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Andrew McCabe Got His Pension and His Cufflinks — But Is that Adequate Recourse for the Country?

As part of a settlement DOJ entered into yesterday to avoid giving Andrew McCabe discovery on the full extent of the politicized campaign against him, DOJ agreed to give him his retirement — and the cufflinks he would normally have gotten upon retiring from Senior Executive Service.

The more substantive parts of the agreement reflect a total capitulation by DOJ: restoration of McCabe’s pension backdated to the time he was fired and partial award of his legal fees for representation from Arnold & Porter.

Defendants will complete all actions necessary to ensure that Plaintiff will be recorded as having entered the federal retirement system effective March 19, 2018, with an annuity commencement date of April 1, 2018, see 5 U.S.C. § 8464(a)(1)(A), 5 C.F.R. § 842.208(b), and will receive:

a. a payment of a lump sum representing all retirement annuity payments, including annuity supplement payments, that he would otherwise have received from the April 1, 2018 annuity commencement date until the day before he is paid his first regular monthly payment, which will be computed in accordance with all relevant statutory and regulatory provisions, and which will not deduct or withhold any amounts for benefits not received or for taxes not owed during the time period specified above, unless such deductions and/or withholdings are required by relevant statutory or regulatory provisions;

b. prospectively from the date of his first regular monthly payment, through the federal retirement system, all periodic annuity payments, including annuity supplement payments, consistent with his March 19, 2018 retirement date;

[snip]

Defendants agree to pay $539,348.15 to Plaintiff, pursuant to the Equal Access to Justice Act, and in full settlement and satisfaction of all attorney’s fees, costs, and expenses. Payment shall be made to Plaintiff via electronic funds transfer to Arnold & Porter Kaye Scholer LLP, as promptly as practicable, consistent with the normal processing procedures followed by the Department of Justice and the Department of the Treasury, following the dismissal of the above-captioned civil action. This provision does not constitute an admission that Defendants’ position was not substantially justified under 28 U.S.C. § 2412(d)(1)(A).

McCabe will get also an admission that “Executive Branch officials outside the Department” — otherwise known as The President —  “should not comment publicly on ongoing career civil service employee disciplinary matters.” [my emphasis]

WHEREAS, the Parties agree that Executive Branch officials outside the Department of Justice and its components should not comment publicly on ongoing career civil service employee disciplinary matters, except as provided by statute or regulation, so as not to create any appearance of improper political influence;

But McCabe won’t get a concession that numerous people within the chain of command at DOJ and FBI, including prosecutors who pursued a false statements charge against McCabe, bowed to that improper political influence. Nor, as noted, will McCabe get discovery to learn what documents — besides proof that Bill Barr’s DOJ altered McCabe’s notes in an effort to undermine the Mike Flynn prosecution —  DOJ was so determined to avoid disclosing that they settled this case.

All this is being accomplished, legally, by a kind of reset. McCabe’s personnel records will be altered such that there’s no record of his firing.

1. Within 30 days of the execution of this Settlement Agreement, Defendants will rescind their removal of Plaintiff from the FBI and the civil service, and will rescind and vacate former Attorney General Jefferson B. Sessions’s March 16, 2018 removal decision (“DOJ Removal Decision”), and the March 16, 2018 removal recommendation that was submitted to Attorney General Sessions (“DOJ Removal Recommendation”).

2. The Parties agree that Plaintiff’s electronic Official Personnel Folder will reflect that he was employed continuously by the FBI from July 1996 until his retirement on March 19, 2018, as the FBI Deputy Director and a member of the Senior Executive Service (“SES”), after becoming 50 years of age and completing over 20 years of service.

3. Within 30 days of the execution of this Settlement Agreement, the government will remove from Plaintiff’s electronic Official Personnel Folder all documents that reflect or reference his removal, and replace them with documents reflecting that Plaintiff was continuously employed by the FBI until his retirement on March 19, 2018. Defendants will then provide to Plaintiff a copy of his revised electronic Official Personnel Folder.

4. Plaintiff will be deemed to have retired from the FBI on March 19, 2018.

5. Plaintiff will be deemed to have separated from the FBI in good standing for the purposes of 18 U.S.C. § 926C(c)(1).

By my reading, this doesn’t force DOJ Inspector General to revise its report on McCabe to incorporate Michael Kortan’s testimony, one of the problems in the report identified in McCabe’s suit. It doesn’t negate the conflicting Office of Professional Responsibility review results. But it does legally remove the final effect of over a year of retaliation and public badgering by the President, eliminating all trace of Sessions’ last minute firing of McCabe.

I have no doubt this settlement makes a lot of sense for McCabe. He gets the money he earned over two decades of chasing terrorists, spies, and organized crime and the ability to be treated with the respect a former Deputy Director is normally accorded.

But this country is still fighting the aftereffects of a coup attempt that almost succeeded, in part, because the FBI backed off investigating those close to the President, including Proud Boys who played a key leadership role in the attack. We never got fully visibility into the President’s relationship with Russia because Trump throttled that investigation with firings and pardons. And an unrelenting flood of disinformation masks both of these facts.

We know, from the fact that DOJ entered into this settlement (among other things), that Trump badly politicized DOJ. But this settlement allows DOJ to avoid coming clean about all that happened.

DOJ Put Someone Who Enabled Sidney Powell’s Lies — Jocelyn Ballantine — in Charge of Prosecuting the Proud Boys

Because of Joe Biggs’ role at the nexus between the mob that attacked Congress and those that orchestrated the mob, his prosecution is the most important case in the entire January 6 investigation. If you prosecute him and his alleged co-conspirators successfully, you might also succeed in holding those who incited the attack on the Capitol accountable. If you botch the Biggs prosecution, then all the most important people will go free.

Which is why it is so unbelievable that DOJ put someone who enabled Sidney Powell’s election season lies about the Mike Flynn prosecution, Jocelyn Ballantine, on that prosecution team.

Yesterday, at the beginning of the Ethan Nordean and Joe Biggs hearing, prosecutor Jason McCullough told the court that in addition to him and Luke Jones, Ballantine was present at the hearing for the prosecution. He may have said that she was “overseeing” this prosecution. (I’ve got a request for clarification in with the US Attorney’s office.)

Ballantine has not filed a notice of appearance in the case (nor does she show on the minute notice for yesterday’s hearing). In the one other January 6 case where she has been noticeably involved — electronically signing the indictment for Nick Kennedy — she likewise has not filed a notice of appearance.

Less than a year ago when she assisted in DOJ’s attempts to overturn the Mike Flynn prosecution, Ballantine did three things that should disqualify her from any DOJ prosecution team, much less serving on the most important prosecution in the entire January 6 investigation:

  • On September 23, she provided three documents that were altered to Sidney Powell, one of which Trump used six days later in a packaged debate attack on Joe Biden
  • On September 24, she submitted an FBI interview report that redacted information — references to Brandon Van Grack — that was material to the proceedings before Judge Emmet Sullivan
  • On October 26, she claimed that lawyers for Peter Strzok and Andrew McCabe had checked their clients’ notes to confirm there were no other alterations to documents submitted to the docket; both lawyers refused to review the documents

After doing these things in support of Bill Barr’s effort to undermine the Flynn prosecution (and within days of the Flynn pardon), Ballantine was given a confidential temporary duty assignment (it may have been a CIA assignment). Apparently she’s back at DC USAO now.

Three documents got altered and another violated Strzok and Page’s privacy

As a reminder, after DOJ moved to hold Mike Flynn accountable for reneging on his plea agreement, Billy Barr put the St. Louis US Attorney, Jeffrey Jensen, in charge of a “review” of the case, which DOJ would later offer as its excuse for attempting to overturn the prosecution.

On September 23, Ballantine provided Powell with five documents, purportedly from Jensen’s investigation into the Flynn prosecution:

I outlined the added date on the first set of Strzok notes here:

There was never any question that the notes could have been taken no earlier than January 5, because they memorialized Jim Comey’s retelling of a meeting that other documentation, including documents submitted in the Flynn docket, shows took place on January 5. Even Chuck Grassley knows what date the meeting took place.

But DOJ, while using the notes as a central part of their excuse for trying to overturn the Flynn prosecution, nevertheless repeatedly suggested that there was uncertainty about the date of the notes, claiming they might have been taken days earlier. And then, relying on DOJ’s false representations about the date, Sidney Powell claimed they they showed that Joe Biden — and not, as documented in Mary McCord’s 302, Bob Litt — was the one who first raised the possibility that Flynn may have violated the Logan Act.

Strzok’s notes believed to be of January 4, 2017, reveal that former President Obama, James Comey, Sally Yates, Joe Biden, and apparently Susan Rice discussed the transcripts of Flynn’s calls and how to proceed against him. Mr. Obama himself directed that “the right people” investigate General Flynn. This caused former FBI Director Comey to acknowledge the obvious: General Flynn’s phone calls with Ambassador Kislyak “appear legit.” According to Strzok’s notes, it appears that Vice President Biden personally raised the idea of the Logan Act.

During the day on September 29, Powell disclosed to Judge Sullivan that she had spoken to Trump (as well as Jenna Ellis) about the case. Then, later that night, Trump delivered a prepared attack on Biden that replicated Powell’s false claim that Biden was behind the renewed investigation into Flynn.

President Donald J. Trump: (01:02:22)
We’ve caught them all. We’ve got it all on tape. We’ve caught them all. And by the way, you gave the idea for the Logan Act against General Flynn. You better take a look at that, because we caught you in a sense, and President Obama was sitting in the office.

In a matter of days, then, what DOJ would claim was an inadvertent error got turned into a campaign attack from the President.

When DOJ first confessed to altering these notes, they claimed all the changes were inadvertent.

In response to the Court and counsel’s questions, the government has learned that, during the review of the Strzok notes, FBI agents assigned to the EDMO review placed a single yellow sticky note on each page of the Strzok notes with estimated dates (the notes themselves are undated). Those two sticky notes were inadvertently not removed when the notes were scanned by FBI Headquarters, before they were forwarded to our office for production. The government has also confirmed with Mr. Goelman and can represent that the content of the notes was not otherwise altered.

Similarly, the government has learned that, at some point during the review of the McCabe notes, someone placed a blue “flag” with clear adhesive to the McCabe notes with an estimated date (the notes themselves are also undated). Again, the flag was inadvertently not removed when the notes were scanned by FBI Headquarters, before they were forwarded to our office for production. Again, the content of the notes was not otherwise altered.

There are multiple reasons to believe this is false. For example, when DOJ submitted notes that Jim Crowell took, they added a date in a redaction, something that could in no way be inadvertent. And as noted, the January 5 notes had already been submitted, without the date change (though then, too, DOJ claimed not to know the date of the document).

But the most important tell is that, when Ballantine sent Powell the three documents altered to add dates, the protective order footer on the documents had been removed in all three, in the case of McCabe’s notes, actually redacted. When she released the re-altered documents (someone digitally removed the date in the McCabe notes rather than providing a new scan), the footer had been added back in. This can easily be seen by comparing the altered documents with the re-altered documents.

The altered January 5, 2017 Strzok notes, without the footer:

The realtered January 5, 2017 Strzok notes, with the footer:

The second set of Strzok notes (originally altered to read March 28), without the footer:

The second set of Strzok notes, with the footer.

The altered McCabe noteswith the footer redacted out:

The realtered McCabe notes, with the footer unredacted:

This is something that had to have happened at DOJ (see William Ockham’s comments below and this post for proof in the metadata that these changes had to have been done by Ballantine). The redaction of the footers strongly suggests that they were provided to Powell with the intention of facilitating their further circulation (the other two documents she shared with Powell that day had no protective order footer). In addition, each of these documents should have a new Bates stamp.

DOJ redacted Brandon Van Grack’s non-misconduct

On September 24, DOJ submitted a report of an FBI interview Jeffrey Jensen’s team did with an Agent who sent pro-Trump texts on his FBI-issued phone, Bill Barnett. In the interview, Barnett made claims that conflicted with actions he had taken on the case. He claimed to be unaware of evidence central to the case against Flynn (for example, that Flynn told Sergey Kislyak that Trump knew of something said on one of their calls). He seemed unaware of the difference between a counterintelligence investigation and a criminal one. And he made claims about Mueller prosecutors — Jeannie Rhee and Andrew Weissmann — with whom he didn’t work directly. In short, the interview was obviously designed to tell a politically convenient story, not the truth.

Even worse than the politicized claims that Barnett made, the FBI or DOJ redacted the interview report such that all reference to Brandon Van Grack was redacted, substituting instead with the label, “SCO Atty 1.” (References to Jeannie Rhee, Andrew Weissmann, and Andrew Goldstein were not redacted; there are probable references to Adam Jed and Zainab Ahmad that are not labeled at all.)

The result of redacting Van Grack’s name is that it hid from Judge Sullivan many complimentary things that Barnett had to say about Van Grack:

Van Grack’s conduct was central to DOJ’s excuse for throwing out the Flynn prosecution. Powell repeatedly accused Van Grack, by name, of engaging in gross prosecutorial misconduct. Yet the report was submitted to Judge Sullivan in such a way as to hide that Barnett had no apparent complaints about Van Grack’s actions on the Flynn case.

I have no reason to believe that Ballantine made those redactions. But according to the discovery letter she sent to Powell, she sent an unredacted copy to Flynn’s team, while acknowledging that the one she was submitting to the docket was redacted. Thus, she had to have known she was hiding material information from the Court when she submitted the interview report.

Ballantine falsely claimed Strzok and McCabe validated their notes

After some of these alterations were made public, Judge Sullivan ordered DOJ to authenticate all the documents they had submitted as part of their effort to overturn the Flynn prosecution. The filing submitted in response was a masterpiece of obfuscation, with three different people making claims while dodging full authentication for some of the most problematic documents. In the filing that Ballantine submitted, she claimed that Michael Bromwich and Aitan Goelman, lawyers for McCabe and Strzok, “confirmed” that no content was altered in the notes.

The government acknowledges its obligation to produce true and accurate copies of documents. The government has fully admitted its administrative error with respect to the failure to remove three reviewer sticky notes containing estimated date notations affixed to three pages of undated notes (two belonging to former Deputy Assistant Director Peter Strzok, and one page belonging to former Deputy Director Andrew McCabe) prior to their disclosure. These dates were derived from surrounding pages’ dates in order to aid secondary reviewers. These three sticky notes were inadvertently not removed when the relevant documents were scanned by the FBI for production in discovery. See ECF 259. The government reiterates, however, that the content of those exhibits was not altered in any way, as confirmed by attorneys for both former FBI employees. [underline original]

According to an email Bromwich sent Ballantine, when Ballantine asked for help validating the transcripts DOJ did of McCabe’s notes, McCabe declined to do so.

I have spoken with Mr. McCabe and he declines to provide you with any information in response to your request.

He believes DOJ’s conduct in this case is a shocking betrayal of the traditions of the Department of the Justice and undermines the rule of law that he spent his career defending and upholding. If you share with the Court our decision not to provide you with assistance, we ask that you share the reason.

We would of course respond to any request that comes directly from the Court.

And according to an email Goelman sent to Ballantine, they said they could not check transcriptions without the original copies of documents.

Sorry not to get back to you until now.  We have looked at the attachments to the email you sent yesterday (Sunday) afternoon.  We are unable to certify the authenticity of all of the attachments or the accuracy of the transcriptions.  To do so, we would need both more time and access to the original notes, particularly given that U.S. Attorney Jensen’s team has already been caught altering Pete’s notes in two instances.  However, we do want to call your attention to the fact that Exhibit 198-11 is mislabeled, and that these notes are not the notes of Pete “and another agent” taken during the Flynn interview.

Additionally, we want to register our objection to AUSA Ken Kohl’s material misstatements to Judge Sullivan during the September 29, 2020, 2020, [sic] telephonic hearing, during which Mr. Kohl inaccurately represented that Pete viewed himself as an “insurance policy” against President Trump’s election.

I have no reason to believe the content was altered, though I suspect other things were done to McCabe’s notes to misrepresent the context of a reference in his notes to Flynn. But not only had McCabe and Strzok not validated their notes, but they had both pointedly refused to. Indeed, during this same time period, DOJ was refusing to let McCabe see his own notes to prepare for testimony before the Senate Judiciary Committee. Nevertheless, Ballantine represented to Judge Sullivan that they had.

It baffles me why DOJ would put Ballantine on the most important January 6 case. Among other things, the conduct I’ve laid out here will make it easy for the defendants to accuse DOJ of similar misconduct on the Proud Boys case — and doing just that happens to be Nordean’s primary defense strategy.

But I’m mindful that there are people in DC’s US Attorney’s Office (not Ballantine) who took actions in the past that may have made the January 6 attack more likely. In a sentencing memo done on Barr’s orders, prosecutors attempting to minimize the potential sentence against Roger Stone suggested that a threat four Proud Boys helped Roger Stone make against Amy Berman Jackson was no big deal, unworthy of a sentencing enhancement.

Second, the two-level enhancement for obstruction of justice (§ 3C1.1) overlaps to a degree with the offense conduct in this case. Moreover, it is unclear to what extent the defendant’s obstructive conduct actually prejudiced the government at trial.

Judge Jackson disagreed with this assessment. In applying the enhancement, she presciently described how dangerous Stone and the Proud Boys could be if they incited others.

Here, the defendant willfully engaged in behavior that a rational person would find to be inherently obstructive. It’s important to note that he didn’t just fire off a few intemperate emails. He used the tools of social media to achieve the broadest dissemination possible. It wasn’t accidental. He had a staff that helped him do it.

As the defendant emphasized in emails introduced into evidence in this case, using the new social media is his “sweet spot.” It’s his area of expertise. And even the letters submitted on his behalf by his friends emphasized that incendiary activity is precisely what he is specifically known for. He knew exactly what he was doing. And by choosing Instagram and Twitter as his platforms, he understood that he was multiplying the number of people who would hear his message.

By deliberately stoking public opinion against prosecution and the Court in this matter, he willfully increased the risk that someone else, with even poorer judgment than he has, would act on his behalf. This is intolerable to the administration of justice, and the Court cannot sit idly by, shrug its shoulder and say: Oh, that’s just Roger being Roger, or it wouldn’t have grounds to act the next time someone tries it.

The behavior was designed to disrupt and divert the proceedings, and the impact was compounded by the defendant’s disingenuousness.

The people at DOJ who claimed that this toxic team was not dangerous in the past may want to downplay the critical role that Stone and the Proud Boys played — using the same kind of incendiary behavior — in the January 6 assault.

Whatever the reason, though, it is inexcusable that DOJ would put someone like Ballantine on this case. Given Ballantine’s past actions, it risks sabotaging the entire January 6 investigation.

DOJ quite literally put someone who, less than a year ago, facilitated Sidney Powell’s lies onto a prosecution team investigating the aftermath of further Sidney Powell lies.

Update: DC USAO’s media person refused to clarify what Ballantine’s role is, even though it was publicly acknowledged in court.

We are not commenting on cases beyond what is stated or submitted to the Court. We have no comment in response to your question.

Update: Added links to William Ockham’s proof that Ballantine made the realteration of the McCabe notes.

Update: One more point on this. I am not claiming here that anyone at DOJ is deliberately trying to sabotage the January 6 investigation, just that putting someone who, less than a year ago, made multiple representations to a judge that could call into question her candor going forward could discredit the Proud Boys investigation. I think it possible that supervisors at DC USAO put her on the team because they urgently need resources and she was available (possibly newly so after the end of her TDY). I think it possible that supervisors at DC USAO who are also implicated in Barr’s politicization, perhaps more closely tied to the intervention in the Stone case, put her there with corrupt intent.

But it’s also important to understand that up until February 2020, she was viewed as a diligent, ruthless prosecutor. I presume she buckled under a great deal of pressure after that and found herself in a place where competing demands — her duty of candor to the Court and orders from superiors all the way up to the Attorney General — became increasingly impossible to square.

Importantly, Lisa Monaco’s chief deputy John Carlin, and probably Monaco herself, would know Ballantine from their past tenure in the National Security Division as that heretofore ruthless national security prosecutor. The only mainstream outlet that covered anything other than DOJ’s admission they had added post-its to the notes was Politico. And the instinct not to punish career employees like Ballantine would mean what she would have avoided any scrutiny with the transition. So her assignment to the case is not itself evidence of an attempt to sabotage the prosecution.

John Durham Won’t Charge Any of Trump’s Favorite Villains

On Friday, WSJ had an article that might have been titled, “John Durham won’t charge any of Donald Trump’s favorite villains.” It reported that Durham is still considering charges against people outside of government and “lower-level FBI employees.”

Mr. Durham has been examining potential criminal charges against several lower-level Federal Bureau of Investigation employees, and people who aren’t in government, according to people familiar with the matter.

But it doesn’t note that, even if Durham does charge those involved in the dossier, it will still mean that many of Trump’s claims about the Russian investigation were investigated for longer than Mueller took, only to fall short of the crimes Trump claimed had happened.

Jim Comey was the FBI Director, not a low-level employee. In spite of Durham’s effort to prove that Comey leaked details of Trump’s efforts to protect Mike Flynn to get a Special Counsel appointed, if Durham is contemplating charges only against “lower-level” FBI employees, he has not found proof that Comey broke the law.

Andrew McCabe was the FBI Deputy Director, not a low-level employee. In spite of Durham’s apparent effort to insinuate that McCabe micromanaged the Russian investigation, pushing investigative steps FBI Agents didn’t support, if Durham is contemplating charges only against “lower-level” FBI employees, he has not found proof that McCabe broke the law.

Bill Priestap was the Assistant Director for Counterintelligence, not a low-level employee. In spite of Durham’s effort to interpret Priestap’s notes as proof that the FBI set up Mike Flynn, if Durham is contemplating charges only against “lower-level” FBI employees, he has not found proof that Priestap broke the law.

Peter Strzok was the Deputy Assistant Director when he opened Crossfire Hurricane, not a low-level employee. In spite of Durham’s extended efforts to suggest that Strzok sustained an investigation into Donald Trump out of some kind of animus or perhaps compensation for his role in Hillary Clinton’s defeat, in spite of Durham’s seeming efforts to suggest that Strzok pushed others to obtain legal process he refused to approve earlier in the investigation, if Durham is contemplating charges only against “lower-level” FBI employees, he has not found proof that Strzok broke the law.

Lisa Page was the Counselor to the Deputy Director, not a low-level employee. In spite of Durham’s efforts to suggest Page had some role in the investigation that DOJ IG already said she didn’t, if Durham is contemplating charges only against “lower-level” FBI employees, he has not found proof that Lisa Page broke the law.

Durham has interviewed few if any of these senior people, who’ve been targeted for years. Without even hearing their side, apparently, Durham has decided they’re not the villains Trump made them out to be.

But Trump’s chief villains aren’t the only targets that — if this report is correct — will not be charged.

The WSJ notes that Durham won’t charge anyone for concluding that Russia not only wanted to defeat Hillary, but affirmatively wanted Trump in power.

Beyond the role of outside tipsters, Mr. Durham’s investigation examined how the FBI first came to open the investigation, as well as a separate 2017 U.S. intelligence report that concluded Moscow interfered in the presidential election in part to help then-candidate Trump.

Mr. Durham’s team isn’t expected to bring any criminal charges in connection with that intelligence assessment, some of the people said.

So John Brennan won’t be getting charged either, in spite of calls for that to happen.

Then there are all the other hoaxes Republicans invented: Durham will not charge anyone for spying on Trump before the opening of the investigation, because it didn’t happen. Durham will not charge the FBI or CIA for setting Joseph Mifsud up to entrap George Papadopoulos, because it didn’t happen.

In spite of the seeming confirmation that four years of insinuations about these people were wrong, the right wing has responded to the seeming news that Peter Strzok won’t be charged with delight.

High Gaslighter Catherine Herridge posted the same partially unsealed footnote (footnote 350 discussed in this post) twice as well as a passage about what the FBI had learned by September 2017, three months after the last FISA order targeting Carter Page.

Jonathan Turley (who ignores the WSJ description that any FBI targets are low-level) claims that Durham’s current focus could “implicate some of the most powerful figures in politics” in his final report, while getting a slew of details (about Bruce and Nellie Ohr, especially) wrong.

The report in The Wall Street Journal said Durham is presenting evidence against FBI agents and possibly others in the use of false information or tips at the start of the Russia investigation in 2016. Those “others” could include a virtual who’s who of Washington politics, and even if they are not indicted, Durham could implicate some of the most powerful figures in politics in his final report, expected in the coming months.

[snip]

This cross-pollination between the campaign and the Justice Department was evident in the strange role of Bruce Ohr, a senior Justice official who was later demoted for concealing his meetings with people pushing the Steele dossier; his wife, Nellie Ohr, worked for Fusion GPS as a researcher on Trump’s purported connections to Russia. Justice Department Inspector General Michael Horowitz subsequently found that Bruce Ohr acted improperly and committed “consequential errors in judgment.”

[snip]

Durham also is reportedly looking into information concerning Alfa Bank, a privately owned commercial bank in Russia. That information led to possible access to the Trump campaign server. The Alfa Bank controversy is likely to make a number of powerful people particularly uneasy. Clinton campaign-linked figures such as Fusion GPS co-founder Glenn Simpson allegedly pushed the debunked claim that the Trump campaign had a server linked directly to the bank, which in turn was linked to Vladimir Putin and his cronies. The Alfa Bank conspiracy reportedly was pitched to the Justice Department, including in contacts with Bruce Ohr.

Glenn Greenwald, after spending years mocking the prosecutions of Trump’s Campaign and Deputy Campaign Manager, his personal lawyer, his National Security Advisor, a foreign policy advisor, and his rat-fucker — four for covering up what happened in 2016 — and after pushing the Hunter Biden laptop allegedly funneled to a different Trump personal lawyer who is currently being investigated for influence peddling with Russian assets — speaks gleefully of “already one guilty plea: seems like more criminal charges are coming.”

The pseudonymous TechnoFog[gy] highlights the claims of a Russian, Olga Galkina, who — if the dossier was indeed filled with disinformation (and I believe it was) — was the source for much of it, while complaining, in the same breath as they magnify Galkina’s claims, that Igor Danchenko might not be aware that those like Galkina who fed him garbage were doing so for Russian intelligence.

More and more, Durham appears to be chasing what an elaborate lawfare effort from the Alfa Bank oligarchs are throwing out. The effort, like the dossier itself, is transparently problematic, particularly given that FBI debunked it early. The dossier had little to do with the investigation of anyone but Carter Page; the Alfa Bank allegations were entirely a distraction from the investigation. If Durham wants to stake his report on that, it has the potential of making it an easily discredited piece of Russian propaganda.

A focus on the disinformation in the dossier and the way that some ways the Alfa Bank claim was packaged up has a real potential to backfire for Durham, because it can only shine a light on how Russia obfuscated its efforts to get Trump elected in 2016 with disinformation about efforts to get Trump elected.

Rudy Giuliani’s Alleged “Cooperation” Is a Threat to Lay out How Bill Barr and Jeffrey Rosen Protected Russian Disinformation

Now that I’ve waded through Rudy Giulilani’s response to learning that SDNY had conducted a covert search on him in November 2019 before it conducted an overt search in April 2021, I’m certain Rudy engaged in just the kind of bad lawyering SDNY hoped he would — more on that in a week or so.

But a big part of his letter was not an attempt to engage in good lawyering, but instead to send messages to a variety of people. He provided co-conspirators a map they can use to understand which of their communications are in SDNY’s hands, and which are not. But he also laid out what he called his “cooperation,” which aside from minimal claims (which SDNY disputed) to have cooperated with SDNY against Lev Parnas and Igor Fruman, really amounts to the corrupt stuff he believed he was protected for because he did it on behalf of Donald Trump. Indeed, he claims that if Judge Paul Oetken only knew he had permission to do all this stuff, then he wouldn’t have approved the warrants against him.

It is unknown if the Government informed the Court of Giuliani’s cooperation with the State Department or his offers to cooperate with the SDNY or his actual cooperation with the Western District of Pennsylvania.

His first claim of “cooperation” revisits claims he made in the wake of the whistleblower complaint in 2019, claiming that he was working closely with State when he was lobbying to fire Marie Yovanovitch.

It was premature and unwarranted for the Government to seize Giuliani’s ESI because Giuliani had already cooperated with the US State Department (“State”) through Mike Pompeo, the Secretary of State, in March 2019 concerning Ukraine. He also cooperated again in July and August of 2019 at the request of the State Department in assisting them with regard to Ukraine.

This is almost certainly the meat of the SDNY investigation, and whatever else Rudy has done by invoking it, he has put Mike Pompeo on the hotseat.

It may not be a coincidence that in the wake of this letter, Gordon Sondland sued Mike Pompeo for covering up what really happened in State in 2019 and provided several excuses — most importantly, that Pompeo refused to let him access his own backup materials before testifying — for why his two existing sessions of sworn testimony might conflict with what SDNY seized from Rudy.

In his other claim of cooperation, Rudy detailed how he shared disinformation from Russian agent Andrii Derkach with DOJ, which he described as “cooperation” with Main Justice in the guise of its delegate, Pittsburgh US Attorney Scott Brady.

Before I repeat Rudy’s description of how he shared disinformation from Andrii Derkach with a hand-picked and very pro-Trump US Attorney, consider several details: first, immediately in the wake of the raid on Rudy in April, there were leaked explanations for how Rudy managed to meet with a known Russian agent — right in the middle of impeachment!! — even though both National Security Advisor Robert O’Brien and FBI’s Counterintelligence folks knew that Russia was feeding Derkach disinformation to feed to Rudy.

The WaPo originally reported that the FBI had warned Rudy, but had to retract that. Rudy never got warned.

Correction: An earlier version of this story, published Thursday, incorrectly reported that One America News was warned by the FBI that it was the target of a Russian influence operation. That version also said the FBI had provided a similar warning to Rudolph W. Giuliani, which he has since disputed. This version has been corrected to remove assertions that OAN and Giuliani received the warnings.

The FBI became aware in late 2019 that Rudolph W. Giuliani was the target of a Russian influence operation aimed at circulating falsehoods intended to damage President Biden politically ahead of last year’s election, according to people familiar with the matter.

Officials planned to warn Giuliani as part of an extensive effort by the bureau to alert members of Congress and at least one conservative media outlet, One America News, that they faced a risk of being used to further Russia’s attempt to influence the election’s outcome, said several current and former U.S. officials. All spoke on the condition of anonymity because the matter remains highly sensitive.

The FBI became aware of the Russian information operation at a time when Giuliani was deeply involved with former president Donald Trump’s 2020 reelection campaign and related activities in Ukraine to surface unflattering or incriminating information about the Biden family.

[snip]

In late 2019, before Giuliani’s trip to Kyiv, U.S. intelligence agencies warned the Trump White House that Giuliani was the target of a Russian influence operation, as The Post reported last year. Officials became concerned after obtaining evidence, including communications intercepts, that showed Giuliani was interacting with people tied to Russian intelligence. The warnings led then-national security adviser Robert C. O’Brien to caution Trump that any information Giuliani brought back from Ukraine should be considered contaminated by Russia.

Then, after matching the WaPo’s original story and similarly having to retract it, NBC offered an explanation why Rudy wasn’t given that briefing: because it would “complicate” what NBC called “the criminal investigation” into Rudy.

The FBI prepared a so-called “defensive” briefing for Rudy Giuliani in 2019 in which agents were poised to warn him he was being targeted by a Russian intelligence influence operation as he sought to gather opposition research on the Biden family, according to a source familiar with the matter.

But that briefing was not given, according to a second source familiar with the matter, because of concerns that the briefing could complicate the criminal investigation into the former New York City mayor.

Yet, at the time Rudy would have gotten this warning, SDNY had already shown probable cause Rudy was an agent of one or another pro-corruption Ukrainians, almost certainly Yuri Lutsenko in his efforts to fire Marie Yovanovitch. Without a Derkach angle to the SDNY investigation — an angle Jeffrey Rosen went to great lengths to prevent them from pursuing — it’s not clear how it would have complicated that investigation.

Rudy didn’t get his warning and instead of warning him, Trump said that was Rudy being Rudy. So Rudy first met with Lutsenko, the subject of the first investigation, and headed from that meeting directly to meet with Derkach.

A month later, Rosen issued a memo prohibiting any prosecutors from expanding the scope of their already opened investigations, which would have had the effect of preventing SDNY from investigating Rudy’s ongoing influence peddling for known Russian agent Andrii Derkach, about whom FBI decided not to warn Rudy even though everyone briefed on it knew it was a Russian intelligence operation.

But that wasn’t the only thing that Billy Barr and Rosen’s efforts to divvy up Ukrainian investigations did. After Rosen wrote that memo (ensuring no one could start an investigation into Rudy’s dalliances with Derkach), but still a week before Trump was acquitted for coercing dirt from Ukraine to use against Joe Biden, per Rudy’s timeline, Barr assigned Pittsburgh US Attorney Scott Brady to oversee intake of all Ukrainian dirt and, within a day, Rudy was in the business of sharing Derkach’s dirt directly with Pittsburgh’s US Attorney’s office.

In his letter, Rudy clearly identifies four of the nine people who rushed to accept Rudy’s dirt, which the government had identified as Russia disinformation before he went to collect it in December.

[I]n January 2020, counsel for Giuliani contacted high officials in the Justice Department, to inform them that Giuliani wanted to provide evidence for their consideration about the Ukraine. Within a day, the United States Attorney for the Western District of Pennsylvania, Scott W. Brady, contacted Giuliani’s counsel and offered to hold a meeting in Pittsburgh with both the United States Attorney’s office personnel and the FBI. Mayor Giuliani immediately accepted, and a meeting was scheduled for January 29, 2020.

On January 29, 2020, Mayor Giuliani and his counsel, flew to Pittsburgh at their own cost, where they were met by agents of the FBI and transported to FBI headquarters in Pittsburgh. Present at that meeting were the United States Attorney, the First Assistant United States Attorney, the Chief of the Criminal Division, and two additional Assistant United States Attorneys (“AUSA’s”) from the Western District of Pennsylvania. The FBI was represented by the Special Agent in Charge (“SAIC”) of the Pittsburgh FBI, the Assistant Special Agent in Charge (“ASAIC”), and three other special agents of the FBI.

Prior to the meeting, Giuliani’s counsel had provided the Pittsburgh United States Attorney’s office with documents and an extensive outline of the subject matter to be discussed, so that the Government could be fully informed and prepared to ask probing questions. Giuliani began the meeting by making a presentation with handouts. During his presentation, and at the end of it, the Mayor and his counsel answered every question they were asked, to the apparent satisfaction of all of the Government officials in the room. In addition to the presentation, Giuliani provided the Government with the names and addresses of individual witnesses, both in the United States and in Ukraine, that could corroborate and amplify the information that the Mayor was providing. Subsequent to that meeting, and covering a period of months, counsel for Giuliani received a number of inquiries, discussions and requests from the First Assistant United States Attorney. All requests were granted and all inquiries were answered. [my emphasis]

And, as Rudy tells it, that First AUSA kept coming back for more, a claim (like his other claims about the personnel involved) that matches a story published in the NYT after those involved knew that Trump had lost. That story also described that Brady kept pushing for inappropriate investigative steps until, ultimately, Seth DuCharme had to get involved.

Officials said that Mr. Brady almost immediately started pushing to take aggressive steps. He had a list of people he wanted F.B.I. agents to question. It was not clear whether they were the same witnesses that Mr. Giuliani and Mr. Costello had submitted, but a former law enforcement official said that Mr. Brady had wanted the F.B.I. to question people mentioned in Mr. Giuliani’s materials.

The steps were outside “normal investigative procedures,” one former senior law enforcement official with knowledge of the events said, particularly in an election year; Justice Department policy typically forbids investigators from making aggressive moves before elections that could affect the outcome of the vote if they become public.
The Pittsburgh F.B.I. office refused to comply without the approval of David L. Bowdich, the F.B.I.’s deputy director, the former official said.

Mr. Brady’s demands soon prompted a tense confrontation with F.B.I. officials at the bureau’s headquarters in Washington. The meeting was mediated by Seth D. DuCharme, now the acting U.S. attorney in Brooklyn and at the time a trusted aide and ally of Mr. Barr’s at the Justice Department in Washington.

Then, after Barr failed to replace Geoffrey Berman with a hand-picked flunky when he fired him on June 20 of last year, Barr instead installed DuCharme in Brooklyn on July 10, thereby making DuCharme (who had already been personally involved in Pittsburgh) the gatekeeper on any investigations pertaining to Ukraine. And sometime months after that — as Rudy continued to share known Russian disinformation during the election — DuCharme approved not an expansion of the investigation in SDNY that Barr tried to shut down by firing Berman, which would have been the logical thing to do if you were concerned about Russians interfering in our elections, but instead a parallel investigation in EDNY that, per the more recent NYT report, by design would not treat Rudy as a subject. Meanwhile, Rosen created repeated roadblocks — higher and higher levels of approvals for a search of Rudy — in an attempt to prevent SDNY from advancing their investigation into Rudy any further.

There are some involved in this story, like the FBI Agents who got promoted into the jobs formerly held by Andrew McCabe and Bill Priestap and Peter Strzok, who probably let all this happen because they knew the best way to advance their careers was to not make the mistake that their predecessors had made by trying to keep the country safe from Russian interference during an election. Others may rationalize what they did as a means to placate the President, perhaps imagining that it wouldn’t do that much damage to the country — that was the excuse cited by the NYT article on the Pittsburgh investigation. But those people, in recognizing Trump would lash out if they tried to investigate Russian interference in the 2020 election, would have therefore understood that Trump wanted Russian spies to interfere in the election and would be furious if they prevented it. They would have had to have understood that the way to keep Trump happy was to let Russia have its way. They would have been operating on the recognition that all the claims about what Trump did in 2016 were true, at least as far as 2020.

Plus, no one who pushed as hard as Scott Brady did can claim to be trying to placate the President.

Finally, worst of all, there are those who took a vow to “protect and defend against enemies foreign and domestic” who made affirmative attempts to protect not just the disinformation that Rudy was feeding to DOJ and FBI, but also protect Rudy for serving as the willful handmaiden of someone they knew was a Russian spy.

The Russian scandal of 2020 is, in many ways, even more scandalous than the Russian scandal of 2016. At least Paul Manafort and Roger Stone were in a position to claim plausible deniability. Bill Barr and Jeffrey Rosen are not.

Update: This email obtained via American Oversight shows that the decision to use Scott Brady to protect the Russian disinformation intake started earlier, by January 3.

But His Emails! Kushner’s Unique Exposure under the Presidential Records Act

The focus on what Trump will burn down in his final days as President has brought renewed focus on whether Trump will manage to destroy evidence on his way out. For example, Trump’s refusal to concede defeat may have delayed the normal archiving process, not to mention the instructions to White House employee that there needed to be an archiving process.

When Trump lost the November election, records staffers were in position to transfer electronic records, pack up the paper ones and move them to the National Archives by Jan. 20, as required by law. But Trump’s reluctance to concede has meant they will miss the deadline.

“Necessary funding from the (White House) Office of Management and Budget was delayed for many weeks after the election, which has caused delays in arranging for the transfer of the Trump presidential records into the National Archives’ custody,” the National Archives said in a statement to The Associated Press. “Even though the transfer of these records will not be completed until after Jan. 20, the National Archives will assume legal custody of them on Jan. 20 in accordance with the Presidential Records Act.”

White House spokesman Judd Deere said Saturday that contesting the election did not cause the delay in getting the president’s records transferred to the archives and that guidance was available to staffers on how to pack up their materials.

One person familiar with the transition said guidance typically emailed to executive branch employees explaining how to turn in equipment and pack up their offices was sent out in December, but quickly rescinded because Trump insisted on contesting the election.

With little guidance, some staffers in the White House started quietly calling records workers to find out what to do.

In early December, CREW and the National Security Archive tried to sue to preserve records, requesting a Temporary Restraining Order. While a key part of that suit — which the parties may be moving to novel litigation over — pertains to whether it’s enough to take a screen shot of an electronic communication, the suit also focuses on Jared Kushner’s well-documented habit of using private communications.

72. Notwithstanding these requests and the preservation directive, Mr. Kushner and his wife and Advisor to the President Ivanka Trump reportedly re-routed their personal email accounts to Trump Organization computers within one to two days of receiving the September 25, 2017 letters. Mar. 21, 2019 Oversight Letter, at 3.

73. In a December 2018 interview with then-House Oversight and Government Reform Chairman Gowdy and Ranking Member Cummings, Mr. Kushner’s counsel “confirmed that Mr. Kushner has used—and continues to use—WhatsApp” to create or send Presidential records, including to communicate “with people outside the United States.” Mar. 21, 2019 Oversight Letter, at 6. When asked by Rep. Cummings if “Mr. Kushner has ever used WhatsApp to discuss classified information,” his counsel replied, “That’s above my pay grade.” Id.

74. WhatsApp is a non-official, encrypted electronic messaging application.

75. Mr. Kushner’s lawyer further explained that Mr. Kushner preserves Presidential records created or sent from his WhatsApp account by “tak[ing] ‘screenshots’ of these communications and forward[ing] them to his official White House email account or to the National Security Council.” Mar. 21, 2019 Oversight Letter, at 6 (emphasis added).

76. Mr. Kushner’s attorney also admitted that between January and August 2017, Mr. Kushner used his personal email account to send and receive official emails. Mar. 21, 2019 Oversight Letter, at 2-3.

The government is trying to make all this go away quickly though, arguing, in part, that the NGOs suing have no private right of action under the Presidential Records Act (meaning there’s no way for them to demand more diligent treatment of records).

Here, Plaintiffs cannot make such a showing; not only does the PRA lack any private right of action, see Judicial Watch, Inc. v. NARA, 845 F. Supp. 2d 288, 299 n.5 (D.D.C. 2012), but, as discussed above, the D.C. Circuit has concluded that it affirmatively precludes judicial review.

That’s one of the reasons I’m so interested in what happened in the last week in another lawsuit, Andrew McCabe’s lawsuit against DOJ for being fired as a result of Trump’s personal retaliation against him.

Whereas CREW and NSA sued in December, McCabe instead submitted a document subpoena to the Executive Office of the President on November 4 asking for materials relating to McCabe and his firing. Since then, the parties have been squabbling over how to deal with the subpoena and, specifically, how to make sure that relevant records stored on private accounts would be preserved.

In a mid-December hearing, Judge Randolph Moss endorsed, in principle, that such records should be preserved both by those who’ve already left government and those who remained at the White House.

That’s when things got interesting.

According to a status report submitted the day of the insurrection, even though this dispute was primarily about those still in the White House, the government tried to claim it would be too onerous to ask current White House employees — McCabe focused specifically on Hope Hicks, Dan Scavino, Stephen Miller, and Jared Kushner — to simply ask these four specifically whether they have archived their private server emails and WhatsApp chats properly and if not, to both do so and tell McCabe’s team if they haven’t.

Defendants’ position is as follows: Plaintiff asks that Defendants apply the procedure outlined in paragraph five above to four current EOP employees (Hope Hicks, Jared Kushner, Stephen Miller, and Daniel Scavino) to ensure that the individuals have copied any PRA records to an official EOP account before the end of their service at the White House. The White House has reminded all employees since the November election of their existing obligation to do just that—ensure that any official communications conducted on personal devices have been preserved on an official EOP account before the transition. Thus, there is no need to provide additional reminders to these individuals, particularly where there is no reason to presume that they have not complied with their obligations to preserve records. The benefit, if any, of requiring another reminder is outweighed by the burden on the EOP and its employees, especially given the deference owed to the White House in matters of discovery, see Cheney v. United States District Court for the District of Columbia, 542 U.S. 367, 387 (2004), and the alleged peripheral, at best, role of the four EOP employees in this litigation, as to which the White House is not even a defendant.

As McCabe’s team pointed out, it’s not enough to say these White House employees have a general obligation under the toothless PRA; these employees should also know they have a specific obligation under a lawsuit in which discovery has already been granted.

Moreover, a general post-election reminder to preserve documents does not suffice to inform the four current EOP employees of their obligation, specific to this litigation, to preserve relevant documents.

There’s no reason for DOJ to react in the way they did unless they had reason to believe the simple document retention request would cause problems. That’s particularly true given that, over the course of the Mueller investigation, DOJ has learned over and over that Jared (and people like Steve Bannon) weren’t archiving official records on specifically this topic. They already know details about what Jared (and Bannon) destroyed, which may explain why they responded in this fashion.

On January 8, Judge Moss sided with McCabe on this dispute, and ordered DOJ to give the four people specific warnings.

I assume, like everyone else, that Trump and his spawn have been lighting bonfires on their way out.

But in Jared’s case, he will now be asked, legally, whether he has done so.

The PRA still doesn’t have any teeth. But we may learn whether DOJ has been covering for Jared’s past document destruction, including on matters pertaining to the Mueller investigation and Trump’s vengeance for the investigation.

Triage and Impeachment: Prioritize a Legitimate Criminal Investigation into the Wider Plot over Impeachment

I want to talk about triage in the wake of the terrorist attack on Wednesday as it affects consideration of how to hold Trump accountable for his role in it.

First, some dates:

If Mike Pence were to invoke the 25th Amendment (with the approval of a bunch of Trump’s cabinet members), it could go into effect immediately for at least four days. Trump can challenge his determination, but if the same cabinet members hold with Pence, then Trump’s disqualification remains in place for 21 more days, enough to get through Joe Biden’s inauguration.

Both the House and Senate are not in session, and can’t deviate from the existing schedule without unanimous consent, meaning Mo Brooks in the House or Josh Hawley in the Senate could single-handedly prevent any business.

Because of that, impeachment in the House can’t be started until tomorrow. Right now, Pelosi is using the threat of impeachment as leverage to try to get Pence to act (or Trump to resign, though he won’t). If that doesn’t work, then the House seems prepared to move on a single article of impeachment tied to Trump’s attempts to cheat and his incitement of the insurrection. Pelosi won’t move forward on it until she’s sure it has the votes to succeed.

Even assuming a majority of the House votes to impeach Trump, that will have no impact on his authority to pardon co-conspirators, and he’ll surely attempt to pardon himself, one way or another. Because of Wednesday’s events, he will be doing that without the assistance of Pat Cipollone, which means he’s much more likely to make his plight worse.

Impeaching this week would, however, force Republicans to cast votes before it is clear how the post-insurrection politics will work out (indeed, while Trump still has the power of the Presidency). Significantly, a number of incoming members are angry that Kevin McCarthy advised them to support the insurrection. The vote may be as much an attempt to undo complicity with Wednesday’s actions as it is anything else. Done right, impeachment may exacerbate the fractures in the GOP; done wrong, it could have the opposite effect.

If the House does impeach, then the Senate will not — barring a change of heart from Hawley and everyone else who was still willing to be part of this insurrection — take up the impeachment until January 19 (the parliamentarian has already ruled on this point). That means, the trial for impeachment either happens in Joe Biden’s first week in office, or the House holds off on sending the article of impeachment over to the Senate until Chuck Schumer deems it a worthwhile time. He can also opt to have a committee consider it, calling witnesses and accruing evidence, which will provide the Senate (where there are more Republicans aiming to distance from Trump) a way to further elaborate Trump’s role in the terrorism.

Meanwhile, by losing all access to social media except Parler and with Amazon’s decision yesterday to stop hosting Parler (which will mean it’ll stay down at least a week, until January 17), Trump’s primary mouthpieces have been shut down. There’s reason to believe that the more sophisticated insurrectionists have moved onto more secure platforms like chat rooms and Signal. While that’ll pose some challenges for law enforcement trying to prevent follow-on attacks on January 17, 19, or 20, being on such less accessible platforms will limit their ability to mobilize the kinds of masses that came out on Wednesday. Trump has lost one of the most important weapons he can wield without demanding clearly criminal behavior from others. That said, the urgency of preventing those sophisticated plotters — and a good chunk of these people have military training — from engaging in more targeted strikes needs to be a priority.

But Trump is still President, with his hand on the nuclear codes, and in charge of the chain of command that goes through a bunch of Devin Nunes flunkies at DOD. Nancy Pelosi called Chairman of the Joint Chiefs Mark Milley and come away with assurances that Trump won’t be able to deploy nukes.

Preventing an Unhinged President From Using the Nuclear Codes: This morning, I spoke to the Chairman of the Joint Chiefs of Staff Mark Milley to discuss available precautions for preventing an unstable president from initiating military hostilities or accessing the launch codes and ordering a nuclear strike. The situation of this unhinged President could not be more dangerous, and we must do everything that we can to protect the American people from his unbalanced assault on our country and our democracy.

Nevertheless that still leaves Trump in charge of the vast federal bureaucracy, which has been emptied out and the filled back up with people who could pass Johnny McEntee’s loyalty oaths to Trump.

Because this is where we’re at, I have argued that there needs to be a higher priority on getting at least Biden’s operational nominees, along with Merrick Garland, confirmed over impeaching Trump — yet — in the Senate.

We have not yet heard why DOD and DHS and the FBI — on top of the Capitol Police — failed to prevent the terrorist attack on Wednesday (I’ll have more to say about this later). It will take a year to sort out all the conflicting claims. But as we attempt, via reporting, via oversight in Congress (including impeachment), and via a criminal investigation to figure that out, those same people who failed to prevent the attack remain in place. Indeed, most of these entities have offered little to no explanation for why they failed, which is a bad sign.

Because of that, I think Biden needs to prioritize getting at least Garland and Lisa Monaco confirmed as Attorney General and Deputy Attorney General at DOJ, along with a new Acting US Attorney for DC, as soon as possible. I have two specific concerns. First, while FBI has generally been good at policing white supremacists in recent months, they failed miserably here, when it mattered most. One effect of retaliating against anyone who investigated Trump for his “collusion” with Russia has been to install people who were either Trump loyalists or really skilled at avoiding any slight to Trump. Indeed, one of the most charitable possible excuses for FBI’s delayed response is that after years of badgering, otherwise reasonable people were loathe to get involved in something that Trump defined as an election issue.

I have more specific concerns about the DC US Attorney’s office. Michael Sherwin, who has been less awful as Acting US Attorney than Timothy Shea, originally said on the record all options in the investigation that will be led out of his office were on the table, including incitement by Trump. But then someone said off the record that Trump was not a focus of the investigation. I suspect that person is Ken Kohl, who as Acting First Assistant US Attorney is in charge of the investigation and has been cited in other announcements about the investigation.

Ken Kohl at least oversaw, if not participated in, the alteration of documents to help Trump get elected. I’ve been told he’s got a long history of being both corrupt and less than competent. The decisions he will oversee in upcoming weeks could have the effect of giving people the opportunity to destroy evidence that lays out a much broader conspiracy, all while rolling out showy charges against people who were so stupid they took selfies of themselves committing crimes. We want this investigation to go beyond a slew of trespassing charges to incorporate the actual plotting that made this attack possible. It’s not clear Kohl will do that.

Even assuming that people currently in DOJ are willing to collect evidence implicating Trump, short of having a confirmed Attorney General overseeing such decisions, we’re back in the same situation Andrew McCabe was in on May 10, 2017, an Acting official trying to decide what to do in the immediate aftermath of a Trump crime. Trump’s backers have exploited the fact that McCabe made the right choices albeit in urgent conditions, and they’ve done so with the willing participation of some of the people — notably, FBI Deputy Director David Bowdich — who are currently in charge of this investigation.

I’m happy to entertain a range of possible courses going forward, so long as all of them involve holding Trump accountable to the utmost degree possible. I assume Nancy Pelosi, whatever else she’ll be doing, will also be counting the votes to understand precisely what is possible, given the schedule.

But I also know that I’d far rather have Trump and those he directly conspired with criminally charged than have an impeachment delay the thorough fumigation of a government riddled with people who may have had a role in this plot. And that’s not going to happen if the investigation is scoped in such a way in the days ahead to rule out his involvement.

Update: Here’s a much-cited interview with Michael Sherwin. He adopts all the right language (pointedly disavowing labels of sedition or coup, saying he’s just looking at crimes) and repeats his statement that if there’s evidence Trump is involved he’ll be investigated.

On Thursday you were quoted saying the conduct of “all actors” would be examined, which was interpreted to mean President Trump might face charges. Is that what you meant — the man who gave the speech at the start of the day could be looking at charges?

Look, I meant what I said before. In any criminal investigation, I don’t care if it’s a drug trafficking conspiracy case, a human trafficking case or the Capitol — all persons will be looked at, OK? If the evidence is there, great. If it’s not, you move on. But we follow the evidence. If the evidence leads to any actor that may have had a role in this and if that evidence meets the four corners of a federal charge or a local charge, we’re going to pursue it.

Update: This story describes how a senior McConnell aide called Bill Barr’s Chief of Staff who called David Bowdich who then deployed three quick reaction teams in response.

The senior McConnell adviser reached a former law firm colleague who had just left the Justice Department: Will Levi, who had served as Attorney General William P. Barr’s chief of staff.

They needed help — now, he told Levi.

From his home, Levi immediately called FBI Deputy Director David Bowdich, who was in the command center in the FBI’s Washington Field Office.

Capitol police had lost control of the building, Levi told Bowdich.

The FBI official had been hearing radio traffic of aggressive protesters pushing through the perimeter, but Levi said it had gone even further: The mob had already crashed the gates and lives were at risk.

Capitol police had said previously they didn’t need help, but Bowdich decided he couldn’t wait for a formal invitation.

He dispatched the first of three tactical teams, including one from the Washington field office to secure the safety of U.S. senators and provide whatever aid they could. He instructed two more SWAT teams to follow, including one that raced from Baltimore.

These teams typically gather at a staging area off-site to coordinate and plan, and then rush together to the area where they are needed. Bowdich told their commander there was no time.

“Get their asses over there. Go now,” he said to the first team’s commander. “We don’t have time to huddle.”

Not explained: why Bowdich was watching protestors get through the perimeter without deploying teams on his own. Again, I’m not saying he was complicit. I’m saying he has spent the last four years by letting Trump’s claims about politicization direct the Bureau, and can see how that habit might have led to a delayed response here.

The Claim that Billy Barr Didn’t Release Any Investigative Information During the Election Is False

Even before Billy Barr’s obsequious resignation, he and his handlers had been working the press to boost his tainted reputation. Consider not one (dated December 10) but two (dated December 14) WSJ stories boasting about how Barr kept the Hunter Biden investigations from going public. The WSJ lauds Barr for doing things that he pushed to have Peter Strzok and others prosecuted for also doing in the Russian investigation (one theory that John Durham and Jeffrey Jensen pursued is that because Strzok didn’t approve NSLs against Mike Flynn in November 2016 he had no basis to do so in February and March 2017).

Mr. Barr took more steps than previously reported to insulate the investigations, despite calls from President Trump and Republican allies to announce a probe involving President-elect Joe Biden’s son Hunter.

Mr. Barr and senior department officials relayed the instructions in conversations with prosecutors, questioning whether their staff members could be trusted and warning against issuing subpoenas or taking other steps that might become public, some of the people familiar with the matter said.

It’s full of fawning praise that accepts as true that Barr would never reveal information from an ongoing probe.

As the election drew nearer, calls from Mr. Trump and some Republican allies for the investigations rose in urgency. Mr. Barr and other top Justice Department officials resisted inquiries from several Republican lawmakers and their staffs for information on whether investigators were examining Hunter Biden, two people familiar with the matter said.

“It’s not even debatable that it is wrong for anyone in the chain of command at DOJ, especially the top law enforcement person in the country, to reveal an ongoing confidential criminal investigation. And Bill Barr was not going to do that,” said Richard Cullen, a former U.S. attorney and longtime friend of the attorney general.

The WSJ even points to the Scott Brady investigation, without noting what happened to it during the investigation.

After the acquittal, Mr. Barr announced that the U.S. attorney in Pittsburgh, Scott Brady, would receive and review information related to Hunter Biden and Ukraine from Mr. Giuliani.

As the NYT reported, Brady was pushing the FBI to do stuff they deemed inappropriate, particularly during an election year. It sounds like, to the degree that these investigations remained secret, that was due more to the FBI than to Barr or his hand-selected partisan US Attorney.

The steps were outside “normal investigative procedures,” one former senior law enforcement official with knowledge of the events said, particularly in an election year; Justice Department policy typically forbids investigators from making aggressive moves before elections that could affect the outcome of the vote if they become public.

The Pittsburgh F.B.I. office refused to comply without the approval of David L. Bowdich, the F.B.I.’s deputy director, the former official said.

Mr. Brady’s demands soon prompted a tense confrontation with F.B.I. officials at the bureau’s headquarters in Washington. The meeting was mediated by Seth D. DuCharme, now the acting U.S. attorney in Brooklyn and at the time a trusted aide and ally of Mr. Barr’s at the Justice Department in Washington.

[snip]

Still, Mr. Brady pressed the F.B.I. to do more, officials said. The agents found ways to ostensibly satisfy Mr. Brady without upending the election. It is not clear how they compromised, but agents could have investigated more discreetly, like questioning witnesses they were confident would keep quiet or checking databases.

WSJ addresses the Durham investigation this way in its last three paragraphs.

Mr. Barr soon after ordered an investigation into the origins of the FBI’s 2016 probe that had led to Mr. Mueller’s appointment. Mr. Barr openly contemplated releasing the results ahead of November’s election. He told The Wall Street Journal in August the department’s election-sensitivities policy did not apply because the previously announced inquiry did not “reach to Obama or Biden, and therefore the people under investigation are in fact not really political figures.”

Then, the federal prosecutor leading that review, John Durham, hadn’t completed his work in time. Mr. Durham’s deputy resigned in part over concerns that Mr. Barr would use the findings for political gain, the Journal previously reported. Mr. Trump and his allies said they hoped some findings would be released before the election. Mr. Durham hasn’t commented on his team’s work.

In October, Mr. Barr appointed Mr. Durham special counsel, meaning he can only be removed for cause and likely leaving the probe for his successor to address. He didn’t disclose that appointment until Dec. 1.

I’m not sure how a piece that describes Nora Dannehy’s resignation can claim — anywhere — that Barr worked hard to keep investigative information secret. He tried to do the opposite, and failed, at least with respect to the Durham investigation.

But what he did in response should disabuse any journalist of the claim that Barr tried to keep investigative information secret.

In the 60 days leading up to the election, the Jeffrey Jensen released an interview report — from a witness that John Durham surely also interviewed — that was so obviously intended for political effect that it left out key details and evidence from the investigation into Mike Flynn and invited a pro-Trump FBI Agent to make accusations about Mueller prosecutors he didn’t even work with. The report was also redacted so as to hide material, complimentary information about the Mueller investigation.

At the same time, the Jensen investigation released a package of exhibits also reviewed as part of the Durham investigation, at least three of which had been altered, including to have their protective order footers removed:

One of the alterations — a misleading date falsely suggesting Biden played a role in the Mike Flynn investigation that DOJ knew well Bob Litt actually played — was used by Trump to make an attack on Joe Biden.

It is simply false to say that Barr didn’t release investigative information affecting Joe Biden. Indeed, under his micromanagement, Jensen did far worse than Jim Comey did in 2016, because the information was packaged up

After Trump Spent Four Years Inviting Russia to Hack the US, Russia Allegedly Did Just That

Yesterday, Reuters revealed that the same vulnerability used to steal FireEye’s Red Team tools was also used to spy on Treasury and Commerce’s National Telecommunications and Information Administration, which administers the Internet. Then WaPo revealed that Russia’s APT 29 hacking group is believed to be behind the compromise. Multiple outlets — including FireEye itself — revealed that the hack had used a vulnerability in SolarWinds IT monitoring software identified in the spring. FireEye explains the hack has targeted, “government, consulting, technology, telecom and extractive entities in North America, Europe, Asia and the Middle East,” (presumably reflecting what they’ve seen in their clients as they respond to their own compromise). And CISA issued an emergency directive aiming to stem the damage in agencies beyond just Treasury and NTIA (among SolarWinds’ other US government clients are DOJ and two nuclear labs, as well as Booz Allen, which might as well be US government). Later today, Reuters confirmed that DHS had also been targeted. State, NIH, and parts of the Pentagon have also been targeted.

Let me make clear before I start that thus far, this is nation-state spying, without the kind of sabotage we’ve seen from Russia in the past (if it is indeed Russia). Russia would do what they did with this vulnerability with or without Trump in office (indeed, I have a suspicion their overt hacks of the US will go up under President Biden, mostly because Trump didn’t need any help damaging the US government). While the full scope of the victims is not yet known, it’s quite clear that hackers targeted a slew of entities, governmental and not, with this campaign. So having Trump in office in no way created this campaign nor chose the target.

Nevertheless, it is the case that the President of the United States, as a policy matter, has gone to great lengths to make it easier for Russia to minimize the costs of hacking the US.

Almost four years ago, Mike Flynn called up the Russian Ambassador and asked him not to box the Trump Administration in in the wake of President Obama’s effort to hold Russia accountable for interfering in our elections, in part by hacking multiple participants in it, from both parties. Vladimir Putin complied with Flynn’s request, taking no steps in response. Not only did Sergey Kislyak make sure Flynn knew that his request had played a key role in Putin’s decision, but he told Flynn that the Trump Administration and Russia were on the same side, targeted by sanctions aiming to incur a cost for Russia’s actions. “I just wanted to tell you that we found that these actions have targeted not only against Russia, but also against the president elect.”

Well before Kislyak had suggested to the 30-year intelligence veteran that Russia and Trump were on the same side against establishment America, Flynn had already taken steps to hide his actions, perhaps because some Transition members, like Marshall Billingslea, objected to the pre-inauguration outreach to Russia.

When the whole thing got leaked to the public, Flynn lied even to the Vice President-Elect about his outreach.

But Trump appears to have been in on the secret. “The boss is aware” of Kislyak’s earlier requests of the Administration, Flynn told Kislyak on December 31, 2016. Indeed, Flynn made the first call that he would later lie about from Mar-a-Lago, while Flynn, “worked all day with trump from Mara lago,” as KT McFarland bragged in real time.

When the FBI interviewed Flynn about those calls a month later, he lied about the requests he had made of Russia. But he appears to have told a remarkable truth about one thing. “With regard to the scope of the Russians who were expelled,” from the US in retaliation for interfering in a US election, the FBI agents who interviewed him wrote, “FLYNN said he did not understand it. FLYNN stated he could understand one [diplomat expelled as a persona non-grata], but not thirty-five.” General Flynn, a thirty year veteran, thought an appropriate response to a systematic assault on American democracy was to kick out one suspected spy.

Months later (though this would not be revealed until years later), the newly installed President would make it clear he agreed with his short-lived National Security Advisor. In his first face-to-face meeting with representatives from Russia as President on May 10, 2017, President Trump told Foreign Minister Sergey Lavrov that he was unconcerned about Russian interference in the election that had made him President, because the US had historically done the same in other countries. Trump’s officials would take efforts to hide the most embarrassing aspects of that meeting (including that Trump shared highly sensitive Israeli intelligence with the Russians), first by altering the MemCon of the meeting and then having Trump’s new National Security Advisor, HR McMaster, give, “a misleading account of what happened during TRUMP’s meeting with LAVROV.” And Russia would have known that Trump and McMaster were lying.

Before Trump would tell Russia, to their face, that he didn’t much mind that Russia had hacked American democracy, he started dismantling the United State’s ability to prevent further hacks. That started with an effort to prevent the FBI from investigating why Flynn had reached out to Russia to undermine sanctions and (as a sentencing memo approved by Bill Barr’s DOJ would later explain) who ordered him to do so. The day Trump learned the FBI had interviewed Flynn, he asked FBI Director James Comey for loyalty. Then, after Trump fired Flynn — ostensibly for lying to the Vice President — he then privately asked the FBI Director to, “let[] this thing go, to let[] Flynn go.” After Comey testified publicly to Congress about the investigation, Trump fired him.

A long line of people would follow Comey out the door, many of them experts on Russia or counterintelligence or cybersecurity. Trump invented reasons in most cases (reasons that, as with Comey, sharply conflicted with his own views about Hillary Clinton). The obvious real reason had to do with retaliation for investigating him. But in those firings and resignations, Trump got rid of numerous people who had long fought Russian organized crime (like Andrew McCabe and Bruce Ohr), and counterintelligence experts like Peter Strzok. Before and after his impeachment, he got rid of other Russian experts like Marie Yovanovitch and Alexander Vindman. Even those who left of their own accord, like Fiona Hill, were demonized for their true testimony under subpoena.

The most remarkable moment came in July 2018, shortly after the Mueller team indicted Russia’s hackers for their attack on our democracy, when Trump met Putin in Helsinki.

Days before the meeting — though possibly after he had been warned the indictment was coming — Trump announced that he and Putin were talking about cybersecurity cooperation.

Then at the actual summit, with Putin displaying Trump like a soggy trophy, Trump sided with Putin’s denials over the US intelligence community in part because of conspiracy theories about the DNC server.

My people came to me, Dan Coats, came to me and some others, they said they think it’s Russia. I have President Putin. He just said it’s not Russia.

I will say this: I don’t see any reason why it would be. But I really do want to see the server but I have confidence in both parties.

I really believe that this will probably go on for a while, but I don’t think it can go on without finding out what happened to the server. What happened to the servers of the Pakistani gentleman that worked on the DNC?

Where are those servers? They’re missing. Where are they? What happened to Hillary Clinton’s emails? 33,000 emails gone, just gone. I think in Russia they wouldn’t be gone so easily.

I think it’s a disgrace that we can’t get Hillary Clinton’s 33,000 emails.

I have great confidence in my intelligence people, but I will tell you that President Putin was extremely strong and powerful in his denial today and what he did is an incredible offer.

He offered to have the people working on the case come and work with their investigators, with respect to the 12 people. I think that’s an incredible offer. Okay? Thank you.

That is, after a lengthy meeting with Putin, Trump simply decided — perhaps because he had to decide — that Russia had not attacked the US at all. His solution, per Putin’s suggestion, was to send people who had been investigating Russian crimes to Russia, something that has gotten people killed in the past.

Meanwhile, Trump started dismantling the cybersecurity defenses built up during the Obama Administration. The first day John Bolton started as Trump’s third National Security Advisor, experienced cybersecurity guy Tom Bossert was fired as Homeland Security czar.

President Donald Trump’s homeland security adviser, Tom Bossert, was fired Tuesday as the president’s new national security adviser, John Bolton, consolidates power in the White House.

On Monday night, Bossert was socializing with current and former U.S. Intelligence officials at a conference in Sea Island, Georgia, and a source close to him told NBC News that the adviser was unaware of any intention at the White House to seek his resignation, and that he had no plans to quit.

“New team,” the source said, without further explanation.

Bossert was called in to Bolton’s office early Tuesday morning and told that he was being fired, according to a source with direct knowledge.

Trump’s associates may have figured out that Bossert had provided key details about the events at Mar a Lago in December 2016; he also appears to have provided emails to Mueller’s team that helped them to get those of others like Jared Kushner and Steve Bannon.

Rob Joyce, a top NSA expert, was moved back to the Agency a few months after Bossert left. So even as Bolton was downgrading the pandemic expertise within NSC, he was also eliminating top cybersecurity talent.

That was done because Bolton is a power hungry asshole. But Trump continued eliminating cybersecurity expertise (even beyond that ensuring secure elections) in a fit of pique after the election. At a time when this hack would have already started, Trump fired the head of CISA, Chris Krebs, along with a deputy because they refused to back his conspiracy theories about the election. Politico reported that, in Krebs’ absence, “There is ‘massive frustration with CISA on a sluggish response to agency breaches.'”

Cybersecurity was one area where Trump’s team really was every bit the match of Obama’s — if not better. But Trump fired or removed key people one after another.

Similarly, also in a fit of pique, Trump put one after another unqualified flunky in charge of the entire Intelligence Community, first Twitter troll Ric Grenell and then resume fluffer John Ratcliffe. He did so, in substantial part, because they would ensure that Congress would not get briefed on threats from Russia. He also did so to ensure documents that purportedly undermined the case that he had been elected with Russian help would be released to the public. Under the two men, the government released documents that might have revealed key details about sources and methods to the Russians, both on how they collected on the Russian Embassy and on how quickly the CIA picked up certain pieces of intelligence in summer 2016.

Finally, things have come full circle. After Flynn blew up a perfectly good plea agreement (I’ll show in a few days he still would have been better off with that) largely in the service of making unsubstantiated claims of abuse refuted even by Barr’s DOJ along the way, Barr needed to help him out of the legal pickle and jail time his shitty defense attorney Sidney Powell got him into. As part of that effort, the Attorney General of the United States moved to dismiss the prosecution based off a claim (one that conflicted with a filing submitted by his own DOJ months earlier) that Flynn did nothing wrong by calling up Russia to undermine sanctions imposed, in part, to punish them for a hack. The case was so weak, the team trying to invent excuses for why Flynn shouldn’t be prosecuted for lying to hide his attempts to undermine sanctions on Russia altered documents. And that still didn’t work.

And so, along with a Thanksgiving turkey, Trump pardoned Mike Flynn, his first act of lame duck clemency, for Flynn’s service in protecting Trump from accountability for, himself, undermining those sanctions. Trump came into office telling Russia not to worry about hacking the United States. Trump told them explicitly, to their face, not to worry about hacking the United States. And in pardoning Mike Flynn, Trump made it clear that Russia should not worry — about Trump at least — about hacking the Untied States.

We will presumably get more certainty in days ahead about whether Russia did this hack, as well as the many key targets of it. The real question, however, will be whether Trump will be held accountable for inviting it to happen.

Update: The NYT describes analysis pointing out that Trump continues to sow conspiracy theories about voter fraud while remaining silent about getting pwned by his buddy Putin.

Analysts said it was hard to know which was worse: that the federal government was blindsided again by Russian intelligence agencies, or that when it was evident what was happening, White House officials said nothing.

But this much is clear: While President Trump was complaining about the hack that wasn’t — the supposed manipulation of votes in an election he had clearly and fairly lost — he was silent on the fact that Russians were hacking the building next door to him: the United States Treasury.

Updated with link to Politico and expanded list of targets.

Update: Richard Blumenthal, after attending a classified briefing on this compromise, has repeatedly attributed it to Russia.

Mike Pompeo has similarly stated, as fact, that Russia did it.

John Durham and the First Fight over a Doctored MemCon of Trump’s Meetings with Russia

A year ago, John Durham was investigating who leaked the fact that Mike Flynn had secretly worked with Russia to undermine sanctions that served, in part, to punish Russia for helping Trump get elected. Mike Flynn and KT McFarland had been claiming that David Ignatius forced them to lie about conversations that they made active efforts to cover-up even when they were secret, an obviously bullshit claim, but one that DOJ adopted as credible nevertheless.

The problem with that prong of the investigation (even beyond the fact that Flynn and McFarland were already covering Flynn’s calls before they had been made public) — as I pointed out when it was reported — that the most likely sources of the news that Flynn had been having secret conversations with the Ambassador were several groups that could leak this information legally: Original Classification Authorities, outgoing or not, or members of Congress. For the record, Peter Strzok and Lisa Page appear to have assumed the leak came from Congress. But if James Clapper or Jim Comey or another OCA leaked it as part of a counterintelligence inquiry into why Flynn did that, it would be entirely legal. All the more so given that Trump was not yet in office.

Given the new details we have on the Durham investigation — including yet more proof he and his investigators grossly misunderstand counterintelligence — I’d like to return to another leak: that Trump shared highly classified Israeli intelligence with Sergey Lavrov in their meeting on May 10, 2017. Given recent events, I think there is a decent chance that Durham investigated and may still be investigating this one, too.

As I noted, among the last Mueller 302s released to BuzzFeed were three or four that dealt with this leak, a coincidence in timing that is among the reasons I suspect Durham may have reviewed these 302s. They first described how after a meeting around the time Jim Comey was fired, an FBI counterintelligence detailee to the White House got called into Acting Homeland Security Advisor John Daly’s office after a meeting and grilled in a way that the detailee seemed to find inappropriate. Among other things, Daly asked the detailee what he thought of Trump’s decision to fire Comey.

A second interview with the detailee conducted on the same day appears to describe the aftermath of the meeting on May 10, 2017, at which Trump shared this intelligence. It appears the detailee read the MemCom of the meeting and realized what Trump had done. He appears to have first alerted his boss of what happened (it’s unclear whether that boss was at the White House or FBI), and then escalated it. He tried to tell Tom Bossert, but instead told Daly, which led to the grilling by Daly laid out in the first interview. After that meeting, the detailee told Bossert what happened. The detailee’s notice to Bossert led him to take measures to minimize the damage, as described by the original report on the meeting.

Senior White House officials appeared to recognize quickly that Trump had overstepped and moved to contain the potential fallout. Thomas P. Bossert, assistant to the president for homeland security and counterterrorism, placed calls to the directors of the CIA and the NSA, the services most directly involved in the intelligence-sharing arrangement with the partner.

One of Bossert’s subordinates also called for the problematic portion of Trump’s discussion to be stricken from internal memos and for the full transcript to be limited to a small circle of recipients, efforts to prevent sensitive details from being disseminated further or leaked.

Over two years before similar events would lead to impeachment, Trump’s aides were trying to doctor the record of his calls with Russia to hide how he had damaged our allies.

According to the 302, Bossert applauded the detailee for alerting him of the problem. “Thank god you came to us.”

But then after the story leaked to the WaPo and NYT, the detailee was summoned to Bossert’s office, only to be grilled by both Bossert and Daly. After the detailee was grilled for 20-30 minutes, someone else was, as well. Almost immediately after his grilling, the detailee saw HR McMaster give a press conference at which, per the detailee, McMaster “gave a misleading account of what happened during TRUMP’s meeting with LAVROV.” Like Flynn had earlier that year, McMaster was lying publicly about something the Russians knew was a lie.

After he was grilled, the detailee appears to have informed FBI chain of command, including Bill Priestap.

Shortly thereafter, it appears that the detailee learned from Bossert that he was not getting a job he expected. The detailee asked when that decision was made, Bossert appears to have lied either about the job offer or about the decision to alter the MemCon in real time.

Not long after, the detailee left the NSC. Before he did, he put copies of emails recording all this as well as the partially redacted MemCon he had seen in a safe. The 302 suggests that the White House fired all the other people who had seen the MemCon.

Among the other 302s released last week include a record of FBI obtaining copies of Bill Priestap’s discussions with Ezra Cohen-Watnick and what appears to be the detailee at the time, which almost certainly includes notes relaying the events surrounding the MemCon. There’s also an almost entirely redacted 302 from Ted Gistaro, which was at least his second interview. Gistaro was Trump’s briefer both at Mar-a-Lago during the Transition period when Flynn was secretly calling Sergey Kislyak and probably still during the May 2017 period. Another 302 might be the FBI picking up the documents that the detailee had left behind.

All that is to say that among the very last documents that Bill Barr’s DOJ cleared for public release deal with a very complex set of problems central to questions of Trump’s relationship with Russia during the days that FBI would expand its counterintelligence investigation to incorporate Trump, as well. There’s the matter of the leak, which has never been charged. The original WaPo, which appears to have relied on more sources, cites both current and former officials, including at least one who remained close to Trump officials.

President Trump revealed highly classified information to the Russian foreign minister and ambassador in a White House meeting last week, according to current and former U.S. officials, who said Trump’s disclosures jeopardized a critical source of intelligence on the Islamic State.

[snip]

“It is all kind of shocking,” said a former senior U.S. official who is close to current administration officials. “Trump seems to be very reckless and doesn’t grasp the gravity of the things he’s dealing with, especially when it comes to intelligence and national security. And it’s all clouded because of this problem he has with Russia.”

[snip]

“Russia could identify our sources or techniques,” the senior U.S. official said.

A former intelligence official who handled high-level intelligence on Russia said that given the clues Trump provided, “I don’t think that it would be that hard [for Russian spy services] to figure this out.”

Given that Bossert called NSA and CIA to alert them, there would be many candidates for this, including the OCAs for the intelligence and the partnership with our ally. Indeed, the journalists on the original story cover CIA and the Pentagon, not FBI. But the grilling of the detailee suggests that the White House suspected him.

Then there’s the matter of what the FBI should do with this information — and it seems fairly clear that the detailee was one if not the primary source of the information for the people overseeing the Crossfire Hurricane investigation. It is absolutely within Trump’s right to give our enemies classified information. It also undoubtedly damages the US (as the Trump-friendly source[s] for the story seem to agree).

If Andrew McCabe included this exchange among the things he considered before opening a counterintelligence investigation into Trump, I can see how Durham — who has exhibited over and over that he doesn’t understand counterintelligence — would deem it inappropriate, particularly if egged on by Bill Barr. If an FBI counterintelligence detailee at the White House had a role in its dissemination, all the more so.

But I can also see how, from a counterintelligence investigation, McMaster’s lies about this (on behalf of Trump) would raise concerns about Trump’s compromise. As with Flynn before him, the Russians would know that Trump was lying about his coziness with Russia.

Barr has set Durham up such that he can issue a report that the Attorney General — whoever it is — will be expected to make public (though if the report violates the rules that got Jim Comey fired, there would be a good excuse not to). If this is part of Durham’s investigation, Barr may be trying to suggest that the counterintelligence investigation into Trump was wholly inappropriate.

There’s a problem with that, of course. Trump had already probably committed a crime in working on a pardon for Julian Assange, well before he was even elected. That is, neither the leak to Ignatius (by whomever) nor the leak about the Russian meeting (by whomever) can be said to have inappropriately kicked off the counterintelligence investigation into Trump. His actions in October 2016 had already done that.

But, even if Durham showed any inkling of understanding of the counterintelligence matters he is investigating,  there’s no reason to believe he would know that there are seemingly ongoing matters that implicate Trump even before he was elected.

And if this is Barr’s play, of course, it may be undercut once Trump leaves office. Already, HR McMaster has, years later, criticized Trump’s efforts to coddle Russia. If asked to do so under oath in the next Congress, he may have far more to say about the damage Trump did to the country because he was so insecure about Russia’s help in the election.

Update: Bill Leonard, the former head of ISOO (and as such the guy who was in charge of the entire US classification system during the W administration), has corrected me on my assertion that Trump could legally share this information. He could under US law, but doing so violated international law. He explains:

Based upon reporting, the information Trump compromised was provided to the U.S. by an intelligence partner pursuant to a bilateral agreement.  Under international law, this bilateral executive agreement obligated the U.S. to protect the information.  Within the U.S., we have elected to utilize the classification system to protect such shared information.
While as President, Trump is free to abrogate the bilateral agreement, there is no indication that this was his intent.  Thus, pursuant to International law, he was obligated to protect it which he clearly failed to do.
Reverse the situation.  Foreign leaders do not have the right to unilaterally disclose U.S. classified information that has been shared with their country pursuant to a bilateral agreement.  The same restrictions pertain to a U.S. president.
Classification is but one of the many authorities this president has abused.  It needs to be called out as such.

How Ric Grenell and Sidney Powell Have Made It Easier to Prosecute Donald Trump for Conspiring with Russia

In a Mike Flynn sentencing memo submitted in January delayed twice to secure all necessary approvals, Bill Barr’s DOJ asserted that Flynn’s lies were material because they hid, in part, who directed that he call up the Russian Ambassador and undermine sanctions.

It was material to the FBI’s counterintelligence investigation to know the full extent of the defendant’s communications with the Russian Ambassador, and why he lied to the FBI about those communications.

[snip]

The defendant’s false statements to the FBI were significant. When it interviewed the defendant, the FBI did not know the totality of what had occurred between the defendant and the Russians. Any effort to undermine the recently imposed sanctions, which were enacted to punish the Russian government for interfering in the 2016 election, could have been evidence of links or coordination between the Trump Campaign and Russia. Accordingly, determining the extent of the defendant’s actions, why the defendant took such actions, and at whose direction he took those actions, were critical to the FBI’s counterintelligence investigation.

That makes sense. After all, Don Jr took a meeting in June with envoys for Aras Agalarov and — at a meeting offering dirt on Hillary Clinton — said his father would reconsider Magnitsky sanctions after the election. Both after that meeting and on October 7 — two of three days that stolen emails were released — Aras Agalarov provided elaborate gifts to Trump, the latter one personally couriered from Russia by Ike Kaveladze. When Agalarov didn’t succeed in revisiting his conversations about sanctions directly after the election, Jared Kushner sought out a back channel. Flynn’s conversations with Sergey Kislyak arose directly out of the meeting at which Kushner made that request, and Kushner ordered Flynn to pursue the discussions with Kislyak. Flynn, Kushner, and KT McFarland made efforts to keep those conversations secret, even from other members of the Administration. At the same time, Flynn and McFarland were explicitly talking about sending secret messages between Putin and Trump.

So it would make sense that Flynn’s effort to undermine sanctions might be proof that Trump had entered into a quid pro quo back in June, rewarding Russia’s help for getting elected with sanctions relief.

But the Mueller Report did not find adequate proof that Trump directed this effort to charge it.

Some evidence suggests that the President knew about the existence and content of Flynn’s calls when they occurred, but the evidence is inconclusive and could not be relied upon to establish the President’s knowledge.

[snip]

Our investigation accordingly did not produce evidence that established that the President knew about Flynn’s discussions of sanctions before the Department of Justice notified the White House of those discussions in late January 2017.

The Report relies on some, but not the most damning, of the exchanges back and forth between Flynn, McFarland and others released in an affidavit targeting them in 2017, as well as Flynn and McFarland’s testimony.

Since that time, several other pieces of evidence have become available — thanks to the interventions of former Acting Director of National Intelligence Ric Grenell and Flynn (and recently fired Trump) attorney Sidney Powell, among others — that might tip the balance on this evidentiary question.

Bill Barnett’s interview report claims he pursued a desired outcome in the interviews of Flynn and KT McFarland

One of those things is the testimony of Bill Barnett, one of the key FBI agents who investigated Flynn. Barnett was interviewed by Jeffrey Jensen in the review of Flynn’s prosecution that Sidney Powell demanded in June 2019 and Bill Barr gave Powell in January 2020, just after DOJ filed a sentencing memo calling for prison time.

Barnett’s testimony is, by itself, remarkable for all the ways it materially conflicts with the actions he took in the case. Effectively, he claims to have treated the investigation as a criminal investigation when documents he drafted clearly treat it as a counterintelligence investigation (thereby undermining all the claims that this was just about the Logan Act).

Barnett also claims that, after expressing disinterest in conducting this investigation four different times but ultimately relenting only so he could serve as a counter-weight to other investigators on the team, he single-handedly prevented the Mueller team from concluding that KT McFarland was lying when she told a story about coordinating with Mar-A-Lago that exactly paralleled the lies that Flynn originally told.

Barnett describes that he was the only one who believed that KT McFarland was telling the truth when she said that she did not remember Trump directing Flynn’s efforts to undermine sanctions. Significantly, he describes this question as — in Mueller’s view — “key to everything.”

Many at the SCO had the opinion that MCFARLAND had knowledge TRUMP was directing [sanction discussions] between FLYNN and the Russian Ambassador. When MCFARLAND did not provide the information sought, it was assumed she was lying. When BARNETT suggested it was very possible MCFARLAND was providing truthful information, one of the SCO attorneys participating in the interview said BARNETT was the only person who believed MCFARLAND was not holding back the information about TRUMP’s knowledge of [the sanction discussions]. MUELLER described MCFARLAND as the “key to everything” because MCFARLAND was the link between TRUMP, who was at Mar-a-Lago with MCFARLAND, and FLYNN, who was in the Dominican Republic on vacation, when [the calls] were made.

Again, it is stunning that Barnett was permitted to give this answer without being asked about the call records, which showed Flynn lied about consulting with Mar-a-Lago, to say nothing about the way that McFarland’s forgetfulness matched Flynn’s and then her unforgetting similarly matched Flynn’s. It’s not a credible answer, but Jeffrey Jensen doesn’t need credible answers.

Then, having made it clear that he believed that Mueller treated McFarland as the “key to everything,” BARNETT described how he single-handedly managed to prevent the entire team from concluding that Trump was in the loop.

BARNETT was told at one point he was being taken off the MCFARLAND proffer interview because SCO attorneys thought would be easier for MCFARLAND to talk without BARNETT there, due to her attitude toward BARNETT during past interviews.

McFarland has complained publicly about being caught in a perjury trap by the FBI agents who first interviewed her (and the 302s show a continuity among the FBI agents), so Fox viewers have actually seen evidence that McFarland had a gripe with Barnett.

BARNETT insisted he be on the interview. When BARNETT was told he would not be allowed on the interview, BARNETT suggested he might take the matter to the Inspectors General or to “11.” BARNETT believed some at SCO were trying to get MCFARLAND to change her story to fit the TRUMP collusion [sic] theory. [Probably Van Grack] later contacted BARNETT and said BARNETT would be part of the MCFARLAND interview.

During the proffer interview with MCFARLAND, the “obstruction team” was leading the interview. BARNETT described the “obstruction team’s” questions as general. They did not ask follow-up or clarifying questions. BARNETT was perplexed by their lack of asking follow-up questions. BARNETT began asking MCFARLAND follow-up questions and direct questions. BARNETT was trying to “cut to the chase” and obtain the facts. BARNETT asked questions such as “Do you know that as a fact or are you speculating?” and “Did you pass information from TRUMP to FLYNN?” Andrew Goldstein (GOLDSTEIN), a SCO Attorney, called “time-out” and cautioned BARNETT by saying, “If you keep asking these questions, we will be here all day.”

It’s unclear whether Barnett’s depiction is correct or not. The 302 of that interview is heavily redacted, but doesn’t show a “time out” in it. What matters for the purposes of this post is that Barnett is claiming he singlehandedly prevented McFarland from implicating the President.

You would never get this kind of admission from an FBI Agent, that he single-handedly undermined the questioning of a witness to get an outcome he believed in, all the while undermining his previously untainted credibility. But Sidney Powell’s demands led to DOJ producing it, nevertheless.

And that’s before any further scrutiny of Barnett’s role and the material inconsistencies here. Such scrutiny might come from the Strzok and Page lawsuits, which would have reason to use his pro-Trump tweets as proof that they were selectively disciplined for expressing political views on FBI-issued devices. Or, particularly given his efforts to blame investigative decisions on Andrew McCabe in ways that conflict with the public record, the McCabe lawsuit might have cause to inquire whether he was the agent who sourced a false story that Sara Carter published, alleging that McCabe said, “First we fuck Flynn, then we fuck Trump,” which ended up leading to the investigation into McCabe itself and ultimately to his firing. Or, DOJ IG might have cause to investigate the Jensen investigation itself, given how it submitted altered documents packaged up for publication, and the circumstances of the Barnett interview in particular, given how DOJ withheld material information from Judge Emmet Sullivan by redacting references to Brandon Van Grack in the interview report.

Interviewing Barnett in such an obviously biased way provides an easy hook for more scrutiny.

For the first time in history we can compare NSLs to warrants obtained

Then there’s another unprecedented thing that Powell’s demands produced: A report of (some of) the NSL’s that DOJ used against Flynn in early 2017. In an effort — almost certainly deliberately misleading — to suggest that McCabe and Strzok inappropriately got NSLs targeting Flynn in 2017 that they chose not to get in 2016 (there’s reason to believe they did get NSLs, only financial rather than communication ones), the government summarized what NSLs FBI obtained in February and March 2017. Those were:

One NSL, authorized on February 2, 2017, sought subscriber and toll billing records for a telephone number associated with Michael T. Flynn for the period from July 1, 2015 to the present.

A second and third NSL, authorized on February 7, 2017, sought “electronic transactional records” for an email address associated with Michael T. Flynn for the period from July 15, 2015 to the present and subscriber information for a telephone number associated with Michael T. Flynn for the period from August 1, 2016 to the present.”

A fourth, fifth, and sixth NSL, all authorized on February 23, 2017, sought toll records for three telephone numbers, for the period of January 1, 2016 to the present, and an email address, for the period of inception to the present, all associated with Michael T. Flynn.

A seventh NSL, issued on March 7, 2017, sought subscriber and transactional information for a telephone number associated with Michael T. Flynn from December 21, 2016, to January 15, 2017.

The government has only recently permitted NSL recipients to inform targets, but just targets, and only after a significant delay. Here, however, you have the government listing out the seven different communication records publicly, in a case where there was already a pending request and precedent to release the warrant applications publicly.

That not only allows us (again, for the first time I know of) to see how the FBI launders information learned in an NSL for use in a potential criminal prosecution, but it also tells us something about the communications devices the government had reason to find relevant when it did obtain warrants.

Warrant applications for Flynn’s iPhone 6 and a computer (first filed on July 7, 2017, then refiled on July 27, 2017) rely on toll records obtained in June 2017 and “other materials in the government’s possession” (which surely include those NSLs) to determine that Flynn had used the same phone from March 2015 until at least June 8, 2017. That said, Flynn changed the number three times, including after he learned he was under criminal investigation in January 2017. After Flynn refused to turn the phone over in response to a subpoena, the government obtained a warrant that would have permitted it to search Covington & Burling, where Flynn was storing it, if they didn’t otherwise produce the phone.

The warrant application and a parallel one targeting Flynn’s son* were focused on FIG, but written in a way such that any communications with foreign officials like Kislyak would still be responsive, and could be used in a False Statements or Foreign Agent prosecution.

By the time of the July 27 warrant that presumably successfully obtained Flynn’s phone, the government already had his Flynn Intelligence Group emails (there are two EDVA warrants that have not yet been unsealed, and some of those emails were turned over pursuant to a subpoena).

Also by that time, the government had confirmed that Flynn’s FIG email was provided by Google. This was the period prior to the time when DOJ agreed to let enterprise clients know when warrants were served on their facilities, meaning the government could have independently obtained FIG emails from Google, as they obtained Michael Cohen’s Trump Org emails from Microsoft in the same period.

On August 25, 2017 — the same day that Mueller asked GSA to turn over related devices and email accounts — Mueller obtained a warrant for Mike Flynn, KT McFarland, and Flynn assistant Daniel Gelbinovich’s devices and emails. GSA had provided Flynn one email account, three phones, and three computers, which would be consistent with devices hardened to three levels of classification — unclassified, Secret, and Top Secret (Flynn had renewed his clearance earlier in 2016). The government had already used a d-order to obtain the header information for the email accounts and obtained toll records by undisclosed means (of which there would be several possible, but the NSLs would have provided that information as well). In addition to sender and recipient information, the header information would have shown what IP any emails were sent from, using what devices (this would have built on information obtained via NSL), which can help to identify the location of someone. The August 25 affidavit referenced FIG emails obtained via subpoena to demonstrate that the Russians contacted Flynn at his Transition account (as well as via Gelbinovich and, apparently, Flynn’s son); though because the Russian side of the conversation would have already been targeted under FISA, the FBI also would have had their side of the communication, which the Russians surely knew.

Then on September 27, 2017, Mueller obtained a warrant targeting the email accounts and devices of Keith Kellogg, McFarland assistant Sarah Flaherty, Sean Spicer, Reince Priebus, and Jared Kushner. These two posts show how damning the content relayed in this warrant is. For the purposes of this post, however, the affidavit is useful because it identifies whether the emails Flynn and McFarland were using to communicate with the others were Transition accounts or not. While it appears Kellogg always used his Transition account, Flaherty, Spicer, and Priebus occasionally did, most of the rest did not, except in cases where they were writing cover emails. But her emails! (Numerous communications from Tom Bossert are included in this batch, as well, but that must come from an interview and subpoena he complied with.)

In addition, the affidavit explains that regarding the sanctions coordination, McFarland was consistently calling Flynn on his personal cell phone (the implication may be that earlier calls were on one of his GSA devices). He was responding to her and calling Kislyak from the hotel phone where he was staying in the Dominican Republic (the latter calls and their content, the FBI would know from FISA intercepts). The December 31 follow-up from Kislyak was placed to Flynn’s personal cell.  The affidavit does not, however, describe which phones Flynn used for other calls.

There are many details about these records that are interesting. Among the most interesting, however, is that the FBI would have known before they obtained the first warrants on Flynn’s devices and emails that almost none of the key calls with Russia, nor even the key calls coordinating the Russian sanctions call with McFarland and others, involved Flynn’s GSA devices. Additionally, there appear to be extra phones, not identified by the known warrants. These might be the possible targets of the NSLs:

One NSL, authorized on February 2, 2017, sought subscriber and toll billing records for a telephone number associated with Michael T. Flynn for the period from July 1, 2015 to the present. [Flynn personal phone]

A second and third NSL, authorized on February 7, 2017, sought “electronic transactional records” for an email address associated with Michael T. Flynn for the period from July 15, 2015 to the present and subscriber information for a telephone number associated with Michael T. Flynn for the period from August 1, 2016 to the present.” [Flynn Intelligence Group email and another phone (possibly his son’s?)]

A fourth, fifth, and sixth NSL, all authorized on February 23, 2017, sought toll records for three telephone numbers, for the period of January 1, 2016 to the present, and an email address, for the period of inception to the present, all associated with Michael T. Flynn. [GSA accounts]

A seventh NSL, issued on March 7, 2017, sought subscriber and transactional information for a telephone number associated with Michael T. Flynn from December 21, 2016, to January 15, 2017. [unidentified account]

At a minimum, the NSL report suggests that even though none of the calls identified in the warrants were to Flynn’s presumably more secure phones (indeed, only Spicer appears to have had a second phone at that point, probably in part because, of the others, only Kellogg and Flaherty had clearance), the government chose to obtain those phones as well. The government knew, when it obtained the August 2017 warrant, that there was something interesting on those second and third GSA lines Flynn was using.

If it weren’t for Sidney Powell’s attempts to frame Andy McCabe, these details would be totally classified. But because she demanded the “review,” it shows that there are parallel phone communications via which Flynn could have kept Trump in the loop on his calls to Russia (remember, translators believed the key December 29 one, which Flynn made from his hotel phone, sounded like he was using a speaker phone).

Ric Grenell releases really damning transcripts but withholds the potentially most damning one

Finally, in yet another unprecedented release, while he was Acting Director of National Intelligence, Twitter troll Ric Grenell prepared the release of the actual transcripts of the calls between Flynn and Kislyak, purportedly to show there was nothing untoward about the calls. (Current DNI John Ratcliffe approved the actual release as one of his first acts on the job.)

Even by itself, the transcripts were far more damning than the gaslighters suggested. Of particular note, on the December 31 call that Kislyak placed to tell Flynn that Putin had held off on retaliating because of his request, Flynn told the Russian Ambassador that Trump was aware of one thing — a proposed Syrian “peace” conference — that Kislyak had raised just two days before.

FLYNN: and, you know, we are not going to agree on everything, you know that, but, but I think that we have a lot of things in common. A lot. And we have to figure out how, how to achieve those things, you know and, and be smart about it and, uh, uh, keep the temperature down globally, as well as not just, you know, here, here in the United States and also over in, in Russia.

KISLYAK: yeah.

FLYNN: But globally l want to keep the temperature down and we can do this ifwe are smart about it.

KISLYAK: You’re absolutely right.

FLYNN: I haven’t gotten, I haven’t gotten a, uh, confirmation on the, on the, uh, secure VTC yet, but the, but the boss is aware and so please convey that. [my emphasis]

This evidence would have been inadmissible without Grenell’s intervention. There would have literally no way in hell Mueller would have been permitted to rely on it, a raw transcript of a FISA intercept targeting a foreign power. With it, however, you have Flynn saying in real time that Trump was aware of these conversations with Russia, well before they were made public. That’s precisely what Mueller concluded they couldn’t prove.

The transcripts make evidence obtained using criminal process still more damning, too.

For example, the transcripts and the affidavits make it clear that Flynn, McFarland, and the Russians were explicitly messaging back and forth. First Flynn explicitly told Kislyak that if Russia did not escalate in response to Obama’s sanctions, “we,” which would have to include Trump, would recognize that as a message.

Flynn: And please make sure that its uh — the idea is, be — if you, if you have to do something, do something on a reciprocal basis, meaning you know, on a sort of even basis. Then that, then that is a good message and we’ll understand that message. And, and then, we know that we’re not going to escalate this thing, where we, where because if we put out — if we send out 30 guys and you send out 60, you know, or you shut down every Embassy, I mean we have to get this to a — let’s, let’s keep this at a level that us is, even-keeled, okay? Is even-keeled. And then what we can do is, when we come in, we can then have a better conversation about where, where we’re gonna go, uh, regarding uh, regarding our relationship. [my emphasis]

When Putin announced he would not retaliate, KT McFarland sent two emails explicitly labeling the move as a signal.

My take is Russians are taking the most restrained retaliation possible — it’s his Signal to trump that he wants to improve relations once obama leaves. Although [Obama] didn’t mean to he has given [Trump] new leverage over Putin.

[snip]

Putin response to NOT match obama tit for tat are signals they want a new relationship starting jan 20. They are sending us a signal.

But then Trump thanked Putin for the move, suggesting he was in on the signaling.

After he did so, McFarland sent Flynn, Kellogg, Flaherty, Priebus, Kushner, and Bannon — the latter of whom almost never used their official accounts but did here — and laid out a cover story, describing Flynn’s call without mentioning that he had raised sanctions. She offered,

a summary of FLYNN’s conversation the day before with the Russian “AMBO,” which I believe to be shorthand for “Ambassador.” McFarland appears to recite a summary of information she received from FLYNN in this email; she provides a summary of FLYNN’s conversation with the Russian Ambassador, but does not indicate that they discussed the sanctions imposed against Russia that had been announced earlier that day.

Flynn would admit to Mueller’s team that he, and therefore McFarland, who knew the truth, deliberately hid his discussions of sanctions with Kislyak.

Shortly thereafter, Flynn sent a text message to McFarland summarizing his call with Kislyak from the day before, which she emailed to Kushner, Bannon, Priebus, and other Transition Team members. 1265 The text message and email did not include sanctions as one of the topics discussed with Kislyak. 1266 Flynn told the Office that he did not document his discussion of sanctions because it could be perceived as getting in the way of the Obama Administration’s foreign policy.1267

But the Russians — who may have monitored some of the traffic that went on between these unsecure personal accounts — made damn well sure that the US intelligence community had a record that all this signaling was intentional. Kislyak called Flynn on his unsecure personal cell phone and told him he had a message, too. The message was that Flynn’s request was the reason Putin had not acted. The message was also that Russia recognized (or claimed to, to play to the Americans’ paranoia) to be pitted against the same hostile entities together.

Kislyak: Uh, you know I have a small message to pass to you from Moscow and uh, probably you have heard about the decision taken by Moscow about action and counter-action.

Flynn: yeah, yeah well I appreciate it, you know, on our phone call the other day, you know, I, I, appreciate the steps that uh your president has taken. I think that it was wise.

Kislyak: I, I just wanted to tell you that our conversation was also taken into account in Moscow and…

Flynn: Good

Kislyak: Your proposal that we need to act with cold heads, uh, is exactly what is uh, invested in the decision.

Flynn: Good

Kislyak: And I just wanted to tell you that we found that these actions have targeted not only against Russia, but also against the president elect.

Flynn: yeah, yeah

Kislyak: and and with all our rights to responds we have decided not to act now because, its because people are dissatisfied with the lost of elections and, and its very deplorable. So, so I just wanted to let you know that our conversation was taken with weight.

This messaging all ended up with Russia and the incoming President aligned on the same side, against the US government.

Still, that’s not direct proof that Trump was involved in real time (though I suspect the government obtained that from its NSLs).

But that may be why Mueller charged Flynn’s lies about the UN vote. In that case (in part because McFarland wasn’t hiding her actions as much), it’s clear that Jared Kushner ordered the effort (and the Americans initiated the calls).

According to records obtained during the course of the investigation, at approximately 8:46 a.m. on December 22, 2016, FLYNN had a four-minute conversation with Jared Kushner. After that conversation concluded, at approximately 8:53 a.m., FLYNN called the Russian Ambassador to the U.S. FLYNN then called a representative of the Egyptian government and had a four-minute conversation with him. At approximately 8:59 a.m., FLYNN had a three-minute conversation with the Russian Ambassador. Over the next few hours, FLYNN had several additional phone calls with the representative of the Egyptian government.

When the Trump crowd succeeded in delaying a vote, McFarland made it clear that Flynn was at Mar-a-Lago working directly with Trump on this effort.

At approximately 8:26 p.m. on December 22, 2016, K.T. McFarland emailed FLYNN and Sarah Flaherty and stated that FLYNN had “worked it all day with trump from mara lago.”

And in spite of the fact that he himself initiated the effort, Kushner sought to release a public cover story, to hide that he and his father-in-law initiated the effort.

Kushner replied all to that email [including Spicer, Bannon, Priebus, Kellogg, McFarland, Kushner, and one other person whose name is redacted] and wrote: “Can we make it clear that Al Sisi reached out to DJT so it doesn’t look like we reached out to intercede? This happens to be the true fact pattern and better for this to be out there.”

This was a lie — a lie designed to cover up that he and Trump and Flynn had worked with Egypt (which had allegedly bribed Trump to get him through the election) and Russia (which had conducted an elaborate operation to help him) to thwart the vote and with it the official US policy not to protect Israel’s illegal settlements.

As it turns out, the transcript from Flynn’s call to Russia that day isn’t among those Grenell released because they were so helpful to Trump. Even the one-line summary of the call, released for all other substantive calls, remains redacted.

But there, too, Kislyak may have been performing for the FBI intercepts he knew would catch these calls.

First, on the December 23 call — the one after the call for which the transcript hasn’t been released — Kislyak assures Flynn that whatever happened on it was considered by Putin.

Kislyak: Uh, I just wanted as a follow up to share with you several points. One, that, uh, your previous, uh, uh, telephone call, I reported to Moscow and it was considered at the highest level in Russia.

Then on the December 29 call, when Flynn asks Kislyak that Russia not box in the new Administration, Kislyak says that message has already been conveyed.

FLYNN: do not, do not uh, allow this administration to box us in, right now, okay? Um —

KISLYAK: We have conveyed it.

That request wasn’t in the December 23 call, so it must have been in one of the communications that preceded it, possibly even the face-to-face with Kushner in Trump Tower.

In his December 22 call — the one the content of which Grenell hid — Flynn made an ask of Russia, an ask that went beyond a vote at the UN. That was a call made from Mar-a-Lago, possibly even made with Trump on the call. That was a call that McFarland bragged Trump was involved with personally.

The Mueller Report, relying on evidence that would be admissible in court, said it was unclear how involved Trump was in any of this. But thanks to Ric Grenell, we now have solid evidence he was personally involved, if not on the phone for the call.

And even Bill Barr’s DOJ says that kind of personal involvement from Trump might amount to the kind of coordination that Bill Barr claimed didn’t exist.

When Mueller closed up shop, his team decided that they couldn’t make this case in court. Now, thanks to Sidney Powell and Ric Grenell, the Biden Administration may have a much easier time making that case.


*We know this warrant targeted Michael G. Flynn because it was sent to Barry Coburn, who represented the failson, because the warrant always refers to Flynn père as Michael T. Flynn (as an affidavit referencing both would necessitate), and the target of the third warrant tried to invoke the Fifth Amendment for questions about Flynn Sr.