Posts

Aaron Zelinsky

Beware DOJ Inspectors General Bearing Investigations, Aaron Zelinsky Edition

When DOJ IG got evidence, in the form of Jim Comey’s memos documenting that every safeguard against White House interference in DOJ and FBI investigations had broken down, DOJ Inspector General Michael Horowitz instead investigated whether Comey had mishandled classified information, ultimately referring Comey for prosecution.

When FBI Inspection Division got evidence that someone kept leaking false information to Sara Carter claiming Andrew McCabe had promised to “fuck Trump,” it turned into a DOJ IG investigation into whether McCabe had lied. After withholding the evidence of a key witness, Michael Kortan, the IG Report was used to justify the firing of McCabe.

When DOJ IG conducted an investigation into the leaks and conduct of various FBI Agents, it ended up being a report that exclusively reported on anti-Trump texts from Agents, and not pro-Trump leaks and texts — it even provided misleading graphics that falsely suggested only anti-Trump leaks happened. That led to the disclosure, during an investigation, of those texts, and ultimately to Peter Strzok’s firing.

That’s why I’m wary about the NBC report today that DOJ’s Inspector General is investigating the Roger Stone sentencing.

The Justice Department inspector general’s office has begun investigating the circumstances surrounding the sentencing recommendation for Roger Stone, a longtime friend of President Donald Trump’s, according to two sources familiar with the matter.

The investigation is focused on events in February, according to the two sources, who spoke on condition of anonymity. Stone’s prosecutors have said that is when they were told to seek a lighter sentence than they had previously considered.

[snip]

A source familiar with the matter said comments Zelinsky made during his testimony triggered the inspector general’s office to open an investigation. It is not known how far the office has proceeded in its investigation, whom it has interviewed or whether it has found any evidence of wrongdoing.

That’s particularly true given Kerri Kupec’s confidence — in a statement to Politico’s Josh Gerstein — that Billy Barr’s DOJ welcomes this review.

A Justice Department spokeswoman confirmed that the agency’s Office of Inspector General is looking into Barr’s move in February to seek a lighter sentence for Stone after rank-and-file prosecutors and an acting U.S. attorney hand-picked by Barr had already submitted a recommendation of seven to nine years in prison for the conservative provocateur, who has been a political sounding board for Trump for more than two decades.

“We welcome the review,” a department spokeswoman, Kerri Kupec, said on Monday evening.

Gerstein further notes that this probe did not come with an announcement to HJC.

In the past, Horowitz has written to members of Congress to confirm that he has launched inquiries in high-profile cases in which lawmakers demanded a review. It was not immediately clear why Horowitz was being more tight-lipped about the investigation into the Stone sentencing decision.

Even aside from past history and the warning sign that Gerstein notes, there’s one more reason to believe that Horowitz’ IG Report will once against serve to damage — if not provide an excuse to fire — someone who investigated Trump.

DOJ IG cannot investigate the actions lawyers take as lawyers. And virtually everything Aaron Zelinsky testified to in the House Judiciary Committee hearing pertains to actions Barr flunky Timothy Shea and others took as lawyers. Moreover, during the hearing, Jim Jordan made a point to get Zelinsky to name precisely who he claimed had accused Barr of politicized decisions. By the end of the hearing, Republicans were claiming that those people had not said what Zelinsky claimed.

DOJ IG can’t investigate why Timothy Shea engaged in unprecedented interference in sentencing. It can, however, investigate whether Zelinsky’s testimony matches that of more complicit supervisors in the DC US Attorney Office. And that’s what’s likely to happen.

Catherine Herridge Attempts to Relaunch Bullshit Conspiracies Answered by Peter Strzok’s Book

I hope to write a post arguing that Peter Strzok’s book came out at least six months too late.

But for the moment, I want to float the possibility that Nora Dannehy — John Durham’s top aide — quit last Friday at least in part because she read parts of Strzok’s book and realized there were really compelling answers to questions that have been floating unasked — and so unanswered — for years.

High-gaslighter Catherine Herridge raises questions already answered about Crossfire Hurricane opening

Yesterday, the Trump Administration’s favorite mouthpiece for Russian investigation conspiracies, Catherine Herridge, got out her high-gaslighter to relaunch complaints about facts that have been public (and explained) for years.

Citing an unnamed “former senior FBI Agent” and repeating the acronym “DIOG” over and over to give her high-gaslighting the patina of news value, she pointed to the fact that Strzok both opened and signed off on the Electronic Communication opening Crossfire Hurricane, then suggested — falsely — that because Loretta Lynch was not briefed no one at DOJ was. It’s pure gaslighting, but useful because it offers a good read on which aspects of Russian investigation conspiracies those feeding the conspiracies feel need to be shored up.

Note, even considering just the ECs opening investigations, Herridge commits the same lapses that former senior FBI Agent Kevin Brock made in this piece. I previously showed how the EC for Mike Flynn addresses the claimed problems. I’m sure it’s just a coincidence that Herridge’s anonymous former senior FBI Agent is making the same errors I already corrected when former senior FBI Agent Kevin Brock made them in May.

All that said, I take from Herridge’s rant that her sources want to refocus attention on how Crossfire Hurricane was opened.

Peter Strzok never got asked (publicly) about how the investigation got opened

As it happens, that’s a question that Strzok had not publicly addressed in any of his prior testimony.

Strzok was not interviewed by HPSCI.

Strzok was interviewed by the Senate Intelligence Committee on November 17, 2017. But they don’t appear to have asked Strzok about the investigation itself or much beyond the Steele dossier; all six references to his transcript describe how the FBI vetted the Steele dossier.

Deputy Assistant Director Pete Strzok, at that point the lead for FBI’ s Crossfire Hurricane investigation, told the Committee that his team became aware of the Steele information in September 2016. He said, “We were so compartmented in what we were doing, [the Steele reporting] kind of bounced around a little bit,” also, in part, because [redacted] and Steele did not normally report on counterintelligence matters. 5952 Strzok said that the information was “certainly very much in line with things we were looking at” and “added to the body of knowledge of what we were doing.”5953

Peter Strzok explained that generally the procedure for a “human validation review” is for FBI’ s Directorate of Intelligence to analyze an asset’s entire case file, looking at the reporting history, the circumstances of recruitment, their motivation, and their compensation history.6005 Strzok recalled that the result was “good to continue; that there were not significant concerns, certainly nothing that would indicate that he was compromised or feeding us disinformation or he was a bad asset.”6006 However, Strzok also said that after learning that reporters and Congress had Steele’s information:

[FBI] started looking into why he was assembling [the dossier], who his clients were, what the basis of their interest was, and how they might have used it, and who would know, it was apparent to us that this was not a piece of information simply provided to the FBI in the classic sense of a kind of a confidential source reporting relationship, but that it was all over the place. 6007

[snip]

Strzok said that, starting in September 2016, “there were people, agents and analysts, whose job specifically it was to figure this out and to do that with a sense of urgency.”6021

Strzok was also interviewed in both a closed hearing and an open hearing in the joint House Judiciary and House Oversight investigations into whatever Mark Meadows wanted investigated. The closed hearing addressed how the investigation got opened, but an FBI minder was there to limit how he answered those questions, citing the Mueller investigation. And even there, the questions largely focused on whether Strzok’s political bias drove the opening of the investigation.

Mr. Swalwell. Let me put it this way, Mr. Strzok: Is it fair to say that, aside from the opinions that you expressed to Ms. Page about Mr. Trump, there was a whole mountain of evidence independent of anything you had done that related to actions that were concerning about what the Russians and the Trump campaign were doing?

Ms. Besse. So, Congressman, that may go into sort of the — that will — for Mr. Strzok to answer that question, that goes into the special counsel’s investigation, so I don’t think he can answer that question.

Even more of the questions focused on the decision to reopen the Clinton investigation days before the election.

To the extent that the open hearing, which was a predictable circus, addressed the opening of Crossfire Hurricane at all (again, there was more focus on Clinton), it involved Republicans trying to invent feverish meaning in Strzok’s texts, not worthwhile oversight questions about the bureaucratic details surrounding the opening.

The DOJ IG Report backs the Full Investigation predication but doesn’t explain individual predication

The DOJ IG Report on Carter Page does address how the investigation got opened. It includes a long narrative about the unanimity about the necessity of investigating the Australian tip (though in this section, it does not cite Strzok).

From July 28 to July 31, officials at FBI Headquarters discussed the FFG information and whether it warranted opening a counterintelligence investigation. The Assistant Director (AD) for CD, E.W. “Bill” Priestap, was a central figure in these discussions. According to Priestap, he discussed the matter with then Section Chief of CD’s Counterespionage Section Peter Strzok, as well as the Section Chief of CD’s Counterintelligence Analysis Section I (Intel Section Chief); and with representatives of the FBI’s Office of the General Counsel (OGC), including Deputy General Counsel Trisha Anderson and a unit chief (OGC Unit Chief) in OGC’s National Security and Cyber Law Branch (NSCLB). Priestap told us that he also discussed the matter with either then Deputy Director (DD) Andrew McCabe or then Executive Assistant Director (EAD) Michael Steinbach, but did not recall discussing the matter with then Director James Comey told the OIG that he did not recall being briefed on the FFG information until after the Crossfire Hurricane investigation was opened, and that he was not involved in the decision to open the case. McCabe said that although he did not specifically recall meeting with Comey immediately after the FFG information was received, it was “the kind of thing that would have been brought to Director Comey’s attention immediately.” McCabe’s contemporaneous notes reflect that the FFG information, Carter Page, and Manafort, were discussed on July 29, after a regularly scheduled morning meeting of senior FBI leadership with the Director. Although McCabe told us he did not have an independent recollection of this discussion, he told us that, based upon his notes, this discussion likely included the Director. McCabe’s notes reflect only the topic of the discussion and not the substance of what was discussed. McCabe told us that he recalled discussing the FFG information with Priestap, Strzok, then Special Counsel to the Deputy Director Lisa Page, and Comey, sometime before Crossfire Hurricane was opened, and he agreed with opening a counterintelligence investigation based on the FFG information. He told us the decision to open the case was unanimous.

McCabe said the FBI viewed the FFG information in the context of Russian attempts to interfere with the 2016 U.S. elections in the years and months prior, as well as the FBI’s ongoing investigation into the DNC hack by a Russian Intelligence Service (RIS). He also said that when the FBI received the FFG information it was a “tipping point” in terms of opening a counterintelligence investigation regarding Russia’s attempts to influence and interfere with the 2016 U.S. elections because not only was there information that Russia was targeting U.S. political institutions, but now the FBI had received an allegation from a trusted partner that there had been some sort of contact between the Russians and the Trump campaign. McCabe said that he did not recall any discussion about whether the FFG information constituted sufficient predication for opening a Full Investigation, as opposed to a Preliminary Investigation, but said that his belief at the time, based on his experience, was that the FFG information was adequate predication. 167

According to Priestap, he authorized opening the Crossfire Hurricane counterintelligence investigation on July 31, 2016, based upon these discussions. He told us that the FFG information was provided by a trusted source-the FFG–and he therefore felt it “wise to open an investigation to look into” whether someone associated with the Trump campaign may have accepted the reported offer from the Russians. Priestap also told us that the combination of the FFG information and the FBI’s ongoing cyber intrusion investigation of the DNC hacks created a counterintelligence concern that the FBI was “obligated” to investigate. Priestap said that he did not recall any disagreement about the decision to open Crossfire Hurricane, and told us that he was not pressured to open the case.

It includes a discussion explaining why FBI decided against defensive briefings — a key complaint from Republicans. Here’s the explanation Bill Priestap gave.

While the Counterintelligence Division does regularly provide defensive briefings to U.S. government officials or possible soon to be officials, in my experience, we do this when there is no indication, whatsoever, that the person to whom we would brief could be working with the relevant foreign adversary. In other words, we provide defensive briefings when we obtain information indicating a foreign adversary is trying or will try to influence a specific U.S. person, and when there is no indication that the specific U.S. person could be working with the adversary. In regard to the information the [FFG] provided us, we had no indication as to which person in the Trump campaign allegedly received the offer from the Russians. There was no specific U.S. person identified. We also had no indication, whatsoever, that the person affiliated with the Trump campaign had rejected the alleged offer from the Russians. In fact, the information we received indicated that Papadopoulos told the [FFG] he felt confident Mr. Trump would win the election, and Papadopoulos commented that the Clintons had a lot of baggage and that the Trump team had plenty of material to use in its campaign. While Papadopoulos didn’t say where the Trump team had received the “material,” one could reasonably infer that some of the material might have come from the Russians. Had we provided a defensive briefing to someone on the Trump campaign, we would have alerted the campaign to what we were looking into, and, if someone on the campaign was engaged with the Russians, he/she would very likely change his/her tactics and/or otherwise seek to cover-up his/her activities, thereby preventing us from finding the truth. On the other hand, if no one on the Trump campaign was working with the Russians, an investigation could prove that. Because the possibility existed that someone on the Trump campaign could have taken the Russians up on their offer, I thought it wise to open an investigation to look into the situation.

It even explained how, by its read, the investigation met the terms of the DIOG for a Full Investigation.

Under Section 11.B.3 of the AG Guidelines and Section 7 of the DIOG, the FBI may open a Full Investigation if there is an “articulable factual basis” that reasonably indicates one of the following circumstances exists:

  • An activity constituting a federal crime or a threat to the national security has or may have occurred, is or may be occurring, or will or may occur and the investigation may obtain information relating to the activity or the involvement or role of an individual, group, or organization in such activity;
  • An individual, group, organization, entity, information, property, or activity is or may be a target of attack, victimization, acquisition, infiltration, or recruitment in connection with criminal activity in violation of federal law or a threat to the national security and the investigation may obtain information that would help to protect against such activity or threat; or
  • The investigation may obtain foreign intelligence that is responsive to a requirement that the FBI collect positive foreign intelligence-i.e., information relating to the capabilities, intentions, or activities of foreign governments or elements thereof, foreign organizations or foreign persons, or international terrorists.

The DIOG provides examples of information that is sufficient to initiate a Full Investigation, including corroborated information from an intelligence agency stating that an individual is a member of a terrorist group, or a threat to a specific individual or group made on a blog combined with additional information connecting the blogger to a known terrorist group. 45 A Full Investigation may be opened if there is an “articulable factual basis” of possible criminal or national threat activity. When opening a Full Investigation, an FBI employee must certify that an authorized purpose and adequate predication exist; that the investigation is not based solely on the exercise of First Amendment rights or certain characteristics of the subject, such as race, religion, national origin, or ethnicity; and that the investigation is an appropriate use of personnel and financial resources. The factual predication must be documented in an electronic communication (EC) or other form, and the case initiation must be approved by the relevant FBI personnel, which, in most instances, can be a Supervisory Special Agent (SSA) in a field office or at Headquarters. As described in more detail below, if an investigation is designated as a Sensitive Investigative Matter, that designation must appear in the caption or heading of the opening EC, and special approval requirements apply.

Importantly, per Michael Horowitz’s own description of the dispute, this is the topic about which John Durham disagreed. Durham reportedly believed it should have been opened as a Preliminary Investigation — but that would not have changed the investigative techniques available (and there was already a Full Investigation into Carter Page and Paul Manafort).

After first making the same error that Durham did in the Kevin Clinesmith, eleven days after publishing the report, DOJ IG corrected it to note the full implication of Crossfire Hurricane being opened as a counterintelligence investigation, implicating both FARA and 18 USC 951 Foreign Agent charges.

Crossfire Hurricane was opened by CD and was assigned a case number used by the FBI for possible violations of the Foreign Agents Registration Act (FARA), 22 U.S.C. § 611, et seq., and 18 U.S.C. § 951 (Agents of Foreign Governments). 170 As described in Chapter Two, the AG Guidelines recognize that activities subject to investigation as “threats to the national security” may also involve violations or potential violations of federal criminal laws, or may serve important purposes outside the ambit of normal criminal investigation and prosecution by informing national security decisions. Given such potential overlap in subject matter, neither the AG Guidelines nor the DIOG require the FBI to differently label its activities as criminal investigations, national security investigations, or foreign intelligence collections. Rather, the AG Guidelines state that, where an authorized purpose exists, all of the FBI’s legal authorities are available for deployment in all cases to which they apply.

And it provided this short description of why Strzok opened the investigation.

After Priestap authorized the opening of Crossfire Hurricane, Strzok, with input from the OGC Unit Chief, drafted and approved the opening EC. 175 Strzok told us that the case agent normally drafts the opening EC for an investigation, but that Strzok did so for Crossfire Hurricane because a case agent was not yet assigned and there was an immediate need to travel to the European city to interview the FFG officials who had met with Papadopoulos.

Finally, the IG Report provides a description of how the FBI came to open investigations against Trump’s four flunkies, Carter Page, George Papadopoulos, Paul Manafort, and — after a few days — Mike Flynn (though in the process, repeats but did not correct the error of calling this a FARA case).

Strzok, the Intel Section Chief, the Supervisory Intelligence Analyst (Supervisory Intel Analyst), and Case Agent 2 told the OIG that, based on this information, the initial investigative objective of Crossfire Hurricane was to determine which individuals associated with the Trump campaign may have been in a position to have received the alleged offer of assistance from Russia.

After conducting preliminary open source and FBI database inquiries, intelligence analysts on the Crossfire Hurricane team identified three individuals–Carter Page, Paul Manafort, and Michael Flynn–associated with the Trump campaign with either ties to Russia or a history of travel to Russia. On August 10, 2016, the team opened separate counterintelligence FARA cases on Carter Page, Manafort, and Papadopoulos, under code names assigned by the FBI. On August 16, 2016, a counterintelligence FARA case was opened on Flynn under a code name assigned by the FBI. The opening ECs for all four investigations were drafted by either of the two Special Agents assigned to serve as the Case Agents for the investigation (Case Agent 1 or Case Agent 2) and were approved by Strzok, as required by the DIOG. 178 Each case was designated a SIM because the individual subjects were believed to be “prominent in a domestic political campaign. “179

Obviously, the extended account of how the umbrella investigation and individual targeted ones got opened accounts for Strzok’s testimony, but usually relies on someone else where available. That may be because Horowitz walked into this report with a key goal of assessing whether Strzok took any step arising from political bias, and while he concluded that Strzok could not have taken any act based on bias, he ultimately did not conclude one way or another whether he believed Strzok let his hatred for Trump bias his decisions.

But at first, the account made errors about what FBI was really investigating. And even in the longer discussions about how FBI came to predicate the four individual investigations (which follow the cited passage), it doesn’t really explain how FBI decided to go from the umbrella investigation to individualized targets.

Strzok, UNSUB, and his packed bags

So Strzok’s book, as delayed as I think the publication of it is, is in substantial part the first time he gets to explain these early activities.

In a long discussion about how the case got opened, Strzok talks about the difficulties of a counterintelligence investigation, particularly one where you don’t know whom your subject is, as was the case here.

Another reason for secrecy in the FBI’s counterintelligence work is the fundamentally clandestine nature of what it is investigating. Like my work on the illegals in Boston, counterintelligence work frequently has nothing to do with criminal behavior. An espionage investigation, as the Bureau defines it, involves an alleged violation of law. But pure counterintelligence work is often removed from proving that a crime took place and identifying the perpetrator. It’s gaining an understanding of what a foreign intelligence service is doing, who it targets, the methods it uses, and what the national security implications are.

Making those cases even more complicated, agents often don’t even know the subject of a counterintelligence investigation. They have a term for that: an unknown subject, or UNSUB, which they use when an activity is known but the specific person conducting that activity is not — for instance, when they are aware that Russia is working to undermine our electoral system in concert with a presidential campaign but don’t know exactly who at that campaign Russia might be coordinating with or how many people might be involved.

To understand the challenges of an UNSUB case, consider the following three hypothetical scenarios. In one, a Russian source tells his American handler that, while out drinking at an SVR reunion, he learned that a colleague had just been promoted after a breakthrough recruitment of an American intelligence officer in Bangkok. We don’t know the identity of the recruited American — he or she is an UNSUB. A second scenario: a man and a woman out for a morning run in Washington see a figure toss a package over the fence of the Russian embassy and speed off in a four-door maroon sedan. An UNSUB.

Or consider this third scenario: a young foreign policy adviser to an American presidential campaign boasts to one of our allies that the Russians have offered to help his candidate by releasing damaging information about that candidate’s chief political rival. Who actually received the offer of assistance from the Russians? An UNSUB.

The typical approach to investigating UNSUB cases is to open a case into the broad allegation, an umbrella investigation that encompasses everything the FBI knows. The key to UNSUB investigations is to first build a reliable matrix of every element known about the allegation and then identify the universe of individuals who could fit that matrix. That may sound cut-and-dried, but make no mistake: while the methodology is straightforward, it’s rarely easy to identify the UNSUB.

[snip]

The FFG information about Papadopoulos presented us with a text- book UNSUB case. Who received the alleged offer of assistance from the Russians? Was it Papadopoulos? Perhaps, but not necessarily. We didn’t know about his contacts with Mifsud at the time — all we knew was that he had told the allied government that the Russians had dirt on Clinton and Obama and that they wanted to release it in a way that would help Trump.

So how did we determine who else needed to go into our matrix? And what did we know about the various sources of the information? Papadopoulos had allegedly stated it, but it was relayed by a third party. What did we know about both of them: their motivations, for instance, or the quality of their memories? What were the other ways we could determine whether the allegation was true?

And if it was true, how did we get to the bottom of it?

Having laid out the challenge that lay behind the four predications, Strzok then described the circumstances of the trip (with a big gaping hole in the discussion of meeting with the Australians).

He describes how he went home over the weekend, not knowing whether they would leave immediately or after the weekend. That’s why, he explained, he wrote the EC himself, specifically to have one in place before they flew to London.

I quickly briefed him on the facts and asked him to get a bag ready to go to Europe to do some interviews.

When are we leaving? he asked me.

No idea, I told him. Probably not until Monday, but I want to be ready to go tomorrow.

How long are we going for? he asked.

I don’t know, I admitted. A few days at most. I wasn’t sure if we would get to yes with our counterparts, but our sitting there in Europe would make it harder for them to say no.

I had work to do before we could depart. When I left the office on Friday, I grabbed my assigned take-home laptop, configured to operate at a classified level on our secure network.

[snip]

Sitting in my home office, I opened the work laptop and powered it up. The laptops were balky and wildly overpriced, requiring an arcane multi-step process to connect. They constantly dropped their secure connections. Throughout the D.C. suburbs, FBI agents flew into rages when the laptops quit cold while they were trying to work at home. Chinese or Russian intelligence would have been hard-pressed to develop a more infuriating product. Nevertheless, they let you work away from the office.

After logging in, I pulled up a browser and launched Sentinel, our electronic case file system. Selecting the macro for opening an investigation, I filled in the various fields until I reached the blank box for the case name.

They didn’t leave over the weekend, but they did leave on Monday. When they came back, having heard Alexander Downer’s side of the story (probably along with his aide, with whom Papadopoulos met and drank more with on multiple occasions, but that’s not in the book), it seemed a more credible tip.

And in the interim, analysts had found four possible candidates to be the UNSUB.

I was surprised by the amount of information the analysts had already found. Usually, because initial briefings take place at the very beginning of an investigation, they are short on facts and long on conjecture about all the various avenues we might pursue for information. In this case there were already a lot of facts, and several individuals—not just one—had already cropped up in other cases, in other intelligence collection, in other surveillance activity.
Although I was just hours back from Europe, what I saw was deeply dis- concerting. Though we were in the earliest stages of the investigation, our first examination of intelligence had revealed a wide breadth and volume of connections between the Trump campaign and Russia. It was as if we had gone to search for a few rocks only to find ourselves in a field of boulders.

Within a week the team had highlighted several people who stood out as potentially matching the UNSUB who had received the Russian offer of assistance. As we developed information, each person went into the UNSUB matrix, with tick marks next to the matching descriptors.

All this description is surely not going to satisfy Republicans. Nor was it under oath or to law enforcement officers, as Strzok’s other testimony was.

But it’s a compelling description.

It also adds perspective onto the treatment of Mike Flynn. Until they learned about Papadopoulos’ ties with Joseph Mifsud, they still had no clues about who got the tip. Mike Flynn had been eliminated for lack of evidence — but then he picked up a phone and provided the FBI a whole lot of evidence that he could be the guy.

And unless you believe that receiving a credible tip from a close ally that someone is tampering in an election still three months away doesn’t merit urgency, then the other steps all make sense.

I have no idea if that’s why Catherine Herridge got sent to whip out her high-gaslight again. I have no idea whether Nora Dannehy read these excerpts, and in the process realized both the significance of the error in treating this as a FARA investigation, but also how that changes predication into individual subjects.

But there have long been answers to some of the most basic questions that Republicans have returned to over and over again. It’s just that few of the interim investigations ever asked to get those answers. And the one that did — the DOJ IG Report — never even understood the crimes investigated until after the report got published.

Both Rod Rosenstein and Richard Burr Chose Not to Investigate Trump’s Biggest Counterintelligence Vulnerability

Mike Schmidt has a story describing that Rod Rosenstein led Andrew McCabe to believe that the Deputy Attorney General had tasked Robert Mueller to investigate the counterintelligence risk posed by Trump’s financial vulnerabilities, even though Rosenstein told Mueller to limit his own investigation to criminal matters.

The Justice Department secretly took steps in 2017 to narrow the investigation into Russian election interference and any links to the Trump campaign, according to former law enforcement officials, keeping investigators from completing an examination of President Trump’s decades-long personal and business ties to Russia.

[snip]

Mr. Rosenstein concluded the F.B.I. lacked sufficient reason to conduct an investigation into the president’s links to a foreign adversary. Mr. Rosenstein determined that the investigators were acting too hastily in response to the firing days earlier of James B. Comey as F.B.I. director, and he suspected that the acting bureau director who approved the opening of the inquiry, Andrew G. McCabe, had conflicts of interest.

Mr. Rosenstein never told Mr. McCabe about his decision, leaving the F.B.I. with the impression that the special counsel would take on the investigation into the president as part of his broader duties. Mr. McCabe said in an interview that had he known Mr. Mueller would not continue the inquiry, he would have had the F.B.I. perform it.

“We opened this case in May 2017 because we had information that indicated a national security threat might exist, specifically a counterintelligence threat involving the president and Russia,” Mr. McCabe said. “I expected that issue and issues related to it would be fully examined by the special counsel team. If a decision was made not to investigate those issues, I am surprised and disappointed. I was not aware of that.”

The story is infuriating — except it also raises a number of questions it doesn’t answer, especially coming from a journalist who himself set Trump’s red line of a financial investigation just weeks after these decisions apparently took place.

Schmidt — who has obviously been fed stories by Andrew McCabe in the past — describes Rosenstein telling Mueller not to do a counterintelligence investigation.

But privately, Mr. Rosenstein instructed Mr. Mueller to conduct only a criminal investigation into whether anyone broke the law in connection with Russia’s 2016 election interference, former law enforcement officials said.

Except he doesn’t explain how that — or continued ignorance on the part of the FBI that Rosenstein had bracketed off such an investigation — is consistent with this passage from the Mueller Report:

From its inception, the Office recognized that its investigation could identify foreign intelligence and counterintelligence information relevant to the FBI’s broader national security mission. FBI personnel who assisted the Office established procedures to identify and convey such information to the FBI. The FBI’s Counterintelligence Division met with the Office regularly for that purpose for most of the Office’s tenure. For more than the past year, the FBI also embedded personnel at the Office who did not work on the Special Counsel’s investigation, but whose purpose was to review the results of the investigation and to send-in writing-summaries of foreign intelligence and counterintelligence information to FBIHQ and FBI Field Offices. Those communications and other correspondence between the Office and the FBI contain information derived from the investigation, not all of which is contained in this Volume.

Sometime before March 2018, a period that may entirely post-date McCabe’s resignation on January 29, 2018, Mueller embedded FBI Agents into his team who knew what he was and wasn’t doing on counterintelligence. It seems impossible that FBI had no idea about the scope of Mueller’s counterintelligence investigation after that point. I’m not suggesting that Schmidt is wrong (he must be right, because Adam Schiff has been saying the same thing). I’m suggesting this narrative (at least as presented in the NYT version of the story), has some gaps.

One gap appears in this passage, suggesting SSCI was simply helpless in the face of legal obstacles in obtaining information on Trump’s finances.

A bipartisan report by the Republican-led Senate Intelligence Committee released this month came the closest to an examination of the president’s links to Russia. Senators depicted extensive ties between Trump associates and Russia, identified a close associate of a former Trump campaign chairman as a Russian intelligence officer and outlined how allegations about Mr. Trump’s encounters with women during trips to Moscow could be used to compromise him. But the senators acknowledged they lacked access to the full picture, particularly any insight into Mr. Trump’s finances.

The single thing in the known scope of the SSCI Report that wasn’t also included in the Mueller Report — with the possible except of an investigation into several other allegations that Trump had been sexually compromised by Russia — is Aleksandr Torshin’s efforts to reach out to Trump via the NRA (but SSCI itself limited its investigation into NRA, and in a few cases wouldn’t have obtained material had Ron Wyden not obtained it on the Finance Committee). One weakness of the SSCI Report is an almost juvenile suggestion that sexual kompromat would the only kind of compromising information Russia had on Trump.

But to some degree, SSCI chose not to include Trump’s financial ties to Russia in their report — that was the most persistent complaint from most Democrats on the committee.

[T]he Committee did not cover all areas of concern. For example, the Committee’s investigation, for a variety of reasons, did not seek, and was not able to review, records regarding Donald Trump’s finance’s and the numerous areas where those financial interests appear to have overlapped with Russia. In tum, the reader should not interpret the Report’s absence of information on this topic to indicate that nothing of interest was found. Rather, it should be acknowledged that this was a potentially meaningful area that the Committee did not probe. [my emphasis]

BuzzFeed reported in 2018 that Richard Burr didn’t think Trump’s financial ties to be relevant.

Burr has dismissed Wyden’s complaints. “Whether every member has chosen to come and actually spend the time to go through [the documents] is a whole other question. I’m tired of hearing the fact that we don’t follow [the money],” Burr said. “We are investigating every avenue that gives us clarity into what the mission is of this investigation, but that’s not to fall outside the mission of the investigation. I could care less how they financed a deal 20 years ago somewhere because I don’t think it’s relevant.”

An earlier report described that Treasury was providing SARs to SSCI’s investigators; it just hadn’t been asked for those pertaining to Trump and his family.

Rod Rosenstein’s decision not to investigate Trump’s vulnerability to Russian compromise is one thing. Richard Burr’s decision to similarly constrain his investigation is another. Indeed, Burr’s decision is in many ways less defensible; as a co-equal branch, it is Congress’ job to ensure that the President doesn’t betray the country.

The fact that both men — who stayed on good terms with Trump while seeming to oversee an aggressive investigation into him — chose not to look into the most obvious source of compromise suggests that someone knows what they would find.

Update: Fixed timing of Mueller Report completion and McCabe resignation as Deputy Director.

Update:  On Twitter, Andrew Weissmann says key parts of the NYT story — the ones I raised questions about — are wrong.

NYT story today is wrong re alleged secret DOJ order prohibiting a counterintelligence investigation by Mueller, “without telling the bureau.” Dozens of FBI agents/analysts were embedded in Special Counsel’s Office and we were never told to keep anything from them.

Also erroneous is NYT claim “Rosenstein concluded the F.B.I. lacked sufficient reason to conduct an investigation into the president’s links to a foreign adversary.” See DOJ Special Counsel Appointment Order, para. (b)(i).

Jeff Wall: It Would Cause Attorney General Barr Irreparable Harm If He Had to Reveal His Secret Reason He Moved to Dismiss Flynn’s Prosecution

Before I explain the most important takeaway from the Mike Flynn hearing, let me note two points.

First, the Department of Justice is quite clear that none of the materials turned over recently to Mike Flynn were Brady material showing exculpatory evidence. DOJ has disclaimed any prosecutorial misconduct in Judge Sullivan’s courtroom. Bill Barr even said as much, under oath, before the House Judiciary Committee. DOJ has falsely claimed they were “new,” but some of the actual details weren’t even new to Flynn, much less new to DOJ, even if some of the documents were. That’s important because a number of the judges today seem to believe that DOJ wants to dismiss this case because they believe there was misconduct.

Nope.

The government disclosed approximately 25 pages of documents in April and May 2020 as the result of an independent review of this case by the United States Attorney for the Eastern District of Missouri. While those documents, along with other recently available information, see, e.g., Doc. 198-6, are relevant to the government’s discretionary decision to dismiss this case, the government’s motion is not based on defendant Flynn’s broad allegations of prosecutorial misconduct. Flynn’s allegations are unfounded and provide no basis for impugning the prosecutors from the D.C. United States Attorney’s Office.

They want to dismiss the case because they don’t believe calling up the country that just attacked us and secretly undermining the punishment on them, then lying about it, is any big thing.

Second, in the second-to-last release to Flynn of materials that aren’t new but that Billy Barr used to invent a reason to dismiss the prosecution, DOJ either betrayed breathtaking ignorance of the investigation into Flynn, or they lied. In turning over notes from Peter Strzok that clearly memorialize a January 5, 2017 meeting that has been the subject of public disclosure going back years (well before Flynn reallocuted his plea deal), DOJ claimed not to know their date.

The enclosed document was obtained and analyzed by USA EDMO during the course of its review. This page of notes was taken by former Deputy Assistant Director Peter Strzok. While the page itself is undated; we believe that the notes were taken in early January 2017, possibly between January 3 and January 5.

That professed uncertainty led the frothy right to claim that Joe Biden suggested Flynn be prosecuted for the Logan Act, which led to FBI reopening the investigation, which led to his prosecution. It was obvious the notes were from January 5, and I’ve since confirmed that. That DOJ claimed not to know the date of these notes is either evidence that they’re using this process to invent campaign dirt, or evidence that all the people reviewing this material have no grasp on the facts.

Which is to say, the judges have the very mistaken impression that DOJ withheld material they should have turned over, and that DOJ itself has suggested (in the less damning reading of their actions) to have no grasp of basic facts about the investigation into Flynn or even basic physics about time. No. Both claims are, at best, reason to further scrutinize this case.

Even ignoring the fact that DOJ has presented two different explanations for why they want to dismiss a case that they, months earlier, argued merited prison time, taking just the original motion to dismiss on its face value (ignoring the obvious lies in it), three months later, no one understands why DOJ moved to dismiss the case.

That’s important, because Acting Solicitor General Jeff Wall claims it would cause irreparable harm to the Executive Branch if DOJ had to answer any questions about why they dismissed the case.

That matters for two reasons. First, as the attorney representing Judge Emmet Sullivan, Beth Wilkinson, pointed out, what distinguishes this case from a Dick Cheney case that SCOTUS has said threatened the prerogatives of the Executive branch, DOJ has already proven willing to offer up reasons for their motion to dismiss, even if they are, partly, transparently false. DOJ is not claiming that they can’t respond to these questions, they’re offering up explanations unasked, and then objecting aggressively when asked question about those claims.

Indeed, Wall offered up a crazy new detail in this hearing: He implied that, in addition to believing that material lies are not the same for Flynn as other people and that secretly calling up the country that just attacked us to say, “no big deal,” is not alarming, there is also non-public information from other investigations that led Billy Barr to tank the Flynn prosecution.

The Attorney General sees this in a context of non-public information from other investigations.

[snip]

I just want to make clear that it may be possible that the Attorney General had before him that he was not able to share with the court and so what we put in front of the court were the reasons that we could, but it may not be the whole picture available to the Executive Branch.

[snip]

It’s just we gave three reasons; one of them was that the interests of justice were not longer served, in the Attorney General’s judgment, by the prosecution. The Attorney General made that decision, or that judgment, on the basis of lots of information, some of it is public and fleshed out in the motion, some of it is not.

[snip]

If all we had to do was show up and stand on our motion, no, we’ve already said that to the District Court.

Billy Barr has a secret. And that, Acting Solicitor General Jeff Wall suggested, is why a mere hearing on this motion to dismiss would irreparably harm DOJ (even while Wall alluded to the information without being asked).

Wow.

The revised explanation why DOJ can’t prosecute Flynn that Flynn prosecutor Jocelyn Ballantine has offered (one in which the Solicitor General’s Office has also participated) is that DOJ can’t “prosecute” Mike Flynn because DOJ has collected so much impeaching evidence against those who investigated Flynn that they can’t prove the case he has twice pled guilty to even though witnesses like KT McFarland and Mike Pence support their case.

Furthermore, since the time of the plea, extensive impeaching materials had emerged about key witnesses the government would need to prove its case. Strzok was fired from the FBI, in part because his text messages with Page revealed political bias against the current administration and “implie[d] a willingness to take official action to impact the presidential candidate’s electoral prospects.” U.S. Dep’t of Justice, Office of the Inspector General, A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election xii (December 2018). The second interviewing agent has been accused of acting improperly in connection with the broader investigation. McCabe, who authorized Flynn’s interview without notifying either the Department of Justice or the White House Counsel, was fired for conduct that included lying to the FBI and lying under oath. U.S. Dep’t of Justice, Office of the Inspector General, A Report of Investigation of Certain Allegations Relating to Former FBI Deputy Director Andrew McCabe 2 (February 2018). In addition, significant witnesses have pending investigations or lawsuits against the Department of Justice, which could create further questions about their testimony at trial. See Strzok v. Barr, Civ. No. 19-2367 (D.D.C. Aug. 6, 2019); McCabe v. Barr, Civ. No. 19-2399 (D.D.C. Aug. 8, 2019); Page v. Dep’t of Justice, Civ. No. 19-3675 (D.D.C. Dec. 10, 2019). Those developments further support the government’s assessment about the difficulty it would have in proving its case to a jury beyond a reasonable doubt.

That is, Ballantine says DOJ can’t sentence Flynn for his admitted crimes because they’ve also laid out how DOJ has trumped up investigations against all the people who investigated Flynn, and at least three of those people have credible legal claims against DOJ for those trumped up investigations.

That suggests one of several things.

It’s possible the secret Billy Barr doesn’t want to reveal deals with how 30-year intelligence veteran Mike Flynn sold his services to the government of Turkey while working for Trump, while trying to hide that fact, all without knowing why that’d be a problem. DOJ has not yet backed off the facts Flynn gave the grand jury (another basis for perjury charges against him, in addition to his plea allocutions, which the Circuit judges appeared to miss), and indeed has doubled down on the Bijan Kian investigation. So maybe DOJ is claiming that poor Mike Flynn was compromised by his non-professional partner out of naiveté?

Another possibility is that there are other secret investigations ongoing, whereby poor 30-year defense intelligence veteran General Flynn was targeted by Russian intelligence but was helpless to rebuff their entreaties and so must be forgiven for lying about all that.

A third possibility is that DOJ has been ordered by the President to make sure none of the people who protected him do prison time. Secret reason. Can’t be shared with judges. Checks out!

The most likely secret information Billy Barr is hiding — particularly given Wall’s reference to other investigations — is the Durham investigation, the possibility that John Durham will find something in his investigation into  Trump’s people where DOJ IG found nothing. That means either that Billy Barr took actions in May that John Durham has not charged in the interim three months. Or, that Billy Barr is trying to pre-empt Flynn’s prosecution believing — or expecting — that an investigation that has not yet completed will end up in criminal charges.

If that’s what’s happening, it would suggest that Barr has already decided what the outcome of the Durham investigation will be, prejudging its outcome and effectively neutering Durham, making his prosecutorial decision an afterthought.

Which is why I focused on DOJ’s false claim — possibly attributed to Jeffrey Jensen, the US Attorney Billy Barr directed to find reasons to blow up the Flynn prosecution while Durham continued to work — that Joe Biden raised the Logan Act before the FBI (and ODNI) raised it themselves. In that case, at least, Barr’s selected flunkies have proven themselves to either be willing to misrepresent evidence or to be painfully stupid about it. In that case, a US Attorney deputized into Billy Barr’s projects has admitted to either knowing fuckall or inventing facts for political purpose. That, by itself, raises questions about the presumption of regularity that Barr might otherwise be afforded.

DOJ claims they’ve given abundant reason why they wanted to dismiss the prosecution against Flynn, even though their reasons conflict with all precedent and the record that Bill Barr’s DOJ has established in this case.

But today we learned there’s another, secret, reason why Billy Barr wanted to dismiss the case against Flynn. Even while DOJ has made it clear they are either misrepresenting the record or unfamiliar with it.

Which is all the more reason why Judge Sullivan should have a hearing, and which likely explains why DOJ has claimed, multiple times now, that that would do irreparable harm to DOJ.

Billy Barr Admits, for the Third and Fourth Time, that He Intervenes without Knowing the Facts

Billy Barr’s statement for his testimony today is here. It is as cynical and dishonest as you might imagine.

In his first paragraph, he pays tribute to John Lewis, without mentioning the ways he personally is trying to roll back the ability for every citizen to vote (most notably, of late, by falsely suggesting that the only safe way to vote during a pandemic is susceptible to fraud).

In his second paragraph, he suggests only politicians are political, and then suggests “mobs” are among those pressuring DOJ to take political decisions.

We are in a time when the political discourse in Washington often reflects the politically divided nation in which we live, and too often drives that divide even deeper. Political rhetoric is inherent in our democratic system, and politics is to be expected by politicians, especially in an election year. While that may be appropriate here on Capitol Hill or on cable news, it is not acceptable at the Department of Justice. At the Department, decisions must be made with no regard to political pressure—pressure from either end of Pennsylvania Avenue, or from the media or mobs.

Then he spends five paragraphs addressing what he calls “Russiagate,” a term used exclusively by those who like to diminish the seriousness of an attack on our country.

Ever since I made it clear that I was going to do everything I could to get to the bottom of the grave abuses involved in the bogus “Russiagate” scandal, many of the Democrats on this Committee have attempted to discredit me by conjuring up a narrative that I am simply the President’s factotum who disposes of criminal cases according to his instructions. Judging from the letter inviting me to this hearing, that appears to be your agenda today.

Four paragraphs later, Billy Barr admits that the sole reason he returned to government was to avenge what he believed — as an admitted outsider!! — to be two systems of justice.

But as an outsider I became deeply troubled by what I perceived as the increasing use of the criminal justice process as a political weapon and the emergence of two separate standards of justice. The Department had been drawn into the political maelstrom and was being buffeted on all sides. When asked to consider returning, I did so because I revere the Department and believed my independence would allow me to help steer her back to her core mission of applying one standard of justice for everyone and enforcing the law even-handedly, without partisan considerations. Since returning to the Department, I have done precisely that. My decisions on criminal matters before the Department have been my own, and they have been made because I believed they were right under the law and principles of justice.

Remember: Billy Barr has repeatedly stated that the investigation into Trump’s associates (not Trump himself) was unprecedented, proving he’s either unaware of or uninterested in the two investigations into Hillary, both of which involved abuses (the ostensible reason for the firing of both Jim Comey and Andrew McCabe) and leaks. The only evidence that a biased FBI Agent was running an informant on a candidate during the election involved the Clinton Foundation investigation which — unlike the Russian investigation — is understood to be entirely predicated on dodgy opposition research. Clinton did sit for an interview in the investigation into her actions; Trump refused.

In other words, every complaint floated about the Russian investigation actually applies more readily to the two Clinton ones, the treatment of investigations which had some effect, however unmeasured, on the election.

Yet the Attorney General of the United States has now admitted that he came into office planning to avenge what he sees as the opposite. Importantly, he admits he formed this conclusion an outsider! That means he formed the conclusion in spite of — by his own repeated admission — not knowing the facts of the investigation. “I realize I am in the dark about many facts,” he admitted in his memo on what he believed Mueller was doing on obstruction. As part of his confirmation process, he told both Dianne Feinstein and the Senate Judiciary that, “As I explained in a recent letter to Ranking Member Feinstein, my memo was narrow in scope, explaining my thinking on a specific obstruction-of-justice theory under a single statute that I thought, based on media reports, the Special Counsel might be considering.”

Billy Barr decided to become Attorney General based off what he admitted then and has proven since to be badly mistaken understanding of what the Russian investigation entailed. That’s it. That’s why he agreed to become Attorney General.

Barr may think he’s working from an independent standpoint (a laughable claim in any case given his outspoken hatred for anything progressive), but he keeps admitting that he’s doing something worse, working from an understanding based off media portrayals rather than an understanding based off the public, much less the investigative, record.

No wonder Reggie Walton ruled that Attorney General Barr had spun the real outcome of the investigation. Barr, by his own admission, formed conclusions when he was “in the dark about many facts.” There’s no evidence he has revisited those conclusions since.

Billy Barr performs his own toxic bias in numerous other ways in his opening statement, for example by focusing on Antifa’s potential threat to law enforcement rather than Boogaloo’s much greater threat.

Most cynical, though, is the way he explains the storm troopers in Portland as an effort to defend not just Federal property (which it is, if counterproductively heavy-handed), but Article III judges.

Inside the courthouse are a relatively small number of federal law enforcement personnel charged with a defensive mission: to protect the courthouse, home to Article III federal judges, from being overrun and destroyed.

Barr has demonstrated his disdain for Article III judges over and over: by overriding the decisions of Emmet Sullivan on the Mike Flynn case, by lying to courts on census cases, by ignoring Supreme Court orders on DACA.

Most importantly, however, on issues pertaining to Trump’s flunkies — even the Roger Stone case that he has twice said was righteous — Barr completely dismissed the seriousness of an actual threat to a Federal judge. As I have noted, contrary to Barr’s repeated claims that Amy Berman Jackson agreed with the sentencing recommendation DOJ made after he made an unprecedented intervention to override a guidelines sentencing recommendation, she did not agree that his revised sentencing included the appropriate enhancements. Not only did Barr dismiss the seriousness of making a violent threat against a witness, but Barr’s revised sentencing memo eliminated the sentencing enhancement for threatening a judge, opining (as Barr has a habit of doing) that DOJ wasn’t sure whether Stone’s actions had obstructed his prosecution and trial under ABJ.

Moreover, it is unclear to what extent the defendant’s obstructive conduct actually prejudiced the government at trial.

This is why we have judges: to decide matters like this! Indeed, that’s the justification for recommending guidelines sentences in the first place — so the actual judge who presided over the case, rather than an Attorney General who has admitted to repeatedly forming opinions without consulting the actual record, makes the decisions based off the broadest understanding of the record. Even in this, his most egregious action, Billy Barr’s DOJ weighed in while admitting it didn’t have the knowledge to do so. And did so in such a way that minimized the danger of threats against Article III judges.

Billy Barr thinks the moms defending protestors in Portland are a threat to judges. But his repeated, acknowledged intervention on matters he knows fuckall about is a bigger threat to the rule of law, up to and including when that record includes threats against judges.

The Eight Investigations into the Russian Investigation Have Already Lasted 47% Longer than the Investigation Itself

Before the holiday weekend, FBI Director Christopher Wray announced an “after-action review of the Michael Flynn investigation.” Thus far, that makes the eighth known investigation into the Russian investigation — and every known investigation included at least a small component relating to Mike Flynn. The investigations into the Russian investigation, which collectively have lasted around 2,064 days, have gone on 47% longer than the investigation itself.

This table lists all the known investigations pertaining to the Russian investigation, save those into people involved in the Carter Page FISA applications. All have at least a component touching on the investigation into Mike Flynn.

This table assumes the Russian investigation is ongoing, based off the redactions in the Roger Stone warrant releases and FOIAed 302s, even though Mueller closed up shop a year ago.

At least three of the investigations in this table pertain to allegations first seeded with Sara Carter and then to various Congressional staffers that Andrew McCabe said, “Fuck Flynn, and I fucking hate Trump.” McCabe was actually considered the victim of the first investigation, which was conducted by the FBI’s Inspection Division, the same entity that will conduct the investigation announced last week. While the full timing of that investigation is not known, Strzok gave a statement to the Inspection Division on July 26, 2017. That Inspection Division investigation led into the investigation into McCabe himself, though that investigation focused on his confirmation of the investigation into the Clinton Foundation (and so is not counted in this table).

Mike Flynn kept raising the “Fuck Flynn” allegations with prosecutors, leading the government to review the allegations two more times, including an October 25, 2018 interview with Lisa Page where she was also asked about her role in editing the Flynn 302s.

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, 4 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

The DOJ IG investigation into whether Jim Comey violated policy or the law by bringing home his CYA memos started in July 2017 and continued through last summer. Obviously, one of those memos recorded Trump asking Comey to let the Flynn investigation go.

The table above does not include the DOJ IG Report on the Midyear Exam investigation (into Hillary), even though that was the first to examine the Lisa Page and Peter Strzok texts. For timing purposes, only the DOJ IG investigation into Carter Page’s FISA applications investigation counts the investigation into Page and Strzok. That investigation also considered the treatment of Flynn’s presence in the first intelligence briefing for Trump.

Finally, there’s the John Durham investigation — which Bill Barr’s top aides were scoping at least as early as April 12 of last year. There is no public scope document. Similarly, there’s no public scope document of the Jeffrey Jensen review, which Barr launched to create some excuse to move to dismiss the Flynn prosecution after prosecutors recommended (and all of DOJ approved) prison time. Wray’s statement announcing the FBI’s own investigation into the Flynn investigation made clear that the Jensen investigation remains ongoing.

FBI Director Christopher Wray today ordered the Bureau’s Inspection Division to conduct an after-action review of the Michael Flynn investigation.  The after-action review will have a two-fold purpose:  (1) evaluate the relevant facts related to the FBI’s role in the Flynn investigation and determine whether any current employees engaged in misconduct, and (2)  evaluate any FBI policies, procedures, or controls implicated by the Flynn investigation and identify any improvements that might be warranted.

The after-action review will complement the already substantial assistance the FBI has been providing to U.S. Attorney Jeff Jensen in connection with his work on the Flynn case.  Under Director Wray’s leadership, the FBI has been fully transparent and cooperative with Mr. Jensen, and the FBI’s help has included providing special agents to assist Mr. Jensen in the fact-finding process.  Although the FBI does not have the prosecutorial authority to bring a criminal case, the Inspection Division can and will evaluate whether any current on-board employees engaged in actions that might warrant disciplinary measures.  As for former employees, the FBI does not have the ability to take any disciplinary action.

Director Wray authorized this additional level of review now that the Department of Justice, through Mr. Jensen’s work, has developed sufficient information to determine how to proceed in the Flynn case.  However, Mr. Jensen’s work will continue to take priority, and the Director has further ordered the Inspection Division to coordinate closely with Mr. Jensen and ensure that the review does not interfere with or impede his efforts.  Relatedly, for purposes of ensuring investigative continuity across these related matters, the Inspection Division will also utilize to the extent practicable the special agents that the FBI previously assigned to assist Mr. Jensen.

In Bill Barr’s interview with Catherine Herridge, he discussed the Jensen review in terms of criminal behavior, which would mean Jensen and Durham are both considering criminal charges for some of the same activities — activities that had been investigated six times already.

Based on the evidence that you have seen, did senior FBI officials conspire to throw out the national security adviser?

Well, as I said, this is a particular episode. And it has some troubling features to it, as we’ve discussed. But I think, you know, that’s a question that really has to wait an analysis of all the different episodes that occurred through the summer of 2016 and the first several months of President Trump’s administration.

What are the consequences for these individuals?

Well, you know, I don’t wanna, you know, we’re in the middle of looking at all of this. John Durham’s investigation, and U.S. Attorney Jensen, I’m gonna ask him to do some more work on different items as well. And I’m gonna wait till all the evidence is, and I get their recommendations as to what they found and how serious it is.

But if, you know, if we were to find wrongdoing, in the sense of any criminal act, you know, obviously we would, we would follow through on that. But, again, you know, just because something may even stink to high heaven and be, you know, appear everyone to be bad we still have to apply the right standard and be convinced that there’s a violation of a criminal statute. And that we can prove it beyond a reasonable doubt. The same standard applies to everybody.

This is one reason why DOJ’s claim to have found “new” information justifying their flip-flop on Flynn’s prosecution would be so absurd if DOJ weren’t making the claim (with no documentation) in court. Different entities in DOJ had already investigated circumstances surrounding the Flynn investigation at least seven times before Jensen came in and did it again.

But I guess Barr is going to keep investigating until someone comes up with the result he demands.

Cross Filings: NSD Figures Out How Woods Procedures Are Supposed to Work

JustSecurity has an odd panel on FISA yesterday reviewing the DOJ IG Memo showing that Carter Page’s FISA applications were actually better than average with respect to compliance with Woods Procedures. It includes Andrew McCabe (who signed the last, most problematic, Carter Page application) and Mary McCord (who was involved in the review process for three of the applications, and even told McCabe they needed more information on Christopher Steele before the first one), but it doesn’t disclose their roles in the process. It also doesn’t include defense attorneys among its experts, who might provide more context about problems identified with FISA long before the Page investigation.

I’m particularly interested in McCord’s comments. She likens this to what happened in the wake of Brady v Maryland, and then again in the wake of Ted Stevens’ trial, as prosecutors came to a more proactive view on discovery (she doesn’t explain how prosecutors fucked up so badly on the Stevens case if any cultural change had really happened).

While I applaud McCord for taking a more skeptical view of the Page surveillance at several points (as described in the DOJ IG Report), her focus on Brady and her confidence in cultural change is misplaced, in my opinion.

As bmaz would and has been screaming, Brady isn’t actually the standard here. Franks is. He has argued that the affidavits targeting Page would never have reached the standard under Franks, and thus if Page were treated like any other defendant (of course, he was never charged), these affidavits would have passed muster.

I would respond to bmaz that you’d never even get to a Franks hearing because no defendant has ever gotten review of their application. Now that Ric Grenell has declassified the bulk of Carter Page’s applications, it should be far easier to declassify applications going forward. Liza Goitein included providing review to defendants among her recommendations for reforms next month, but none of the other panelists did.

But all the panelists seem to have missed something that happened at the same time as the memo was released. As I noted in my own review of the MAM, NSD (which McCord led for a key period during which Page was surveilled) has been doing their reviews in such a way as to make the Woods Procedures useless. They were giving FBI Agents four weeks advance notice before conducting a review, which meant they never did what DOJ IG did — see whether the FISA file had the paperwork that under the Woods Procedure it should have.

Before any of these reviews happen, the field offices are told which applications will be reviewed, which gives the case agents a chance to pull together the documentary support for the application.

Thus, prior to the FBI CDC or NSD OI review, field offices are given advance notification of which FISA application(s) will be reviewed and are expected to compile documentary evidence to support the relevant FISA.

If the Woods Procedures were being followed, it should never be the case that the FBI needs to compile documentary evidence before the review; the entire point of it is it ensure the documentary evidence is in the file before any application gets submitted. Once you discover that all the FBI and OI reviews get advance notice, you’re not really reviewing Woods Procedures, it seems to me, you’re reviewing paperwork accuracy.

[snip]

To check the accuracy of the Woods Files, they should with no notice obtain a subset of them, as DOJ IG just did, and see whether the claims in the report are documented in the Woods File, and only after that do their onsite reviews (with notice, to see if there was documentation somewhere that had not been included in the file). That might actually be a better way of identifying where there might be other kinds of problems with the application.

It turns out, on the same day that DOJ IG released their MAM, NSD submitted a FISA filing updating James Boasberg on what they’re doing with reviews.

The panel deals with the DOJ IG Management Advisory Memorandum showing that Carter Page’s applications were in no way unique, with regards to Woods Procedure violations; in fact, his application had fewer Woods Procedure violations, on average, than the 29 applications DOJ IG reviewed. Much of the discussion focuses on

The results (rightly) look really stinky for the FBI. But in fact, the MAM revealed that NSD — McCord’s old department, which thus far had (possibly for jurisdictional reasons) avoided most criticism for FISA — was conducting reviews that made the Woods Files largely useless as an oversight tool (and therefore as a guarantee of accuracy). That’s because Office of Intelligence has been giving FBI Field Offices four weeks advance warning about which files they’re going to review.

DOJ IG describes its finding that these results aren’t being used in better fashion.

(4) FBI and NSD officials we interviewed indicated to us that there were no efforts by the FBI to use existing FBI and NSD oversight mechanisms to perform comprehensive, strategic assessments of the efficacy of the Woods Procedures or FISA accuracy, to include identifying the need for enhancements to training and improvements in the process, or increased accountability measures.

At least given their description, however, I think they’ve found something else. They’ve confirmed that — contrary to DOJ’s description to FISC that,

OI also conducts accuracy reviews of a subset of cases as part of these oversight reviews to ensure compliance with the Woods Procedures and to ensure the accuracy of the facts in the applicable FISA application.

OI is actually only doing the latter part, measuring the accuracy of the facts in an applicable FISA application. To check the accuracy of the Woods Files, they should with no notice obtain a subset of them, as DOJ IG just did, and see whether the claims in the report are documented in the Woods File, and only after that do their onsite reviews (with notice, to see if there was documentation somewhere that had not been included in the file).

As I lay out in a timeline below, DOJ was submitting a response to the FISA Court on April 3, even as DOJ IG was releasing its MAM. In that response (therefore three days before my post), they said they’d stop giving advance notice for the accuracy reviews, which will make Woods Procedures newly useful.

NSD has determined that commencing with accuracy reviews starting after September 30, 2020, it will not inform the FBI field offices undergoing NSD oversight reviews which applications will be subjected to accuracy reviews in advance of those reviews. This date is subject to current operational limitations the coronavirus outbreak is imposing. NSD would not apply this change in practice to accuracy reviews conducted in response to a request to use FISA information in a criminal proceeding, given the need to identify particular information from particular collections that is subject to use. NSD also would not apply this change in practice to completeness reviews ( discussed further below); because of the pre-review coordination that is contemplated for those reviews.

NSD will expect that the relevant FBI field offices have ready, upon NSD’s arrival, the accuracy sub-files for the most recent applications for all FISAs seeking electronic surveillance or physical search. NSD will then, on its arrival, inform the FBI field office of the application(s) that will be subject to an accuracy review. If the case will also be subject to a completeness review, pre-coordination, as detailed below, will be necessary. The Government assesses that implementing this change in practice will encourage case agents in all FISA matters to be more vigilant about applying the accuracy procedures in their day-to-day work.

In addition, although NSD’s accuracy reviews allow NSD to assess individual compliance with the accuracy procedures, NSD’s historical practice has been to allow agents to obtain documentation during a review that may be missing from the accuracy sub-file. NSD only assesses the errors or omissions identified once the agent has been given the opportunity to gather any additional required documentation. While the Government believes that, in order to appropriately assess the accuracy of an application’s content, it should continue to allow agents to gather additional documentation during the accuracy review, it assesses that this historical practice has not allowed for the evaluation of how effective agents have been at complying with the requirement to maintain an accuracy sub-file, complete with all required documentation.

As a result, NSD will tally and report as a part of its accuracy review process all facts for which any documentation, or appropriate documentation, was not a part of the accuracy sub-file at the time the accuracy review commenced. Agents will still be given the opportunity to gather such documentation during or after the accuracy review, so that NSD can assess if the application contains any inaccuracies with respect to the application’s content. NSD will include these additional findings in its summaries of accuracy reviews (discussed herein) and also will include such findings in its biannual reports to the Court regarding its accuracy and completeness review findings. NSD assesses that by implementing this additional metric, it will encourage case agents to be more vigilant about adhering to the FBI’s accuracy· procedures.

It’s rare that a bureaucracy of any sort — much less government, much less part of government that pertains to national security — recognizes that its paperwork isn’t serving the function it is supposed to. But here, even though DOJ IG didn’t make this observation, NSD figured it out and committed to change their processes.

There are more comments about NSD’s review processes that deserve more attention. For example, I said that NSD should start reporting the results of its accuracy (and the new completeness) reviews in its Semiannual FISA Reports (which currently focus only on 702). As part of a seeming effort to rebut Amicus David Kris’ comment that DOJ has the resources to do oversight right, the filing suggested that other oversight obligations take up too much time to dedicate more time to traditional FISA reviews (though NSD did increase attorney resources in OI’s oversight section by 50%).

(U) OI’s Oversight Section, which is responsible for oversight and compliance relating to the IC’s implementation of FISA authorities, currently has approximately 20 attorneys and must rely on assistance from the Operations Section of OI to staff the existing accuracy reviews. Moreover, OI’s Oversight Section conducts oversight of other FISA authorities, including at other IC agencies, and conducts oversight of FBI’s implementation of its Attorney General’s Guidelines for Domestic FBI Operations. The latter involves conducting onsite National Security Reviews at approximately 15 FBI field offices annually. In addition, OI’s oversight and compliance responsibilities with respect to the IC’s implementation of Section 702 consumes substantial OI resources. 14 Furthermore, the Oversight Section fulfills statutorily-required reporting obligations to Congress on behalf of the Department. These reports, which describe, in detail, the Government’s use of FISA authorities and all identified compliance incidents, run hundreds of pages in the aggregate and most must be completed twice a year. As the Court is aware, the Oversight Section also investigates and reports to the Court all FISA compliance incidents involving IC agencies. Additionally, among other responsibilities, the Oversight Section prepares quarterly reports for the Court to inform the Court about certain Section 702 compliance incidents and provide updates on previously reported Section 702 compliance incidents. The Oversight Section also conducts onsite reviews at multiple IC agencies.

It seems like this process could be more streamlined, though. It also seems like you don’t need attorneys to do all these reviews. Accuracy and completeness are not legal issues, they’re reading issues.

Ultimately, the way to ensure that smart changes by NSD actually have the desired effect is to give any defendant against whom FISA information is used in prosecution review of his or her FISA file. But it remarkable to see that McCord’s successor, John Demers, is actually making the kinds of changes that could make the Woods Files function the way they’ve been supposed to for two decades.

Timeline

  • March 23: FBI Associate Deputy Director of FBI reponds to draft MAM
  • March 27: Associate Deputy Attorney General Brad Weinsheimer responds to draft MAM
  • March 30: DOJ IG completes a Management Advisory Memorandum on it efforts to clean up FISA
  • March 31: DOJ IG publicly releases the MAM
  • April 3: James Boasberg orders the government to report whether errors found in the 29 applications that DOJ IG reviewed are material
  • April 3: DOJ National Security Division submits Response to March 5 order incorporating changes to Woods Procedure reviews
  • April 6: I point out that NSD should change how they do Woods Procedure reviews

Questioning Bill Barr’s “No Collusion” Propaganda, Reggie Walton Orders an In Camera Review of Mueller Report

Before the Trump Administration started really politicizing justice, Reggie Walton had already proven himself willing to stand up to the Executive Branch. During the George W Bush Administration, he presided over the Scooter Libby trial, never shirking from attacks from the defendant. And in the first year of the Obama Administration, as presiding FISA Judge, he shut down parts of the phone dragnet and the entire Internet dragnet because they were so far out of compliance with court orders.

And Walton had already showed his impatience with Trump’s stunts, most notably when presiding over a FOIA for materials related to the firing of Andrew McCabe. He finally forced DOJ to give the former Deputy FBI Director a prosecution declination so he could proceed with the FOIA lawsuit.

So it’s unsurprising he’s unpersuaded by DOJ’s request to dismiss the EPIC/BuzzFeed lawsuits over their FOIAs to liberate the Mueller Report, and has ordered DOJ to provide him a copy of the Report before the end of the month to do an in camera review of redactions in it.

The Court has grave concerns about the objectivity of the process that preceded the public release of the redacted version of the Mueller Report and its impacts on the Department’s subsequent justifications that its redactions of the Mueller Report are authorized by the FOIA. For the reasons set forth below, the Court shares the plaintiffs’ concern that the Department “dubious[ly] handl[ed] [ ] the public release of the Mueller Report.” EPIC’s Mem. at 40; see also id. (“Attorney General[] [Barr’s] attempts to spin the findings and conclusions of the [Mueller] Report have been challenged publicly by the author of the [Mueller] Report. [ ] Attorney[] General[] [Barr’s] characterization of the [Mueller] [R]eport has also been contradicted directly by the content of the [Mueller] Report.”); Leopold Pls.’ Mem. at 9 (“[T]here have been serious and specific accusations by other government officials about improprieties in the [Department’s] handling and characterization of the [Mueller] Report[.]”). Accordingly, the Court concludes that it must conduct an in camera review of the unredacted version of the Mueller Report to assess de novo the applicability of the particular exemptions claimed by the Department for withholding information in the Mueller Report pursuant to the FOIA.

To justify this review, Walton cites Barr’s silence about the multiple links between Trump and Russians and about the reason why Mueller didn’t make a decision about charging Trump with obstruction.

Special Counsel Mueller himself took exception to Attorney General Barr’s March 24, 2019 letter, stating that Attorney General Barr “did not fully capture the context, nature, and substance of th[e] [Special Counsel’s] Office’s work and conclusions,” EPIC’s Mot., Ex. 4 (March 27, 2019 Letter) at 1, and a review of the redacted version of the Mueller Report by the Court results in the Court’s concurrence with Special Counsel Mueller’s assessment that Attorney General Barr distorted the findings in the Mueller Report. Specifically, Attorney General Barr’s summary failed to indicate that Special Counsel Mueller “identified multiple contacts—‘links,’ in the words of the Appointment Order—between Trump [c]ampaign officials and individuals with ties to the Russian government,” Def.’s Mot., Ex. D (Mueller Report – Volume I) at 66, and that Special Counsel Mueller only concluded that the investigation did not establish that “these contacts involved or resulted in coordination or a conspiracy with the Trump [c]ampaign and Russia, including with respect to Russia providing assistance to the [Trump] [c]ampaign in exchange for any sort of favorable treatment in the future,” because coordination—the term that appears in the Appointment Order—“does not have a settled definition in federal criminal law,” id., Ex. D (Mueller Report – Volume I) at 2, 66. Attorney General Barr also failed to disclose to the American public that, with respect to Special Counsel Mueller’s investigation into whether President Trump obstructed justice, Special Counsel Mueller “determined not to make a traditional prosecutorial judgment[,] . . . recogniz[ing] that a federal criminal accusation against a sitting [p]resident would place burdens on the [p]resident’s capacity to govern and potentially preempt constitutional processes for addressing presidential misconduct,” but nevertheless declared that

if [he] had confidence after a thorough investigation of the facts that [ ] President [Trump] clearly did not commit obstruction of justice, [he] would so state. Based on the facts and the applicable legal standards, however, [he] [is] unable to reach that judgment. The evidence [he] obtained about [ ] President[] [Trump’s] actions and intent presents difficult issues that prevent [him] from conclusively determining that no criminal conduct occurred. Accordingly, while th[e] [Mueller] [R]eport does not conclude that [ ] President [Trump] committed a crime, it also does not exonerate him.

Id., Ex. D (Mueller Report – Volume II) at 1–2.

Walton further cites claims that Barr made in his April 18 press conference and letter — where he specifically claimed Mueller had found no evidence of collusion — to judge that Barr lacked candor in his statements about the report.

Similar statements were made in his April 18, 2019 letter. See Def.’s Mot., Ex. 7 (April 18, 2019 Letter) at 1–3 (stating that Special Counsel Mueller’s “bottom-line conclusion on the question of so-called ‘collusion’ [was] [that] [t]he investigation did not establish that members of the Trump [c]ampaign conspired or coordinated with the Russian government in its election interference activities” and that “the evidence set forth in the [ ] [Mueller] [R]eport was [not] sufficient to establish that [ ] President [Trump] committed an obstruction-of-justice offense”).

As noted earlier, the Court has reviewed the redacted version of the Mueller Report, Attorney General Barr’s representations made during his April 18, 2019 press conference, and Attorney General Barr’s April 18, 2019 letter. And, the Court cannot reconcile certain public representations made by Attorney General Barr with the findings in the Mueller Report. The inconsistencies between Attorney General Barr’s statements, made at a time when the public did not have access to the redacted version of the Mueller Report to assess the veracity of his statements, and portions of the redacted version of the Mueller Report that conflict with those statements cause the Court to seriously question whether Attorney General Barr made a calculated attempt to influence public discourse about the Mueller Report in favor of President Trump despite certain findings in the redacted version of the Mueller Report to the contrary.

[snip]

Here, although it is with great consternation, true to the oath that the undersigned took upon becoming a federal judge, and the need for the American public to have faith in the judicial process, considering the record in this case, the Court must conclude that the actions of Attorney General Barr and his representations about the Mueller Report preclude the Court’s acceptance of the validity of the Department’s redactions without its independent verification.

Walton doesn’t say it explicitly, but he seems to believe what the unredacted portions of the report show amount to “collusion,” the kind of collusion Trump would want to and did (and still is) covering up.

Be warned, however, that this review is not going to lead to big revelations in the short term.

There are several reasons for that. Many of the most substantive redactions pertain to the Internet Research Agency and Roger Stone cases. Gags remain on both. While Walton is not an Article II pushover, he does take national security claims very seriously, and so should be expected to defer to DOJ’s judgments about those redactions.

Where this ruling may matter, though, is in four areas:

  • DOJ hid the circumstances of how both Trump and Don Jr managed to avoid testifying under a grand jury redaction. Walton may judge that these discussions were not truly grand jury materials.
  • DOJ is currently hiding details of people — like KT McFarland — who lied, but then cleaned up their story (Sam Clovis is another person this may be true of). There’s no reason someone as senior as McFarland should have her lies protected. All the more so, because DOJ is withholding some of the 302s that show her lies. So Walton may release some of this information.
  • Because Walton will have already read the Stone material — that part that most implicates Trump — by the time Judge Amy Berman Jackson releases the gag in that case, he will have a view on what would still need to be redacted. That may mean more of it will be released quickly than otherwise might happen.
  • In very short order, the two sides in this case will start arguing over DOJ’s withholding of 302s under very aggressive b5 claims. These claims, unlike most of the redactions in the Mueller Report, are substantively bogus and in many ways serve to cover up the details of Trump’s activities. While this won’t happen in the near term, I expect this ruling will serve as the basis for a similar in camera review on 302s down the road.

Update: Here’s the FOIA version of the Mueller Report; here is Volume II. The b1 and b3 redactions won’t be touched in this review. Where Walton might order releases are the b6, b7C redactions. I expect Walton may order these redactions removed, which show that Don Jr and someone else was investigated.

Update: I did a post last August about what Walton might do with these redactions. It holds up, IMO.

The Stakes and Misinformation about the Andrew McCabe Declination

Amid the other crazy events of the week, DOJ informed Andrew McCabe he would not be prosecuted as a result of the criminal referral arising from DOJ IG’s finding that he lacked candor when asked about an October 30, 2016 Devlin Barrett story.

While it’s possible the Tuesday Afternoon Massacre and Jessie Liu’s removal had some role in the timing of this notice, one thing is clear: McCabe got notice primarily because Judge Reggie Walton had imposed a deadline in a CREW FOIA to release some transcripts about the stalled decision-making process. Probably, DOJ made the decision last fall after a grand jury refused to charge McCabe, but stalled on giving McCabe notice because DOJ knew it would piss off Trump. But since the court transcripts would reveal some of that, the FOIA deadline finally forced DOJ’s hand.

In the aftermath of the McCabe news, a bunch of frothy Republicans, including Chuck Grassley, have analogized the investigation into McCabe with the investigations into Roger Stone (for conducting a two year cover-up, including making threats against a witness and a judge) and Mike Flynn (for lying multiple times to the FBI, continuing to fudge the truth in the ongoing investigation, and lying to hide that he was on Turkey’s payroll at a time when he was Trump’s top national security advisor). Even taken on their face, that’s a ridiculous comparison, one that dismisses the import of threatening judges and secretly serving as agents for frenemy governments while receiving intelligence briefings. The accusations against the men are different, with a lack of candor allegation against McCabe versus lying against the others, and egregious mitigating factors implicating national security with the others. Whereas grand jury reportedly refused to even charge McCabe, a jury found Stone guilty of every count with which he was charged.

More importantly, the comparison has treated the allegation against McCabe with a seriousness that the underlying record — as laid out in McCabe’s lawsuit against DOJ — does not merit.

And McCabe’s lawsuit may provide a partial explanation for why DOJ stalled so long before declining to prosecute the case. That’s because a key part of DOJ’s defense against McCabe’s lawsuit is that they could or even had to move so quickly to fire McCabe because there was reasonable reason to believe that McCabe had committed a crime for which he could be imprisoned.

Mr. McCabe was given seven days to provide oral and written responses to the notice of proposed removal to ADAG Schools. That response period was a departure from the 30-day response period more frequently provided for a proposed removal. But FBI policy governing the removal of Senior Executive Service (SES) employees provides that “if there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment can be imposed, the advance notice may be curtailed to as little as seven days.” FBI SES Policy at 16 (attached as Ex. 2). Given the Inspector General’s findings that Mr. McCabe lacked candor under oath, findings which Assistant Director Will seconded after her independent assessment, there was reasonable cause to believe that Mr. McCabe had committed a crime for which a sentence could be imposed—and, therefore, a sound basis for affording Mr. McCabe seven days to respond.

DOJ has excused their rush to fire McCabe based on having reasonable grounds to believe he could be prosecuted for lies, but the rush to fire McCabe resulted in DOJ ignoring clear evidence that the IG Report was fundamentally flawed in a way that easily explains why a grand jury would refuse to indict. So the lawsuit, if McCabe gets discovery, is likely to show that he was rushed out the door to prevent him from building the case that he was being rushed out the door based on a case riddled with problems.

When the IG Report came out, I found it pretty compelling and therefore the criminal referral understandable (though I did not believe criminal charges would be upheld), even while noting the big push to make that happen before McCabe retired delegitimized it. But now it’s clear that the report didn’t get the normal level of pre- and post-publication review, McCabe’s OPR process was rushed to beat his retirement deadline, and had either of those processes been conducted in the normal fashion, they would have likely caught significant problems with the report.

Indeed, McCabe presented compelling evidence — even in a very rushed written response submitted to OPR hours before Jeff Sessions fired him — that he had at least colorable explanations to rebut the IG Report allegations.

As laid out, the IG Report accused McCabe of lacking candor about two kinds of things: first, whether he had told Comey he was a source for the WSJ story, and what role he and Lisa Page had in the story. Both the middle meetings — May 9, 2017, hours before Comey’s firing and his ascension to Acting Director, and July 28, 2017, in the context of a meeting about the discovery of the Page-Strzok texts — were on two of the most momentous days of McCabe’s career. The other two pertain to whether or not McCabe told Comey about his involvement in the WSJ story, which the IG Report portrayed as a difference of opinion about a casual meeting the two had, about which the IG sided with Comey’s version.

Thus, to a significant degree, the question of McCabe’s candor pivoted on whether he had really told Comey he was involved in the WSJ story.

And, as McCabe alerted OPR before he got fired, the IG Report included no mention of one of the most central players in the October 2016 WSJ story, FBI’s Assistant Director of Public Affairs Michael Kortan, with whom McCabe worked closely on the WSJ story. In other words, the IG Report suffers from the kind of egregious failure to include exculpatory information that it just took FBI to task about in the Carter Page IG Report (which also happens to be true of the Carter Page IG Report generally and its treatment of Bruce Ohr specifically). So when the IG Report sides with Comey’s version of the story because,

no other senior FBI official corroborated McCabe’s testimony that, among FBI executive leadership, “people knew generally” he had authorized the disclosure,

The Report can only make such a claim because it entirely left out the testimony of one of the most central players, Kortan. And as McCabe has made clear, in the OPR adjudication, his team did not get the exculpatory information involving Kortan until two days before the final decision.

Reports of why the grand jury refused to indict have pointed to Kortan’s testimony, and it’s clear why: because his testimony totally undermines the conclusions of the IG Report and therefore any basis to indict him.

Most importantly, McCabe submitted an email showing that he informed Comey (and some of the other senior FBI people whom the IG Report claimed didn’t know he was involved) that he was involved in the WSJ story.

With the declination of McCabe, DOJ has admitted that a key reason they claim to have relied on (a claim McCabe disputes) on rushing McCabe’s firing is false: he’s not likely to face prison time, because a grand jury won’t even indict him. And that may increase the chances that McCabe will get to prove precisely why he was rushed out the door with Trump screaming about him all the way.

The Size of Bill Barr’s Cover-Up Hints at the Magnitude of What He’s Covering Up

After the Tuesday Afternoon Massacre — where four prosecutors withdrew from the Roger Stone case rather than be party to Bill Barr interfering in the prosecution of Trump’s rat-fucker — we learned on Friday that Bill Barr had deployed a third US Attorney — Saint Louis’ Jeffrey Jensen — to the DC US Attorney’s office as part of an elaborate cover-up for Trump’s crimes. I’m going to attempt to lay out the full scope of Barr’s attempted cover-up. This post will serve as an overview and I will update it with links to the known or suspected evidence and crimes that Barr is covering up. I’m not including efforts to launch or sustain investigations into those Trump perceives to be his enemies.

The cover-up has the following aspects:

Interim US Attorneys oversee investigations implicating Trump’s actions

Geoffrey Berman, Southern District of New York: For the most part, Berman seems to have operated independently after his appointment as US Attorney for SDNY, but there are recent concerns that investigations implicating Trump have been stymied:

  • Hush payments: After getting Michael Cohen to plead guilty to covering up Trump’s past sex partners during the election and obtaining testimony from National Enquirer, the investigation closed with no further charges on or before July 17, 2019.
  • Ukrainian grifters: There are conflicting stories about the scope of the investigation into Ukrainian grifters Lev Parnas and Igor Fruman, particularly with regards to how seriously SDNY is considering charges against Rudy Giuliani. WaPo reported steps taken implicating Rudy’s activities on February 14, 2020. But Parnas has insinuated that his sudden arrest on October 9 was an attempt to keep him silent; Barr visited SDNY that day and subsequently visited Rupert Murdoch at his home. SDNY showed unusual concern for the privacy of third parties as Parnas tried to share more information with the House Intelligence Committee. And Bill Barr has not recused in spite of a clear conflict and a request from Parnas.
  • Halkbank: Barr tried to pre-empt an indictment of Turkey’s Halkbank with a settlement.

Timothy Shea, District of Columbia: While Berman worked for several years without any show of corruption, that’s not true of Timothy Shea, a trusted Barr aide. The very first day he started work — having been installed by Barr with just a day’s notice — he started questioning the guidelines sentence of Roger Stone, who has promised to remain silent about details of Trump’s involvement in his efforts to optimize the release of emails stolen by Russian. Then, Shea worked with Bill Barr to reverse the guidelines sentence recommended by career prosecutors. In addition, Shea’s appointment coincided with the start of a “review” of other prosecutions and investigations of Trump associates in DC including, but not limited to, Mike Flynn and Erik Prince.

Confirmed US Attorneys “review” investigations into Trump and his associates

John Durham, Connecticut: In May 2019, Barr ordered John Durham to conduct an investigation into the origins of the Crossfire Hurricane investigation of Trump associates’ ties to Russia. He predicated the investigation, explicitly, on the absence of evidence. In clear contrast to the Mueller investigation, DOJ has produced no documentation regarding the scope of the investigation (including whether Durham could pursue crimes by Trump’s associates or even Barr himself if he found evidence of a crime), and Barr has remained personally involved, completely negating the entire point of appointing a US Attorney to conduct the investigation. Republicans have described the point of this investigation as an effort to discredit the Mueller investigation. It has included the following:

  • Bill Barr’s worldwide tour chasing the hoaxes rolled out through George Papadopoulos via the right wing echo chamber
  • Some disinformation likely fed via Rudy
  • The legitimate criminal investigation of FBI Attorney Kevin Clinesmith, the actual venue for which should be Washington DC
  • CIA’s 2016 determination — confirmed by more recent intelligence collection and reviewed approvingly by the Senate Intelligence Committee — that Russia not only wanted to hurt Hillary, but help Trump in the 2016 election
  • Communications between John Brennan and Jim Comey and Andrew McCabe

Jeffrey Jensen, Eastern District of Missouri: The “review” Jeffrey Jensen is conducting of DC US Attorney cases seems to couple with Durham’s investigation. It reportedly is second-guessing decisions made by prosecutors on the Mike Flynn and Erik Prince investigation, as well as other non-public investigations. The review is almost certainly assessing rumors started by known propagandists that have already been investigated three times, including by FBI’s Inspection Division, rumors already reviewed and dismissed in a meticulous 92-page opinion from Emmet Sullivan. This “review” seems to have been part of the installment of Shea at DC and may amount to an attempt to thwart investigations that Jessie Liu let proceed without political interference.

DOJ diverts disinformation from Rudy Giuliani to another confirmed US Attorneys

In recent weeks, Barr has appointed Scott Brady, US Attorney for Western District of Pennsylvania, to vet incoming information from Rudy’s foreign influence peddling in Ukraine. It’s unclear whether Barr did this to try to make something out of that disinformation, or to prevent evidence that might support foreign influence peddling charges against Rudy from getting to prosecutors in SDNY.

Richard Donoghue, Eastern District of New York: Donoghue is apparently “handling certain Ukraine-related matters.” In connection to that, Jeffrey Rosen put Donoghue in charge of coordinating all investigations that pertain to Ukraine,

to avoid duplication of efforts across Offices and components, to obviate the need for deconfliction at a later stage of potentially overlapping investigations, and to efficiently marshal the resources of the Department to address the appropriate handling of potentially relevant new information.

That in and of itself is not problematic. But by putting Jensen in charge of intake, presumably before it gets to Donoghue, Rosen has ensured that information that — because it is disinformation — would be incriminating to Rudy, not Joe Biden (or anyone else).

DOJ prevents full investigation of Ukraine complaint

Barr and his DOJ engaged in multiple acts of obstruction of the Ukraine complaint. First, Barr did not recuse from a complaint mentioning him by name. Then (knowing that Barr was personally implicated), DOJ did not conduct a full assessment of the whistleblower complaint, which would have identified a tie to the SDNY investigation of Lev Parnas and Igor Fruman. Then OLC invented an excuse not to share whistleblower complaint with Congress, which resulted in a significant delay and almost led Ukraine to make concessions to obtain aid. Then, DOJ did not share whistleblower complaint with FEC as required by Memorandum of Notification. Finally, DOJ made a comment claiming Trump was exonerated, precisely the abuse — speaking about ongoing investigations — that Jim Comey got fired for.