Open Thread: All in the Families?

This is an open thread dedicated to this morning’s news. By now many of  you have heard that Alex van der Zwaan, a lawyer at mega-lawfirm Skadden, Arps, Slate, Meagher & Flom, was charged today by Team Mueller for making false statements while answering questions about his work for the Ukrainian Ministry of Justice in its case against Ukraine’s former prime minister Yulia Tymoshenko.

The “materially false, fictitious, and fraudulent statements and representations” arose from questions about interactions related to Paul Manafort’s partner Rick Gates and “Person A.”

[insert blogger’s laugh] Gee, I wonder who Person A could be? *

You can read the short and sweet court filing here (pdf).

These folks from Team Mueller signed the filing: Andrew Weissman, Greg Andres, Kyle Feeny, Brian Richardson. Add them and this assignment to Marcy’s bingo card

Richardson is a new name, which Marcy noted, already wondering if he is Mystery Prosecutor 17? She’ll probably elaborate in a separate post.

For a little background on Skadden Arps’ relationship to Ukraine, see this this NYT piece from September 21 last year: Skadden, Big New York Law Firm, Faces Questions on Work With Manafort

There was related legal news last autumn — emphasis on related.

Alfa Bank co-owners German Khan, Mikhail Fridman, and Peter Aven filed suit last October against Fusion GPS and Glenn Simpson claiming the Steele dossier was defamatory. Their reputations were “gravely” damaged as the dossier indicated they were engaged in criminal activity with Russia’s president Vladimir Putin.

Khan just happens to be van der Zwaan’s father-in-law. It’s a small world, yes?

It’ll be amusing if the Mueller-led investigation ends up unintentionally corralling multiple families.

* EDIT — 1:30 pm EST — I meant to add that  Andrea Manafort Shand, Paul Manafort’s daughter, was an associate at Skadden Arps-Washington DC office. I haven’t seen anything to suggest she’s involved in any way with today’s charges or that she’s Person A but stranger things have happened. Like the leaking of hacked text messages between Manafort’s daughters which have not been disavowed.

– – – – –

In case you missed it this morning, Marcy was on Democracy Now this morning, talking about the Mueller probe and the IRA indictment last Friday.

A transcript isn’t up as I type this but the video and audio are up on the main site under the Daily Show at the right side of Democracy Now’s homepage. I’ll add a link to the transcript as it becomes available.

Have at it!

 

In Two So-Called Fact Checks of Facebook, NYT Forgets Everything It Knows about Indictments

In both this Scott Shane article and this “fact check” of Facebook VP Rob Goldman’s recent tweets on Russian trolls’ use of Facebook (which President Trump then picked up), the NYT has twice forgotten everything it knows about indictments, and in the process failed to properly analyze last week’s Internet Research Agency indictment.

In Shane’s article, he attempts to fact check Goldman using the indictment.

Facebook’s vice president for advertising, Rob Goldman, said on Twitter on Friday, “I have seen all of the Russian ads and I can say very definitively that swaying the election was *NOT* the main goal” — a statement that President Trump retweeted.

But Mr. Mueller’s indictment repeatedly states that the Russian operation was designed not just to provoke division among Americans but also to denigrate Hillary Clinton and support her rivals, mainly Mr. Trump. The hashtags the Russian operation used included #Trump2016, #TrumpTrain, #MAGA and #Hillary4Prison, and one Russian operative was reprimanded for “a low number of posts dedicated to criticizing Hillary Clinton,” the indictment says.

On Twitter, Shane even suggested Goldman hadn’t read the indictment.

Wonder if Rob Goldman has read the indictment. Mueller appears to disagree.

Then, Sheera Frenkel extends the purported fact check.

“I have seen all of the Russian ads and I can say very definitively that swaying the election was *NOT* the main goal.” Tweet #2

Not according to the indictment.

The grand jury indictment secured by Mr. Mueller asserts that the goal of Russian operatives was to influence the 2016 election, particularly by criticizing Hillary Clinton and supporting Mr. Trump and Bernie Sanders, Mrs. Clinton’s chief rival for the Democratic nomination.

The Russians “engaged in operations primarily intended to communicate derogatory information about Hillary Clinton, to denigrate other candidates such as Ted Cruz and Marco Rubio, and to support Bernie Sanders and then-candidate Donald Trump,” the indictment said.

Mr. Goldman later wrote in another tweet that “the Russian campaign was certainly in favor of Trump.”

Both Shane and Frenkel don’t consider what I laid out here:

[T]here are hints that Mueller is using this indictment to set up a more important point.

For example, the indictment (perhaps because of Mueller’s mandate) focuses on political activities supporting or opposing one or another 2016 candidate. Even where topics (immigration, Muslim religion, race) are not necessarily tied to the election, they’re presented here as such. Unless Facebook’s public reports are wrong, this is a very different emphasis than what Facebook has said the IRA focused on. Which is to say that Mueller’s team are focusing on a subset of the known IRA trolling, the subset that involves the 2016 contest between Trump and Hillary.

Goldman was addressing all of IRA’s activity on Facebook, which it described this way in September:

  • The vast majority of ads run by these accounts didn’t specifically reference the US presidential election, voting or a particular candidate.
  • Rather, the ads and accounts appeared to focus on amplifying divisive social and political messages across the ideological spectrum — touching on topics from LGBT matters to race issues to immigration to gun rights.
  • About one-quarter of these ads were geographically targeted, and of those, more ran in 2015 than 2016.
  • The behavior displayed by these accounts to amplify divisive messages was consistent with the techniques mentioned in the white paper we released in April about information operations.

Nowhere in the indictment does Mueller describe the scope of what IRA activity his team investigated, though it does describe how “over time” the IRA activity came to focus on the 2016 election.

These groups and pages, which addressed divisive U.S. political and social issues, falsely claimed to be controlled by U.S. activists when, in fact, they were controlled by Defendants. Defendants also used the stolen identities of real U.S. persons to post on ORGANIZATION-controlled social media accounts. Over time, these social media accounts became Defendants’ means to reach significant numbers of Americans for purposes of interfering with the U.S. political system, including the presidential election of 2016.

Indeed, the indictment makes it clear that the universe of IRA activity is larger than the election-related activity, in part by tying two counts of identity theft to crimes that happened after the election, as recent as May 2017.

Eight of the usages of fake credentials described in ¶92 also postdate the election. That’s presumably part of what Goldman was pointing to when he tweeted,

The majority of the Russian ad spend happened AFTER the election. We shared that fact, but very few outlets have covered it because it doesn’t align with the main media narrative of Tump and the election.

Even as they, a mainstream media outlet, ignored how Goldman’s invocation of this spending detail and the inclusion of 2017 activities in the indictment is proof that not all of the IRA activities Mueller investigated did pertain to the election, NYT deemed that claim lacking in context.

According to figures published by Facebook last October, 44 percent of the Russian-bought ads were displayed before the 2016 election, while 56 percent were shown afterward. Mr. Goldman asserted that those figures were not published by the “mainstream media” — however, many mainstream news outlets did print those numbers, including CNN, Reuters and The Wall Street Journal.

The point is that there are two universes of IRA Facebook activities: the entire universe, for which Goldman’s claims are generally true, and the activities that Mueller has chosen to focus on, which Shane and Frenkel mistake as the entire universe, and in the process blow their fact checks.

This disjunct continues to the citation of real life events planned using Facebook. Goldman pointed to two May 21, 2016 Houston events, where an Islamophobic event was planned on the same day as a United Muslims event, as the quintessential example of how Russia was trying to pit Americans against each other.

The single best demonstration of Russia’s true motives is the Houston anti-islamic protest. Americans were literally puppeted into the streets by trolls who organized both the sides of protest.

Frenkel doesn’t even get Goldman’s reference correct, in spite of his link to a story on it, and instead apparently takes the citation to be a reference to this passage from the indictment.

By in or around early November 2016, Defendants and their co-conspirators used the ORGANIZATION-controlled “United Muslims of America” social media accounts to post anti-vote messages such as: “American Muslims [are] boycotting elections today, most of the American Muslim voters refuse to vote for Hillary Clinton because she wants to continue the war on Muslims in the middle east and voted yes for invading Iraq.”

From which she concludes,

The protests in Houston in November 2017 were among many rallies organized by Russian operatives through Facebook. While the Houston protest was anti-Islamic, as Mr. Goldman said, he failed to note that the goal in promoting the demonstration was to link Mrs. Clinton’s campaign with a pro-Islamic message.

Again, the indictment is focusing on a particular subset of the IRA activity, whereas Goldman is commenting on the larger universe, arguably to say the indictment understates the threat.

With NYT’s mad, repeated rush to fact check Facebook using an indictment that never claims to be addressing the same universe of IRA activity Goldman was commenting on, they commit some pretty significant analytical errors, errors that extend to their ability to understand what Mueller is doing with the indictment.

I can’t say for certain why Mueller focused on certain kinds of IRA activity, but I can think of three likely possibilities:

  • Since his mandate is to investigate Russian tampering in the 2016 election, he is focusing on that subset of the IRA activity
  • Because it is tied to election law, the conspiracy to defraud the US charge in the indictment depends on activity that violates election law, and much of the IRA Facebook trolling does not
  • The events on which Mueller does focus — notably, twin events at key times in NYC and activities in FL that involve three identified Trump campaign officials — may hint at further crimes or more sophisticated cooperation between the campaign and Russian agents

The last possibility is (as I noted in my earlier post) one of the most intriguing parts of the indictment. But the NYT won’t see it because they’re so busy fact checking claims made about different sets of data.

I get the urge to beat up Facebook. They’ve got a lot to pay for in permitting Russia to abuse their platform. But (I suspect entirely because Trump used Goldman’s tweet to try to exonerate himself) in doing so, NYT has missed Goldman’s larger point, which isn’t an apology at all. Indeed, Goldman was saying that the problem is far bigger than what Mueller lays out in the indictment, and that our continued divisions are a vulnerability Russia continues to exploit.

As Mueller moves forward, we’re likely to see similar kinds of confusion between the specific crimes he addresses in indictments and pleas and the larger toxins that hurt our democracy. So long as we confuse Mueller’s investigation for the larger, still vulnerable whole, we’re never going to do the things as a society we need to prevent this from happening again.

Update: My apologies to Frenkel for misspelling her name originally in this.

Update: On the limits of what is and is not illegal for foreigners to engage in see this Rick Hasen post.

Update: I had an exchange on Twitter with Frenkel about this, and the so-called article has what purports to be a correction.

Because of an editing error, an earlier version of this article misstated the month when protests organized by Russian operatives were held in Houston. It was March 2016, not November 2017.

Except that as corrected (by me, though I got no attribution), the piece compounds its error.

The protests in Houston in May 2016 were among many rallies organized by Russian operatives through Facebook. While the Houston protest was anti-Islamic, as Mr. Goldman said, he failed to note that the goal in promoting the demonstration was to link Mrs. Clinton’s campaign with a pro-Islamic message.

According to the indictment secured by Mr. Mueller, there were many other examples of Russian operatives using Facebook and Instagram to organize pro-Trump rallies. At one protest, the Russian operatives paid for a cage to be built, in which an actress dressed as Mrs. Clinton posed in a prison uniform.

None of the materials or contemporary coverage associated with the anti-Islamic side of the protest associated it with Clinton’s campaign. On the contrary. the protest was about a local Islamic center.

A group calling themselves Heart of Texas called for the rally to protest what they consider “Islamization” of Texas – sparked in part by the recent opening of a privately funded library inside the downtown center. The group had also encouraged followers to bring legal firearms.

Although the Heart of Texas group never showed, about 10 people bearing flags of the United States, Texas and the Confederacy were there. “This is America. We have the right to speak out and protest,” said Ken Reed, who wore a T-shirt emblazoned with the phrase “White Lives Matter.” “We feel Texas, our great state and the United States is being threatened by the influx of Islam.”

Again, I agree that Facebook is a shitty company. But a newspaper doubling down on its errors to attack Facebook’s errors is … doing what it is complaining about.

The Conspiracy to Defraud the United States Backbone of the Internet Research Agency and Manafort Indictments

In this post, I suggested there was an important parallel between the structure of the Internet Research Agency indictment rolled out Friday and the Paul Manafort and Rick Gates indictment.

Both use a conspiracy to defraud the US (of its ability to enforce campaign finance and transparency law) as their backbone.

Just as way of comparison, Charge 1 in the IRA indictment alleges conspiracy to defraud the US because defendants impaired the lawful functions of the FEC, DOJ, and State in administering disclosure about foreign involvement in US politics.

From in or around 2014 to the present, in the District of Columbia and elsewhere, Defendants, together with others known and unknown to the Grand Jury, knowingly and intentionally conspired to defraud the United States by impairing, obstructing, and defeating the lawful functions of the Federal Election Commission, the U.S. Department of Justice, and the U.S. Department of State in administering federal requirements for disclosure of foreign involvement in certain domestic activities.

Charge 1 in the Manafort indictment alleges conspiracy to defraud the US because the defendants impaired the lawful functions of DOJ and Treasury to require disclosures about foreign political activity in US politics.

From in or about and between 2006 and 2017, both dates being approximate and inclusive, in the District of Columbia and elsewhere, the defendants PAUL J. MANAFORT, JR., and RICHARD W. GATES III, together with others, knowingly and intentionally conspired to defraud the United States by impeding, impairing, obstructing, and defeating the lawful governmental functions of a government agency, namely the Department of Justice and the Department of the Treasury, and to commit offenses against the United States, to wit, the violations of law charged.

Whatever else is true, both indictments start there, and go onto other related crimes (compellingly money laundering for Manafort and identity theft for IRA) from there.

Several people have already commented on the use of the conspiracy to defraud as backbone in the IRA indictment. Jamil Jaffer (not the Knight Foundation civil liberties guy, but the hawkish former DOJ NatSec guy) argued that this structure might provide a way to charge Americans who help foreigners interfere with our elections.

Today’s indictment also represents a significant step forward for the Mueller investigation and, in many ways, breaks new ground for a federal indictment. The conspiracy charge is significant because if upheld by a federal court, it shows how additional conspiracy charges might be brought against individuals–even Americans–that help foreigners interfere with our electoral system.

The Democrats’ campaign finance guru Bob Bauer laid this out in considerable more depth. He starts by observing that while evidence of campaign finance violations is abundant, Mueller instead uses only the backbone.

The indictment alleges facts that support charges of federal campaign finance law violations—such as the prohibition on foreign national contributions—but does not charge any such offenses. This is clearly not for want of evidence, since the indictment sets out in considerable detail the millions in foreign national spending to influence the 2016 election.

While it’s not clear that this is why Mueller approached it this way, Bauer notes that foreigners aren’t going to comply with campaign finance laws and the FEC is largely dysfunctional anyway.

Now, of course, those engaged in illegal campaign finance activity, such as spending from foreign national sources, won’t ever make an exception and comply with self-incriminating reporting requirements. And the irony of the premise–that the FEC would get the job done if given the needed facts–will not be lost on those who have observed the agency’s decline.

So, while in that paragraph, he didn’t go that far, Bauer implies that Mueller couldn’t charge campaign finance violations because the legal infrastructure for enforcing our country’s campaign finance laws has been shredded.

When I pointed out this parallel on Twitter, Jaffer argued the difference was that the Manafort indictment charged FARA violations (counts 3 through 6) in addition to the conspiracy to defraud backbone.

Plus in the Manafort case, it isn’t just a pure bootstrap because they they also charge the underlying crimes. Here, not so.

But let’s look at what Paul Manafort lawyer Kevin Downing argued after his arraignment: the surprising thing about the Manafort indictment is that Mueller charged Foreign Agents Registration Act, because it had so rarely been charged before and only once led to a conviction.

Today, you see an indictment brought by an office of Special Counsel using a very novel theory to prosecute Mr. Manafort regarding a FARA filing. The United States government has only used that offense six times since 1966 and it only resulted in one conviction.

Downing doesn’t dispute the letter of the law. He instead credibly disputes that Manafort could be expected to believe the law means what it says because it has never been enforced.

Admittedly, immediately after the indictment, there was a surge of compliance with FARA.

The number of first-time filings like SCL Social Limited’s rose 50 percent to 102 between 2016 and 2017, an NBC News analysis found. The number of supplemental filings, which include details about campaign donations, meetings and phone calls more than doubled from 618 to 1,244 last year as lobbyists scrambled to avoid the same fate as some of Trump’s associates and their business partners.

But that is, itself, testament to the fact that, at least when charged, no one believed FARA was a law. FARA, like other prohibitions on foreign campaign donations, didn’t work because those donating the money didn’t give a fuck and the agencies — FEC, DOJ, State, Treasury — mandated with protecting us from foreign tampering couldn’t do their jobs without the required reporting.

So we have a range of dysfunctional campaign transparency and finance laws, and two indictments charged as conspiracy to defraud the agencies empowered to oversee those laws, and only thereafter substantiated with more traditional crimes like money laundering and identity theft.

You see the parallel yet?

After arguing that FEC doesn’t work anymore anyway, Bauer argues you’re not going to charge foreigners with campaign finance violations because that would break too much legal ground.

Mueller and his team may have concluded that straight statutory campaign finance allegations rest on too much untested ground and would complicate what may well be the next phase of their investigation.  This consideration would not affect the foreign national side of the case: Foreign nationals are plainly prohibited from spending in the manner detailed in the indictment. But how the law reaches American co-conspirators is less certain, and the special counsel’s theory of the case, pleading the campaign finance aspect of the case through conspiracy-to-defraud, may allow more securely for the prosecution of American actors.

So to sum up thus far: campaign finance expert Bob Bauer, after admitting the FEC has been gutted, further argues that the theory of the conspiracy to defraud is necessitated by the involvement of foreign actors. His argument is based largely on the exclusion of FEC charges.

Yet Bob Mueller omitted any direct charge for violations of the Federal Election Campaign Act.

Instead, the indictment builds the campaign finance issues into a conspiracy to defraud the United States—it alleges that the Russians conspired to obstruct the capacity of the Federal Election Commission (FEC) to enforce the law.  The act of obstruction was a failure to report their illegal expenditures. If the FEC did not know about the expenditures, it could not enforce the law.

Click through to read that part of Bauer’s argument. Bauer seems to argue (I’m not convinced) that Mueller left off the FEC violations because he was only indicting foreigners.

But Bauer turns immediately to an invented necessity (having already proven that the underlying law is basically defunct) of sucking in Americans’ complicity that otherwise might hypothetically be covered by FEC.

If, however, Mueller possesses evidence of Americans’ complicity in these violations, he may have decided on a different theory of the campaign finance case that more reliably sweeps in U.S. citizen misconduct.

On the face of it, the law prohibits a U.S. campaign or person from “soliciting” something “of value” from a foreign national, and it bars rendering “substantial assistance” to illegal foreign national spending. It seems clear that the facts known to date implicate these rules. It is also true that there is little precedent and arguably an increased risk of a defense grounded in the “vagueness” of these prohibitions.  Some commentators have expressed unease about the constitutional limiting principle that would govern the enforcement of these provisions. I do not share this view, but it is held strongly in some quarters and, therefore, appropriately and respectfully noted.

The Mueller indictment is conceivably one way to solve this problem.

Bauer argues, breathtakingly, that instead of using America’s defunct campaign finance and transparency law, Mueller can use America’s insanely overbroad conspiracy law.

It alleges a conspiracy to prevent the FEC from taking up and addressing the regulatory issues, and American co-conspirators may be brought in on any overt act in furtherance of this illegal scheme. Any U.S. citizen who intentionally supported the Russian electoral intervention could be liable. Examples would include U.S. citizens engaged in conversations like those in Trump Tower in summer of 2016, or Don, Jr.’s communications with WikiLeaks about the timing of the release of stolen emails.  The conspiracy to defraud the United States could also envelop any Americans who helped cover the Russians’ illegal electoral program by lying to federal authorities about the campaign’s Russian contacts.

That is, Bauer is imagining Mueller might charge Trump associates in a conspiracy with IRA because they did really attenuated things — things like meeting with Russian lawyers in Trump Tower — that are associated with the conspiracy. That’s effectively what Jaffer argued, thought not in as unattenuated a way. “It shows how additional conspiracy charges might be brought against individuals–even Americans–that help foreigners interfere with our electoral system. ”

Maybe Bauer, who has the advantage of actually being an expert and a lawyer and a muckety muck, is right on this point.

But my guess is Mueller is, thus far, doing something more modest and more exciting.

To understand why, consider what Manafort is both alleged, in his indictment, to have done, and what is hanging over his head. He is alleged to have laundered both political influence (via some subordinate lobbying firms, including Tony Podesta’s) and money. The allegation is that this money and influence stems from misrepresenting the interests of his pro-Russian Party of Regions work in influence-peddling in the United States.

It is illegal to act as an agent of a foreign principal engaged in certain United States influence activities without registering the affiliation. Specifically, a person who engages in lobbying or public relations work in the United States (hereafter collectively referred to as lobbying) for a foreign principal such as the Government of Ukraine or the Party of Regions is required to provide a detailed written registration statement to the United States Department of Justice. The filing, made under oath, must disclose the name of the foreign principal, the financial payments to the lobbyist, and the measures undertaken for the foreign principal, among other information. A person required to make such a filing must further make in all lobbying material a “conspicuous statement” that the materials are distributed on behalf of the foreign principal, among other things. The filing thus permits public awareness and evaluation of the activities of a lobbyist who acts as an agent of a foreign power or foreign political party in the United States.

Effectively, the Manafort indictment argues that Manafort illegally hid the influence of Russian money and persuasion on US politics — in the form of face-to-face lobbying, among other things — in the same way that IRA obscured the financial backing and persuasion of Russia in the 2016 operation. The hidden object, Russian money and influence, is the same in both conspiracies to defraud the US indictments.

One of the biggest complaints from Republicans about the Manafort indictment, including from the President, is that Manafort’s Party of Regions work has nothing to do with his campaign. But once you define it as a conspiracy to hide Russian involvement in our politics, it goes right to the heart of whether the people running the Trump campaign, via their one-time campaign manager Paul Manafort, were honest about whose interest the campaign served.

Which brings us to the stuff hanging over Manafort’s head, the stuff Mueller seems to be trying to flip him to get. Manafort is suspected of acting as Trump’s campaign manager during key periods of staffing and policy commitment while serving the interests of Russia via some oligarch cut-outs, notably but not exclusively Oleg Deripaska.

It’s not clear how you’d charge this, in an era where campaign finance and transparency are dead. Particularly given that Manafort worked for free, bypassing every law imposed on actual donations, and therefore making it really easy for a foreign country to pay you to run a campaign.

Until you get to the conspiracy to defraud framework, to Manafort’s role in a conspiracy to hide the fact that the Russians were actually paying him to ensure Trump got elected.

I don’t actually think Don Jr will be charged (as Bauer surmised might be possible) with conspiracy to defraud based off the IRA indictment because he attended that June 9 meeting; the campaign’s data people might be different.

Which is to say that Mueller is not going to name Trump or his spawn in a conspiracy to defraud the government based off really attenuated claims that the conspiracy all derived from the IRA operation. The import of the Manafort charges (even in the limited form they exist) is that Mueller seems to be larding on the “conspiracy to defraud” charges from multiple directions, from Russians and whatever co-conspirator intermediaries to those who paid Manafort’s bills for getting Trump past the challenge of the Republican convention. Though I expect once that Marine running SCO gets all his leverage points into place they might all have that conspiracy to defraud structure. Including, I suspect, the foreign policy priorities implemented, at Jared Kushner’s direction, immediately after the election.

There are many acts, starting with the June 9 Trump Tower meeting, where principals might have criminal liability directly. But the IRA indictment made me realize why the Manafort indictment was so solidly within the scope of Mueller’s authority: because the larger project is to demonstrate that, by bypassing the agencies mandated with preventing foreign sabotage of our democratic process, the Russian-backed efforts broke a more fundamental law.

And I’m certain they’ll get there with far more evidence than Mueller laid out in the IRA indictment. But I suspect they all will use that conspiracy structure as backbone.

Update: Cleaned this up for clarity purposes.

Updated Mueller Docket Census: We Still Don’t Know What 6 Prosecutors Are Doing

With each development in the Mueller investigation, I’ve been tracking which of Mueller’s 17 prosecutors show up on which dockets, as a way of understanding how little we know about the case. This post updates what we know given Friday’s events (I’ve also updated the numbering and am only counting someone actually named on a given docket, with the James Quarles exception since obstruction involving the White House may be the last or least likely to be docketed).

Manafort docket:

  • Andrew Weissmann (1)
  • Greg Andres (2)
  • Kyle Freeny (3)

Papadopoulos docket:

  • Jeannie Rhee (4)
  • Andrew Goldstein (5)
  • Aaron Zelinsky (6)

Flynn docket:

  • Brandon L. Van Grack (7)
  • Zainab Ahmad (8)

Obstruction docket:

Internet Research Agency docket:

  • Jeannie Rhee (4)
  • Rush Atkinson (10)
  • Ryan Dickey (11)

Richard Pinedo docket:

  • Jeannie Rhee (4)
  • Rush Atkinson (10)
  • Ryan Dickey (11)

Still unaccounted for:

  • Aaron Zebley (12): probably working on coordinating SCO activities
  • Michael Dreeben (13): appellate wizard
  • Adam Jed (14): appellate specialist
  • Elizabeth Prelogar (15): appellate specialist and Russian speaker
  • Scott Meisler (16): appellate specialist
  • Mystery prosecutor (17)

 

What Did Mueller Achieve with the Internet Research Agency Indictment?

Back during Nunes Week, Trey Gowdy described the importance of Robert Mueller’s investigation by stating that we were only seeing half of what he was doing. The other half of his work, Gowdy said, was the counterintelligence side, the investigation into what Russia did to the US in 2016.

Friday, Rod Rosenstein rolled out the first glimpse of the other half of that investigation, an indictment of 13 Russians tied to the Internet Research Agency, the Russian troll factory. The indictment accuses IRA of 8 crimes: criminal conspiracy to defraud the United States, conspiracy to commit wire fraud and bank fraud, and five counts of aggravated identity theft.

In the wake of that indictment, the court unsealed a February 7  plea agreement with Californian Richard Pinedo, for identity theft (basically, selling bank account numbers; the information doesn’t identify the users who purchased the bank account numbers as IRA personnel who used them to set up “American” identities, but that is clearly what happened).

The 13 Russians charged in the IRA indictment — which include Yevgeniy Prigozhin, the close Putin associate who owns the company, those in charge of the operation (which was not limited to US targeting), down to a few of the analysts who did the troll work — will never be extradited to the US, though the most senior among them will surely be sanctioned. Nor will Putin in any way retaliate against them — they were doing work he approved of! Further, by criminalizing “information warfare” (as the Russians admitted they were engaged in, and as we do too, under the same name) we risk our own information warriors being indicted in other countries.

So what purpose did the indictment serve? Here are some thoughts:

Creating a paper trail

Rosenstein and Chris Wray have both said they believe investigators should speak through indictments and other official documents, not through Comeyesque press conferences. Here we have an indictment that serves as a record of what Mueller’s team has found.

We would probably have gotten it in any case, as Jeff Sessions’ DOJ has emphasized bringing more cybersecurity related indictments.

But that we did get it addresses one of the questions we’ve gotten about the Mueller investigation: whether we’ll get to read a report of what he has found.

To the extent that something is indictable, even if that indictment would name Russians or others located overseas, I guess we should expect more of the same.

Establishing bipartisan credibility for the larger investigation

The reason I keep pointing to Gowdy’s statements in support of the investigation in the last several weeks is because his actions seem to reflect one of the most partisan Republicans reacting soberly to an attack on the country, rather than just one party.

And while the details of the indictment — most notably that the trolls affirmatively supported Bernie Sanders as well as Trump — have resurfaced the old primary recriminations, for the most part, the indictment has provided a way for people from both parties to agree to the reality of the attack. Trump said Mueller did a good job with the indictment (admittedly, he may be currying favor). Trump’s National Security Advisor HR McMaster responded to the indictment by declaring the evidence that Russia interfered in the election “incontrovertible.” This indictment offers a way for even self-interested Republicans to start acknowledging the reality of what happened.

The indictment also gave Rod Rosenstein an opportunity to own this investigation with a press conference announcing it. None of the prosecutors tied to the case appeared (since I track these things, know that Jeannie Rhee, Rush Atkinson, and Ryan Dickey are on the docket), just Rosenstein. Hopefully, tying him to this non-offensive indictment will make it harder to fire Rosenstein, and thereby further protect Mueller.

Reiterating the crime of conspiracy to defraud the United States

The most interesting of the three crimes charged in the IRA indictment is the first, the conspiracy to defraud the United States. The indictment describes the conspiracy this way:

U.S. law bans foreign nationals from making certain expenditures or financial disbursements for the purpose of influencing federal elections. U.S. law also bars agents of any foreign entity from engaging in political activities within the United States without first registering with the Attorney General. And U.S. law requires certain foreign nationals seeking entry to the United States to obtain a visa by providing truthful and accurate information to the government.

Effectively, Mueller is saying that it’s not illegal, per se, to engage in political trolling (AKA information warfare), but it is if you don’t but are legally obliged to register before you do so. That’s an important distinction, because much of what these trolls did is accepted behavior in American politics — all sides did this in 2016, including people employed by campaigns and others expressing their own political opinions. Trolling (AKA information warfare) only becomes illegal when you don’t carry out the required transparency or reporting before you do so.

The charge of a conspiracy to defraud the United States has a very important parallel elsewhere in this investigation, in the first charge in the Paul Manafort and Rick Gates indictment. The indictment explains,

It is illegal to act as an agent of a foreign principal engaged in certain United States influence activities without registering the affiliation. Specifically, a person who engages in lobbying or public relations work in the United States (hereafter collectively referred to as lobbying) for a foreign principal such as the Government of Ukraine or the Party of Regions is required to provide a detailed written registration statement to the United States Department of Justice. The filing, made under oath, must disclose the name of the foreign principal, the financial payments to the lobbyist, and the measures undertaken for the foreign principal, among other information. A person required to make such a filing must further make in all lobbying material a “conspicuous statement” that the materials are distributed on behalf of the foreign principal, among other things. The filing thus permits public awareness and evaluation of the activities of a lobbyist who acts as an agent of a foreign power or foreign political party in the United States.

The Manafort indictment then argues that by hiding that the lobbying work they were doing was on behalf of Ukraine’s Party of Regions they, “knowingly and intentionally conspired to defraud the United States by impeding impairing, obstructing, and defeating the lawful governmental functions of a government agency, namely the Department of Justice and the Department of the Treasury.” I’ll have more to say about this parallel in coming days, but suffice it to say that Mueller is alleging that Manafort is the mirror image of the troll farm, engaging in politics while hiding on whose behalf he’s doing it (he was arguably doing the same in Ukraine). [Update: see this post for more on how this might work.]

In both cases, the indictments substantiate the conspiracy by naming a variety of crimes, like money laundering and identity theft.

I suspect we’ll be seeing more of this structure going forward (and suspect it’s something the numerous appellate specialists on Mueller’s team have been spending a lot of time thinking about).

Laying out how Americans might be involved with or without “colluding”

Much has been made of Rosenstein’s line, “There is no allegation in the indictment that any American was a knowing participant in the alleged unlawful activity.” I don’t read too much into that. Rather, I think Rosenstein included it because the indictment does explicitly and implicitly describe actions many Americans and possible Americans took that were part of this conspiracy. That includes:

Illegal compensated acvitities

  • Richard Pinedo: Selling Russian trolls (and others) bank account numbers they can use to conduct identity fraud
  • Unknown persons: Providing social security numbers and fake US drivers licenses of Americans
  • Unknown persons: Selling stolen credit card information

Presumptively legal compensated activities

  • Unknown Americans: Renting servers in the US to run VPNs to hide their foreign location
  • Yahoo, Gmail, Paypal: Providing email and PayPal accounts the Russians used as the basis for social media accounts
  • Twitter, Instagram, Facebook: Providing those social media accounts
  • Twitter, Instagram, Facebook: Selling advertisements on social media
  • Unknown Trump associates: Paying for IRA rally expenses
  • Paid providers: Building a cage, acquiring a costume, and posing as Hillary in prison stunt at a FL event
  • Unknown US person: Providing posters for a Support Hillary, Save American Muslims rally
  • Unknown American: Holding a sign in front of the White House on May 29, 2016

Uncompensated activities

  • Unknown Americans: Interacting with Aleksandra Krylova and Anna Bogacheva when they traveled to the US sometime between June 4 and June 26, 2014 to conduct reconnaissance and another co-conspirator that November
  • Members of the media: Accepting tips and promoting IRA events
  • A member of a real TX-based Tea Party organization: Advising the conspirators to focus on the purple states “like Colorado, Virginia & Florida”
  • Unwitting members, volunteers, and supporters of the Trump Campaign involved in local community outreach, as well as grassroots groups that supported then-candidate Trump: Distributing IRA materials through existing channels of those groups
  • Administrators of large social media groups focused on U.S. politics: Promoting IRA events
  • Trump volunteer: Providing signs for the March for Trump event and otherwise recruiting for it
  • A Florida-based political activist identified as the “Chair for the Trump Campaign” in a particular Florida county: Advising on more locations and logistics for the Florida Trump event
  • Campaign Officials 1, 2, and 3: discussing the Florida events

Later the indictment describes a database of 100 real US persons whom the trolls treated as recruiting targets, complete with profiling.

On or about August 24, 2016, Defendants and their co-conspirators updated an internal ORGANIZATION list of over 100 real U.S. persons contacted through ORGANIZATION-controlled false U.S. persona accounts and tracked to monitor recruitment efforts and requests. The list included contact information for the U.S. persons, a summary of their political views, and activities they had been asked to perform by Defendants and their co-conspirators.

Here’s the important thing about all this. While Pinedo pled guilty and faces 12-18 months even with his cooperation agreement (and even there, while the information makes it clear he knew he was dealing with foreigners, his lawyer has made it clear he didn’t know who or what he was dealing with), there are only two other known illegal roles in this conspiracy, and there’s no reason those roles would have had to be carried out by Americans. Perhaps Mueller has others cooperating, perhaps those other criminals are unknown. But as for the rest, they are (as Rosenstein made clear) not guilty of any kind of conspiracy with Russia.

DOJ just rolled out an indictment in which probably 20 Americans can recognize themselves (many of whom were likely interviewed), about as many as all the Trump officials named in one or another plea agreement so far. Yet, as far as Mueller knows, none of these people did anything but conduct business or engage in sincerely held politics. They almost certainly had far less reason to be suspicious of the trolls they were being used by than Facebook and Twitter. Those actions have been tainted now through no fault of their own.

Which is something to remember: I’ve seen Hillary supporters, in the same breath, criticize Bernie or Jill Stein supporters because their preferred candidate was treated favorably by the trolls, yet in the same breath suggesting the black and Muslim activists targeted are innocent victims.

Obviously, Hillary and her supporters are victims. But everyone is, even the Trump volunteers. Because to the extent they had honestly held beliefs, the Russian operation tainted those beliefs, it diminished the weight of their honestly held beliefs. They were used by Russian trolls, most of them without the same profit motive that led Facebook and Twitter to allow themselves to be used. And we should remember that.

Hinting at what the US has

There are, however, a few tactical things this indictment does, starting with hinting at what other evidence the US has. This indictment was relatively easy, in that Adrian Chen (in a June 2015 article that still gets too little attention), Facebook and (to a lesser extent) other social media outlets, the Daily Beast, and SSCI generally have already laid out what IRA did. The indictment slaps some criminal charges on fraudulent behavior that enabled it, and without showing much about any additional evidence Mueller collected, you’ve got a showy indictment.

There are two hints, however, of the additional evidence used (which, given that the named conspirators will never face trial, will never need to be disclosed or explained). First, in a passage about how IRA started to cover their tracks after Mueller started focusing on this activity, there’s the reference to Irina Kaverzina.

On or about September 13, 2017, KAVERZINA wrote in an email to a family member: “We had a slight crisis here at work: the FBI busted our activity (not a joke). So, I got preoccupied with covering tracks together with the colleagues.”

Kaverzina was just a low-level troll and this may be nothing more than Section 702 collected email off GMail or Yahoo, or it may be a more formal intercept. But Mueller obtained communications from at least one of the indictees. Emails from more senior people, such as Prigozhin or his more senior managers (or the IT guys buying server space in the US) would be more interesting.

Plus, Mueller likely obtained cooperation from one IRA employee, the unnamed person who traveled to Atlanta in November 2014 for reconnaissance. Had that person not cooperated, he or she would have been named in the indictment.

Nevertheless establishing the political stakes

I said above that none of the hundred-plus Americans who were unknowingly used by trolls should be considered anything but victims. Their chosen political views, loathsome or not, have now been tainted, and not because of anything they’ve done except perhaps show too much trust or credulity.

But there are hints that Mueller is using this indictment to set up a more important point.

For example, the indictment (perhaps because of Mueller’s mandate) focuses on political activities supporting or opposing one or another 2016 candidate. Even where topics (immigration, Muslim religion, race) are not necessarily tied to the election, they’re presented here as such. Unless Facebook’s public reports are wrong, this is a very different emphasis than what Facebook has said the IRA focused on. Which is to say that Mueller’s team are focusing on a subset of the known IRA trolling, the subset that involves the 2016 contest between Trump and Hillary.

And there are several events, in particular, that may one day serve as details in a larger conspiracy. Most interesting, for the timing and location, are the twin anti-Hillary and pro-Trump events in NYC in June and July 2016.

In or around June and July 2016, Defendants and their co-conspirators used the Facebook group “Being Patriotic,” the Twitter account @March_for_Trump, and other ORGANIZATION accounts to organize two political rallies in New York. The first rally was called “March for Trump” and held on June 25, 2016. The second rally was called “Down with Hillary” and held on July 23, 2016.

a. In or around June through July 2016, Defendants and their co-conspirators purchased advertisements on Facebook to promote the “March for Trump” and “Down with Hillary” rallies.

b. Defendants and their co-conspirators used false U.S. personas to send individualized messages to real U.S. persons to request that they participate in and help organize the rally. To assist their efforts, Defendants and their co-conspirators, through false U.S. personas, offered money to certain U.S. persons to cover rally expenses.

c. On or about June 5, 2016, Defendants and their co-conspirators, while posing as a U.S. grassroots activist, used the account @March_for_Trump to contact a volunteer for the Trump Campaign in New York. The volunteer agreed to provide signs for the “March for Trump” rally.

[snip]

On or about July 23, 2016, Defendants and their co-conspirators used the email address of a false U.S. persona, [email protected], to send out press releases to over thirty media outlets promoting the “Down With Hillary” rally at Trump Tower in New York City.

The description of a IRA-organized event at Trump Tower the day after WikiLeaks dropped the DNC emails, in particular, suggests the possibility of a great deal of coordination, coordination with people in the US.

Similarly, the extended descriptions of events in Florida may also take on added relevance in the future, particularly coming as they did in tandem with Guccifer 2.0’s release of DCCC data targeting FL. (And this, in turn, should focus even more attention on the FL congressmen like Matt Gaetz and Ron DeSantis who’re leading the pushback on Mueller’s investigation.)

Using the term “co-conspirator” 119 times

Perhaps most interesting, given the tiny nods to what other intelligence Mueller might have, are the 119 uses of the word “co-conspirators.” Almost all of these uses seem to necessarily mean unnamed IRA employees working from the same St. Petersburg location described as trolling. Several times the co-conspirators are clearly described as located in Russia. So it may be that all references to co-conspirators here are just a way to refer to the 70 other people involved in this operation at IRA. But that’s not necessarily the case.

Other uses of “co-conspirator” involve wider knowledge, perhaps an outsider’s knowledge of a go-between role Prigozhin might have had.

But others are things that might have involved a stateside co-conspirator, such as the mention of co-conspirators helping to set up the May 29, 2016 Prigozhin birthday tribute in front of the White House, co-conspirators tracking US social media use, co-conspirators engaged in identity theft, co-conspirators promoting claims of voter fraud, co-conspirators destroying data. Several of those things (such as tracking US social media use or claiming Hillary was going to steal the election) are things we know Trump associates were also doing. Others might be facilitated by someone stateside. So those uses of the term could be people not employed by IRA.

Which is to say, this indictment might be (probably is) intended to address just the activities of those employed by IRA. But that’s not necessarily the case.

Update: added the public indictment part.

The Gates Flip and the 404(b) Delay

CNN reported tonight that, after not getting funded by rich GOP donors (perhaps in part because Trump thinks his cooperation won’t imperil him), Paul Manafort’s deputy, Rick Gates, is about to flip.

Gates has already spoken to Mueller’s team about his case and has been in plea negotiations for about a month. He’s had what criminal lawyers call a “Queen for a Day” interview, in which a defendant answers any questions from the prosecutors’ team, including about his own case and other potential criminal activity he witnessed.

[snip]

Once a plea deal is in place, Gates would become the third known cooperator in Mueller’s sprawling probe into Russian interference in the 2016 presidential election. It would also increase the pressure to cooperate on Gates’ co-defendant Paul Manafort, Trump’s former campaign chairman, who has pleaded not guilty to Mueller’s indictment and is preparing for a trial on alleged financial crimes unrelated to the campaign. Gates pleaded not guilty on October 30 alongside Manafort.

[snip]

Gates has told associates he had hoped for outside assistance from a legal defense fund, but deep-pocketed GOP donors have shown little interest in helping either Gates or Manafort cover their legal fees, two sources said.

The judge has already acknowledged that Gates could not show he had $5 million in assets to secure his bail. His financial situation is further hampered by assets he would have to forfeit to the government if found guilty of money laundering charges. A complex criminal case such as this could cost a defendant more than a million dollars in legal fees, especially if he were to go to trial, according to several people familiar with the legal industry.

Hopefully I’ll have time tomorrow to lay out what Gates might have offered Mueller. But for now, I want to look at a detail from the Gates/Manafort docket.

On Wednesday, Judge Amy Berman Jackson held a status conference. With Manafort, she appears to have discussed his continued efforts to make bail (one thing that CNN reports pressured Gates financially enough that made him willing to flip).

With Gates, she appears to have discussed his confusing legal situation, where his existing lawyers are trying to ditch him so his new lawyer, Tom Green, can finalize this plea deal. The night before, Gates had filed a pro se motion asking Berman Jackson to hold off on deciding whether his current lawyers can ditch him until February 21.

In response, Berman Jackson granted Gates his week.

Defendant Manafort’s (1) Sealed Motion 153 for Reconsideration of Conditions of Release remains under advisement. Defendant Manafort (1) must supplement the Motion. The 161 Motion to Withdraw as Counsel for Defendant Gates (2) remains under advisement. Defendant Gates is to advise the Court of his position on the Motion by 5:00 PM on Wednesday, 2/21/2018.

Just as interesting, Berman Jackson held off on resetting deadlines and on deciding whether or not the government can delay providing 404(b) notice of the evidence of other crimes the government will submit at trial.

The Current Briefing and Hearing schedules that were established at the Status Conference held on 1/16/2018, and in the Minute Order issued on 1/17/2018 are suspended pending further Order of the Court. The government’s 155 Motion to Modify the Court’s Schedule for Rule 404(b) Notice and Briefing remains under advisement. SO ORDERED. By Judge Amy Berman Jackson on 2/14/2018. (jth) (Entered: 02/14/2018)

I noted, when the government submitted that request, that Mueller’s team likely wanted to hide what other crimes Manafort and Gates had committed to save their value for when they testify against Trump and his family.

First, Mueller doesn’t want to tip his hand to the many crimes it has found Manafort implicated in. Perhaps, he also wants to avoid making other obvious allegations about Manafort and Gates to preserve their credibility when they flip on the President and his family. But it also seems to suggest Mueller expects he’ll be finding other crimes Manafort and Gates committed for the next 8 months.

Everything’s on hold, now, until Gates can plead guilty to crimes that involve only indirect taint of conspiring with the Russians, so the government doesn’t yet have to reveal how much it knows of that taint, at least not publicly.

I could be wrong, but this may answer something we’ve been trying to understand about George Papadopoulos and Mike Flynn — whether the government let them plead to far lesser crimes because that’s all they’ve got or because Mueller is trying to keep his witnesses relatively clean for when they testify against Trump.

I think Mueller’s trying to keep them clean, and in the process trying to keep his poker hand still close to the chest for when he starts to use it against the big guns.

I’m also interested in the timing, which would put at least one more guilty plea into place before Rachel Brand leaves.

New Right Hook: Mike Flynn Lied When He Admitted to a Judge He Lied to the FBI

Apparently, the latest Grassley-Graham effort to spin a very understandable reaction to the discovery that the incoming National Security Advisor might be compromised by Russia — to have a meeting about whether that requires a change in the government’s investigative approach and then memorialize the meeting — as a Christopher Steele plots is not an isolated event. To accompany the Grassley-Graham effort to obscure, the right wing is now seeing a conspiracy, best captured in this Byron York piece with follow-ups elsewhere, in Mike Flynn’s guilty plea.

At issue is leaked March 2017 testimony from Jim Comey (in a piece complaining about the leak of Flynn’s FISA intercepts) that the FBI agents who interviewed Flynn on January 24, 2017 believed any inaccuracies in Flynn’s interview with the FBI were unintentional.

In March 2017, then-FBI Director James Comey briefed a number of Capitol Hill lawmakers on the Trump-Russia investigation.

[snip]

According to two sources familiar with the meetings, Comey told lawmakers that the FBI agents who interviewed Flynn did not believe that Flynn had lied to them, or that any inaccuracies in his answers were intentional. As a result, some of those in attendance came away with the impression that Flynn would not be charged with a crime pertaining to the Jan. 24 interview.

From that, York spins out a slew of laughable claims: Mike Flynn would have no reason to address the FBI amid swirling coverage of lies about Russian ties! The Deputy Attorney General “sends” FBI agents to conduct interviews! DOJ “effectively gave” Jim Comey authority to decide Hillary’s fate but then fired him for usurping that authority! They lead up to York’s theory that DOJ may have overridden the FBI agents in forcing Flynn to sign a plea admitting he made false statements.

It could be that the FBI agents who did the questioning were overruled by Justice Department officials who came up with theories like Flynn’s alleged violation of the Logan Act or his alleged vulnerability to blackmail.

[snip]

To some Republicans, it appears the Justice Department used a never-enforced law and a convoluted theory as a pretext to question Flynn — and then, when FBI questioners came away believing Flynn had not lied to them, forged ahead with a false-statements prosecution anyway. The Flynn matter is at the very heart of the Trump-Russia affair, and there is still a lot to learn about it.

Along the way, York feigns apparent ignorance of everything he knows about how criminal investigations work.

For example, York pretends to be unaware of all the pieces of evidence that have surfaced since that time that have changed the context of Flynn’s January 24 interview. There’s the weird dinner Trump invited Comey to on January 27, a day after Sally Yates first raised concerns about the interview with White House Counsel Don McGahn, where Trump told Comey “I need loyalty, I expect loyalty.” There’s the more troubling meeting on February 14, where (after asserting that Flynn had indeed lied to Mike Pence) Trump asked Comey to drop the Flynn investigation.

He repeated that Flynn hadn’t done anything wrong on his calls with the Russians, but had misled the Vice President. He then said, “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.”

There’s the March 30 phone call in which the President complained about the “cloud” of the Russian investigation. There’s the April 11 phone call where the President complained about that “cloud” again, and asked for public exoneration. There’s the newly reported Don McGahn call following that conversation, to Dana Boente asking for public exoneration. There’s Comey’s May 9 firing, just in time for Trump to tell Russians on May 10 that firing that “nut job” relieved pressure on him. There’s the letter Trump drafted with Stephen Miller’s help that made it clear Comey was being fired because of the Russian investigation.

Already by the time of Comey’s firing, the White House claim that Mike Flynn got fired because he lied about his conversations to Sergey Kislyak to Mike Pence, was falling apart.

Then, in August, the Mueller team obtained the transition emails that transition lawyers had withheld from congressional requests (and therefore from Mueller), including those of Flynn himself, Jared Kushner, and KT McFarland. The transition would go on to squawk that these emails, which didn’t include Trump and dated to before Trump became President, were subject to executive privilege, alerting Mueller that the emails would have been withheld because the emails (some sent from Mar-A-Lago) reflected the involvement of Trump. Not to mention that the emails tied conversations about Russia to the “thrown election.”

Then there’s Jared Kushner’s interview with Mueller’s team in the weeks before Mike Flynn decided to plead guilty. At it, prosecutors asked Jared if he had any information that might exculpate Flynn.

One source said the nature of this conversation was principally to make sure Kushner doesn’t have information that exonerates Flynn.

There were reports that Flynn felt like he had been sold out just before he flipped, and I would bet this is part of the reason why. In addition to instructions regarding the sanction calls with Kislyak, which were directed by KT McFarland, Flynn’s statement of offense describes someone we know to be Kushner directing Flynn to call countries, including Russia, to try to persuade them to avoid a vote on Israeli West Bank settlements.

On or about December 22, 2016, a very senior member of the Presidential Transition Team directed FLYNN to contact officials from foreign governments, including Russia, to learn where each government stood on the resolution and to influence those governments to delay the vote or defeat the resolution.

Granted, Mueller’s team didn’t make the point of the lies as obvious as they did with the George Papadopoulos plea, where they made clear Papadopoulos lied to hide that he learned of the “dirt” on Hillary in the form of emails after he started on the campaign and whether he told the campaign about those emails (not to mention that he had contacts with Ivan Timofeev).

Mueller’s not telling us why Flynn’s lies came to have more significance as Mueller collected more and more evidence.

But what they make clear is that the significance of Flynn’s lies was not, as it first appeared, that he was trying to hide the subject of the calls from Mike Pence. I mean, maybe he did lie to Pence about those calls. But discussions about how to work with the Russians were not secret; they included at least Kushner, McFarland, Tom Bossert, Reince Priebus, Steve Bannon, and Sean Spicer. Some of those conversations happened with McFarland emailing while at Mar-A-Lago with the President-Elect.

So given the weight of the evidence collected since, Flynn’s lies now appear neither an effort to avoid incriminating himself on Logan Act charges, nor an effort to cover up a lie he told others in the White House, but the opposite. His lies appear to have hidden how broadly held the Russian discussions were within the transition team, not to mention that he was ordered to make the requests he did, possibly by people relaying orders from Trump, rather than doing them on his own.

That, by itself, doesn’t make the Flynn conversations (as distinct from the lies) illegal. But it means Trump went to great lengths to try to prevent Flynn from suffering any consequences for lying to hide the degree to which negotiations with Russia during the transition period were the official policy of the Trump team. And when Trump (or rather, his son-in-law) stopped protecting Flynn on that point, Flynn decided to admit to a judge that he had been knowingly lying.

It doesn’t take a conspiracy to realize that the FBI Agents who interviewed Flynn in January had none of the evidence since made available largely because Trump tried so hard to protect Flynn that he fired his FBI Director over it. It takes looking at the evidence, which makes it clear why those false statements looked very different as it became clear Flynn, after acting on Trump transition team instructions, got sold out as other senior Trump officials started trying to protect themselves.

2018 Senate Intelligence Global Threat Hearing Takeaways

Today was the annual Senate Intelligence Committee Global Threat Hearing, traditionally the hearing where Ron Wyden gets an Agency head to lie on the record.

That didn’t happen this time.

Instead, Wyden gave FBI Director Christopher Wray the opportunity to lay out the warnings the FBI had given the White House about Rob Porter’s spousal abuse problems, which should have led to Porter’s termination or at least loss of access to classified information.

The FBI submitted a partial report on the investigation in question in March. And then a completed background investigation in late July. That, soon thereafter, we received request for follow-up inquiry. And we did that follow-up and provided that information in November. Then we administratively closed the file in January. And then earlier this month we received some additional information and we passed that on as well.

That, of course, is the big takeaway the press got from the hearing.

A follow-up from Martin Heinrich shortly after Wyden’s question suggested he had reason to know of similar “areas of concern” involving Jared Kushner (which, considering the President’s son-in-law is under investigation in the Russian investigation, is not that surprising). Wray deferred that answer to closed session, so the committee will presumably learn some details of Kushner’s clearance woes by the end of the day.

Wray twice described the increasing reliance on “non-traditional collectors” in spying against the US, the second time in response to a Marco Rubio question about the role of Chinese graduate students in universities. Rubio thought the risk was from the Confucius centers that China uses to spin Chinese culture in universities. But not only did Wray say universities are showing less enthusiasm for Confucius centers of late, but made it clear he was talking about “professors, scientists, and students.” This is one of the reasons I keep pointing to the disproportionate impact of Section 702 on Chinese-Americans, because of this focus on academics from the FBI.

Susan Collins asked Mike Pompeo about the reports in The Intercept and NYT on CIA’s attempts to buy back Shadow Brokers tools. Pompeo claimed that James Risen and Matt Rosenberg were “swindled” when they got proffered the story, but along the way confirmed that the CIA was trying to buy stuff that “might have been stolen from the US government,” but that “it was unrelated to this idea of kompromat that appears in each of those two articles.” That’s actually a confirmation of the stories, not a refutation of them.

There was a fascinating exchange between Pompeo and Angus King, after the latter complained that, “until we have some deterrent capacity we are going to continue to be attacked” and then said right now there are now repercussions for Russia’s attack on the US.

Pompeo: I can’t say much in this setting I would argue that your statement that we have done nothing does not reflect the responses that, frankly, some of us at this table have engaged in or that this government has been engaged in both before and after, excuse me, both during and before this Administration.

King: But deterrence doesn’t work unless the other side knows it. The Doomsday Machine in Dr. Strangelove didn’t work because the Russians hadn’t told us about it.

Pompeo: It’s true. It’s important that the adversary know. It is not a requirement that the whole world know it.

King: And the adversary does know it, in your view?

Pompeo: I’d prefer to save that for another forum.

Pompeo later interjected himself into a Kamala Harris discussion about the Trump Administration’s refusal to impose sanctions by suggesting that the issue is Russia’s response to cumulative responses. He definitely went to some effort to spin the Administration’s response to Russia as more credible than it looks.

Tom Cotton made two comments about the dossier that Director Wray deferred answering to closed session.

First, he asked about Christopher Steele’s ties to Oleg Deripaska, something I first raised here and laid out in more detail in this Chuck Grassley letter to Deripaska’s British lawyer Paul Hauser. When Cotton asked if Steele worked for Deripaska, Wray said, “that’s not something I can answer.” When asked if they could discuss it in a classified setting, Wray said, “there might be more we could say there.”

Cotton then asked if the FBI position on the Steele dossier remains that it is “salacious and unverified” as he (misleadingly) quoted Comey as saying last year. Wray responded, “I think there’s maybe more we can talk about this afternoon on that.” It’s an interesting answer given that, in Chuck Grassley’s January 4 referral, he describes a “lack of corroboration for [Steele’s dossier] claims, at least at the time they were included in the FISA applications,” suggesting that Grassley might know of corroboration since. Yet in an interview by the even better informed Mark Warner published 25 days later, Warner mused that “so little of that dossier has either been fully proven or conversely, disproven.” Yesterday, FP reported that BuzzFeed had hired a former FBI cybersecurity official Anthony Ferrante to try to chase down the dossier in support of the Webzilla and Alfa bank suits against the outlet, so it’s possible that focused attention (and subpoena power tied to the lawsuit) may have netted some confirmation.

Finally, Richard Burr ended the hearing by describing what the committee was doing with regards to the Russian investigation. He (and Warner) described an effort to bring out an overview on ways to make elections more secure. But Burr also explained that SSCI will release a review of the ICA report on the 2016 hacks.

In addition to that, our review of the ICA, the Intel Committee Assessment, which was done in the F–December of 06, 16–we have reviewed in great detail, and we hope to report on what we found to support the findings where it’s appropriate, to be critical if in fact we found areas where we found came up short. We intend to make that public. Overview to begin with, none of this would be without a declassification process but we will have a public version as quickly as we can.

Finally, in the last dregs of the hearing, Burr suggested they would report on who colluded during the election.

We will continue to work towards conclusions  on any cooperation or collusion by any individual, campaign, or company with efforts to influence elections or create societal chaos in the United States.

My impression during the hearing was that this might refer to Cambridge Analytica, which tried to help Wikileaks organize hacked emails — and it might well refer to that. But I wonder if there’s not another company he has in mind.

Graham and Grassley Are Seeing Christopher Steele’s Ghost Where Mike Flynn Lurks

I get it. Trump is making us all crazy. But Chuck “Ethanol flipflop” Grassley and Lindsey “Trump’s best golfing buddy” Graham are going nuts not because of Trump but because of Christopher Steele. They’ve just written a letter to Susan Rice asking her why she emailed herself a letter, memorializing a January 5, 2017 meeting about the Russian hack, just before she left the White House.

In this email to yourself, you purport to document a meeting that had taken place more than two weeks before, on January 5, 2017. You wrote:

On January 5, following a briefing by IC leadership on Russian hacking during the 2016 Presidential election, President Obama had a brief follow-on conversation with FBI Director Jim Comey and Deputy Attorney General Sally Yates in the Oval Office. Vice President Biden and I were also present.

That meeting reportedly included a discussion of the Steele dossier and the FBI’ s investigation of its claims. 1 Your email continued:

President Obama began the conversation by stressing his continued commitment to ensuring that every aspect of this issue is handled by the Intelligence and law enforcement communities “by the book”. The President stressed that he is not asking about, initiating or instructing anything from a law enforcement perspective. He reiterated that our law enforcement team needs to proceed as it normally would by the book. From a national security perspective, however, President Obama said he wants to be sure that, as we engage with the incoming team, we are mindful to ascertain if there is any reason that we cannot share information fully as it relates to Russia.

The next part of your email remains classified. After that, you wrote:

The President asked Comey to inform him if anything changes in the next few weeks that should affect how we share classified information with the incoming team. Comey said he would.

It strikes us as odd that, among your activities in the final moments on the final day of the Obama administration, you would feel the need to send yourself such an unusual email purporting to document a conversation involving President Obama and his interactions with the FBI regarding the Trump/Russia investigation. In addition, despite your claim that President Obama repeatedly told Mr. Comey to proceed “by the book,” substantial questions have arisen about whether officials at the FBI, as well as at the Justice Department and the State Department, actually did proceed “by the book.”

It pains me that two top Republicans on the Senate Judiciary Committee are too fucking stupid to see that, in fact, the FBI proceeded quite cautiously with the Russia investigation, not inappropriately, as they suggest. It pains me still more that they think this is all about the dossier.

7. During the meeting, did Mr. Comey or Ms. Yates mention potential press coverage of the Steele dossier? If so, what did they say?

8. During the meeting, did Mr. Comey describe the status of the FBI’s relationship with Mr. Steele, or the basis for that status?

9. When and how did you first become-aware of the allegations made by Christopher Steele?

10. When and how did you first become aware that the Clinton Campaign and the Democratic National Committee funded Mr. Steele’s efforts?

It’s certainly possible, given what I laid out here, that DOJ was prepping the second FISA application for Carter Page (though if the reauthorization were dated January 9, the application would have had to have been submitted by January 2).

But there are other reasons why you’d expect to have this meeting on January 5 and why Rice would want a record of it for posterity (the meeting generally probably relates to this story about the way Obama protected information on the investigation in the last days of the Administration).

As reporting on the discovery of Mike Flynn’s conversations about Russian sanctions with Sergey Kislyak make clear, the conversation wasn’t discovered in real time. Rather, after Putin didn’t respond to the December sanctions against Russia, analysts sought to figure out why. Only after that did they discover the conversation and Flynn’s role in it.

For Yates and other officials, concerns about the communications peaked in the days after the Obama administration on Dec. 29 announced measures to punish Russia for what it said was the Kremlin’s interference in the election in an attempt to help Trump.

After the sanctions were rolled out, the Obama administration braced itself for the Russian retaliation. To the surprise of many U.S. officials, Russian President Vladimir Putin announced on Dec. 30 that there would be no response. Trump praised the decision on Twitter.

Intelligence analysts began to search for clues that could help explain Putin’s move. The search turned up Kislyak’s communications, which the FBI routinely monitors, and the phone call in question with Flynn, a retired Army lieutenant general with years of intelligence experience.

So it would be right around this time when law enforcement concerns about the incoming National Security Advisor would have arisen.

Update: This story confirms that the January 5 meeting was partly about the Flynn phone call.

On Jan. 5, FBI Director James B. Comey, CIA Director John Brennan and Director of National Intelligence James R. Clapper Jr. briefed Obama and a small group of his top White House advisers on the contents of a classified intelligence report showing that Russia intervened in the 2016 election to help Trump. That’s when White House officials learned that the FBI was investigating the Flynn-Kislyak calls. “The Flynn-Kislyak relationship was highlighted,” a former senior U.S. official said, adding that the bureau made clear “that there was an actual investigation” underway.

And, in a very significant way, the investigation did not proceed by the book, almost certainly because of Mike Flynn’s (and possibly even Jeff Sessions’) potential compromise. Back in March, Jim Comey admitted to Elise Stefanik that the FBI had delayed briefing Congress about the counterintelligence investigation into Trump because it had, in turn, delayed telling the Executive Branch until February.

Stefanik returned to her original point, when Congress gets briefed on CI investigations. Comey’s response was remarkable.

Stefanik: It seems to me, in my first line of questioning, the more serious a counterintelligence investigation is, that would seem to trigger the need to update not just the White House, the DNI, but also senior congressional leadership. And you stated it was due to the severity. I think moving forward, it seems the most severe and serious investigations should be notified to senior congressional leadership. And with that thanks for your lenience, Mr. Chairman, I yield back.

Comey could have been done with Stefanik yielding back. But instead, he interrupted, and suggested part of the delay had to do with the practice of briefing within the Executive Branch NSC before briefing Congress.

Comey: That’s good feedback, Ms. Stefanik, the challenge for is, sometimes we want to keep it tight within the executive branch, and if we’re going to go brief congressional leaders, the practice has been then we brief inside the executive branch, and so we have to try to figure out how to navigate that in a good way.

Which seems to suggest one reason why the FBI delayed briefing the Gang of Four (presumably, this is the Gang of Eight) is because they couldn’t brief all Executive Branch people the White House, and so couldn’t brief Congress without first having briefed the White House.

Which would suggest Mike Flynn may be a very central figure in this investigation.

Because the National Security Advisor was suspected of being compromised (and because the Attorney General had at least a conflict), the FBI couldn’t and didn’t proceed normally.

Plus, there’s one other issue about which Obama should have discussed normal procedure with Yates and Comey on January 5. Two days earlier, Loretta Lynch signed an order permitting, for the first time, the sharing of EO 12333 data in bulk. Among the first things I’m sure FBI would have asked for would have been EO 12333 data to support their Russian investigation. Yet doing so would expose Trump’s people. That’s all the more true given that the rules permit the retention of entirely domestic communications if they have significant counterintelligence value.

So one of the first things that would have happened, after signing data sharing rules the government had been working to implement since Stellar Wind, would have been the prospect that the very first Americans directly affected weren’t going to be some powerless Muslims or relatively powerless Chinese-Americans, but instead the President’s closest associates. Given what we’ve seen from the George Papadopoulos case, the FBI likely bent over backwards to insulate Trump aides (indeed, it’s hard to understand how they wouldn’t have known of Ivan Timofeev’s outreach to Papadopoulos before his interviews if they hadn’t).

Just before this meeting, FBI and DOJ had discovered that Trump’s most important national security aide had had surprising conversations with Russia. That clearly raised the prospect of necessary deviations from normal practices with regards to intelligence sharing.

Yet Grassley and Graham are seeing Christopher Steele’s ghost behind every single solitary action. Rather than the real challenges posed when top officials pose real counterintelligence concerns.

Update: Kathryn Ruemmler, representing Rice, pretty much confirms Grassley and Graham have gone on a wild Steele chase.

“There is nothing ‘unusual’ about the National Security Advisor memorializing an important discussion for the record,” Kathryn Ruemmler, a counsel for Rice, said in a statement. “The Obama White House was justifiably concerned about how comprehensive they should be in their briefings regarding Russia to members of the Trump transition team, particularly Lt. General Michael Flynn, given the concerning communications between him and Russian officials.”
Ruemmler added: “The discussion that Ambassador Rice documented did not involve the so-called Steele dossier. Any insinuation that Ambassador Rice’s actions in this matter were inappropriate is yet another attempt to distract and deflect from the importance of the ongoing investigations into Russian meddling in America’s democracy.”

In Op-Ed Calling for Counter-Disinformation Strategy, Will Hurd Engages in His Own Disinformation

I like Will Hurd. I think he’s smart, thoughtful, and (when I met him at an event I did last year in DC) personally very nice. So I was a bit disappointed by this op-ed, arguing that to save democracy, “Americans must begin working together,” just weeks after he voted with all the rest of the House Intelligence Committee Republicans to release the Nunes memo.

After revealing that his CIA clandestine service was in places in Russia’s sphere, Hurd argues that we need a counter-disinformation strategy.

I served in places where Russia has geopolitical interests, and learned that Russia has one simple goal: to erode trust in democratic institutions.

[snip]

To address continued Russian disinformation campaigns, we need to develop a national counter-disinformation strategy. The strategy needs to span the entirety of government and civil society, to enable a coordinated effort to counter the threat that influence operations pose to our democracy. It should implement similar principles to those in the Department of Homeland Security’s Strategy for Countering Violent Extremism, with a focus on truly understanding the threat and developing ways to shut it down.

That much I can agree with him on.

But it has no business appearing in an op-ed that suggests bipartisan criticism of the Nunes Memo stunt amounts to Russia winning — which flips reality on its head.

Unfortunately, over the last year, the United States has demonstrated a lack of resilience to this infection. The current highly charged political environment is making it easier for the Russians to achieve their goal. The hyperbolic debate over the release of the FISA memos by the House Intelligence Committee further helps the Russians achieve their aim. Most recently, Russian social-media efforts used computational propaganda to influence public perceptions of this issue, and we found ourselves once again divided among party lines.

When the public loses trust in the press, the Russians are winning. When the press is hyper-critical of Congress for executing oversight and providing transparency on the actions taken by the leaders of our law-enforcement agencies, the Russians are winning. When Congress and the general public disagree simply along party lines, the Russians are winning. When there is friction between Congress and the executive branch resulting in the further erosion of trust in our democratic institutions, the Russians are winning.

Let’s unpack this passage closely.

First, note how Hurd refers to “the last year” during which the US demonstrated a lack of resilience to Russian disinformation? Hurd is pretending that that lack of resilience doesn’t extend to 2016, when in fact at least the social media companies started to respond to Russian election year events last year.

He then calls the debate over the release of the memo — not propaganda seeded by Republicans claiming the Nunes memo revealed something “worse than Watergate” — hyperbolic.

Hurd then makes the same mistake everyone always makes with the Fucking Gizmo™, the Hamilton Dashboard that tracks right wing propaganda and — because it moves in tandem with official Russian propaganda outlets — deems it Russian, not American.

Then Hurd rebrands Nunes’ stunt as the press being “hyper-critical of Congress for executing oversight and providing transparency on the actions taken by the leaders of our law-enforcement agencies.” As I’ve noted before, it’s particularly rich for people who voted against the Amash-Lofgren amendment to the FISA 702 reauthorization to claim they support transparency, as that amendment would have provided just that. But it’s also pathetic that Hurd would claim either the Nunes or Schiff memos are about transparency or oversight. It’d be awesome if HPSCI decided to hold a hearing on the use of consultants and informants in FISA applications and elsewhere in law enforcement. The Nunes stunt only brought a concern about that to a white politically connect white guy, not the people who really would benefit from actual oversight.

And more importantly, the Nunes memo (which GOPers admitted made a false claim about whether FISC got notice about the political nature of the Steele dossier), especially, was about obfuscation, not transparency.

Will Hurd was on the wrong side of adult behavior when he voted in favor of the Nunes memo. He seems to be trying to spin his vote as something it wasn’t.

He’d do well if, instead, he tried to make up for it.

image_print