried out cyber tasks more professionally than the GRU, according to one of his acquaintances.

He used to say that “the GRU breaks into servers in a brazen, clumsy, and brutish manner and it interfered with his own work”, the acquaintance said. Moreover “the GRU’s hackers didn’t even try to cover their tracks”.

The report said that Sergei Mikhailov — who was named (but not charged) the Yahoo hack case — shared information on Russian hackers who wouldn’t work with the FSB with western law enforcement agencies though a cut-out named Kimberly Zenz.

Mikhailov had been working closely with Western intelligence agencies since 2010. Report written for Vrublevsky said that Mikhailov had leaked sensitive information “on Russian cyber-criminals, who had refused to cooperate with him, to a U.S. citizen”. More specifically, Mikhailov reportedly handed the U.S. citizen — a woman — information on Russian state-sponsored hacker attacks against Estonia and Georgia in 2007 and 2008.

Burykh says he found that Mikhailov gave the information to Stoyanov, who then passed it on to  Kimberly Zenz  of the U.S. company iDefense Intelligence. From there, it went to the U.S. Department of Defense.

Then there’s this story, reporting that a hacker tied to the Lurk group, Konstantin Kozlovsky, hacked the DNC on behalf of the FSB.

Then there’s this, from Novaya Gazeta, laying out the news.

NG questions — as I do — why this is all coming out now. Of particular interest, it notes that Kozlovsky’s claims were posted in August, but for some reason the hashtags that would have alerted people to the posted claim were not triggering, meaning the information only got noticed (at least in Russia) now.

Interestingly, the first materials on this page were posted back in August of this year. And despite the fact that sensational publications were accompanied by tags # CIB, # FSB, # Dokoutchaev, # Mikhailov # Stoyanov, # hackers, # Kaspersky, the existence of a personal page Kozlovsky in Facebook for some reason became known only in early December.

Here’s the timeline we’re currently being presented with (I’ve made some additions):

April 28, 2015: FSB accesses Lurk servers with Kaspersky’s help.

May 18, 2016: Kozlovsky arrest.

May 19-25, 2016: DNC emails shared with WikiLeaks likely exfiltrated.

November 1, 2016: Date of Kozlovsky confession.

December 5, 2016: Arrest, for treason, of FSB officers.

August 14, 2017: Kozlovsky posts November 1 confession of hacking DNC on Facebook.

November 28, 2017: Karim Baratov (co-defendant of FSB handlers) plea agreement.

December 2, 2017: Kozlovsky’s claims posted on his Facebook page.

Of particular note, the emails exfiltrated from the DNC and shared with WikiLeaks were probably not exfiltrated until the days immediately after Kozlovsky’s arrest.

As NG notes, this all may well be true (though I wonder why Russia is now letting claims it was involved in the DNC hack go public, after claiming it was uninvolved for so long). But the reason it is coming out now is at least as interesting that it is coming out.

Update: I originally said that Mikhailov was charged in the Yahoo hack. He was described in it, but not charged.

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