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The Conspiracy Theories Flynn Wants to Resuscitate and the McCabe Investigation

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

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

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

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

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

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

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

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

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

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

Note the asymmetry to this story.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Horowitz

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

On April 20, Trump made the accusation again.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Unremarkable Bruce Ohr 302s

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

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

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

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

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

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

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

November 22, 2016

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

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

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

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

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

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

December 5

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

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

December 12

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

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

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

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

December 20

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

January 23

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

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

January 25

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

January 27

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

February 6

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

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

February 14

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

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

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

May 8

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

May 12

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

May 15

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

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

Update, 12/21/19: Removed Bill Priestap’s name per DOJ IG Report.

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

So they probably won’t.

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

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

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

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

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

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

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

That’s a failure of the Democrats in Congress.

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

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

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

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

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

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

Sergey Kislyak, Guccifer 2.0, and Maria Butina Walk into an Election Precinct

The Senate Intelligence Committee released a highly redacted version of their election security report. Much of it focuses on coded descriptions cataloging what happened in different states and what has happened as some states try to prepare better for that kind of election interference in the future; this discussion will be far more useful once reporters have carried out the fairly trivial work of identifying which states are referred to in the discussions.

That discussion also reflects a great deal of underlying tension not at all reflected in some of the early stories on the report. State officials bitched, justifiably, at coverage that doesn’t distinguish between scans and hacks, which fosters the panic that Russia probably hoped to create.

Many state election officials emphasized their concern that press coverage of, and increased attention to, election security could create the very impression the Russians were seeking to foster, namely undermining voters’ confidence in election integrity. Several insisted that whenever any official speaks publicly on this issue, they should state clearly the difference between a “scan” and a “hack,” and a few even went as far as to suggest that U.S. officials stop talking about the issue altogether. One state official said, “Wc need to walk a fine line between being forthcoming to the public and protecting voter confidence.

But Ron Wyden raised concerns that all these state level assessments rely on the states’ own data collection, meaning reports that no vote tallies were changed are probably not as reliable as people claim.

DHS’s prepared testimony at that hearing included the statement that it is “likely that cyber manipulation of U.S. election systems intended to change the outcome of a national election would be detected.” The language of this assessment raises questions, however, about DHS’s ability to identify cyber manipulation that could have affected a very close national election, particularly given DHS’s acknowledgment of the “possibility that individual or isolated cyber intrusions into U.S. election infrastructure could go undetected, especially at local levels.”‘^ Moreover, DHS has acknowledged that its assessment with regard to the detection of outcome-changing cyber manipulation did not apply to state-wide or local elections.

(U) Assessments about manipulations of voter registration databases are equally hampered by the absence of data. As the Committee acknowledges, it “has limited information on the extent to which state and local election authorities carried out forensic evaluation of registration databases.”

That is, we don’t actually know what happened in 2016, because so few states were collecting that data, and it remains true that few states are auditing their elections.

Perhaps one of the most interesting details about 2016, however, involves the Russian government’s efforts to get permission to act as election observers, something that shows up two times in the report. It appears that Russia went first to State, and then to localities.

The Russian Embassy placed a formal request to observe the elections with the Department of State, but also reached outside diplomatic channels in an attempt to secure permission directly from state and local election officials. ” 37 In objecting to these tactics, then-Assistant Secretary of State for European and Eurasian Affairs Victoria Nuland reminded the Russian Ambassador that Russia had refused invitations to participate in the official OSCE mission that was to observe the U.S. elections.38

There’s another, heavily redacted discussion of this later in the report, but that unredacted discussion does say that Russia was seeking access to voting sites in September, and that no one ever figured out what Russia planned to do.

Department of State were aware that Russia was attempting to send election observers to polling places in 2016. The true intention of these efforts is unknown.

[snip]

The Russian Embassy placed a formal request lo observe the elections with the Department of State, but also reached outside diplomatic channels in an attempt to secure permission directly from state and local election officials.”‘ For example, in September 2016, the State 5 Secretary of State denied a request by the Russian Consul General to allow a Russian government official inside a polling station on Election Day to study the U.S. election process, according to State 5 officials.

But the footnotes make it clear that Ambassador Sergey Kislyak was bitching about the response all the way up to November 7.

That section immediately precedes a partly redacted discussion of a possible Russian effort to sow misinformation about voter fraud.

What the report does not say, in unredacted form, is how Kislyak’s formal efforts overlap with two other Russian efforts. First, there’s the discussion Maria Butina and Aleksandr Torshin had about whether she should serve as an election observer.

Following this October 5, 2016 Twitter conversation, BUTINA and [Aleksandr Torshin] discussed whether BUTINA should volunteer to serve as a U.S. election observer from Russia and agreed that the risk was too high. [Torshin] expressed the opinion that the “risk of provocation is too high and the ‘media hype’ which comes after it,” and BUTINA agreed by responding, “Only incognito! Right now everything has to be quiet and careful.”

Then there’s Guccifer 2.0’s announcement, at a time when Kislyak was bitching that Russia had been denied access to election sites, that he was going to serve as a (nonsensical) FEC election observer, watching the vulnerabilities in

SSCI doesn’t go there, but at a minimum, Guccifer 2.0’s disinformation paralleled an overt effort by the Russian state, one that Butina considered, but decided against, joining.

Of course, as I’ve noted before, it wasn’t just Russian entities volunteering to act as election observers so as to sow chaos. Where Russia threatened to do so, Roger Stone succeeded.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

The Predictable Result of Asymmetry in Terrorism Policing: Andrew McCabe’s Demise

I recently finished Andrew McCabe’s book.

It is very effective at what I imagine its intended purposes are. It provides some fascinating new details about the genesis of the Russian investigation. It offers a great introduction in how the FBI (at its best) can work. It gives a self-congratulatory version of McCabe’s career, including key events like the Najibullah Zazi and Boston Marathon investigations; even if McCabe had wanted to tell fully honest stories about those investigations, I’m sure the less flattering details wouldn’t have passed FBI’s publication review.

The book also says satisfyingly mean things about Trump, Jeff Sessions, and (more obliquely) Rod Rosenstein. (I think McCabe’s book release significantly explains the rumors reported as fact that Mueller’s report was imminent some weeks ago; that claim served, in part, to once again eliminate any pressure to fire Rosenstein immediately).

The latter of two, of course, implemented McCabe’s firing. McCabe’s excuse for lying to the Inspector General, which led to his firing, is one of the least convincing parts of the book (he admits he can’t say more because of his continued legal jeopardy, but he does raise it). That’s true, in part, because McCabe only deals with one of the conversations in question; there were a number of them. But he also excuses his chief lie because he was frazzled about learning of the Strzok-Page texts in the same conversation. I can understand that, but elsewhere, one of his digs against Rosenstein is how overwhelmed the Deputy Attorney General was in the wake of the Jim Comey firing. McCabe suggests, in that context, that because he had dealt with big stressful issues (like the Boston Marathon attack), he wasn’t similarly rattled. Which is why I find it disingenuous to use being frazzled for not being fully truthful to the Inspector General. Plus, virtually all defendants prosecuted for lying to the FBI (including George Papadopoulos, but not Mike Flynn, who is a very accomplished liar) are frazzled when they tell those lies; it’s a tactic the FBI uses to catch people unguarded.

I was most frustrated, however, by something that has become increasingly important in recent days: McCabe’s utter lack of awareness (at least in the book) of the import of the asymmetric focus on Islamic terrorism across his career.

After moving to counterterrorism in the mid-00s from working organized crime, McCabe became an utterly central player in the war on Islamic terror, founding the High Value Interrogation Group, and then leading the CT and National Security Divisions of FBI. He was a key player in investigations — like Zazi — that the FBI is rightly proud of.

But McCabe normalizes the choices made after 9/11 to pursue Islamic terrorism as a distinct danger. He (of course) whitewashes Jim Comey’s decision to retain the Internet dragnet in 2004 under an indefensible use of the PATRIOT Act. He argues that it is politically impossible to survive a failure to prevent an attack even though he managed the Boston Marathon attack, where FBI and NSA had some warning of Tamerlan Tsarnaev’s danger, but nevertheless got very little criticism as a result. Most remarkably, McCabe talks about Kevin Harpham’s attempted attack on the Martin Luther King Day parade, mentions as an aside that this was (obviously) not an Islamic terror attack, but offers no reflection on how Harpham’s attack undermines much of what he presents, unquestioningly, as a greater risk from Islamic terrorism (here’s a story on how Barack Obama did not get briefed on Harpham, a decision that may well have involved McCabe).

Granted, McCabe’s blind spots (at least in the book) are typical of people who have spent their lives reinforcing this asymmetry. You see it, too, in this utterly nonsensical paragraph in a largely ridiculous piece from Joshua Geltzer, Mary McCord, and Nick Rasmussen — all likewise accomplished players in the War on Just One Kind of Terrorism — at Lawfare.

The phrases “international terrorism” (think of the Islamic State and al-Qaeda) and “domestic terrorism” (think of the Oklahoma City bombing and the October 2018 shooting at a Pittsburgh synagogue) have often been a source of confusion to those not steeped in counterterrorism. The Islamic State has its roots internationally, but what makes it such a threat to Americans is, in part, its ability to influence domestic actors like Omar Mateen to kill Americans in domestic locations like Orlando, Florida. The group may be “international,” but its attackers and attacks can be, and have been, domestic—to tragic effect.

This paragraph, in a piece that admits the focus of their career has been wrong (and neglects to mention that Christchurch terrorist Brenton Tarrant named Donald Trump, along with Anders Behring Breivik, as an inspiration), suggests that the reason international terrorism is “such a threat” is because it can inspire domestic actors. The logic inherent to that paragraph is that terrorism carried out by “domestic terrorists,” inspired by a domestic white supremacist ideology is any less dangerous than terrorism carried out by people inspired by what is treated as an international ideology. International terrorism is worse than domestic terrorism, these experts argue, because it can lead to domestic terrorism.

Dead is dead. And given the significant number of white supremacists who have had experience in the military and greater tolerance for their training, white supremacists have the potential of being far more effective, as individuals, at killing than US-based Islamic terrorists.

One thing the Lawfare piece studiously avoids acknowledging is that what it calls “domestic” terrorism (the racist ideology of which they never describe) is an ideology significantly exported by the United States. Even in a piece that rightly calls for an equal focus on both white supremacist terrorism and Islamic terrorism, it ducks labeling the ideology in question. And while this WaPo piece does label the ideology in question, it bizarrely calls an attack in New Zealand carried out by an Australian a “domestic” attack.

The WaPo piece describes one problem with the asymmetric treatment of different kinds of terrorism: that governments don’t share intelligence about international violent racist ideology. In fact, in the US, such intelligence gets treated differently, if the FBI’s failure to track the networks around Frazier Glenn Miller and Eric Rudolph is any indication.

Ironically, that’s one reason that McCabe’s failure to track white supremacist terrorism in the same way he tracked Islamic terrorism led to his demise. While the network behind the election year operation that helped elect Trump involves a lot of Russians, it also clearly involves a lot of white supremacists like Nigel Farage (and David Duke), a network Russia exploited. Additionally, as I have argued (and at least one study backs) white supremacist networks provided the real fire behind the attacks on Clinton; Russia’s information operations had the effect of throwing more fuel on a blazing bonfire.

The other problem with the US government’s asymmetric treatment of terrorism is legitimacy. Labeling Islamic terrorism “foreign” and pursuing material support cases based partly on speech has had the effect of criminalizing some speech that criticizes US foreign policy, even well-deserved criticism about the effect of US killing of Muslims. By contrast, white supremacist speech, even that which  more aggressively advocates violence is treated as speech. Yes, deplatforming has begun to change that.

But we’re still not at a place where those who incite white supremacist violence are held accountable for it.

That’s how it was possible for a man to kick off a campaign by inventing lies about Mexican immigrants and how the entire Republican party, up to and including the new supposedly sane Attorney General, are permitted to pursue counterproductive policies solely so they can appear to demonize brown people.

Irrespective of the merit or not in the finding that Andrew McCabe lacked candor with the IG, he got treated the way he did because a man whose entire political career is based off feeding white resentment needed to appear to be a victim of Andrew McCabe. That act, by itself, was not about Trump’s white supremacist ideology. But it is a structure of power that is white supremacist (exacerbated by Trump’s narcissism).

We have a President Trump in significant part because this country has tolerated and even rewarded white supremacist ideology, institutionally ignoring that it poses as much of a risk as violent Islamic ideology. It would be really useful if people like Andrew McCabe spend some time publicly accounting for that fact.

The white supremacy that brought us the Trump presidency would not be possible if we had treated violent white supremacist terror as terror for the last twenty years.

About the Two Investigations into Donald Trump

I’m still pretty cranky about the timing and form of Andrew McCabe’s publicity tour.

But since it’s out there, I’d like to comment on three details, two of which have gotten significant comment elsewhere.

Trump wanted Rod Rosenstein to include Russia in the reasons he should fire Comey

The first is that Trump specifically asked Rosenstein to include Russia — McCabe doesn’t further specify what he meant — in the letter recommending he fire Jim Comey.

McCabe says that the basis for both investigations was in Mr. Trump’s own statements. First, Mr. Trump had asked FBI Director Comey to drop the investigation of National Security Adviser Michael Flynn, who has since pleaded guilty to lying to the FBI about his Russian contacts.  Then, to justify firing Comey, Mr. Trump asked his deputy attorney general, Rod Rosenstein, to write a memo listing the reasons Comey had to go. And according to McCabe, Mr. Trump made a request for that memo that came as a surprise.

Andrew McCabe: Rod was concerned by his interactions with the president, who seemed to be very focused on firing the director and saying things like, “Make sure you put Russia in your memo.” That concerned Rod in the same way that it concerned me and the FBI investigators on the Russia case.

If Deputy Attorney General Rosenstein listed the Russia investigation in his memo to the White House, it could look like he was obstructing the Russia probe by suggesting Comey’s firing. And by implication, it would give the president cover.

Scott Pelley: He didn’t wanna put Russia in his memo.

Andrew McCabe: He did not. He explained to the president that he did not need Russia in his memo. And the president responded, “I understand that, I am asking you to put Russia in the memo anyway.”

When the memo justifying Comey’s firing was made public, Russia was not in it. But, Mr. Trump made the connection anyway, telling NBC, then, Russian diplomats that the Russian investigation was among the reasons he fired Comey.

The most obvious explanation for this is that Trump wanted to box DOJ in, to prevent them from expanding their investigative focus from one campaign foreign policy advisor, a second campaign foreign policy advisor, his former campaign manager, his National Security Advisor, and his lifelong political advisor to the one thing those five men had in common, Trump.

But it’s also possible that Trump wanted Rosenstein to do what Don McGahn had narrowly prevented Trump from doing, effectively shifting the obstruction to Rosenstein. That seems like what Rosenstein was worried about, an impression he may have gotten from his instructions from McGahn, laying out the case that investigating Russia would get you fired.

It’s possible, too, that Trump was particularly interested in the public statement for the benefit of the Russians, a view supported by the fact that Trump made sure he fired Comey before his meeting with Sergey Lavrov and Sergey Kislyak, and then stated that he had more freedom with Comey gone. That is, it’s possible he needed to prove to the Russians that he could control his own DOJ.

The order to Rosenstein was one of the predications for the investigation into Trump

McCabe elaborates on a story told at least partly by the Peter Strzok-Lisa Page texts: that the day after Trump fired Comey, FBI moved to open two investigations into Trump. A number of people have suggested McCabe just vaguely pointed to Trump’s statements, but he’s more specific than that. One of the statements was that order to Rosenstein to include Russia in the firing memo.

Scott Pelley: How long was it after that that you decided to start the obstruction of justice and counterintelligence investigations involving the president?

Andrew McCabe: I think the next day, I met with the team investigating the Russia cases. And I asked the team to go back and conduct an assessment to determine where are we with these efforts and what steps do we need to take going forward. I was very concerned that I was able to put the Russia case on absolutely solid ground in an indelible fashion that were I removed quickly or reassigned or fired that the case could not be closed or vanish in the night without a trace.

[snip]

Andrew McCabe: There were a number of things that caused us to believe that we had adequate predication or adequate reason and facts, to open the investigation. The president had been speaking in a derogatory way about our investigative efforts for weeks, describing it as a witch hunt…

President Trump on Feb. 16, 2017: Russia is a ruse. I have nothing to do with Russia. Haven’t made a phone call to Russia in years.

Andrew McCabe: …publicly undermining the effort of the investigation. The president had gone to Jim Comey and specifically asked him to discontinue the investigation of Mike Flynn which was a part of our Russia case. The president, then, fired the director. In the firing of the director, the president specifically asked Rod Rosenstein to write the memo justifying the firing and told Rod to include Russia in the memo. Rod, of course, did not do that. That was on the president’s mind. Then, the president made those public comments that you’ve referenced both on NBC and to the Russians which was captured in the Oval Office. Put together, these circumstances were articulable facts that indicated that a crime may have been committed. The president may have been engaged in obstruction of justice in the firing of Jim Comey.

As McCabe describes it, the other things are obstruction-related: Trump’s attacks on the Russian investigation.

But remember, McCabe had heard the substance of Mike Flynn’s comments to Sergei Kislyak. The rest of us have seen just outlines of it. In some way, Mike Flynn convinced Sergei Kislyak on December 29, 2016, that Russia had Trump’s assurances on sanctions relief. Trump may well have come up specifically. In any case, the FBI would have had good reason — from Flynn’s lies, and his call records showing his consultations before he lied — to suspect Trump had ordered Flynn’s statements to Kislyak.

McCabe describes the genesis of the obstruction and the counterintelligence investigation

Finally, McCabe provides additional details to the dual investigation into Trump: the obstruction one arising out of Trump’s efforts to kill the Russian investigation, and the counterintelligence one into whether Trump was doing that at Russia’s behest (which goes back to my initial point, that Trump may have wanted Russia included in the firing memos as a signal to Russia he could kill the investigation).

Andrew McCabe: …publicly undermining the effort of the investigation. The president had gone to Jim Comey and specifically asked him to discontinue the investigation of Mike Flynn which was a part of our Russia case. The president, then, fired the director. In the firing of the director, the president specifically asked Rod Rosenstein to write the memo justifying the firing and told Rod to include Russia in the memo. Rod, of course, did not do that. That was on the president’s mind. Then, the president made those public comments that you’ve referenced both on NBC and to the Russians which was captured in the Oval Office. Put together, these circumstances were articulable facts that indicated that a crime may have been committed. The president may have been engaged in obstruction of justice in the firing of Jim Comey.

Scott Pelley: What was it specifically that caused you to launch the counterintelligence investigation?

Andrew McCabe: It’s many of those same concerns that cause us to be concerned about a national security threat. And the idea is, if the president committed obstruction of justice, fired the director of the of the FBI to negatively impact or to shut down our investigation of Russia’s malign activity and possibly in support of his campaign, as a counterintelligence investigator you have to ask yourself, “Why would a president of the United States do that?” So all those same sorts of facts cause us to wonder is there an inappropriate relationship, a connection between this president and our most fearsome enemy, the government of Russia?

Scott Pelley: Are you saying that the president is in league with the Russians?

Andrew McCabe: I’m saying that the FBI had reason to investigate that. Right, to investigate the existence of an investigation doesn’t mean someone is guilty. I would say, Scott, if we failed to open an investigation under those circumstances, we wouldn’t be doing our jobs.

With that laid out, I’d like to look at Rod Rosenstein’s August 2 memo laying out precisely what Mueller was — and had, from the start — been authorized to investigate, which both Paul Manafort and the President’s flunkies in Congress spent a great deal of effort trying to unseal. Knowing as we now do that the redacted passages include at least one and probably two bullet points relating to Trump himself, it seems more clear than every that once you lay out the investigations into Trump’s flunkies known to have been predicated at the time, that’s all that would have been included in the memo:

  • Obstruction investigation into Trump
  • Counterintelligence investigation into Trump
  • Election conspiracy investigation into Manafort
  • Ukrainian influence peddling investigation into Manafort
  • Transition conspiracy investigation into Flynn
  • Turkish influence peddling investigation into Flynn
  • Counterintelligence investigation into Carter Page
  • Election conspiracy investigation into George Papadopoulos
  • Election conspiracy investigation into Roger Stone

At that point, there wouldn’t have been space for at least two of the three bullets that now exist on a scope memo, as laid out by Jerome Corsi’s draft plea (though “c” may have been there in conjunction with Stone).

At the time of the interview, the Special Counsel’s Office was investigating the Russian government’s efforts to interfere in the 2016 presidential election, including:

a. the theft of campaign-related emails and other documents by the Russian government’s Main Intelligence Directorate of the General Staff (“GRU”);

b. the GRU’s provision of certain of those documents to an organization (“Organization 1”) for public release in order to expand the GRU’s interference in the 2016 U.S. presidential election campaign; and

c. the nature of any connections between individuals associated with the U.S. presidential campaign of Donald J. Trump (“Trump Campaign”) and the Russian government or Organization 1.

That’s another to believe — as I have long argued — that bullets a and b got moved under Mueller at a later time, probably around November 2017. After Flynn flipped, the Middle Eastern pass-through corruption would likely have been added, and inauguration graft probably got added after Rick Gates flipped (before the non-Russian parts of both got spun off).

One thing that means, if I’m correct, is that at the time Mueller was hired, the investigation consisted of predicated investigations into probably six individuals. While there would have been a counterintelligence and criminal aspect to both, there was a criminal aspect to each of the investigations, with specific possible crimes envisioned. If that’s right, it means a lot of hot air about Mueller’s appointment simply misunderstood what part of Comey’s confirmed investigation got put under Mueller at first.

I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts. As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed.

In any case, the certainty that there are at least one and probably two bullets pertaining to Trump in that August 2 memo is interesting for a few more reasons.

It makes it far more likely that the Strzok 302 — based on a July 19, 2017 interview, drafted the following day, and finalized August 22 — was an effort to formalize Mueller’s authorization to investigate the President. The part of the 302 that pertains to Mike Flynn’s interview takes up the middle third of the report. The rest must lay out the larger investigations, how the FBI found the intercepts between Flynn and Kislyak, and what the response to the interview was at DOJ.

The 302 is sandwiched between two events. First, it follows by just a few weeks the release of the June 9 meeting emails. Indeed, the interview itself took place on the day the NYT published the interview where Trump admits he and Putin spoke about adoptions — effectively making it clear that Putin, not Trump, drafted a statement downplaying that the meeting had established a dirt-for-sanctions relief quid pro quo.

The 302 was also drafted the day before Mueller started pursuing the transition emails and other comms from GSA that would have made it clear that Trump ordered Flynn’s statements and key members of the transition team knew that.

Specifically, on August 23, 2017, the FBI sent a letter (i.e., not a subpoena) to career GSA staff requesting copies of the emails, laptops, cell phones, and other materials associated with nine PTT members responsible for national security and policy matters. On August 30, 2017, the FBI sent a letter (again, not a subpoena) to career GSA staff requesting such materials for four additional senior PTT members.

It also happens to precede, by days, when Michael Horowitz would inform Christopher Wray and then Mueller about the Page-Strzok texts, though that is almost certainly an almost unbelievable coincidence.

In any case, as I’ve noted, unsealing that August 2 memo has been like a crown jewel for the obstructionists, as if they knew that it laid out the investigation into Donald Trump. That effort has been part of a strategy to suggest any investigation into Trump had to be improper, even one investigating whether he engaged in a quid pro quo even before the General Election started, trading US policy considerations — starting with, but not limited to, sanctions relief — in exchange for help getting elected.

The obstructionists want to claim that an investigation that started with George Papadopoulos and then Carter Page and then Mike Flynn (the obstructionists always seem to be silent about Paul Manafort and Roger Stone, as if they knew who engaged in substantive conspiracy with the Russians) should not end up with Donald Trump. And they do so, I think, to suggest that at the moment it discovered that quid pro quo in July 2017, it was already illegitimate.

But as McCabe said, “the FBI had reason to investigate that. Right, to investigate the existence of an investigation doesn’t mean someone is guilty. I would say, Scott, if we failed to open an investigation under those circumstances, we wouldn’t be doing our jobs.”

It just turned out that Trump was guilty.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post.