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Did Mike Flynn Gamble and Lose on Bill Barr and Michael Horowitz?

Since the beginning of Mike Flynn’s attempt to blow up his plea deal, he has been investing his hopes on two things: first, that Bill Barr’s efforts to discredit the investigation into Flynn and other Trump flunkies will find something of merit, and that Michael Horowitz’s Inspector General Report into the origins of the Russian investigation will likewise substantiate Flynn’s claims the investigation into him was a witch hunt.

Even before Covington & Burling had withdrawn from representing Flynn, Sidney Powell wrote Barr and Jeffrey Rosen making wild claims that Flynn had been illegally targeted. Both that letter and Flynn’s motion for what he purported was Brady material asked for FISA materials that actually related to FISA orders on Carter Page, as well as any Brady or Giglio material found in Barr and Horowitz’s investigations.

His reply tied the FISA Report directly to its claim that the government can’t be trusted to comply with Brady.

The Mueller Report established that there was no conspiracy between anyone in the Trump campaign and Russia. It is also apparent now, or will be upon the release of the FISA report of the Inspector General, that the FBI and DOJ had no legal basis to obtain a FISA warrant against Carter Page or to investigate Mr. Flynn. 13 Yet, the government wants us to accept its word that the defense has everything to which it is entitled. Fortunately Brady exists to protect the accused “from the prosecutor’s private deliberations, as the chosen forum for ascertaining the truth about criminal accusations.”

The entire effort to blow up his plea deal was a risky bet that either Barr and/or Horowitz would deliver some basis for Emmet Sullivan to throw out his prosecution.

Thus far, the only thing Barr’s worldwide wild goose chase has turned up are two phones once owned by Joseph Mifsud that the government quickly pointed out are totally unrelated to Flynn.

Yesterday, the government and Flynn asked Judge Sullivan to delay the briefing schedule that would have led up to a December 18 sentencing, a request Sullivan granted today. The request noted that both sides expect the IG Report to relate to Flynn’s case, even while DOJ pretends not to have inside information about when the report will be released.

Additionally, the parties note that the Department of Justice’s Office of the Inspector General (OIG) is conducting an Examination of the Department’s and the FBI’s Compliance with Legal Requirements and Policies in Applications Filed with the US. Foreign Intelligence Surveillance Court Relating to a certain US. Person. The parties expect that the report of this investigation will examine topics related to several matters raised by the defendant. As widely reported by the media, that report is expected to issue in the next several weeks.

Thus far, however, the public reporting on the IG Report suggests the report will not only not corroborate the claims Flynn wants it to, but affirmatively undermine some of his claims. For example, the NYT describes that the report attributes blame to low-level employees but not the senior figures — Jim Comey, Andrew McCabe, and Peter Strzok — that Flynn’s entire challenge focuses on.

A highly anticipated report by the Justice Department’s inspector general is expected to sharply criticize lower-level F.B.I. officials as well as bureau leaders involved in the early stages of the Trump-Russia investigation, but to absolve the top ranks of abusing their powers out of bias against President Trump, according to people briefed on a draft.

[snip]

In particular, while Mr. Horowitz criticizes F.B.I. leadership for its handling of the highly fraught Russia investigation in some ways, he made no finding of politically biased actions by top officials Mr. Trump has vilified like the former F.B.I. director James B. Comey; Andrew G. McCabe, the former deputy who temporarily ran the bureau after the president fired Mr. Comey in 2017; and Peter Strzok, a former top counterintelligence agent.

And Horowitz’s reported finding that DOJ and FBI did not coordinate very well (something backed by materials Flynn already has in his possession) undermines Flynn’s allegations that everyone who works at both FBI and DOJ was in cahoots against Trump and therefore Flynn.

[T]he bureau and the Justice Department displayed poor coordination during the investigation, they said.

Finally, the adverse findings Horowitz will lay out largely relate to the Carter Page FISA, which had very little bearing on Flynn.

Investigators for the inspector general, Michael E. Horowitz, uncovered errors and omissions in documents related to the wiretapping of a former Trump campaign adviser, Carter Page — including that a low-level lawyer, Kevin Clinesmith, altered an email that officials used to prepare to seek court approval to renew the wiretap, the people said.

[snip]

Mr. Horowitz’s investigators have suggested that he is likely to conclude that the filings exaggerated Mr. Steele’s track record in terms of the amount of value that the F.B.I. derived from information he supplied in previous investigations. The court filings in the Page wiretap application said his material was “used in criminal proceedings,” but it was never part of an affidavit, search warrant or courtroom evidence.

(Note, I believe the IG is wrong to base the value of Steele’s information on what shows up in affidavits, because this is precisely the kind of thing that would be parallel constructed out of affidavits, by design.)

And the report will specifically deny a key claim Flynn has made, that the investigation into him derives from Steele or the CIA.

None of the evidence used to open the investigation came from the C.I.A. or from a notorious dossier of claims about Trump-Russia ties compiled by Christopher Steele, a former British intelligence agent whose research was funded by Democrats, the report concludes, according to the people briefed on it.

In short, the report will be damning on some fronts. But not damning in a way that will be very useful for Flynn.

Which leaves him well over his skis at a time when Sullivan may be conducting a close review of how flimsy Powell’s claims really are.

Update: And even as I was posting this, the NYT reported that the report will also confirm that the FBI was not spying on Trump’s campaign.

Judicial Watch Reveals Reza Zarrab’s Lawyer May Have Pitched Rosenstein on Special Counsel Pick

I love when Judicial Watch liberates documents they think are damning but actually demonstrate that conspiracy theories are false, as they did when they liberated Bruce Ohr documents showing he actually helped the FBI vet the Steele dossier. Then there’s the recent release showing that current US Attorney George Terwilliger was pushing Bill Barr’s theory that Jim Comey deserved to be fired the weekend before Robert Mueller was hired.

But there’s something potentially more important in that batch.

The WaPo’s coverage of Rudy Giuliani and Michael Mukasey’s efforts to pressure Rex Tillerson to push DOJ to release Turkish money launderer Reza Zarrab contextualizes the fall 2017 meeting by recalling that Trump and Erdogan met on May 16, 2017


The two leaders finished their first meeting and performed their ceremonial handshake at about 1PM.

Just half an hour earlier, at 12:30 PM, Andrew McCabe had explained to Rod Rosenstein that he had opened an investigation into Donald Trump. The two then discussed Rosenstein’s thoughts about appointing a special prosecutor. Rosenstein said he was choosing between two candidates, one (who must be Mueller) who could start immediately.

At 1:09, former Deputy Attorney General Mark Filip (and Bill Barr colleague) called Rosenstein from his Kirkland and Ellis phone, left a message, and asked Rosenstein to call him.

At 3:25, Rosenstein wrote back and told him “Mukasey might call.” It’s unclear whether this is Marc or Michael Mukasey, but it doesn’t much matter, because Michael was already representing Zarrab and Marc was very very close to Giuliani.

In other words, within hours after Erdogan met Trump at the White House and asked for Zarrab’s release, someone effectively representing Zarrab appeared to be in touch with Rosenstein, who then suggested that whichever Mukasey it was call Filip.

The thing is, by all appearances, this Mukasey call pertained to question about hiring a Special Counsel. That’s because shortly thereafter, Rosenstein writes Filip back and tells him he’s going with Mueller (which suggests Filip may have been his other candidate).

If all that’s right, it suggests one of Zarrab’s lawyers may have weighed in on the Special Counsel decision just minutes after Erdogan requested Trump release him and (simultaneously) a key McCabe-Rosenstein meeting.

That’s not all that surprising. After all, the Mike Flynn investigation had already developed to include at least two of four strands, the lies about Russia and the lies about Turkey.

But then Rosenstein chose to appoint Mueller, not his other choice (who may have been Filip).

From that moment, Republicans were pushing the Bill Barr line. And Bill Barr is now in charge (and was, for the closure of the Mueller investigation). And that push may have had as much to do with Turkey as it did Russia.

DOJ Suddenly Decides It Can Share the McCabe, Comey 302s with Congress

After DOJ asserted to DC Chief Judge Beryl Howell that US v. Nixon would be decided differently today, the judge instructed the parties fighting over whether DOJ will share the grand jury materials from the Mueller investigation with Congress to get busy. She set of bunch of short deadlines to determine the validity of DOJ’s claims to secrecy. As part of that, she had DOJ explain which FBI 302s (interview reports) it had shared of those the House Judiciary Committee requested, then had HJC fact check that list.

According to HJC, DOJ’s declaration alerted them, for the first time, that some of the redactions in 302s were made to protect “Executive Branch confidentiality,” a claim they’ll move to challenge.

Although DOJ discussed the bases for redaction in its Supplemental Submission and at the October 8, 2019 hearing, see DOJ Supp. Sub. ¶ 4; Hr’g Tr. 48-49 (Oct. 8, 2019), none of the bases for redactions are listed or otherwise indicated on the FBI-302 reports reviewed by the Committee. Instead, portions of the FBI-302 reports are simply blacked out without any explanation. During the Committee’s on-site reviews of the FBI-302 reports and in calls between Committee and DOJ officials, the Committee has repeatedly requested that DOJ specifically identify the complete set of bases for its redactions. The Committee still has not received this information as to any of the FBI-302 reports it has reviewed. While the Committee is generally aware that there were redactions for personally identifiable information, until the discussion during yesterday’s hearing and in DOJ’s Supplemental Submission, the Committee was unaware, for example, that the bases for redactions included either “Executive Branch confidentiality interests,” DOJ Supp. Sub. ¶ 4, or “presidential communications,” Hr’g Tr. 48:19- 20 (Oct. 8, 2019).

The more interesting revelation from the exchange, however, pertains to whether or not DOJ was going to supply all 302s, and which ones they might suppress. As DOJ explains, it has given HJC 302s for 17  of the 33 people they asked for (though the Rob Porter and Uttam Dhillon 302s were mostly redacted):

The Committee requested FBI-302s for 33 individuals. To date the Department has provided access to the FBI-302s of 17 of those individuals, several of whom had multiple interviews. Those individuals are (in alphabetical order): (1) Chris Christie, (2) Michael Cohen (six separate FBI-302s); (3) Rick Dearborn; (4) Uttam Dhillon; (5) John Kelly; (6) Jared Kushner; (7) Cory Lewandowski; (8) Paul Manafort (seven separate FBI-302s); (9) Mary McCord; (10) K.T. McFarland (five separate FBI-302s); (11) Stephen Miller; (12) Rob Porter (two separate FBI-302s); (13) Rod Rosenstein; (14) Christopher Ruddy; (15) Sarah Sanders; (16) Sean Spicer; (17) Sally Yates.

But it has thus far withheld 302s from a group of others.

The Department currently anticipates making the remaining FBI-302’s available under the agreed upon terms as processing is completed, so long as they do not adversely impact ongoing investigations and cases and subject to redaction and potential withholding in order to protect Executive Branch confidentiality interests. These include, in alphabetical order (1) Stephen Bannon; (2) Dana Boente; (3) James Burnham; (4) James Comey; (5) Annie Donaldson; (6) John Eisenberg; (7) Michael Flynn; (8) Rick Gates; (9) Hope Hicks; (10) Jody Hunt; (11) Andrew McCabe; (12) Don McGahn; (13) Reince Priebus; (14) James Rybicki; (15) Jeff Sessions. In addition, the Committee requested the FBI-302 for the counsel to Michael Flynn, which also has not yet been processed.

It’s an interesting list to withhold.

Hicks, of course, was privy to a great deal (including Trump’s effort to lie about the June 9 meeting), and her testimony about certain communications during the campaign was actually fairly revealing.

At least two of these may be withheld for the pendency of the Roger Stone trial; both Steve Bannon and Rick Gates will be witnesses, and Mike Flynn’s discussions of WikiLeaks may come up as well.

These 302s (and Dhillon’s heavily redacted one) cover virtually all of the White House’s side of discussions not to fire Mike Flynn right away after discovering he lied about his call with Sergey Kislyak: James Burnham, John Eisenberg, Don McGahn, and Reince Priebus, and of course Flynn himself, were all key players in that. Of course, Eisenberg (who’s the lawyer who decided to hide the records on Trump’s call to Volodymyr Zelensky) was involved in other acts that might indicate obstruction, including advising KT McFarland not to create a false record about what Flynn said. And McGahn was involved in much else (and might even have been asked about Stone’s campaign finance issues, which McGahn represented him on, and the awareness of the Trump campaign about will be an issue at Stone’s trial). But I find it acutely interesting that DOJ is withholding a bunch of records that will make it clear how damning Trump’s reluctance to fire Flynn was, even as Flynn attempts a propaganda driven effort to give Trump an excuse to pardon him.

Then there are the 302s pertaining to the recusal of Jeff Sessions and firing of Jim Comey (and immediate pressure on Andrew McCabe). Those include Comey himself, McCabe, Rybicki, Hunt, Sessions, and Dana Boente. The fact that DOJ has been withholding these (and it’s suggestion that there are ongoing investigations) is really sketchy: it suggests that DOJ may have been withholding really damning 302s from Congress so it can decide whether to indict McCabe and — presumably — wait for DOJ IG to finish its investigation of the FISA orders some of these men approved. In other words, DOJ has been releasing one after another damning claim against Comey and McCabe, but withholding evidence about why they might be targeted.

It’s also noteworthy that Boente and McGahn’s memory regarding an effort McGahn made to shut down the Russian investigation is one of the greatest conflicts of testimony in the entire Mueller Report.

The 302s DOJ has been withholding also happens to include 302s of current DOJ officials. Boente is the FBI General Counsel. More alarmingly, Jody Hunt runs the Civil Division and Burnham is his Deputy. These are the men directing the DOJ effort to make breathtaking claims about impeachment, and they’re hiding their own actions in the investigation about which Congress is considering impeachment.

But, having been asked by Howell what the state of affairs is, DOJ has now decided that they’re going to turn over 302s they previously had suggested they might withhold. HJC expressed some surprise about the sudden change of plans.

With respect to the outstanding FBI-302 reports, the Committee was surprised but encouraged by DOJ’s statement in its supplemental filing that it “currently anticipates making the remaining FBI-302s available.” DOJ Supp. Sub. ¶ 5. The Committee had previously understood from its recent communications with DOJ that DOJ’s production was nearing completion and that there were only a limited number of remaining documents that DOJ would disclose.

It will be interesting if and when HJC obtains these records to see how DOJ tried to protect itself.

Update: I’m reminded of two things. First, as I copied out this URL, I recalled that Turkey, along with Russia, would have known that he lied about his calls with Sergey Kislyak.

Also, in the government’s most recently filing in the Mike Flynn case, they revealed that he had not been in possession of the interview reports from between the time he was initially interviewed and the time he pled guilty.

Based on filings and assertions made by the defendant’s new counsel, the government anticipates that the defendant’s cooperation and candor with the government will be contested issues for the Court to consider at sentencing. Accordingly, the government will provide the defendant with the reports of his post-January 24, 2017 interviews. The government notes that the defendant had counsel present at all such interviews.

This suggests that the government was withholding reports that would make it clear that Flynn continued to lie, even after he lawyered up.

The Conspiracy Theories Flynn Wants to Resuscitate and the McCabe Investigation

Lost in the frenzy regarding the conspiracy theories Rudy Giuliani is planting and the Attorney General is personally chasing is the government’s response to Mike Flynn’s purported “Brady” demand — which accuses Flynn lawyer Sidney Powell of planting conspiracy theories. I tweeted about the package in this thread. While there may be a dispute about a few items, I correctly predicted that the main legal question is whether Emmet Sullivan will interpret his standing Brady order — requiring that prosecutors turn over Brady information even for defendants pleading guilty — will extend to Giglio information impeaching witnesses. In response to a request for any Brady or Giglio information discovered by DOJ’s Inspector General in the last two years, DOJ states flat out Giglio is not covered by Sullivan’s order.

The government has already provided the defendant with all Brady material; it is not obligated to provide Giglio material pursuant to the Court’s Standing Order, United States v. Flynn, 17-cr-232 (D.D.C. Feb. 16, 2018) (Doc. 20).

And much of the rest of what Powell is asking for, pertaining to Peter Strzok at least, would be Giglio.

That said, there is a part of the government’s substantiation that Sidney Powell is sowing conspiracy theories that deserves more attention. The government lays out how Flynn lawyer Rob Kelner asked the government three times about a conspiracy theory that Andrew McCabe, before Powell asked a fourth time.

The defendant’s complaints and accusations are even more incredible considering the extensive efforts the government has made to respond to numerous defense counsel requests, including to some of the very requests repeated in the defendant’s motion. For instance, the defendant alleges that former FBI Deputy Director Andrew McCabe said, “‘First we f**k Flynn, then we f**k Trump,’ or words to that effect;” and that Deputy Director McCabe pressured the agents to change the January 24 interview report. See Mot. to Compel at 4, 6 (Request ##2, 22). Defense counsel first raised these allegations to the government on January 29, 2018, sourcing it to an email from a news reporter. Not only did the government inform defense counsel that it had no information indicating that the allegations were true, it conducted additional due diligence about this serious allegation. On February 2, 2018, the government disclosed to the defendant and his counsel that its due diligence confirmed that the allegations were false, and referenced its interview of the second interviewing agent, who completely denied the allegations. Furthermore, on March 13, 2018, the government provided the defendant with a sworn statement from DAD Strzok, who also denied the allegations.

Nevertheless, on July 17, 2018, the defense revived the same allegations. This time, the defense claimed that the source was a staff member of the House Permanent Select Committee on Intelligence (“HPSCI”). The HPSCI staff member allegedly told the defendant that the second interviewing agent had told the staff member that after a debrief from the interviewing agents, Deputy Director McCabe said, “F**k Flynn.” Once again, the government reviewed information and conducted interviews, and once again confirmed that the allegations were completely false. And after defendant and his counsel raised the accusation for a third time, on October 15, 2018, the government responded by producing interview reports that directly contradicted the false allegations. Despite possessing all of this information, defense counsel has again resurrected the false allegations, now for a fourth time. See Mot. to Compel at 4, 6 (Request ##2, 22)

The persistence of this conspiracy theory — and HPSCI’s role in perpetuating it — is significant for another reason.

The IG Report on Andrew McCabe discusses how DOJ IG came to investigation McCabe this way.

In May 2017, the FBI Inspection Division (INSD) expanded a pre-existing investigation of media leaks to include determining the source of the information in the October 30 WSJ article regarding the August 12 McCabe-PADAG call. INSD added the October 30 article to their pre-existing matter because it appeared to involve an instance of someone at the FBI leaking the Deputy Director’s private conversations to the media.

The backstory to this is that Jim Comey asked the Inspection Division to investigate leaks (remember, something Trump had demanded). But the “pre-existing” investigation referenced reportedly pertained to the same conspiracy theory: that someone had leaked to the press that McCabe had said “First we fuck Flynn, then we fuck Trump” in front of some FBI Agents. (I believe the Circa story cited here eventually came to be part of the investigation, but TruePundit claims credit for the conspiracy, pointing to a version that temporally matches the timeline.)

Note the asymmetry to this story.

No DOJ entity, whether FBI’s Inspection Division, DOJ IG, or Flynn’s prosecutors have presented the public proof that this serial conspiracy theory has been debunked — much less chase down the Agents who keeps spreading it and prosecute them. But because the Inspector Division asked McCabe who might be leaking about him (which is what the initial question was), he is being pursued in an investigation that Reggie Walton denounced the other day.

This is how conspiracy theories about what DOJ and FBI did in the last three years are allowed to persist, much less get reentered into court filings that otherwise would get the lawyers doing so sanctioned.

The Definition of “Collusion” as Impeachment Proceeds: the Risk Trump Poses to All Americans

It’s a testament to how crazy things have been this week that this memo — Andrew McCabe’s memorialization of opening the investigation into Donald Trump on May 16, 2017 — only got covered by obsequious propagandists on the frothy right. Judicial Watch liberated it via FOIA and actually had to focus on something else — Rod Rosenstein’s offer to wear a wire — to drive interest.

I suspect that’s because the memo paints McCabe’s own actions in favorable light (and Rosenstein in a damning light, both as regards his own integrity and his purported loyalty to Trump). Consider this paragraph:

I began by telling [Rosenstein] that today I approved the opening of an investigation of President Donald Trump. I explained that the purpose of the investigation was to investigate allegations of possible collusion between the president and the Russian Government, possible obstruction of justice related to the firing of FBI Director James Comey, and possible conspiracy to obstruct justice. The DAG questioned what I meant by collusion and I explained that I was referring to the investigation of any potential links between the Trump campaign and the Russian government. I explained that the counterintelligence investigations of this sort were meant to uncover any [sic] the existence of any threat to national security as well as whether or not criminal conduct had occurred. Regarding the obstruction issues, I made clear that our predication was based not only on the president’s comments last week to reporter Lester Holt (that he connected the firing of the director to the FBI’s Russia investigation), but also on the several concerning comments the president made to Director Comey over the last few months. These comments included the President’s requests for assurances of loyalty, statements about the Russia investigation and the investigation of General Michael Flynn. I also informed the DAG that Director Comey preserved his recollection of these interactions in a series of contemporaneously drafted memos. Finally, I informed the DAG that as a result of his role in the matter, I thought he would be a witness in the case. [my emphasis]

The substance of this paragraph has been told before, albeit by certain NYT reporters who have consistently misunderstood the substance of Trump’s ties to Russia. Those tellings have always left out that McCabe also predicated a conspiracy to obstruct justice investigation (meaning, among other things, that Rosenstein himself was on the line for his actions to create an excuse for firing Comey). The emphasis, here, is also not focused exclusively on Mike Flynn but on the Russian investigation generally; as I’ve been meaning to show, Trump faced at least as much direct exposure given the investigation into Roger Stone, and his actions after he learned Stone was a target in March 2017 reflect that more than commonly understood.

By far, the most important detail in this paragraph, however, is McCabe’s definition of “collusion,” as he explained it the day before Rosenstein appointed Robert Mueller to investigate what he would later call collusion. Collusion, for McCabe, is just “potential links between the Trump campaign and the Russian government,” not necessarily any criminal ties. McCabe made this statement at a time when FBI knew about neither the June 9 meeting to get dirt on Hillary Clinton nor Trump’s sustained effort to pursue an improbably lucrative Trump Tower deal, to say nothing of the fact that Trump’s campaign manager was sharing campaign strategy while discussing how to carve up Ukraine to Russia’s liking. That is, according to the definition McCabe used, the investigation did find “collusion.” Period, end of sentence.

Importantly, the first thing McCabe raised when discussing such — at that point hypothetical — links was national security, not criminal campaign finance or bribery exposure. That is, McCabe opened the “collusion” investigation to find out whether Trump’s — at that point hypothetical — links to the Russian government were making the US less secure. The answer to that question was not included in the Mueller Report; indeed, the most glaring evidence that those links did make the US less secure were very pointedly not included in the report.

This is an important lesson as the Ukraine investigation — which cannot and should not be separated from the Russian investigation — proceeds, one that has thus far been deemphasized again. Trump’s continued efforts to pursue policies — foreign and domestic — that personally benefit him don’t just amount to breathtaking corruption. They provide foreign countries more and more leverage to use against Trump to limit his policy options. Every time Trump does something scandalous with a foreign leader — and he does it all … the … time — it means those foreign leaders can hold that over Trump going forward and in so doing, limit his negotiating position. So not only do Americans lose out on having a President who makes decisions based on how they benefit the country rather than himself personally, but they also get a far weaker President in the bargain, someone who — if he ever decided to prioritize American interests over his own — would have already traded away his bargaining chips to do so.

Through his actions thus far as President, Trump has guaranteed he cannot pursue policies that would benefit average Americans, and he has done so not just with Russia and Ukraine, and not just because of his executive incompetence.

There is an impact that Trump’s “collusion” and corruption have on everyday Americans, whether they wear pussy hats or MAGA caps, an impact that Democrats have permitted Republicans to obscure. Trump’s actions effectively rob Americans of the powerful executive on foreign policy issues that our Constitution very imperfectly sought to ensure, without stripping the weakened Trump of the tools he can wield to punish those who call him on his weakness.

Because he always self-deals, Trump has made himself an intolerably weak President, one who makes the US less secure at every step. Republicans defending him need to be held accountable for weakening the US.

What we know of Bill Barr’s treatment of the ICIG referral on the Ukrainian whistleblower suggests he only reviewed it, cursorily, for criminal campaign finance violations — possibly not even the obvious presidential bribery prohibited explicitly by our Constitution it exhibits. Bill Barr did not, with the Russian investigation and has not with the Ukrainian referral, consider how by protecting Trump’s actions, he robs every American of what the Constitution guarantees: a President, not a man shopping for revenge and phallic symbols in foreign capitals. That’s why Barr had to totally distort the conclusions of the Mueller report on collusion: to hide what it is really about and to hide how enabling such activity by Trump hurts Americans.

Yet from the start, from the moment when McCabe opened an investigation into Trump, that’s what it was supposed to be about.

Horowitz

What a Properly Scoped FISA Abuse Inspector General Report Would Look Like

In this piece on the Jim Comey IG Report, I showed that Michael Horowitz’s department received evidence of two violations of DOJ rules. His office first received seven memos that documented that DOJ’s protocols to ensure the integrity of investigations had collapsed under Donald Trump’s efforts to influence investigations. And then, at some later time, his office learned that Comey had (improperly, according to the report) retained those memos even after being fired and that FBI had classified six words in the memos he retained retroactively.

Horowitz’s office has completed an investigation into an act that otherwise might be punished by termination that already happened. But there is zero evidence that Horowitz has conducted an investigation into the subject of the whistleblower complaint, the breakdown of DOJ’s protections against corruption.

In April 2018, Horowitz released a report (which had been hastily completed in February) detailing that Andrew McCabe had been behind a reactive media release during the 2016 election. But his office has not yet released its conclusions regarding the rampant leaks that McCabe was responding to. In other words, Horowitz seems to have once again released a report on a problem that — however urgent or not — has already been remedied, but not released a report on ongoing harm.

Horowitz is reportedly preparing to release a report on what the frothy right calls “FISA abuse.” but given the content of a Lindsey Graham letter calling for declassification of its underlying materials, it’s seems likely that that report, too, is scoped narrowly, focusing just on Carter Page (and any other Trump officials targeted under FISA). There’s no request for backup materials on the other investigation predicated off of hostile opposition research, the investigation into the Clinton Foundation.

I have long said that if Republicans think the FISA order into Carter Page was abusive, then they’re being remiss in their oversight of FISA generally, because whatever abuse happened with Page happens, in far more egregious fashion, on the FISA applications of other people targeted and prosecuted with them.

If Michael Horowitz is concerned that the information from paid informants is not properly vetted before being used as the basis for a FISA application, they would be better to focus on any number of terrorism defendants. Adel Daoud appears to have been targeted under FISA based off a referral — probably, like Christopher Steele, a paid consultant — claiming he said something in a forum that the government later stopped claiming; Daoud remains in prison right now after having been set up in an FBI sting.

If Michael Horowitz is concerned that the FBI is misusing press reports in FISA applications, they would be better to focus on the case against Keith Gartenlaub. The FBI based its FISA applications partly off a Wired article that was totally unrelated to anything Gartenlaub was involved with. Gartenlaub will forever be branded as a sex criminal because, after finding no evidence that he was a spy, the government found 10 year old child porn they had no evidence he had ever accessed.

If Michael Horowitz is concerned that information underlying a FISA application included errors — such as that there are no Russian consulates in Miami — he should probably review how Xiaoxing Xi got targeted under FISA because the FBI didn’t understand what normal scholarship about semiconductors involves. While DOJ dropped its prosecution of Xi once it became clear how badly they had screwed up, he was charged and arrested.

And if Michael Horowitz is concerned about FISA abuse, then he should examine why zero defendants have ever gotten able to review their applications, even though that was the intent of Congress. Both Daoud and Gartenlaub should have been able to review their files, but both were denied at the appellate level.

The point being, the eventual report on “FISA abuse” will not be about FISA abuse. It will, once again, be about the President’s grievances. It will, at least according to public reporting, not treat far more significant problems, including cases where the injury against the targets was far greater than it was for Carter Page.

I don’t believe Michael Horowitz believes he is serving as an instrument of the President’s grievances. But by scoping his work to include only the evidence that stems from the President’s grievances and leaving out matters that involve ongoing harm, that’s what he is doing.

Note: I have or had a legal relationship with attorneys involved in these cases, though not when writing the underlying posts.

When Did Trump Learn Rod Blagojevich Prosecutor Patrick Fitzgerald Had Comey’s Memos?

When Trump was last floating commuting former IL governor Rod Blagojevich’s sentence, he was quite clear he was considering in part because of his animus towards Jim Comey, even though Comey was not in government when Blago was prosecuted.

“His wife I think is fantastic and I’m thinking about commuting his sentence very strongly. I think it’s enough, seven years,” Trump told reporters of Blagojevich who was sentenced to 14 years in federal prison for participating in several “pay to play” schemes (including trying to take back an $8 million contribution Illinois made to Children’s Memorial Hospital because the hospital’s CEO wouldn’t make a campaign donation).

Blagojevich notably attempted to give former Illinois Senator Barack Obama’s vacant seat to the highest bidder but was not officially convicted for it. Recordings obtained by government officials have Blagojevich saying of the seat, “I’ve got this thing and it’s (expletive) golden, I’m not just giving it up for (expletive) nothing.”

Still, in 2011 he was convicted on 17 charges for wide-ranging acts of corruption.

“I thought he was treated unbelievably unfairly; he was given close to 18 years in prison. And a lot of people thought it was unfair, like a lot of other things,” Trump said on Wednesday. “He’s been in jail for seven years over a phone call where nothing happens—over a phone call which he shouldn’t have said what he said, but it was braggadocio, you would say. I would think that there have been many politicians—I’m not one of them, by the way—that have said a lot worse over the telephone.”

The president added that “it was the same gang, the Comey gang and all these sleazebags that did it.” Trump was referring to James Comey, the former FBI director that Trump fired after taking the Oval Office and who is a frequent target of the president’s ire. Comey’s close friend and associate, former U.S. attorney in Illinois Patrick Fitzgerald, led the prosecution against Blagojevich.

Reporters noted that Comey and Fitz were friends, though didn’t go further into reasons why Trump might consider Blago’s prosecution by Fitz to be the work of the “Comey gang” of “sleazebags.” Based on what we learned from the IG Report into Comey’s treatment of his memos recording Trump’s attempts to interfere with ongoing investigations it seems Trump treats Fitz as part of Comey’s gang because of the way those memos got shared.

This probably dates back to April 2018. That month was already crazy given the raid on Michael Cohen’s home and office. Then, during the second half of the month, Trump responded to Comey’s book tour by claiming he leaked classified information, a claim that tried to criminalize Comey’s sharing of his memos.

On April 13, in response to some of Comey’s book coverage, Trump accused him of leaking classified information, perhaps the second time Trump made that accusation (the first was in July 2017).

The same day, Trump pardoned Scooter Libby, who had been prosecuted for serving as a firewall to protect the Vice President and President from any consequences for using their classification authority to retaliate against critics. Comey, as Acting Attorney General, appointed Fitz to prosecute Libby. So in that prosecution, at least, they were part of the same “gang.”

On April 15, Trump accused Comey of leaking classified information again.

On April 17, Comey’s book officially came out.

On April 19, Comey’s memos got shared with Congress and they promptly got leaked. Trump immediately pointed to them to substantiate a claim Comey leaked classified information again.

On April 20, Trump made the accusation again.

That same day, the WSJ reported that DOJ’s Inspector General was investigating “classification issues” relating to the four memos Comey shared with Richman, which (the WSJ noted, slightly inaccurately) he believed to be unclassified as shared.

At least two of the memos that former FBI Director James Comey gave to a friend outside of the government contained information that officials now consider classified, according to people familiar with the matter, prompting a review by the Justice Department’s internal watchdog.

Of those two memos, Mr. Comey himself redacted elements of one that he knew to be classified to protect secrets before he handed the documents over to his friend. He determined at the time that another memo contained no classified information, but after he left the Federal Bureau of Investigation, bureau officials upgraded it to “confidential,” the lowest level of classification.

The Justice Department inspector general is now conducting an investigation into classification issues related to the Comey memos, according to a person familiar with the matter. Mr. Comey has said he considered the memos personal rather than government documents. He has told Congress that he wrote them and authorized their release to the media “as a private citizen.”

Mr. Comey gave four total memos to his friend Daniel Richman, a former federal prosecutor who is now a professor at Columbia Law School, people familiar with the matter said. Three were considered unclassified at the time and the one was that was classified contained the redactions made by Mr. Comey.

On April 21, Trump accused Comey of leaking twice more, once by pointing to the WSJ story.

On April 24, the Chicago Tribune’s DC office reported that Fitz was representing Comey, along with David Kelley and Daniel Richman.

Finally, on April 27, Trump made the accusation again.

So back in April 2018, some of this was bubbling to the surface. The public reporting was surely fed by leaks from Congress, though Trump anticipated Congress both with his first accusation and, if it’s connected, the Libby pardon.

But those leaks do not reflect the actual facts as recorded in the Inspector General’s Report (which, of course, was still in process at the time).

As described in this section, on May 14, 2017, Comey transmitted copies of Memos 2, 4, and 6, and a partially redacted copy of Memo 7 to Fitzgerald, who was one of Comey’s personal attorneys. Comey told the OIG he thought of these Memos as his “recollection recorded,” like a diary or personal notes. Comey also said he believed “there’s nothing classified in here,” and so he thought he could share them with his personal attorneys.

Comey told the OIG that, before sharing these Memos with his attorneys, he redacted the second paragraph of Memo 7, which contained a discussion of foreign affairs during which Trump asked Comey to “follow up” on a specific matter. Comey told the OIG he redacted this paragraph because it was “utterly unrelated to what I was seeking their advice and counsel about.” He “did not consider that paragraph classified,” he just thought that “it was irrelevant.” Comey said that he used the personal scanner at his home to make a copy of Memo 7, then used a marker to black out fifteen lines from the second paragraph of the copy of Memo 7. Comey also placed an index card on which he handwritten the word “Redacted” over the center portion of the blacked-out paragraph, further obscuring most of the second paragraph of Memo 7. When Comey was finished redacting, the second paragraph read “He then switched topics…[REDACTED]…then said that I was doing a great job and wished me well. The call ended.” A copy of the redacted version of Memo 7 Comey created is contained in Appendix B to this report.72

Comey then used his personal scanner to create a Portable Document Format (PDF) file containing four of the Comey Memos: un-redacted copies of Memos 2, 4, and 6, and the redacted copy of Memo 7.73 On May 14, 2017, Comey attached the PDF to an email from his personal email account, and sent the email and PDF attachment from his personal laptop to Fitzgerald’s personal email account, with instructions for Fitzgerald to share the email and PDF attachment with Kelley and Richman.

Fitzgerald received the email and PDF attachment from Comey at 2:27 p.m. on May 14, 2017. Fitzgerald forwarded the email and attachments to Kelley on May 17, 2017, at 7:35 a.m., and to Richman on May 17, 2017, at 10:13 a.m. Richman told the OIG that, when he received the email and attachments from Fitzgerald, he accessed the files from his computer, read them, and downloaded a copy into a separate file on his computer. Richman said he did not make any paper copies of the Memos.

Fitzgerald also forwarded the email and attachments from his personal email account on May 17, 2017, at 4:47 p.m. to another email account belonging to Fitzgerald. Fitzgerald then saved the PDF attachment onto his computer, after which he said he placed the incoming email from his personal email account into the “deleted” items folder.

Comey told the OIG that he did not notify anyone at the FBI that he was going to share these Memos with anyone, and did not seek authorization from the FBI prior to emailing these four Memos to Fitzgerald. Comey told the OIG that he deleted his electronic versions of the email and the PDF attachment that he sent, and did not retain a hard copy of either.

72 During the June 2017 classification review, the FBI marked fifteen words from this paragraph as classified, all of which had been obscured by Comey’s redactions. Compare the version of Memo 7 in Appendix A of this report with Comey’s redacted version of Memo 7 in Appendix B.

73 Comey told the OIG that he used his personal shredder to shred the redacted copy of Memo 7 after he had scanned it, instead of returning the redacted copy to his personal safe with the other Memos.

The report makes it clear that Comey redacted memo 7 not because he believed anything in it was classified, but because he believed that discussion, about Egypt and Jordan, was irrelevant to the issues that Fitz et al were representing him on. In any case, the IG concluded that that didn’t amount to leaking classified (confidential) information because Comey redacted it — albeit ineffectively — before he shared it.

More importantly, while Comey intended all four memos to be shared with Richman and Kelley, he did not share them directly. He sent them to Fitz, who sent them on to the two others, though Fitz didn’t get around to it until May 17, three days later.

In the interim, Comey sent Richman photographs of Memo 4, the one recounting Trump directing him to let the Mike Flynn thing go, and directed him to share it with NYT’s Mike Schmidt.

On the morning of May 16, Comey took digital photographs of both pages of Memo 4 with his personal cell phone. Comey then sent both photographs, via text message, to Richman.75 Comey told the OIG that he transmitted this copy of Memo 4 to Richman on May 16 because Comey “had a specific assignment for him.” Comey told the OIG he knew Richman had a close relationship with a reporter for The New York Times. According to Comey, he directed Richman “to share the content[s] of this memo, but not the memo itself, with [the reporter].” Comey also said that, although Richman was his attorney at the time, Comey “didn’t intend to assert any kind of privilege about the direction” he gave to Richman. Comey told the OIG he directed Richman to share the contents of Memo 4 with The New York Times because

I had a conversation with the President of the United States. It was unclassified, on February the 14th. I’m a private citizen. I can talk about conversations I had with the President of the United States. I happen to have that conversation enshrined in an accurate way in this memo. So to ensure that the newspaper gets the most accurate account of my recollection, I’ll send the memo to [Richman]. Tell him, use this; don’t give them the memo, but use this to communicate the substance of it.

Comey told us he needed to do this because it was something he was “uniquely situated to do, because [he was] now a private citizen.” He told us that by speaking out, or enabling someone else to speak out, it would “change the game” and create “extraordinary pressure on the leadership of the Department of Justice, which [Comey did] not trust, to appoint someone who the Country can trust, to go and get those tapes.”

75 On May 16, 2017, Richman had not yet received copies of the Memos from Fitzgerald. Fitzgerald sent the email containing Memos 2, 4, 6, and a redacted copy of Memo 7 to Richman on May 17, 2017, at 10:13 a.m.

So the sharing of that single memo with the press did not involve Fitz, at all.

Importantly, from what I know of Fitz, he probably wouldn’t even have approved of sharing the information, which may be why Comey shared it with Richman directly.

In any case, that memo did not include any classified information, meaning neither Comey nor his lawyers publicly released any classified information (remember, altogether the FBI only determined that one to six words in the memos Comey shared in unredacted form were confidential).

We found no evidence that Comey or his attorneys released any of the classified information contained in any of the Memos to members of the media.

Nevertheless, Trump’s treatment of Fitz as a member of Comey’s “gang” of “sleazebags” seems to be tied to the fact that Comey managed to use the memo showing Trump trying to kill the Mike Flynn investigation to launch the Mueller investigation, even though the facts show that Fitz never had a role in doing so (because he didn’t share the memo in question before Comey sent it to Richman directly).

Given that Trump’s accusations that Comey leaked classified information, I’m interested in whether Trump got a briefing that Michael Horowitz was reviewing that issue before Congress did. Particularly given that Comey shared the memos with Fitzgerald before six words in one of them were retroactively classified, the memos would otherwise amount to attorney client communications (albeit, if you believe that the President ordering the FBI Director to violate FBI rules constitutes official business — something the IG Report didn’t evaluate — memos that were government, not personal, documents).

Granted, in June 2017, when DOJ contacted him about this (while Comey was still testifying), Richman offered up that Comey had shared the memos with all three lawyers. This is not something over which Comey claimed privilege. So even though Trump started basing an attack on attorney-client communications literally at the same time he was complaining about his own attorney-client communications had been seized in a law enforcement search, the discovery of them did not breach attorney-client privilege.

But I’m wondering whether and when and by whom Trump got briefed on this. Did someone give Trump a heads up on what Horowitz was investigating before Congress got one (and why did Congress get that heads up, presumably before conclusions made it clear no classified information got shared with the press?).

The IG Report, like the other ones into the FBI and DOJ officials Trump has attacked as his enemies, doesn’t have some of the normal features of IG Reports, like timelines of the investigation and detailed scope of the interviewees. Such timelines would provide some indication of when the IG knew that Fitz wasn’t in the loop on the NYT story, and so some indication of when someone should have informed Trump in any briefing of that fact, even assuming Trump briefings are accurate about such things or that his brain can process an accurate briefing.

Which is to say, this IG investigation appears to have led the President to draw certain conclusions, possibly including the inaccurate one that Pat Fitz was part of a plot to leak really damning information to the NYT. It may even serve a role in the President’s clemency choices! It would be useful to have more information about how Trump got a mistaken understanding of how the NYT story happened and from whom.

The Unremarkable Bruce Ohr 302s

Last night, Judicial Watch (and DOJ) released some of the FD-302s (FBI interview reports) between Bruce Ohr and the FBI. This post will lay out what they include.

As a reminder, Ohr is a top DOJ expert on Russian organized crime. He has known Christopher Steele since 2007 and Ohr’s wife — who is an expert on Russia — did some work for Fusion GPS during the election that was related to, but not part of, Steele’s work for Fusion. Ohr and Steele had conversations in 2016 about a range of things, including Oleg Deripaska (for whom Steele was doing work and who Steele trusted far more than he should have), Russian doping, and Trump’s ties to Russia.

Starting on July 30, 2016 and continuing through November 2017, Steele shared first his Trump-related information with Ohr, and then his concerns about how his dossier was all blowing up, including his concern for at least one of his sources. After Steele was cut off as a paid source in November 2016, FBI had Ohr communicate with Bill Priestap, who was a top counterintelligence person at FBI, whenever he spoke with Steele as a way to stay in touch with the former British intelligence officer, at first as part of vetting the dossier, and later to monitor where he was at.

This release of 302s is partial (though that’s based on Judicial Watch’s request, not FBI’s response). It doesn’t include any record of Ohr’s conversations with FBI and DOJ prior to November 22, 2016 (which include at least an early August meeting with Andrew McCabe and Lisa Page and a fall meeting with Page, Peter Strzok, Andrew Weissmann, Zainab Ahmad, and Bruce Swartz). It also doesn’t include Ohr’s communications after May 2017. Thus, it explicitly would exclude any information about how Mueller treated the dossier, details of what FBI and Steele did to try to limit Congress’ investigation into the role of the dossier, and whether and how FBI investigated possible false statements from Steele and (especially) Glenn Simpson.

In addition, while DOJ already released a lot of the backup to this (including Ohr’s communications with Steele and Simpson and some but not all of his notes), Judicial Watch has apparently not posted something DOJ already provided them, which is a file “Manafort Chronology” that JW received in an earlier lawsuit (I’ve asked JW for that file; they say they’re still processing it, even though they received it before these 302s). That document would presumably make it clear (as if the investigative team Ohr met with didn’t already) that more of what Ohr passed on to FBI from Steele before the election would pertain to Manafort, not Carter Page.

These meetings covered by the 302s seem to be broken into three groups:

  • November 22 to December 20: FBI’s review of Steele’s reporting process and collection of relevant materials
  • January 25 to February 14: Steele and Simpson express their panic in the aftermath of the dossier publication to Ohr
  • May 8 to 15: Steele’s panic about Congress increases, FBI offers to set up an FBI contact

November 22, 2016

This meeting was obviously an introductory meeting between Ohr and Priestap. He describes how he first met Steele (which partly redacted here but not redacted in his testimony to HJC/OGR). There’s a redacted comment that probably reflects Ohr’s view of Steele’s sources. That probably pertains to one or more oligarchs, because Ohr then explains his own opinion about the willingness of oligarchs to share information; this paragraph has been redacted because of an ongoing investigation, as has the paragraph describing Ohr’s summary of his meeting with Steele in July 2016 (which Ohr told McCabe about within days). There’s a reference to these notes from July (see PDF 31)

When these notes were released in December 2018, both the source for the “over a barrel” comment and Deripaska’s threats against Manafort were protected for ongoing investigation; at least in this paragraph, some of both are unsealed.

Ohr then explains what he knew about the Fusion GPS oppo research project, including that Simpson was passing the information on to “many individuals or entities.”

It’s clear that Ohr was asked about Michael Isikoff’s Yahoo article on Carter Page. Ohr described meeting with Simpson and Steele around that time, but his focus was instead on the Alfa Bank server allegation, which I’l return to.

Pristap also must have asked Ohr whether Steele made up his allegations, which Ohr said he did not believe Steele had done. Ohr explained that “there are always Russian conspiracy theories that come from the Kremlin.” He stated that he believed that Steele was just reporting what he heard, “but that doesn’t make that story true.”

Ohr was also asked about Jon Winer and whether he knew how Steele handled his sources, as well as for contact information for someone, probably Steele.

December 5

Several weeks after the initial meeting, Priestap interviewed Ohr again with follow-up questions about the dossier. He appears to reveal that he never was present when Steele interviewed a source (though there was a meeting he described). He says he was never present for meetings between Steele and Jon Winer. He described his wife Nellie’s research for Simpson. And he explained that Simpson directed Steele to “speak to the press as that was what Simpson was paying” him to do. Priestap apparently asked if Steele went to David Corn on his own or at the direction of Simpson, which Ohr did not know the answer to.

At that meeting, Ohr handed over the “Manafort Chronology” (which may or may not be Nellie’s work), which is the document JW may not have released yet.

December 12

Ohr met with Simpson on December 10 and obtained a copy of the dossier on thumb drive, so met with Priestap to share that and his notes from that meeting (see PDF 32).

At the meeting, Simpson told Ohr the Michael Cohen allegations (though these should and do appear to be the dated October allegations). Simpson shared gossip about some former Trump person (he thought it was Rick Wilson, but Wilson denied it yesterday) who was concerned about Trump’s ties to Russia. He raised Aleksandr Torshin’s outreach to the NRA and shared this article on it, even while noting there was disagreement on his staff about how much money Russia was funneling to the NRA. Simpson disputed NYT’s doubts about the Alfa Bank server (either Priestap or Simpson got the date of the article wrong); in response to an Ohr question about whether he thought he was safe, Simpson said someone had called and “asked him to find out where all of the Alfa Bank stories were coming from.” Simpson told Ohr he still had concerns about Sergei Millian and noted, “Looking at Millian led Simpson’s company to Cohen” (which Simpson would later share with Congress).

Simpson admitted that he asked Steele “to speak to the Mother Jones reporter as  it was Simpson’s Hail Mary attempt.” Note this means that after Priestap asked Ohr who decided to contact Corn, Ohr asked Simpson, and then passed on the answer. From this point forward, Ohr was basically providing FBI information on the Fusion effort.

Finally, Simpson appeared to suggest that much of Steele’s reporting comes from one source but “Simpson does not know his name.” This also seems to be a question Ohr posed after having been asked about it by Priestap. There are almost entirely redacted notes at PDF 33 listing “possible intermediaries” attributed to Simpson, but it’s unclear if Ohr took those notes at that meeting.

December 20

Several weeks after he said he would do so, Ohr met with Priestap and shared Nellie Ohr’s research for Fusion on a thumb drive.

January 23

On January 20, Simpson contacted Ohr in a panic about one of Steele’s sources. The following day, Ohr and Steele spoke about the concerns. The description of those concerns are treated, among other redactions, as legally classified information. The description of what appears to be the person in Ohr’s notes released last year is protected as part of an ongoing investigation (PDF 34-35). One thing Steele told Ohr, though, was that he knew the person was alive and well because he had posted on Facebook.

On the January 21 call, Steele also told Ohr he had spoken with someone in John McCain’s office sometime “prior to October 2016.” Either he’s only telling Ohr part of the story, or the date is wrong, because Steele’s known contacts related to McCain were in December.

January 25

Several days later, Ohr reached out to Priestap again to update him on what Steele had said in a followup. In that call either Steele or Ohr suggested the person might be exposed because of journalists. (PDF 36)

January 27

Several days later Ohr updated Pristap on his latest WhatsApp contact with Steele.

February 6

A few weeks later, Steele called about two things. First, the firing of Sally Yates led him to believe he needed another contact in case Ohr was fired; Priestap asked Ohr to ask Steele if he’d feel comfortable going through the FBI. He also seemed to be passing on information from someone, probably Deripaska, complaining that because of the 2016 election the FBI considered him a “criminal.” There’s a redacted section, and all this redacted information is protected as an ongoing investigation.

At the same meeting, Ohr offered up that Kathleen Kavalec, who was briefing allies on possible Russian tampering in their elections, had also met with Steele several times before the 2016 election. Ohr said that she said Steele’s reporting was generated mainly from [redacted]; which either pertains to a named source or from a reporting source.

February 14

This was mostly a follow-up reporting on a February 11 FaceTime chat with Steele, though Steele described working for two attorneys, one of whom appears to be redacted as part of an ongoing investigation in Ohr’s notes (PDF 37).

Ohr told the FBI he had not yet asked Steele if he’d be comfortable working through an FBI agent.

Note: There are March WhatsApp texts and written notes Ohr took with no corresponding 302. They pertain to Steele’s concerns about Congressional inquiries.

May 8

Ohr reported on a May 3 WhatsApp call with Steele, in which he expressed concerns about Congress’ scrutiny of his role. Steele also told Ohr that Simpson would be heading over to the UK soon and was lawyering up. But he still offered additional information to the FBI, if it was interested. Note, this is the first 302 where a normal listing of both interviewers is used, though there are indications elsewhere that Priestap was accompanied by someone else.

May 12

Ohr reports on a May 10 WhatsApp call in which Steele tells him the Senate Intelligence Committee is seeking information. The FBI asks Ohr to ask if Steele is willing to “have a conversation” with FBI agents in the UK, and Ohr agrees to pass it on.

May 15

After meeting with the FBI on May 12, Ohr contacted Steele to find out whether he’d be willing to talk to the FBI — “nothing more than a conversation with the FBI;” three days alter he said he would.

Steele also said he had information on a conversation between two people.

DOJ Should Just Give Andrew McCabe What He Wants, But They Won’t

185 paragraphs into his complaint against Bill Barr, Christopher Wray, and DOJ and FBI for unlawful termination, Andrew McCabe makes what is probably an untrue statement.

Had Plaintiff pledged his personal loyalty to Trump, voted for Trump in the 2016 election (or falsely told Trump that he had), not worn a T-shirt supporting Dr. McCabe’s campaign, and not been married to Dr. McCabe, Defendants would not have reached the decisions to demote him and terminate him, nor would they have proceeded on the accelerated schedule that deprived him of his full vested pension and related benefits.

The statement is true, insofar as they’re the issues that Trump bitched about for the year leading up to McCabe’s firing in part to discredit the Mueller investigation. They’re true because Trump has claimed they’re true, so there will be abundant evidence to submit to prove they are true. But they’re not true insofar as the Russian investigation is what led Trump to hunt down his perceived enemies, and the DOJ IG investigation is the claimed reason for McCabe’s firing.

But the claims nevertheless assert the principle that FBI employees can’t be forced to take a loyalty oath. And as such, the lawsuit seeks to uphold a principle at the core of our judicial system.

That’s not the only complaint McCabe makes. Along another First Amendment claim, he also makes two due process claims and one mandamus claim that gets into the legal fine print of the way that, in response to pressure from Trump, top DOJ officials fast-tracked an effort to get rid of McCabe.

The legal details are actually of real interest, given that Wray, then Associate Deputy Attorney General Scott Schools, and Jeff Sessions, among others, bolloxed the firing of McCabe. As Schools told McCabe while he was trying to accelerate the review of his termination in March 2018, “We’re making it up as we go along.” DOJ fucked up in two significant ways.

First, they didn’t get around to “firing” McCabe until 10:00 pm on March 16, 2018, after FBI clocked the final day McCabe had to put in before qualifying for retirement at 5:00 pm that same day. FBI registered that day as a full vacation day. By the time Sessions fired McCabe late at night, he claims, he was already legally retired. (Note, there’s a real tragicomic section describing Sessions’ role, including that the firing did not come with any of the official details like time of termination needed for such a firing, that are very similar to the way that Sessions himself would be fired 8 months later).

The other way they bolloxed McCabe’s firing is by demoting him on January 28, 2018. On that day, Wray gave McCabe a choice: to remain at FBI in a demoted role of his picking if he lied and said the demotion was voluntary, or remain in a lesser role of Wray’s choice if he refused to lie. Instead, McCabe took terminal leave, meaning he was no longer one of the positions that the Attorney General or Acting Attorney General could terminate directly. As McCabe described it, Sessions didn’t have the authority to fire McCabe.

Sessions publicly announced that he had terminated Plaintiff “[p]ursuant to [DOJ] Order 1202,”but that did not give Sessions the authority to terminate employees in Plaintiff’s position. DOJ Order 1202, promulgated pursuant to 5 U.S.C. § 3151, provides that the FBI Director alone has authority to terminate career FBI senior executives, except that the Attorney General and Deputy Attorney General retain authority to remove those who serve in certain enumerated “key positions.” After Defendant Wray removed Plaintiff from the role of Deputy Director in January 2018 and replaced him with Bowdich, Plaintiff remained a career FBI senior executive but did not serve in any of the “key positions” listed in DOJ Order 1202. Defendant Wray, as FBI Director, did not authorize Plaintiff’s termination and in fact previously refused Sessions’ request to terminate Plaintiff. Accordingly, Plaintiff was not, in fact, terminated before his retirement.

[snip]

Additionally, Sessions lacked any authority to terminate Plaintiff due to conflicts of interest and recusals, including Sessions’ March 2017 recusal from “investigations of any matters related in any way to the campaigns for President of the United States.” Defendants’ pretextual basis for Plaintiff’s termination arose from the OIG investigation of Plaintiff’s actions related to the 2016 U.S. presidential campaign, specifically his actions regarding campaign-related articles published in October 2016 by the Wall Street Journal. Sessions’ recusal, on its face, extended to the OIG investigation. Sessions’ recusal was therefore a “disability” under 28 U.S.C §508(a), meaning that he lacked qualification to participate in Plaintiff’s termination. As a result, Sessions had no authority to terminate Plaintiff.

The entire complaint is (as one would expect for a suit filed by four Arnold & Porter lawyers on behalf of a lawyer who happens to be a former top FBI official) very well lawyered in such a way that the legal issues are very narrow, even while invoking the entirety of Trump’s obstructive behavior along the way.

The easiest way DOJ could make this go away would be to grant McCabe’s request, to find that he had retired before he was fired, with the benefits accruing accordingly (McCabe refutes the findings of the DOJ IG investigation against him in more cursory fashion, though it’s key to his due process claims and his allegations reflect badly on the well-respected Michael Horowitz). But to do that, DOJ would rob Trump of one of his favorite petty wins.

So they probably won’t.

On Same Day Peter Strzok Sues for His Termination, Judicial Watch Releases Mostly Redacted List of FBI Leakers

Peter Strzok is suing the Attorney General, FBI Director, and DOJ for his termination, arguing two key things. First, the government overrode the decision of OPR Assistant Director Candice Will, who should have been the “deciding official.” He’a also arguing that the decision came as a result of relentless pressure from the President and with evidence of bias.

To demonstrate bias, Strzok notes that Trump has not responded even when people — he points to Kellyanne Conway but notes she’s just one of numerous examples — who has been found to violate the Hatch Act.

The Trump Administration has consistently tolerated and even encouraged partisan political speech by federal employees, as long as this speech praises President Trump and attacks his political adversaries. For example, President Trump rejected the recommendation of his own Office of Special Counsel that advisor Kellyanne Conway be removed from her job for repeatedly violating the Hatch Act by attacking former Vice President Biden and publicly advocating for and against various U.S. Senate candidates. When asked about the OSC’s recommendation, Mrs. Conway responded “blah, blah, blah…If you’re trying to silence me through the Hatch Act, it’s not going to work. Let me know when the jail sentence starts.”

But he also claims that “no actions have been taken” against the FBI Agents who showed bias against Hillary Clinton during the election, not even those who leaked negative information about her.

During the Trump Administration this viewpoint discrimination has infected the FBI as well. While Special Agent Strzok and others who expressed negative opinions of President Trump have been subject to administrative punishments of various degrees of severity, no actions have been taken against agents who expressed harsh criticism of Secretary Clinton during the 2016 campaign, or those in the New York Field Office who leaked negative information about Secretary Clinton to the Trump campaign in the weeks before the election.

I’ve long noted that if Democrats asked DOJ Inspector General for an investigation specifically focused on bias against Hillary Clinton, it would elicit a specific report, which would make it very clear Trump was — if anything — treated better by the FBI than Hillary was.

That’s a failure of the Democrats in Congress.

That said, today Judicial Watch released the results of a FOIA (they often sit on releasing FOIAs for political gain) into the results of FBI OPR investigations of Agents who leak information, hoping to focus attention on Andrew McCabe’s termination.

The FOIA makes it clear that Jeff Sessions made the decision to fire McCabe. (Strzok’s suit notes that Deputy Director David Bowdich — McCabe’s replacement — made the decision to fire Strzok.)

The FOIA shows there were just 14 referrals to OPR for leaking, a number of which would be too early for anything coming out of an investigation into NY Field Office leaking. Those referrals include the leaking of Grand Jury, law enforcement sensitive, or classified information (4.9) and leaking of sensitive information, which is what McCabe got fired for (4.10).

The only other people who were fired like McCabe were also referred for lack of candor, not under oath and/or under oath.

That says, even if any of the behavior parallel to Strzok’s did get referred, no one was fired unless they lied (and he did not lie).

At the very least, Strzok’s claim that no one from NY Field Office has been similarly treated as he has may get him to discovery. And that may, in turn, do what the Democrats have not done: show that there was far more bias and leaking against Hillary, but that none of those people have been chased out of the FBI.