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Charlie Savage Plays with His Magic Time Machine To Avoid Doing Journalism

Charlie Savage just did something astonishing in the name of press freedom. He said that the truth doesn’t matter now, in 2021, because he reported a different truth eleven years ago.

He took issue with my headline to this piece, noting that he was obfuscating the facts about the Julian Assange prosecution so as to shoehorn it into a story about actual journalists.

Charlie made several obfuscations or clear errors in that piece:

  • He didn’t explain (as he hasn’t, to misleading effect, in past stories on Assange) the nature of the 2nd superseding indictment and the way it added to the most problematic first superseding one
  • He said the 2019 superseding indictment (again, he was silent about the 2020 superseding indictment) raised the “specter of prosecuting reporters;” this line is how Charlie shoehorned Assange into a story about actual journalists
  • He claimed that the decision to charge Assange for “his journalistic-style acts” arose from the change in Administrations, Obama to Trump (and specifically to Bill Barr), not the evidence DOJ had obtained about Assange’s actions over time

Charlie presented all this as actual journalism about the Assange prosecution, but along the way, he made claims that were either inflammatory and inexact — a veritable specter haunting journalism — or, worse, what I believe to be false statements, false statements that parrot the propaganda that Wikileaks is spreading to obscure the facts.

The “specter” comment, I take to be a figure of speech, melodramatic and cynical, but mostly rhetorical.

The silence about the 2020 superseding indictment is a habit I have called Charlie on before, but one that is an error of omission, rather than of fact.

It’s this passage that I objected to at length:

But the specter of prosecuting reporters returned in 2019, when the department under Attorney General William P. Barr expanded a hacking conspiracy indictment of Julian Assange, the WikiLeaks founder, to treat his journalistic-style acts of soliciting and publishing classified information as crimes.

Obama-era officials had weighed charging Mr. Assange for publishing leaked military and diplomatic files, but worried about establishing a precedent that could damage mainstream news outlets that sometimes publish government secrets, like The Times. The Trump administration, however, was undeterred by that prospect.

As presented, this passage made several claims:

  1. “Obama-era officials” had considered charging Assange for publishing activities, but “Obama-era officials” did not do so because it might damage “mainstream news outlets” like the NYT
  2. The reason that the Trump administration was willing to charge Assange for publishing was because they were “undeterred” from the prospect of doing damage to the NYT
  3. DOJ under Billy Barr expanded a hacking conspiracy “to treat his journalistic-style acts of soliciting and publishing classified information as crimes”

I believe the last claim is largely factual but misleading, as if the operative issue were Barr’s involvement or as if Barr deliberately treated Assange’s “journalistic-style acts” — as distinct from that of actual journalists — as a crime. There may be evidence that Barr specifically had it in for WikiLeaks or that Barr (as distinct from Trump’s other Attorneys General) treated Assange as he did out of the same contempt with which he treated actual journalists. There may be evidence that Barr — whose tenure as AG exhibited great respect for some of the journalists he had known since his first term as AG — was trying to burn down journalism, as an institution. But Charlie provides no evidence of that, nor has anyone else I know. (Indeed, Charlie’s larger argument presents evidence that Barr’s attacks on journalism, including subpoenas that may or may not have been obtained under Barr in defiance of guidelines adopted under Eric Holder, may only differ from Obama’s in their political tilt.)

Of course, one of the worst things that the Trump Administration did to a journalist, obtaining years of Ali Watkins’ email records, happened under Jeff Sessions, not Barr.

The first and second claims together set up a clear contrast. Obama-era officials — and by context, this means the entirety of the Obama Administration — did not prosecute Assange for publication because of what became known — based off a description that DOJ’s spox Matthew Miller gave publicly in 2013 — as the NYT problem, the risk that prosecuting WikiLeaks would endanger NYT. But the Trump Administration was willing to charge Assange for publication because they didn’t think the risk that such charges posed to the NYT were all that grave or damaging or important.

There’s no way to understand these two points except as a contrast of Administrations, to suggest that Obama’s Administration — which was epically shitty on leak investigations — wouldn’t do what the Trump Administration did do. It further involves treating the Department of Justice as an organization entirely subject to the whims of a President and an Attorney General, rather than as the enormous bureaucracy full of career professionals who guard their independence jealously, who even did so, with varying degrees of success, in the face of Barr’s unprecedented politicization of the department.

It’s certainly possible that’s true. It’s possible that Evan Perez and three other CNN journalists who reported in 2017 that what actually changed pertained to Snowden simply made that report up out of thin air. It’s certainly possible that under a President who attempted to shut down the Russian hacking investigation to protect Assange even after his CIA Director declared war on Assange, who almost blew up the investigation into Joshua Schulte, who entertained pardoning Assange in 2016, in 2017, in 2018, and in 2020, at the same time viewed the Assange prosecution as a unique opportunity to set up future prosecutions of journalists. It’s certainly possible that Billy Barr, who sabotaged the Mike Flynn and Roger Stone prosecutions to serve Trump’s interests, went rogue on the Assange case.

But given the abundant evidence that this prosecution happened in spite of Trump’s feelings about WikiLeaks rather than because of them, you would need to do actual reporting to make that claim.

And, as noted, I asked Charlie whether he had done the reporting to sustain that claim before I wrote the post…

… just as I — months earlier — asked Charlie why he was falsely claiming Assange was charged in 2018 rather than within a day of a Russian exfiltration attempt in 2017, something that probably has far more to do with why DOJ charged Assange when and how they did than who was Attorney General at the time.

After his bullshit attempt to explain that date error away, Charlie removed the date, though without notice of correction, must less credit to me for having to fact check the NYT.

Anyway, Charlie apparently didn’t read the post when I first wrote it, but instead only read it yesterday when I excused Icelandic journalists for making the same error — attributing the decision to prosecute Assange to Billy Barr’s animus rather than newly discovered evidence — that Charlie had earlier made. And Charlie went off on a typically thin-skinned tirade. He accused me (the person who keeps having to correct his errors) of being confused. He claimed that the thrust of my piece — that he was misrepresenting the facts about Assange — was “false.” He claimed the charges against and extradition of Assange was a precedent not already set by Minh Quang Pham’s extradition and prosecution. He accused me of not grasping that this was a First Amendment argument and not the journalism argument he had shoehorned it into. He suggested my insistence on accurate reporting about the CFAA overt acts against Assange (including the significance of Edward Snowden to them) was a “hobbyhorse,” and that I only insisted on accurate reporting on the topic in an effort to, “us[e] something [Charlie] said as a peg to artificially sex it up (dumb NYT!) even though it doesn’t actually fit.” He then made a comment that still treats the prosecution of Assange as binary — the original indictment on a single CFAA charge or the first superseding indictment that added the dangerous Espionage Act charges — rather than tertiary, the second superseding indictment that, at least per Vanessa Baraitser, clearly distinguished what Assange did from what journalists do.

That’s when things went absolutely haywire. Pulitzer prize winning journalist Charlie Savage said that his repeated claim that the charges against Assange arose from a change in Administration rather than a changed understanding of Assange did not rely on what Miller said, because he had “been writing since 2010 about deliberations inside DOJ re wanting to charge Assange/WL,” linking to this story.

 

That is, Charlie presented as a defense to my complaint that he was misrepresenting what happened in 2016 and 2017 by pointing to reporting he did in 2010, which — I pointed out — is actually before 2013 and so useless in offering a better reason to cling to that 2013 detail rather than rely on more recent reporting. Because DOJ did not have the same understanding of WikiLeaks in 2010 as they got after Julian Assange played a key role in a Russian intelligence operation against the United States, obtained files from a CIA SysAdmin after explicitly calling on CIA SysAdmins to steal such things (in a speech invoking Snowden), attempted to extort the US with those CIA files, and then implicitly threatened the President’s son with them, Charlie Savage says, it’s okay to misrepresent what happened in 2016 and 2017. Charlie’s reporting in 2010 excuses his refusal to do reporting in 2021.

Given his snotty condescension, it seems clear that Charlie hasn’t considered that, better than most journalists in the United States, I understand the grave risks of what DOJ did with Assange. I’ve thought about it in a visceral way that a recipient of official leaks backed by an entire legal department probably can’t even fathom. But that hasn’t stopped me from trying to understand — and write accurately about — what DOJ claims to be doing with Assange. Indeed, as someone whose career has intersected with WikiLeaks far more closely than Charlie’s has and as someone who knows what people very close to Assange claim to believe, I feel I have an obligation to try to unpack what really happened and what the real legal implications of it are, not least because that’s the only way to assess where DOJ is telling the truth and whether they’re simply making shit up to take out Assange. DOJ is acting ruthlessly. But at the same time, at least one person very close to Assange told me explicitly she wanted me to misrepresent the truth in his defense, and WikiLeaks has been telling outrageous lies in Assange’s defense with little pushback by people like Charlie because, I guess, he thinks he’s defending journalism.

As I understand it, the entire point of journalism is to try to write the truth, rather than obfuscate it in an attempt to protect an institution called journalism. It does no good to the institution — either its integrity or the ability to demonstrate the risks of the Assange prosecution — to blame it all on Billy Barr rather than explore how and why DOJ’s institutional approach to Assange has changed over time.

Tucker Carlson and Glenn Greenwald Are Outraged that Bill Barr Set Up Antifa!!!! [Just Kidding]

You’ve no doubt seen the conspiracy theory championed by Tucker Carlson and Glenn Greenwald claiming that the unnamed Oath Keeper associates described in those indictments are actually FBI informants.


As happened with earlier propaganda campaigns (notably the one downplaying Brian Sicknick’s death), the conspiracy theory started with Revolver News, got magnified by Tucker Carlson, and got normalized by Glenn Greenwald (the latter of whose central role largely escaped attention because commentators don’t identify him, yet, as a right wing propagandist).In his first appearance, Carlson grotesquely accused Sharon Caldwell, who was described in later Oath Keeper documents as Person Two but was identified clearly in earlier documents by her first name and as Thomas Caldwell’s spouse, of being an informant who framed her husband.

Person Two and Person Three were organizers of the riot. The government knows who they are. But the government has not charged them. Why is that? You know why. They were almost certainly working for the FBI. So FBI operatives were organizing the attack on the Capitol on January 6, according to government documents. And those two are not alone! In all Revolver News reported there were, quote, “upwards of 20 unindicted co-conspirators in the Oath Keepers indictments, all playing various roles in the conspiracy, who have not been charged for virtually the exact same activities — and in some cases much, much more severe activities — as those named alongside them in indictments.”

Huh????

So it turns out that this white supremacist insurrection was, again, by the government’s own admission in these documents organized at least in part, by government agents.

This little campaign has led compromised members of Congress to embrace this excuse for the insurrection they previously have claimed was not an insurrection at all.


Thomas Caldwell’s wife, Sharon, is Person Two

To show that “Person Two,” whom Tucker Carlson alleges for framing Thomas Caldwell, is actually his wife, Sharon, you can compare this filing, where her name is not redacted, with this one, where “Person Two” has substituted for her name.

1. Sharon Caldwell is Thomas’ wife:

2. “Sharon and I are setting up shop there” (at the Comfort Inn Ballston) and then “Sharon and I are going our way.”

3. “Sharon was right with me!”

Later filings over release conditions confirm the selfies posted to Facebook were of Thomas’ wife, describe Thomas agreeing to be accompanied by his wife, Sharon, to Sunday Mass starting on Easter, expressing concern that his wife has to do all the chores on their 30-acre farm which has led to the loss of farm income, and describing that he rarely travels anywhere without his wife, Sharon Caldwell, and she’s willing to go with him every time he does leave their property.


Glenn and Tucker must be outraged that Billy Barr set up Antifa

Parts of this campaign are pathetic, even for the men involved, and may reflect a desperate attempt to repackage their own past claims.

For example, after parroting a bunch of obviously self-serving PR from Parler in the days after the attack (such as that the insurrectionists organized on Facebook, not Parler), Glenn now shows that Parler was actually sharing threats of violence with the FBI in advance, without noting that that undermines several things he said in the past, such as that the insurrectionists didn’t plan on Parler. This must be dizzying and embarrassing for Glenn.

And because Glenn has to package this — like he did his never-ending obsession with Hunter Biden’s laptop — as a failure of Democrats and liberal media, he remarkably claims that the left — which has so relentlessly asked why the FBI was caught unawares that Glenn even screen caps an example of Ryan Goodman linking to Carolyn Maloney doing so — is resistant to questioning the FBI’s role in the riot.

What accounts for this furious liberal #Resistance to questioning the FBI’s role in the January 6 riot and asking whether there are vital facts that are being concealed?

Maybe Glenn has a harder time getting CSPAN in Brazil than I do in Ireland, because when I’ve watched the multiple hearings Democratic Chairs of various committees (including Maloney) have had with FBI Director Chris Wray or now-National Security Branch EAD Jill Sanborn, they question the FBI about it over and over and over. Glenn literally made up this hash-tagged resistance out of thin air because he needs it to be true, when in fact the opposite is true.

But it’s important to look at what this propaganda campaign obscures.

Probably, this campaign got started because a number of people implicated in the investigation, now realizing that it won’t go away, are trying to absolve themselves of any responsibility. It has already happened with those charged for crimes committed on January 6. Dominic Pezzola suggested that a key witness against him was actually more involved in the riot than he was, only to learn he guessed wrong and that the government was going to invoke a terrorism enhancement with him. Similarly, top Proud Boys were hinting at challenges to the UCC-1 described in their indictment, before they grew conspicuously silent about it, as if they learned something that undercut such claims. [see update below]

The other reason people are talking about informants is that (FBI’s failure to respond notwithstanding) it’s not that far-fetched. Importantly, multiple Proud Boys have claimed to be informants, though Glenn only mentions Enrique Tarrio. Maybe that’s because the implication of the claims from the others leads to a place Glenn and Tucker don’t want to go. Of the four Proud Boys that Aram Rostom described as being FBI informants prior to January 6, three claimed to be sharing information about Antifa.

Reuters interviewed two Proud Boys members who spoke on the condition of anonymity about some members’ interactions with the FBI. Reuters also interviewed Proud Boys leader Enrique Tarrio, examined court records and interviewed sources close to the federal investigation.

The reporting showed:

– One Proud Boy left the group in December after telling other members he was cooperating with the FBI by providing information about Antifa, say Tarrio and two other Proud Boy sources. The former member, whom Reuters was unable to identify, insisted to group leaders that he had not revealed information about the Proud Boys, these people say.

– A second Proud Boy leader bragged in 2019 about sharing information with the FBI about Antifa, according to private chats leaked on social media. The chats’ authenticity was confirmed by a source familiar with the Proud Boys and the Jan. 6 case.

– A third Proud Boy leader, Joseph Biggs, who was indicted and charged with conspiracy in the January attack, has said in court papers he reported information to the FBI about Antifa for months. Reuters spoke to Biggs two days before the riot. In that interview, he said he had specific plans for Jan. 6, but declined to disclose them. But, he volunteered to Reuters in that call, he was willing to tell his FBI contact of his plans for the coming rally, if asked. Reuters wasn’t able to determine whether such a contact took place. [my emphasis]

What this suggests is not that the FBI set up the Proud Boys with paid informants, but the opposite: that under a President who “denounced” the Proud Boys by saying they should “Stand back and stand by,” and under an Attorney General who dismissed threats against a judge involving the Proud Boys as a technicality, the Proud Boys were viewed not as an equivalent (or greater) threat than Antifa, but instead were able to disguise their use of Antifa as a foil to sow violence by serving as informants against them.

If these three self-proclaimed informants are right (there’s good reason to doubt them), then it means under Bill Barr, the FBI was using informants not to set up the Proud Boys, but instead to set up Antifa.

If Tucker and Glenn were good faith actors and not paid propagandists, you would fully expect them to be outraged that the FBI set up Antifa.

Especially because of the possibility that the FBI didn’t take the Proud Boys threat seriously because (on top of being endorsed by the President and downplayed by the Attorney General), they prioritized investigating Antifa over investigating the Proud Boys. With that possibility in mind, read the framing of Glenn’s Substack post:

The original report, published by Revolver News and then amplified by Fox News’ Tucker Carlson, documented ample evidence of FBI infiltration of the three key groups at the center of the 1/6 investigation — the Oath Keepers, the Proud Boys, and the Three Percenters — and noted how many alleged riot leaders from these groups have not yet been indicted. While low-level protesters have been aggressively charged with major felonies and held without bail, many of the alleged plot leaders have thus far been shielded from charges.

The implications of these facts are obvious. It seems extremely likely that the FBI had numerous ways to know of any organized plots regarding the January 6 riot (just as the U.S. intelligence community, by its own admission, had ample advanced clues of the 9/11 attack but, according to their excuse, tragically failed to “connect the dots”).

[snip]

What would be shocking and strange is not if the FBI had embedded informants and other infiltrators in the groups planning the January 6 Capitol riot. What would be shocking and strange — bizarre and inexplicable — is if the FBI did not have those groups under tight control.

It is fucking insane that Glenn claims to be mystified by the possibility that a group endorsed in the President’s first Presidential debate and dismissed by the Attorney General would not get the proper scrutiny by the FBI. Trump very effectively punished people — especially at the FBI — for investigating entities close to him. And on September 29, 2020, Donald Trump made it quite clear the Proud Boys should get special treatment. That’s all the explanation you need. Though it is, indeed, reason for closer scrutiny, the kind of scrutiny that Democrats have been demanding, Glenn’s false claims to the contrary notwithstanding.

But if you want to raise the possibility that FBI had informants in the group, then the explanation may be equally as damning: That the FBI didn’t see January 6 coming because it was too busy treating Antifa as a terrorist threat.

Indeed, everything we know about the threat reporting on that day — which claimed the big risk of violence arose from the possibility of clashes between counter-protestors and right wing militias — suggests that may be what happened: that the FBI was looking the other way, possibly in conjunction with the militia that played a key role in planning the attack. That certainly accords with Acting Secretary of Defense Christopher Miller’s claim that Trump told him to use the National Guard to protect Trump supporters.

Since Glenn claims to be very familiar with the role of informants, surely he knows that multiple terrorists — definitely David Headley and allegedly Tamerlan Tsarnaev and Omar Mateen — have planned attacks under the cover of serving as informants (or in the case of Mateen, his father doing so). There were also at least two former FBI informants that played key parts in the Russian operation in 2016. The most logical answer to the questions that Glenn pretends to entertain is that the FBI didn’t look too closely at what Joe Biggs was planning (as part of a Kelly Meggs-brokered Florida alliance of militia groups with ties to Roger Stone), because they treated him as a credible source of reporting on Antifa.

The propaganda that goes unnoticed

The absurdity of accusing Sharon Caldwell of entrapping her spouse has, justifiably, gotten all the attention from this campaign.

But there’s a piece of propaganda that it incorporates — one parroted by Members of Congress — that deserves focus of its own: in framing his piece, Glenn not only claims that the plot leaders have been shielded from charges, he also states as fact that, “low-level protesters have been aggressively charged with major felonies and held without bail.”

While low-level protesters have been aggressively charged with major felonies and held without bail, many of the alleged plot leaders have thus far been shielded from charges.

In making this claim, Glenn is mindlessly parroting something that appears in the original Revolver piece.

The first category is the group of mostly harmless tourists who walked through already opened doors and already-removed barricades, and at most were guilty of minor trespassing charges and light property offenses. The second group consists of those who were violent with police officers, broke down barricades, smashed windows, belonged to a “militia” group engaged in military-style planning prior to the event, discussed transporting heavy weaponry, and so forth.

Up until now, the overwhelming (perhaps exclusive) share of counter-establishment reporting on 1/6 has focused on absolving the first group. And this is a valuable thing. The notion that these harmless “MAGA moms” wandering around the Capitol were domestic terrorists engaged in an insurrection is absurd. That many of these people are being held in prison, without bail, under harsh conditions, amounts to an unacceptable and outrageous abuse of basic human rights.

The only way to sustain a claim that “low-level protestors” have been charged with major felonies and held without bail is to claim that alleged plot leaders — people like Ethan Nordean, Joe Biggs, Billy Chrestman, and Kelly Meggs — were actually just protestors.

That’s because with perhaps two exceptions (people like Karl Dresch whose criminal records were cited as the reason for their detention), the only people who remain in jail are either those charged with planning the insurrection, or people who engaged in violence or came armed. And even many of those people were released. Just going in alphabetical order, Christopher Alberts brought a gun and a magazine to the insurrection but was released on bail. John Anderson is accused of assault but is out on bail. Richard Barnett, who entered Nancy Pelosi’s office with a high voltage stun gun, was initially jailed but has since been released. Bradley Bennett, whom the government argued went on the lam for weeks and destroyed his phone, got released on bail. Craig Bingert, involved in one of the conflicts with cops at a barricade, was released on bail. Gina Bisignano, accused of inciting violence and destruction with a bullhorn, was released on bail. Joshua Black, who was involved in confrontations with cops before heading to the Senate Chamber and said God ordered him to riot, was released on bail. James Breheny, an Oath Keeper who allegedly lied to the FBI and attended a key inter-militia planning event, is out on bail. Both men who brought zip ties to the Senate Chamber on the day of the riot, Eric Munchel and Larry Brock, are out on bail (and Brock isn’t even charged with a felony).

Even Brandon Fellows, charged with obstruction and present when Jeff Merkley’s office was trashed and laptop stolen, thus far remains out on bail, even after several bail violations.

Perhaps the only two people who remain in custody who weren’t either associated with a group being treated as a militia or involved in assault are Doug Jensen and Jacob Chansley. Both, though, played a kind of leadership role during the attack, both brought blades with them to the insurrection, both had direct confrontations with cops, and the government has argued (Jensen, Chansley) both exhibit the kind of fervor in their QAnon beliefs that pose a particular danger.

Given that QAnon had better success placing bodies where they were useful during the insurrection, I’m not sure it even makes sense to treat them differently than the more traditional militia.

Other than that, the men detained pre-trial are accused of leading the insurrection, precisely the people that this conspiracy theory falsely claims have been shielded from charges. Among the Proud Boys, Ethan Nordean, Joe Biggs, Charles Donohoe, Zack Rehl, and Kansas City cell leader Billy Chrestman remain jailed. Among the Oath Keepers, Kelly Meggs, Kenneth Harrelson, and Jessica Watkins remain jailed. All are accused of playing key leadership roles in the insurrection.

There were some questionable detention decisions early on. At this stage, however, there are no cases where people still detained are simply protestors on the wrong side of the law.

And yet even Glenn makes that false claim without any evidence.

Donald Trump’s FBI Director and Bill Barr’s hand-picked US Attorney called these defendants terrorists

There’s one more aspect of this conspiracy that is confounding.

Tucker Carlson and Glenn Greenwald suggest this is a Deep State plot to harm Trump and his supporters. Even Andrew McCarthy, who wrote a long and worthwhile piece debunking Tucker and Glenn’s conspiracies, nevertheless claims the prosecutorial decisions in this case reflect Democratic politicization.

Although Schaffer is plainly a member of the Oath Keepers conspiracy, the Biden Justice Department did not have him plead guilty to the conspiracy charge in the Oath Keepers indictment. That’s undoubtedly because, for the purposes of helping Democrats hype a white-supremacist terrorism narrative, the conspiracy charge is too minor. Although that charge has been portrayed by the media and the Justice Department as if it were a terrorism allegation, it actually involves a statute that criminalizes comparatively minor conspiracy offenses, fit for a maximum penalty of just five years’ imprisonment (with the possibility of no jail time at all).

So instead, DOJ had Schaffer plead guilty to a two-count criminal information, charging him with the substantive crimes of obstructing Congress and illegally carrying a dangerous weapon (bear spray) on restricted federal grounds. That allowed government officials to bray that Schaffer could be looking at 30 years in prison, which sure sounds a lot worse than five years. But it’s a feint. The 30-year level is just an aggregation of the maximum sentences prescribed by the two statutes in Schaffer’s guilty plea — i.e., the highest possible sentence that could potentially apply to anyone who violated these laws. The sentence a judge actually imposes within that 30-year range depends on the circumstances, with only the worst offenders getting the maximum sentence. Realistically, then, what matters in Schaffer’s case are the federal sentencing guidelines that apply specifically to him. In the plea agreement’s fine print, prosecutors concede that the guidelines call for a relatively paltry 41- to 51-month term, which may be reduced if his cooperation proves to be valuable.

I suspect that Schaffer is one of the unnamed, numbered “Persons” referred to in the Oath Keepers indictment.

[snip]

To be clear, Carlson is right that it is ridiculous for Attorney General Merrick Garland to portray the Capitol riot as if it were a terrorist attack and the people behind it as the most dangerous national-security threat we face. As noted above, the conspiracy allegation is not a terrorism charge: It carries a penalty of no more than five years. Carlson is right to point out that, despite the government’s and the media’s claims to the contrary, there is no indication that racism motivated the riot (the Oath Keepers, for example, are not a white-supremacist organization, and the indictment does not even hint that race had anything to do with January 6). Carlson is right that, even as congressional Democrats posture about the supposed need for a commission to fully expose the events of January 6, the government is withholding mounds of information — including the identity of the security official who killed rioter Ashli Babbitt, a concealment that would be unfathomable in a case where a police officer killed an African-American criminal suspect or a Black Lives Matter rioter. And Carlson was right to call out the ludicrous suggestion by Frank Figliuzzi, a former top FBI national-security official, that congressional Republicans who cynically supported Trump’s scheme to overturn the election result are the equivalent of a terrorist organization’s “command and control element.”

Christopher Wray — the FBI Director chosen by Donald Trump — has, from day one, called this a terrorist attack.

More importantly, the person leading this investigation for the first two months was the US Attorney Bill Barr installed with no input from Congress, Michael Sherwin. If Sherwin had his way, these people would be charged with seditious conspiracy. Under Sherwin, Proud Boy Dominic Pezzola’s crimes were labeled terrorism. Under Michael Sherwin, Jessica Watkins’ crimes were labeled terrorism. And while the Jon Schaffer cooperation agreement that McCarthy disdains was finalized after Sherwin left, signs of it were already evident before Sherwin left (note, McCarthy is probably wrong in his belief that Schaffer is one of the people identified thus far in the Oath Keepers conspiracy, and he misunderstands why prosecutors charged Schaffer like the did). A Sherwin-friendly article written after his departure quotes him stating these were not close cases (and also taking credit for making the bulk of the cases).

“These were not complicated cases,” Sherwin said of the Capitol breach probe. “What made these cases so unusual were the scope and scale of the crime,” reaching into almost every state in the country, including Florida.

Sherwin’s tour of duty as acting U.S. Attorney ended soon after the Biden administration took over the Justice Department. He was asked to stay on as the lead prosecutor in the Capitol breach probe, but Sherwin said it was time to move on after making the bulk of the cases in the investigation.

If you have a problem with the way this investigation unfolded, you have a problem not with Joe Biden’s DOJ, but instead with the guy Bill Barr installed into a politicized US Attorney role with no input from Congress.

Which may be why those who need to downplay the seriousness of the attack have instead resorted to baseless conspiracy theories.

Update: Because some dead-enders still don’t believe that Tucker Carlson has accused Sharon Caldwell of entrapping her husband Thomas, I’ve done an entire section showing how the same references to Person Two in a later filing show up as Thomas’ wife Sharon in an earlier one. I also describe all the efforts Sharon is making to keep her husband out of jail.

Update, July 25: Above, I noted that the Proud Boy leaders seem to have learned something that sated their curiosity about whether UCC-1 was an FBI informant. Indeed they did. At a recent hearing, one of the AUSAs on the case revealed that they had been provided this person’s identity and confirmation he was not an informant.

Several more relevant updates: First, Larry Brock has since been charged with obstruction, a felony, but remains out on bail. Doug Jensen, one of the last remaining people who wasn’t either a leader or charged with assault still being detained, was released on bail. Michael Curzio, one of just a few exceptions who got jailed because of past crimes, got released after serving a six month time served sentence for his misdemeanor trespass charge. Two non-violent defendants — Brandon Fellows and Thomas Robertson — have since had pretrial released revoked for violating their conditions.

Finally, the friend of former DEA officer Mark Ibrahim — who may himself serve as an FBI informant — not only debunked Ibrahim’s excuse for being at the insurrection, but made it clear that the FBI did not formally ask him to attend the event.

IBRAHIM said he went along with his friend, who had been asked by the FBI to document the event, and that he went along with his friend to assist with that effort.

Your affiant also interviewed IBRAHIM’s friend. According to the friend, IBRAHIM crafted this story about how his friend was at the Capitol to assist the FBI and that IBRAHIM was there helping him. IBRAHIM’s friend told your affiant that he was not there in any formal capacity for the FBI and that the FBI was not giving him directions or marching orders. He said that IBRAHIM crafted this story in an effort to “cover his ass.” According to IBRAHIM’s friend, IBRAHIM went to the rally in order to promote himself—IBRAHIM had been thinking about his next move after leaving the DEA and wanted the protests to be his stage for launching a “Liberty Tavern” political podcast and cigar brand.

Ibrahim, who brought another of the guns that Glenn claims no one brought to January 6 and displayed it publicly, is out on bail.

Charlie Savage’s Obfuscations in the Service of Claiming Julian Assange Is a Journalist

Everyone is fighting for press freedoms again, and therefore lots of people are misrepresenting the facts about Julian Assange’s prosecution in purported defense of press freedom again.

These are the paragraphs with which UK Judge Vanessa Baraitser distinguished what Julian Assange is accused of from what “ordinary investigative journalists” entitled to protection in the UK or European Union do.

99. As part of his assistance to Ms. Manning, [Assange] agreed to use the rainbow tools, which he had for the purpose of cracking Microsoft password hashes, to decipher an alphanumeric code she had given him. The code was to an encrypted password hash stored on a Department of Defence computer connected to the SIPRNet. It is alleged that had they succeeded, Ms. Manning might have been able to log on to computers connected to the network under a username that did not belong to her. This is the conduct which most obviously demonstrates Mr. Assange’s complicity in Ms. Manning’s theft of the information, and separates his activity from that of the ordinary investigative journalist.

100. At the same time as these communications, it is alleged, he was encouraging others to hack into computers to obtain information. This activity does not form part of the “Manning” allegations but it took place at exactly the same time and supports the case that Mr. Assange was engaged in a wider scheme, to work with computer hackers and whistle blowers to obtain information for Wikileaks. Ms. Manning was aware of his work with these hacking groups as Mr. Assange messaged her several times about it. For example, it is alleged that, on 5 March 2010 Mr. Assange told Ms. Manning that he had received stolen banking documents from a source (Teenager); on 10 March 2010, Mr. Assange told Ms. Manning that he had given an “intel source” a “list of things we wanted” and the source had provided four months of recordings of all phones in the Parliament of the government of NATO country-1; and, on 17 March 2010, Mr. Assange told Ms. Manning that he used the unauthorised access given to him by a source, to access a government website of NATO country-1 used to track police vehicles. His agreement with Ms. Manning, to decipher the alphanumeric code she gave him, took place on 8 March 2010, in the midst of his efforts to obtain, and to recruit others to obtain, information through computer hacking.

101. Mr. Assange, it is alleged, had been engaged in recruiting others to obtain information for him for some time. For example, in August 2009 he spoke to an audience of hackers at a “Hacking at Random” conference and told them that unless they were a serving member of the US military they would have no legal liability for stealing classified information and giving it to Wikileaks. At the same conference he told the audience that there was a small vulnerability within the US Congress document distribution system stating, “this is what any one of you would find if you were actually looking”. In October 2009 also to an audience of hackers at the “Hack in the Box Security Conference” he told the audience, “I was a famous teenage hacker in Australia, and I’ve been reading generals’ emails since I was 17” and referred to the Wikileaks list of “flags” that it wanted captured. After Ms. Manning made her disclosures to him he continued to encourage people to take information. For example, in December 2013 he attended a Chaos computer club conference and told the audience to join the CIA in order to steal information stating “I’m not saying don’t join the CIA; no, go and join the CIA. Go in there, go into the ballpark and get the ball and bring it out”.

Assange is not an “ordinary investigative journalist,” according to the judge who ruled that his extradition would not violate journalistic protections, because he allegedly:

  • Tried to help Manning hack a password
  • Solicited hacks of Iceland
  • Identified a vulnerability in a US server and encouraged people to use it
  • In a speech invoking WikiLeaks’ role in helping Edward Snowden to flee to what ended up being Russia, allegedly encouraged people to join the CIA with the express intent of stealing files from it

A key point for Baraitser is this was all happening at the same time, Assange was allegedly soliciting hacks in Iceland even as he attempted to help Manning crack a password, and Manning knew about the other hacking.

Charlie Savage mentions none of this in a story explaining that Julian Assange’s extradition and prosecution, “raised the specter of prosecuting reporters.” He doesn’t even mention the second superseding indictment at all, the one that lays out (among other things) the allegation that Assange entered in a conspiracy to hack Stratfor, a hack that at least six people on both sides of the Atlantic already did time for.

But the specter of prosecuting reporters returned in 2019, when the department under Attorney General William P. Barr expanded a hacking conspiracy indictment of Julian Assange, the WikiLeaks founder, to treat his journalistic-style acts of soliciting and publishing classified information as crimes.

From there, Charlie tells a narrative that WikiLeaks has been pushing as part of Assange’s extradition defense, a claim that because DOJ Public Affairs head Matthew Miller said, in November 2013, that DOJ could not distinguish Julian Assange from what the NYT does, that means that the Obama Administration continued to face that challenge for the remaining three years of the Obama Administration, long after Miller left, and right through the time WikiLeaks played a key role in a Russian intelligence-led attack on American democracy. As Charlie presents it — citing no sources or public records, and I asked him if he was relying on any and he didn’t respond — the decision to prosecute Julian Assange arose not so much from a subsequent investigation that came to distinguish Assange’s actions from those of journalists, but instead because the Trump Administration “was undeterred” about the prospect of damaging “mainstream news outlets.”

Obama-era officials had weighed charging Mr. Assange for publishing leaked military and diplomatic files, but worried about establishing a precedent that could damage mainstream news outlets that sometimes publish government secrets, like The Times. The Trump administration, however, was undeterred by that prospect.

For now, the First Amendment issues are on hold as Mr. Assange fights extradition from Britain. Soon after the Biden administration took office, the Justice Department pressed forward with that extradition effort in British court, leaving the charges in place.

But that was before Mr. Garland was sworn in — and before the latest uproar about the escalating aggression of the Justice Department’s leak investigation tactics prompted him to focus on drafting a new approach that, he testified, will be “the most protective of journalists’ ability to do their jobs in history.”

It’s Trump’s doing, not the result of further investigation, Charlie reports, as news.

The WikiLeaks narrative that Charlie repeats unquestioningly is inconsistent with an April 2017 report — one Assange’s journalism professor expert witness claims to have been unable to find with the magic of Google — that what came to distinguish Assange from other journalists was his role in helping Edward Snowden.

The US view of WikiLeaks and Assange began to change after investigators found what they believe was proof that WikiLeaks played an active role in helping Edward Snowden, a former NSA analyst, disclose a massive cache of classified documents.

We now know, four years later, that not just DOJ but even “mainstream news outlets” considered what WikiLeaks did to help Snowden something other than journalism.

Bart Gellman’s book (which was published before the most recent superseding indictment) not only lays out how WaPo’s lawyers told Gellman that he and Laura Poitras could not safely, under the law, play the role (which is referenced in the superseding indictment against Assange that Charlie doesn’t mention) that WikiLeaks would end up playing, helping Snowden get asylum in what ended up be an adversarial nation. Gellman even cites communications he and Poitras sent to Snowden in real time explaining that taking steps to help Snowden get asylum in what might be, and as it happens turned out to be, a hostile country was not journalism.

We had lawyered up and it showed. “You were clear with me and I want to be equally clear with you,” I wrote. “There are a number of unwarranted assumptions in your email. My intentions and objectives are purely journalistic, and I will not tie them or time them to any other goal.” I was working hard and intended to publish, but “I cannot give you the bottom line you want.”

Poitras wrote to him separately.

There have been several developments since Monday (e.g., your decision to leave the country, your choice of location, possible intentions re asylum), that have come as a surprise and make [it] necessary to be clear. As B explained, our intentions and objectives are journalistic. I believe you know my interest and commitment to this subject. B’s work on the topic speaks for itself. I cannot travel to interview you in person. However, I do have questions if you are still willing to answer them. [my emphasis]

In other words, WaPo’s own lawyers made it clear that helping an intelligence source obtain asylum in another country is not journalism and might, instead, be viewed by the US government as abetting espionage.

Given Charlie’s focus on the transition from the Trump to Biden Administration, there’s something else glaringly absent from his story: the official record on the government response to WikiLeaks’ role in the 2016 election attack. Admittedly, great swaths of that discussion remain redacted (which suggests there’s stuff we may not know), but the Senate Intelligence Committee’s report the Obama Administration’s response to the 2016 Russian interference campaign discussed how part of that process involved “develop[ing] a complete understanding of WikiLeaks.”

The executive branch struggled to develop a complete understanding of WikiLeaks. Some officials viewed WikiLeaks as a legitimate news outlet, while others viewed WikiLeaks as a hostile organization acting intentionally and deliberately to undermine U.S. or allies’ interests.

In other words, in 2016 — three years after the Miller quote that WikiLeaks has trained obedient journalists to parrot unquestioningly — the government came to some new “complete” understanding of WikiLeaks. One of the most important players in this process was then White House Homeland Security Advisor, Lisa Monaco. Her interview with the committee is cited repeatedly in the unredacted passages of the report.

Admittedly, Monaco’s views on how or whether her own understanding of WikiLeaks changed as part of that process do not appear in the report. The SSCI report redacts what those Obama officials came to understand about WikiLeaks in the waning days of the Obama Administration. But, in a story presented as “news,” it seems important to consider how that process might influence Monaco’s understanding of the case against Assange, given that one of the last things she did when last in government was struggle to respond to an attack on American democracy in part because the government treated WikiLeaks as a journalistic outlet for far too long during the attack. Whatever she believes, Monaco knows far more than Matthew Miller, or us, for that matter. We might not agree with her thus far non-public understanding of WikiLeaks, but even the four year old understanding of WikiLeaks she brought to her position as Deputy Attorney General surely will have a bigger influence on DOJ’s decisions about Assange going forward than what the Public Affairs guy said eight years ago.

It’s not that I disagree that some of the charges against Assange — particularly for publishing the names of US and Coalition informants — present a dangerous precedent. They do, and those risks are important to talk about, accurately and honestly. On that note, though, it’s again worthwhile to see how Baraitser distinguishes Assange (note, the circumstances of the release of the informant names is the area where Assange presented the most evidence to challenge the government’s evidence).

The defence submits that, by disclosing Ms. Manning’s materials, Mr. Assange was acting within the parameters of responsible journalism. The difficulty with this argument is that it vests in Mr. Assange the right to make the decision to sacrifice the safety of these few individuals, knowing nothing of their circumstances or the dangers they faced, in the name of free speech. In the modern digital age, vast amounts of information can be indiscriminately disclosed to a global audience, almost instantly, by anyone with access to a computer and an internet connection. Unlike the traditional press, those who choose to use the internet to disclose sensitive information in this way are not bound by a professional code or ethical journalistic duty or practice. Those who post information on the internet have no obligation to act responsibly or to exercise judgment in their decisions. In the modern era, where “dumps” of vast amounts of data onto the internet can be carried out by almost anyone, it is difficult to see how a concept of “responsible journalism” can sensibly be applied.

[snip]

Free speech does not comprise a ‘trump card’ even where matters of serious public concern are disclosed (see Stoll above), and it does not provide an unfettered right for some, like Mr. Assange, to decide the fate of others, on the basis of their partially informed assessment of the risks.

[snip]

The New York Times published the following condemnation on 25 July 2012:

“The Times and the other news organizations agreed at the outset that we would not disclose —either in our articles or any of our online supplementary material — anything that was likely to put lives at risk or jeopardize military or antiterrorist operations. We have, for example, withheld any names of operatives in the field and informants cited in the reports. We have avoided anything that might compromise American or allied intelligence-gathering methods such as communications intercepts. We have not linked to the archives of raw material. At the request of the White House, The Times also urged WikiLeaks to withhold any harmful material from its Web site.”

This is a distinctly European decision. That’s true because in Europe, unlike the US, such protections are tied to being a journalist. Plus Baraitser argued that under EU law, Assange’s release violated privacy protections that simply don’t exist in the US. Mind you, it’s one thing to say the NYT won’t publish details that might endanger military operations and another thing to say such revelations shouldn’t be protected by the First Amendment. Even if WikiLeaks is a “hostile organization acting intentionally and deliberately to undermine U.S. or allies’ interests,” (as SSCI described), that should not, itself, surpass the First Amendment consideration.

But it underscores the point. There are First Amendment problems with the publication charges and, to a lesser extent, the other Manning-focused ones. But Assange actually wouldn’t be the first person extradited from the UK significantly for publication activities, the same thing happened to Minh Quang Pham for the few months he spent as AQAP’s graphic designer. That precedent has not only gone virtually unnoticed, but did little to harm the press freedom of others in the US. Not only are the First Amendment risks of Assange’s prosecution not tied to whether or not Assange is a journalist, but the effort to reinvent both the history of his prosecution and what he is accused of to turn him into a journalist has led a bunch of journalists and press freedom advocates to violate the principles that are supposed to distinguish journalism.

“Target:” A Vocabulary Lesson for Adam Schiff

Most of the people in top DOJ positions under Trump have issued statements claiming they did not know of any subpoena “targeting” Adam Schiff.

Billy Barr told Politico that “while he was Attorney General,” he was not aware of any congressperson’s records, “being sought” “in a leak case.”

Barr said that while he was attorney general, he was “not aware of any congressman’s records being sought in a leak case.” He added that Trump never encouraged him to zero in on the Democratic lawmakers who reportedly became targets of the former president’s push to unmask leakers of classified information.

Trump “was not aware of who we were looking at in any of the cases,” Barr said. “I never discussed the leak cases with Trump. He didn’t really ask me any of the specifics.”

That in no way serves as a denial that he’s aware of the previously collected congressperson’s records being used in an investigation, possibly one not defined as a leak case. Given that the records in question were collected over a year before he became Attorney General, it is, frankly, not a denial in the least.

WaPo includes purported denials from all three potential Attorneys General.

In February 2018, Jeff Sessions was attorney general, though a person familiar with the matter said he has told people he did not recall approving a subpoena for lawmakers’ data in a leak case. Sessions was recused from many Russia-related matters, including special counsel Robert S. Mueller III’s investigation of the Kremlin’s interference in the 2016 election. A person close to Rod J. Rosenstein, Sessions’s deputy attorney general, said he, too, has told people he did not recall hearing about the subpoena until news of it broke publicly.

Two other people said William P. Barr — Trump’s second attorney general — also has told people he did not remember being informed of any subpoenas for lawmakers’ data during his time leading the department.

Barr says he does not remember being informed of “subpoenas for lawmakers’ data.” Jeff Sessions, who may have been recused from the investigation in question (though I’m virtually certain the recusal is not as broad as it is being treated), says “he did not recall approving a subpoena for lawmakers’ leak data.” And Rod Rosenstein, the leak hawk who served as Attorney General for Russia related investigations, says “he did not recall hearing about the subpoena” until it was just revealed.

Every single one of these denials is premised on this being a subpoena for Members of Congress. These denials are denials about targeting Members of Congress.

But Apple’s description of what happened makes it virtually certain none of these denials are relevant to the subpoena in question.

On Feb. 6, 2018, Apple received a grand jury subpoena for the names and phone records connected to 109 email addresses and phone numbers. It was one of the more than 250 data requests that the company received on average from U.S. law enforcement each week at the time. An Apple paralegal complied and provided the information.

[snip]

Without knowing it, Apple said, it had handed over the data of congressional staff members, their families and at least two members of Congress, including Representative Adam B. Schiff of California, then the House Intelligence Committee’s top Democrat and now its chairman. It turned out the subpoena was part of a wide-ranging investigation by the Trump administration into leaks of classified information.

Apple was asked for the names and toll records connected with 109 accounts. That means that investigators didn’t know — or could claim not to know — whose records they were collecting, and didn’t discover until they got the subpoena returns that Adam Schiff, Eric Swalwell, and a child with no conceivable access to classified information had been included. Chances are good that none of these people were the target. Chances are good that a staffer was the target — perhaps the one for whose records Microsoft was subpoenaed in 2017. This sounds like a Community of Interest subpoena — something that gets the calling circle of a target. It was a key part of Stellar Wind and the phone dragnet that Adam Schiff championed over and over again, a request that shows (in this case) two hops removed from a target to figure out whom he called and whom those people called.

The danger of using such requests in leak investigations has been known since a 2010 IG Report revealed that a journalist’s records had been collected as part of a community of interest grand jury subpoena. One plausible explanation for what happened in that instance is that the government targeted a known source for Stellar Wind — perhaps Thomas Tamm — knowing full well that one of the journalists on the story had been in contact with him. By getting two hops of records, though, the known contact with the journalist would (and did) return all the journalists’ contacts as well. The journalist in that case wasn’t the “target” but he may as well have been.

Still, as the phone dragnet championed by Adam Schiff reveals, the government never gave up their interest in such two-hop subpoenas.

All of the descriptions of what happened are consistent with this explanation. It would explain why:

  • Apple didn’t know the identity of the account holders but returned both the identity and the call records in response to the subpoena
  • Apple is now limiting the number of records they’ll return with one subpoena
  • Sessions, Rosenstein, and Barr are all denying knowing that Members of Congress were “targeted”

What it doesn’t explain — though no one has been asked to explain — whether investigators on this case alerted their superiors that they had ended up subpoenaing Adam Schiff’s records, whether or not they [claim they] intended to. Oops, boss, I just subpoenaed the Ranking Member of HPSCI, what do I do now?

In the case of the journalist whose records were seized in a community of interest subpoena in 2006, after it was discovered the FBI sealed the records and they were purged from at least some of the FBI’s investigative databases. That’s what should have happened after a prosecutor discovered they had obtained a Member of Congress’ call records unintentionally: the records should have been sealed.

But by description, that didn’t happen here. Barr never denied having focused on Members of Congress when he resuscitated his investigation in 2020 (nor has he said for sure that it remained a “leak” investigation rather than a “why does this person hate Trump” investigation, like so many others of his investigations. Barr denied telling Trump about it. But he didn’t deny that Members of Congress were investigated in 2020.

That’s why Adam Schiff’s reassurances that Section 702 of FISA doesn’t “target” Americans have always been meaningless. Because once FBI ingests the records, they can go back to those records years later, in an entirely different investigation. And no one has denied such a thing happened here.

Update: Fixed the description of Barr’s denial to WaPo.

Some Perspective on the Politicized Leak Investigation Targeting Adam Schiff

The NYT reported the other day that DOJ obtained phone records of Adam Schiff, Eric Swalwell, and a bunch of House Intelligence Committee staffers in the guise of what it reports is a leak investigation (though given the specific form of Bill Barr’s prevarications about his knowledge, may have been repackaged as something else when the investigation was resuscitated in 2020).

Prosecutors subpoenaed Apple for data from the accounts of at least two Democrats on the House Intelligence Committee, aides and family members. One was a minor.

All told, the records of at least a dozen people tied to the committee were seized in 2017 and early 2018, including those of Representative Adam B. Schiff of California, then the panel’s top Democrat and now its chairman, according to committee officials and two other people briefed on the inquiry. Representative Eric Swalwell of California said in an interview Thursday night that he had also been notified that his data had subpoenaed.

Prosecutors, under the beleaguered attorney general, Jeff Sessions, were hunting for the sources behind news media reports about contacts between Trump associates and Russia. Ultimately, the data and other evidence did not tie the committee to the leaks, and investigators debated whether they had hit a dead end and some even discussed closing the inquiry.

But William P. Barr revived languishing leak investigations after he became attorney general a year later. He moved a trusted prosecutor from New Jersey with little relevant experience to the main Justice Department to work on the Schiff-related case and about a half-dozen others, according to three people with knowledge of his work who did not want to be identified discussing federal investigations.

The initial collection and especially the subsequent treatment were clearly politicized — and more importantly, stupid, from an investigative standpoint. But, especially because this involves Adam Schiff, some exactitude about what went on really is required.

This is not spying

First, this is not “spying.” If the use of informants to investigate members of the Trump campaign and Hillary Clinton’s Foundation during a political campaign is not spying, if the use of a lawful FISA to conduct both physical and electronic surveillance on recently departed campaign volunteer Carter Page is not spying — and Adam Schiff said they were not, and I agree — then neither is the use of a subpoena to collect the phone records of Democrats who had knowledge of information that subsequently leaked in a fully predicated (and very serious) leak investigation.

This is “just” metadata

According to all reports, the government obtained the iPhone metadata records of 73 phone numbers and 36 email addresses. Apple suggests other tech companies probably got subpoenas, too, which means that some of those email addresses probably weren’t Apple emails.

But it was — as Adam Schiff said many times when defending a program that aspired to collect “all” the phone records in the United States — “just” metadata.

I don’t mean to belittle the impact of that. As I and others argued (against Schiff), metadata is actually profoundly revealing.

But if this is a problem (it is!), then people like Adam Schiff should lead a conversation about whether the standard on collection of metadata — currently, it only needs to be “relevant to” an investigation — is what it should be, as well as the rules imposed on future access to the data once collected prevent abuse.

Apple (and other tech companies) wouldn’t have known this was Adam Schiff

Even people who understand surveillance seem to believe that Apple would have known these requests targeted Adam Schiff in a leak investigation and therefore should have done more to fight it, as if the actual subpoena would be accompanied with an affidavit with shiny flags saying “HPSCI Ranking Member.”

They wouldn’t have. They would have gotten a list of selectors (some of which, by its description, it probably did not service), a description of the crime being investigated (a leak), and a gag order. The one thing that should have triggered closer review from Apple was the number of selectors. But apparently it did not, and once Apple complied, the data was swept up into the FBI’s servers where it presumably remains.

The subpoena was overly broad and not tailored to limit damage to Schiff

All that said, there were aspects of the subpoena that suggest it was written without any consideration for limiting the damage to Congressional equities or reasonable investigative targets. Focusing on these details are important because they distinguish what is really problematic about this (and who is to blame). According to reports, the subpoena:

  • Obtained information from a minor, who would have had no access to classified information
  • Included a series of year-long gags
  • Obtained all the toll records from date of creation
  • May have focused exclusively on Democratic members and staffers

It’s conceivable that, after years of investigation, DOJ would have reason to believe someone was laundering leaks through a child. But given how broad this subpoena is, it’s virtually impossible the affidavit included that kind of specific knowledge.

With journalists, DOJ is supposed to use shorter gags–three months. The series of year-long gags suggests that DOJ was trying to hide the existence of these subpoenas not just to hide an investigation, but to delay the political embarrassment of it.

There’s no reason to believe that Adam Schiff leaked a FISA application targeting Carter Page first obtained in 2016 in 2009 (or whenever the Californian lawmaker first set up his Apple account). It’s a physical impossibility. So it is completely unreasonable to imagine that years-old toll records would be “relevant to” a leak investigation predicated off a leak in 2017. Mind you, obtaining all records since the inception of the account is totally normal! It’s what DOJ did, for example, with Antionne Brodnax, a January 6 defendant who got notice of subpoenas served on him, but whose attempt to limit the subpoena failed because those whose records are subpoenaed have no authority to do that. There are two appropriate responses to the unreasonable breadth of this request: both a focus on the failure to use special caution with Congressional targets, but also some discussion about how such broad requests are unreasonable regardless of the target.

Given the number of these selectors, it seems unlikely DOJ did more than ID the people who had access to the leaked information in question. Except if they only obtained selectors for Democrats, it would suggest investigators went into the investigation with the assumption that the leak was political, and that such a political leak would necessarily be partisan. That’s simply not backed by exhibited reality, and if that’s what happened, it should force some scrutiny on who made those assumptions. That’s all the more true given hints that Republicans like Paul Ryan may have tipped Page off that he had been targeted.

These kinds of limiting factors are where the most good can come out of this shit-show, because they would have a real impact and if applied broadly would help not just Schiff.

Barr continued to appoint unqualified prosecutors to do his political dirty work

I think it would be useful to separate the initial records request — after all, the leak of a FISA intercept and the target of a FISA order are virtually unprecedented — from the continued use of the records in 2020, under Billy Barr.

The NYT explains that the initial investigators believed that charges were unlikely, but Barr redoubled efforts in 2020.

As the years wore on, some officials argued in meetings that charges were becoming less realistic, former Justice Department officials said: They lacked strong evidence, and a jury might not care about information reported years earlier.

[snip]

Mr. Barr directed prosecutors to continue investigating, contending that the Justice Department’s National Security Division had allowed the cases to languish, according to three people briefed on the cases. Some cases had nothing to do with leaks about Mr. Trump and involved sensitive national security information, one of the people said. But Mr. Barr’s overall view of leaks led some people in the department to eventually see the inquiries as politically motivated.

[snip]

After the records provided no proof of leaks, prosecutors in the U.S. attorney’s office in Washington discussed ending that piece of their investigation. But Mr. Barr’s decision to bring in an outside prosecutor helped keep the case alive.

[snip]

In February 2020, Mr. Barr placed the prosecutor from New Jersey, Osmar Benvenuto, into the National Security Division. His background was in gang and health care fraud prosecutions.

Barr used this ploy — finding AUSAs who were unqualified to work on a case that others had found no merit to — on at least three different occasions. Every document John Durham’s team submitted in conjunction with the Kevin Clinesmith prosecution, for example, betrayed that investigators running it didn’t understand the scope of the Crossfire Hurricane investigation (and thereby also strongly suggested investigators had no business scrutinizing a counterintelligence investigation at all). The questions that Jeffrey Jensen’s team, appointed by Barr to review the DOJ IG investigation and the John Durham investigation to find conclusions they didn’t draw, asked Bill Barnett betrayed that the gun crimes prosecutors running it didn’t know fuckall about what they were doing (why Barnett answered as he did is another thing, one that DOJ IG should investigate). And now here, he appointed a health care fraud prosecutor to conduct a leak investigation after unbelievably aggressive leak investigators found nothing.

DOJ IG should include all of those investigations in its investigation, because they all reflect Barr’s efforts to force prosecutors to come to conclusions that the evidence did not merit (and because the Jensen investigation, at least, appears to have altered records intentionally).

FBI never deletes evidence

In an attempt to disclaim responsibility for yet more political abuse, Billy Barr issued a very interestingly worded disavowal.

Barr said that while he was attorney general, he was “not aware of any congressman’s records being sought in a leak case.” He added that Trump never encouraged him to zero in on the Democratic lawmakers who reportedly became targets of the former president’s push to unmask leakers of classified information.

There are two parts to this: One, that “while he was attorney general,” Congresspersons’ records were not sought, and two, sought in a leak case. The original subpoena for these records was in February 2018, so not during Barr’s tenure as Attorney General. He doesn’t deny asking for those previously-sought records to be reviewed anew while Attorney General.

But he also limits his disavowal to leak cases. Under Barr’s fervent imagination, however, these investigations may well have morphed into something else, what he may have imagined were political abuse or spying violation cases. DOJ can and often does obtain new legal process for already obtained records (which would be unnecessary anyway for toll records), so it is not outside the realm of possibility that Barr directed his unqualified prosecutor to use those already-seized records to snoop into some other question.

It’s a pity for Adam Schiff that no one in charge of surveillance in Congress imposed better trackability requirements on FBI’s access of its investigative collections.

Both an IG investigation and a Special Counsel are inadequate to this investigation

Lisa Monaco asked Michael Horowitz to investigate this investigation. And that’s fine: he can access the records of the investigation, and the affidavits. He can interview the line prosecutors who were tasked with this investigation.

But he can’t require Barr or Jeff Sessions or any of the other Trump appointees who ordered up this investigation to sit for an interview (he could move quickly and ask John Demers to sit for an interview).

Because of that, a lot of people are asking for a Special Counsel to be appointed. That would be nice, except thus far, there’s no evidence that a crime was committed, so there is no regulatory basis to appoint a Special Counsel. The standard for accessing records is very low, any special treatment accorded journalists or members of Congress are not written into law, and prosecutorial discretion at DOJ is nearly sacrosanct. The scandal is that this may all be entirely legal.

Mind you, there’s good reason to believe there was a crime committed in the Jeffrey Jensen investigation, the same crime (altering documents) that Barr used to predicate the Durham Special Counsel appointment. So maybe people should revisit that?

Luckily, Swalwell and Schiff know some members of Congress who can limit such abuses

If I learned that DOJ engaged in unreasonable surveillance on me [wink], I’d have no recourse, largely because of laws that Adam Schiff has championed for years.

But as it happens, Schiff and Swalwell both know some members of Congress who could pass some laws limiting the ability to do some of the things used against them that affect thousands of Americans investigated by the FBI.

Now that Adam Schiff has discovered, years after we tried to reason with him on this point, that “it’s just metadata” doesn’t fly in this day and age, maybe we can talk about how the FBI should be using metadata given how powerful it has become?

The renewed focus on Schiff’s metadata would have come after Schiff disclosed Nunes’ ties to Rudy Giuliani’s grift

Another factor of timing hasn’t gotten enough attention. In late December, Schiff released the Democrats’ impeachment report. Because Schiff obtained subpoenas (almost certainly targeting Lev Parnas and Rudy Giuliani), he included call records of calls implicating Devin Nunes and his staffer Derek

Over the course of the four days following the April 7 article, phone records show contacts between Mr. Giuliani, Mr. Parnas, Representative Devin Nunes, and Mr. Solomon. Specifically, Mr. Giuliani and Mr. Parnas were in contact with one another, as well as with Mr. Solomon.76 Phone records also show contacts on April 10 between Mr. Giuliani and Rep. Nunes, consisting of three short calls in rapid succession, followed by a text message, and ending with a nearly three minute call.77 Later that same day, Mr. Parnas and Mr. Solomon had a four minute, 39 second call.78

[snip]

On the morning of May 8, Mr. Giuliani called the White House Switchboard and connected for six minutes and 26 seconds with someone at the White House.158 That same day, Mr. Giuliani also connected with Mr. Solomon for almost six minutes, with Mr. Parnas, and with Derek Harvey, a member of Representative Nunes’ staff on the Intelligence Committee.159

69 AT&T Document Production, Bates ATTHPSCI _20190930_00848-ATTHPSCI_20190930_00884. Mr. Parnas also had an aborted call that lasted 5 seconds on April 5, 2019 with an aide to Rep. Devin Nunes on the Intelligence Committee, Derek Harvey. AT&T Document Production, Bates ATTHPSCI_20190930_00876. Call records obtained by the Committees show that Mr. Parnas and Mr. Harvey had connected previously, including a four minute 42 second call on February 1, 2019, a one minute 7 second call on February 4, and a one minute 37 second call on February 7, 2019. AT&T Document Production, Bates ATTHPSCI_20190930_00617, ATTHPSCI_20190930_00630, ATTHPSCI_20190930_00641. As explained later in this Chapter, Rep. Nunes would connect separately by phone on April 10, 11, and 12 with Mr. Parnas and Mr. Giuliani. AT&T Document Production, Bates ATTHPSCI_20190930_00913- ATTHPSCI_20190930_00914; ATTHPSCI_20190930-02125.

76 Specifically, between April 8 and April 11, phone records show the following phone contacts:

  • six calls between Mr. Giuliani and Mr. Parnas (longest duration approximately five minutes), AT&T Document Production, Bates ATTHPSCI_20190930-02115-ATTHPSCI_20190930-02131;
  • four calls between Mr. Giuliani and Mr. Solomon (all on April 8, longest duration approximately one minute, 30 seconds) AT&T Document Production, Bates ATTHPSCI_20190930-02114- ATTHPSCI_20190930-02115;
  • nine calls between Mr. Parnas and Mr. Solomon (longest duration four minutes, 39 seconds) AT&T Document Production, Bates ATTHPSCI_20190930-00885- ATTHPSCI_20190930- 00906; and
  • three calls between Mr. Parnas and Ms. Toensing (longest duration approximately six minutes), AT&T Document Production, Bates ATTHPSCI_20190930-00885- ATTHPSCI_20190930- 00905.

77 AT&T Document Production, Bates ATTHPSCI_20190930-02125, ATTHPSCI_20190930-03236.

78 AT&T Document Production, Bates ATTHPSCI_20190930-00902.

[snip]

158 AT&T Document Production, Bates ATTHPSCI_20190930_02313.

159 AT&T Document Production, Bates ATTHPSCI_20190930_02314; ATTHPSCI_20190930_02316; ATTHPSCI_20190930_02318; ATTHPSCI 20190930 01000.

Because Nunes doesn’t understand how phone records work, he — and most other Republicans in Congress — accused Schiff of subpoenaing the record of his colleagues. That’s not what happened. Instead, Nunes and a key staffer got involved in with Rudy’s efforts to solicit dirt from Russian assets and as a result they showed up in Rudy’s phone records.

But it’s the kind of thing that might lead Barr to intensify his focus on Schiff.

The last section of this was an update.

Tea Leaves on the Garland-Monaco DOJ and the Stay in Andrew McCabe’s Lawsuit

The effort to figure out precisely why moderate Merrick Garland and career DOJ employee Lisa Monaco are having the Department of Justice sustain shitty positions adopted under Bill Barr has reached a fever pitch. In my piece on Monaco, I noted one thing — her presumed approval, on her first day in the job, of a raid on Rudy Giuliani — that suggests some people are mistaking a likely effort to sustain DOJ as an institution for an effort to protect Trump.

I’d like to point to another tea leaf — something that happened (perhaps coincidentally) on Monaco’s third full day on the job. That’s when the two sides in Andrew McCabe’s lawsuit moved to stay discovery pending an effort to settle the case.

The parties jointly move this Court to stay all discovery in this proceeding, for 45 days after this motion is granted, and to extend all previously set case deadlines and events by 45 days. The parties request this relief so that they may explore the possibility of settlement.

Good cause exists for the requested relief, because the stay and extension would allow the parties to focus their efforts on discussing settlement expeditiously, free from any competing obligations and ongoing disputes related to discovery, and without burdening the Court with potentially unnecessary discovery disputes. The parties propose to update the Court two business days before the stay’s expiration about whether a further stay and extension is warranted.

On its face, a settlement with McCabe would look like a stark reversal of a Trump policy. Top levels of Trump’s DOJ signed declarations swearing that McCabe’s firing was for cause. At that level, the interest in settling the lawsuit looks like a pretty serious reversal.

That said, depending on how broadly Judge Randolph Moss ruled discovery must extend (an issue that is still pending), McCabe’s lawsuit could seriously embarrass DOJ. Even just his case in chief, in which DOJ IG and OPR ignored the testimony of key witness, FBI press person Michael Kortan (with whom McCabe’s office worked on the story that DOJ claims he was trying to hide), full discovery could badly embarrass DOJ. Still more so if the extent to which DOJ pushed to indict McCabe, allegedly after the grand jury rejected charges against him, became public. By the end of Barr’s tenure, DOJ had altered a McCabe document and submitted it to Emmet Sullivan, another potentially damaging revelation (though one probably outside any imaginable scope of discovery).

And that’s just what we know about. In the weeks leading up to McCabe’s testimony before the Senate Judiciary Committee, DOJ was refusing to share documents that McCabe needed to adequately prep for his appearance.

I’m not sure what this particular move suggests about DOJ. But I know that full exposure of the witch hunt against McCabe would badly damage DOJ, including some career employees who served Barr’s whims. But a settlement would also damage the Trump DOJ, because it would prove that Trump politicized his entire DOJ to take out perceived enemies.

That is, amid all the other tea leaves, what happens with the McCabe suit may indicate which damage to DOJ the Garland-Monaco DOJ seems most intent on avoiding.

Update: The two sides just filed an update: No settlement has been reached, but they remain in talks.

Consistent with their April 23, 2021 Joint Motion to Stay Discovery and Extend All Case Deadlines (Dkt. 56), the parties submit this joint notice regarding the current stay of litigation.

On April 27, 2021, this Court granted the parties’ joint motion for a 45-day stay of all discovery so that the Parties could focus on exploring the possibility of settlement. No settlement has been reached, but the parties are continuing their discussions. In the event that they agree that a further stay is warranted, they will so notify the Court by filing another joint motion to extend the stay and related deadlines.

The [Thus Far] Missing Seth DuCharme Emails Pertaining to Rudy Giuliani’s Russian Disinformation

As I’ve been harping of late, Billy Barr and Jeffrey Rosen went to great lengths to protect Rudy Giuliani’s efforts to obtain and disseminate what the Intelligence Community already knew was Russian-backed disinformation laundered through Andrii Derkach. That effort included the following:

  • For whatever reason, not warning Rudy that the Intelligence Community knew Russia was targeting him for an information operation before he traveled to his December 2019 meeting with Derkach
  • Prohibiting SDNY from expanding its existing investigation into Rudy’s foreign influence peddling to include his efforts with Derkach by making EDNY a gate-keeper for any such decisions
  • Asking Pittsburgh USA Attorney Scott Brady to accept the information that the IC already knew was Russian disinformation from Rudy
  • Doing nothing while Rudy continued to share information the IC already knew was Russian disinformation during an election
  • After belatedly opening an investigation into the Derkach effort that the IC had known was Russian disinformation for a year, opening it at EDNY and scoping it to ensure that Rudy’s own actions would not be a subject of the investigation

As a result of this remarkable effort, led by the Attorney General and Deputy Attorney General, to protect Russian disinformation, DOJ willingly ingested a bunch of Russian disinformation and used it to conduct an investigation into the son of the President’s opponent.

Last year, when it was disclosed that Barr had directed Brady to willingly accept this Russian disinformation, American Oversight FOIAed and then sued for the paper trail of the effort, submitted as four separate FOIAs:

  1. [To OIP and USAPAW] “Brady Order and Written Approval” — which specifically asked for “two readily-identifiable, specific documents” — described as:
    • The written approval of the Attorney General or Deputy Attorney General authorizing U.S. Attorney for the Western District of Pennsylvania (USAPAW) to create and/or administer a process for receiving purported investigatory information from Rudy Giuliani concerning matters that relate to former Vice President Biden
    • A copy of the Attorney General’s order directing USAPAW to conduct an evaluation, review, probe, assessment, “intake process,” preliminary investigation
  2. [To OIP and USAPAW] “Giuliani Directives, Guidance, & Communications,” described as:
    • All directives or guidance provided to USAPAW regarding an evaluation, review, probe, assessment, “intake process,” preliminary investigation, or other investigation of any information received from Rudy Giuliani, including information that may concern former Vice President Biden
    • All records reflecting communications between (1) the Office of the Attorney General or the Office of the Deputy Attorney General and (2) USAPAW regarding an evaluation, review, probe, assessment, preliminary investigation, or other investigation of any information received from Rudy Giuliani
    • All records reflecting communications within the OAG or the ODAG regarding any evaluation, review, probe, assessment, “intake process,” preliminary investigation, or other investigation of any information received from Rudy Giuliani, including information which may concern former Vice President Biden
  3. [To USAPAW] “Brady-Giuliani Communications,”described as all records reflecting communications between (1) USAPAW in the course of any evaluation, review, probe, assessment, “intake process,” preliminary investigation, or other investigation of any information received from Rudy Giuliani and (2) Rudy Giuliani, or any of Mr. Giuliani’s personal assistants or others communicating on his behalf, including but not limited to Jo Ann Zafonte, Christianne Allen, or Beau Wagner
  4.  [To USAPAW] “Brady-White House Communications,” described as any communications between (1) USAPAW in the course of any evaluation, review, probe, assessment, “intake process,” preliminary investigation, or other investigation of any information received from Rudy Giuliani and (2) anyone at the White House Office

Before American Oversight filed the lawsuit, the Trump Admin did two things that will have an effect on what we’re seeing. First, DOJ combined requests one and two above; as we’ll see, that had the effect of hiding that Barr didn’t put anything in writing. In addition, USAPAW told American Oversight that they were going to refer the request for such an order to Main Justice for referral.

While the lawsuit was filed under the Trump Administration, the substantive response to it started in February. The FOIA is a way to understand more about this effort — both how willing Barr’s DOJ was to put this scheme in writing, as well as the volume of paper trail that it generated.

The first status report, submitted on February 22, revealed the following based on an initial search:

  1. “Brady Order and Written Approval” and “Giuliani Directives, Guidance, & Communications” (aggregated) at Main DOJ: 8,851 items
  2. “Giuliani Directives, Guidance, & Communications” and “Brady-Giuliani Communications” at USAPAW: 1,400 pages
  3. “Brady-White House Communications:” none

The second status report, submitted on April 1, reported that of the initial search, the following was deemed potentially responsive:

  1. “Brady Order and Written Approval” and “Giuliani Directives, Guidance, & Communications” (aggregated) at Main DOJ: 30 pages referred
  2. “Giuliani Directives, Guidance, & Communications” and “Brady-Giuliani Communications” at USAPAW, of 272 pages reviewed so far:
    • 3 pages released in full
    • 189 pages referred to other agencies for consultation
    • 83 duplicates or non-responsive

Here is the USAPAW production.

The third status report, submitted on May 3, reported the following:

  1. “Brady Order and Written Approval” and “Giuliani Directives, Guidance, & Communications” (aggregated) at Main DOJ:
    • 18 pages released in partly redacted form
    • 4 pages withheld entirely under b5 deliberative exemption
    • 6 pages awaiting a response from some other component
  2. “Giuliani Directives, Guidance, & Communications” and “Brady-Giuliani Communications” at USAPAW, of 263 pages reviewed this month:
    • 5 pages released, 3 of which include b6, b7A and b7C redactions
    • 14 pages referred to another component
    • 244 pages non-responsive or duplicates

Here is the USAPAW production and here is the Main DOJ production.

Here’s what has currently been provided to American Oversight (go here for live links).

Note, this may be clarified in upcoming dumps, but for now, there appears to be something very irregular with the OIP response. At first, DOJ said there were up to 8,851 items that were responsive to American Oversight’s request. But with the next status report, DOJ said there were just 30 pages. The most recent release claimed to account for 28 of those 30 pages.

In the second joint status report, OIP stated that it had completed its search and its initial responsiveness and deduplication review of potentially responsive documents and identified approximately 30 pages of material likely responsive to Plaintiff’s request. See ECF No.7, ¶ 2. OIP further stated that it had sent these records out for consultation pursuant to the Department’s regulations, 28 C.F.R. § 16.4(d), and expected to be able to provide its first response to Plaintiff on or around April 29, 2021. Id. On April 29, 2021, OIP made its first interim response. It released 18 pages in part with portions redacted pursuant to Exemptions 5 and/or 6 and withheld four pages in full pursuant to Exemption 5. OIP is awaiting responses from other components on the remaining six pages.

The math looks like this:

18 pages released

4 pages withheld under b5 exemption*

6 pages referred to another component

Total: 28 pages

Remaining: 2 pages

That’s a problem because there are at least two pages of emails that were part of the USAPAW response that must have had a counterpart at DOJ, as well as one missing from both (though USAPAW has 1000 pages to release):

  • A January 3, 2020 email from Seth DuCharme to Scott Brady asking, “Scott do you have time for a quick call today in re a possible discreet assignment from OAG and ODAG?” (Brady’s response, which includes DuCharme’s original, is included in both, but the copy released by OIP was printed out from Brady’s account, not DuCharme’s).
  • A February 11, 2020 email from Brady to DuCharme, asking “Seth, do you have a few minutes to catch up today?” The email should exist in both accounts, and should be included in both OIP and USAPAW’s response.
  • A March 5, 2020 email from Brady to DuCharme, asking “Seth: do you have 5 minutes to talk today?”

Brady resigned effective February 26 and DuCharme resigned effective March 19. At the time he resigned, DuCharme was supervising an investigation into this Derkach stuff, one that excluded Rudy as a subject.

I assume this will become more clear with further releases (indeed, American Oversight may have the next installment already). Perhaps there’s a sound explanation. But thus far, it looks like only the Brady side of exchanges between him and DuCharme have been provided in response.

* The response letter to Jerry Nadler was two pages long, and the draft was sent twice (or there were two drafts), so those probably account for the 4 pages withheld on b5 exemptions.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Bill Barr Issued Prosecution Declinations for Three Crimes in Progress

On March 24, 2019, by judging that there was not evidence in Volume II of the Mueller Report that Trump had obstructed justice, Billy Barr pre-authorized the obstruction of justice that would be completed with future pardons of Mike Flynn, Paul Manafort, and Roger Stone. He did so before the sentencing of Flynn and before even the trial of Stone.

This is why Amy Berman Jackson should not stay her decision to release the Barr Memo. It’s why the question before her goes well beyond the question of whether the Barr memo presents privileged advice. What Barr did on March 24, 2019 was pre-authorize the commission of crimes that ended up being committed. No Attorney General has the authority to do that.

As the partially unsealed memo makes clear, Steve Engel (who, even per DOJ’s own filing asking for a stay, was not permitted to make prosecutorial decisions) and Ed O’Callaghan (who under the OLC memo prohibiting the indictment of the President, could not make prosecutorial decisions about the President) advised Bill Barr that he should, “examine the Report to determine whether prosecution would be appropriate given the evidence recounted in the Special Counsel’s Report, the underlying law, and traditional principles of federal prosecution.”

In her now-unsealed memo ordering the government to release the memo, ABJ argues, “the analysis set forth in the memo was expressly understood to be entirely hypothetical.”

It was worse than that.

It was, necessarily, an instance of “Heads Trump wins, Tails rule of law loses.” As the memo itself notes, the entire exercise was designed to avoid, “the unfairness of levying an accusation against the President without bringing criminal charges.” It did not envision the possibility that their analysis would determine that Trump might have committed obstruction of justice. So predictably, the result of the analysis was that Trump didn’t commit a crime. “[W]ere there no constitutional barrier, we would recommend, under Principles of Federal Prosecution, that you decline to commence such a prosecution.”

The government is now appealing ABJ’s decision to release the memo to hide the logic of how Engel and O’Callaghan got to that decision. And it’s possible they want to hide their analysis simply because they believe that, liberated from the entire “Heads Trump wins, Tails rule of law loses” premise of the memo, it becomes true deliberative advice (never mind that both Engel and O’Callaghan were playing roles that OLC prohibits them to play).

But somehow, in eight pages of secret analysis, Engel and O’Callaghan decide — invoking the entire Special Counsel’s Report by reference — that there’s not evidence beyond a reasonable doubt that Trump obstructed justice.

We can assume what some of these eight pages say. In the newly unsealed parts, Engel and O’Callaghan opine, “that certain of the conduct examined by the Special Counsel could not, as a matter of law, support an obstruction charge under the circumstances.”

As Quinta Jurecic’s epic chart lays out, the potential instances of obstruction of justice before Engel and O’Callaghan included a number of things involving Presidential hiring and firing decisions — the stuff which the memo Bill Barr wrote as an audition for the job of Attorney General said could not be obstruction.

To address those instances of suspected obstruction, then, Engel and O’Callaghan might just say, “What you said, Boss, in the memo you used to audition to get this job.” That would be scandalous for a whole bunch of reasons — partly because Barr admitted he didn’t know anything about the investigation when he wrote the memo (even after the release of the report, Barr’s public statements made it clear he was grossly unfamiliar with the content of it) and partly because it would raise questions about whether by hiring Barr Trump obstructed justice.

But that’s not actually the most scandalous bit about what must lie behind the remaining redactions. As Jurecic’s chart notes, beyond the hiring and firing obstruction, the Mueller Report laid out several instances of possible pardon dangles: to Mike Flynn, to Paul Manafort, to Roger Stone, and to Michael Cohen. These are all actions that, in his confirmation hearing, Barr admitted might be crimes.

Leahy: Do you believe a president could lawfully issue a pardon in exchange for the recipient’s promise to not incriminate him?

Barr: No, that would be a crime.

Even Barr admits the question of pardon dangles requires specific analysis.

Klobuchar: You wrote on page one that a President persuading a person to commit perjury would be obstruction. Is that right?

Barr: [Pause] Yes. Any person who persuades another —

Klobuchar: Okay. You also said that a President or any person convincing a witness to change testimony would be obstruction. Is that right?

Barr: Yes.

Klobuchar: And on page two, you said that a President deliberately impairing the integrity or availability of evidence would be an obstruction. Is that correct?

Barr: Yes.

Klobuchar: OK. And so what if a President told a witness not to cooperate with an investigation or hinted at a pardon?

Barr: I’d have to now the specifics facts, I’d have to know the specific facts.

Yet somehow, in eight pages of analysis, Engel and O’Callaghan laid out “the specific facts” that undermined any case against Trump for those pardon dangles. I’d be surprised if they managed to do that convincingly in fewer than eight pages, particularly since they make clear that they simply assume you’ve read the Mueller Report (meaning, that analysis almost certainly doesn’t engage in the specific factual analysis that Bill Barr says you’d need to engage in).

The far, far more problematic aspect of this analysis, though, is that, of the four potential instances of pardon dangles included in the Mueller Report, three remained crimes-in-progress on March 24, 2019 when Barr issued a statement declining prosecution for them.

By then, Michael Cohen had already pled guilty and testified against Trump. But Paul Manafort had only just been sentenced after having reneged on a cooperation agreement by telling lies to hide what the government has now confirmed involved providing assistance (either knowing or unknowing) to the Russia election operation. Mike Flynn had not yet been sentenced — and in fact would go on to renege on his plea agreement and tell new lies about his conduct, including that when he testified to the FBI that he knew he discussed sanctions, he didn’t deliberately lie. And Roger Stone hadn’t even been tried yet when Barr said Stone’s lies to protect Trump weren’t a response to Trump’s pardon dangles. In fact, if you believe Roger Stone (and I don’t, in part because his dates don’t line up), after the date when Barr issued a declination statement covering Trump’s efforts to buy Stone’s silence, prosecutors told him,

that if I would really remember certain phone conversations I had with candidate trump, if I would come clean, if I would confess, that they might be willing to, you know, recommend leniency to the judge perhaps I wouldn’t even serve any jail time

If that’s remotely true, Barr’s decision to decline prosecution for the pardon dangles that led Stone to sustain an obviously false cover story through his trial itself contributed to the obstruction.

Barr’s decision to decline prosecution for obstruction crimes that were still in progress may explain his even more outrageous behavior after that. For each of these remaining crimes in progress, Barr took steps to make it less likely that Trump would issue a pardon. He used COVID as an excuse to spring Paul Manafort from prison to home confinement, even though there were no cases of COVID in Manafort’s prison at the time. He engaged in unprecedented interference in the sentencing process for Roger Stone, even going so far as claiming that threats of violence against (as it happens) Amy Berman Jackson were just a technicality not worthy of a sentencing enhancement. And Bill Barr’s DOJ literally altered documents in their effort to invent some reason to blow up the prosecution of Mike Flynn.

And Barr may have realized all this would be a problem.

On June 4, a status report explained that DOJ was in the process of releasing the initially heavily redacted version of this memo to CREW and expected that it would be able to do so by June 17, 2020, but that “unanticipated events outside of OIP’s control” might delay that.

However, OIP notes that processing of the referred record requires consultation with several offices within DOJ, and that unanticipated events outside of OIP’s control may occur in these offices that could delay OIP’s response. Accordingly, OIP respectfully submits that it cannot definitively guarantee that production will be completed by June 17, 2020. However, OIP will make its best efforts to provide CREW with a response regarding the referred record on or before June 17, 2020

This consultation would have occurred after Judge Emmet Sullivan balked at DOJ’s demand that he dismiss the Flynn prosecution, while the DC Circuit was reviewing the issue. And it occurred in the period when Stone was using increasingly explicit threats against Donald Trump to successfully win a commutation of his sentence from Trump (the commutation occurred weeks after DOJ gave CREW a version of the memo that hid the scheme Barr had engaged in). That is, DOJ was making decisions about this FOIA lawsuit even as Barr was taking more and more outrageous steps to try to minimize prison time — and therefore the likelihood of a Trump pardon — for these three. And Trump was completing the act of obstruction of justice that Barr long ago gave him immunity for by commuting Stone’s sentence.

Indeed, Trump would go on to complete the quid pro quo, a pardon in exchange for lies about Russia, for all three men. Trump would go on to commit a crime that Barr already declined prosecution for years earlier.

While Barr might believe that Trump’s pardon for Mike Flynn was righteous (even while it undermined any possibility of holding Flynn accountable for being a secret agent of Turkey), there is no rational argument you can make that Trump’s pardon of Manafort after he reneged on his plea deal and Trump’s pardon of Stone after explicit threats to cooperate with prosecutors weren’t obstruction of justice.

This may influence DOJ’s decision not to release this memo, and in ways that we can’t fathom. There are multiple possibilities. First, this may be an attempt to prevent DOJ’s Inspector General from seeing this memo. At least the Manafort prison assignment and the Stone prosecution were investigated and may still be under investigation by DOJ. If Michael Horowitz discovered that Barr took these actions after approving of a broad pre-declination for pardon-related obstruction, it could change the outcome of any ongoing investigation.

It may be an effort to stave off pressure to open a criminal investigation by DOJ into Barr’s own actions, a precedent no Attorney General wants to set.

Or, it may just be an effort to hide how many of DOJ’s own rules DOJ broke in this process.

But one thing is clear, and should be clearer to ABJ than it would be to any other judge: Bill Barr issued a prosecution declination for three crimes that were still in process. And that’s what DOJ is hiding.

Amy Berman Jackson Accuses Bill Barr of a Preemptive Strike on the Mueller Report

I was down so many rabbit holes today I forgot to link to Amy Berman Jackson’s unsealed opinion, which she released today (here’s the redacted version).

Much of what had previously been redacted pertained to the first section, which got released last night. Otherwise, there’s ABJ’s accusation that DOJ was hiding that Bill Barr launched a pre-emptive strike on the Mueller Report.

But given ABJ’s notice that she’s still considering whether to grant the government a stay, I think this footnote (the bold was formerly redacted) is of interest.

18 There is no need for the Court to determine what its ruling would have been had the agency candidly informed it that the purpose of the document was to provide legal analysis to help shape the assessment of the Special Counsel’s report that the Attorney General was planning to announce for the reasons set forth in Section I of the memorandum. It is the government’s burden to support its withholdings.

This is the question before her now, whether the advice in the redacted section is so tainted by its purpose that she’ll release the full memo.

My guess is she won’t — unless there’s something about the analysis itself, such as that it obviously replicates Barr’s opinion about the investigation that he used to get hired, or if it misrepresents the results of the investigation (remember, ABJ presided over Paul Manafort’s DC proceedings and Roger Stone’s trial, so she knows what Mueller found as well as anyone). And the pardons Trump has since offered the people whose lies he guaranteed by dangling those pardons may alter this calculus, particularly if the analysis contradicts Barr’s agreement, offered three times in his confirmation hearing, that dangling pardons for false testimony would be obstruction.

Until then, DOJ has already launched its appeal.