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The Republicans Complaining about Mueller’s Non-Exoneration of Trump Don’t Care that He Exonerated Jeff Sessions

One of the new attacks Republicans launched on the Mueller Report yesterday is that Mueller explicitly did not exonerate Trump, complaining that prosecutorial discretion doesn’t include the power to exonerate. Here’s how John Ratcliffe put it yesterday.

The special counsel’s job — nowhere does it say that you were to conclusively determine Donald Trump’s innocence, or that the special counsel report should determine whether or not to exonerate him. It not in any of the documents. It’s not in your appointment order. It’s not in the special counsel regulations. It’s not in the OLC opinions. It’s not in the Justice Manual. And it’s not in the Principles of Federal Prosecution.

Nowhere do those words appear together because, respectfully — respectfully, Director, it was not the special counsel’s job to conclusively determine Donald Trump’s innocence or to exonerate him. Because the bedrock principle of our justice system is a presumption of innocence. It exists for everyone. Everyone is entitled to it, including sitting presidents. And because there is a presumption of innocence, prosecutors never, ever need to conclusively determine it.

Except that Ratcliffe and other Republicans didn’t complain and aren’t complaining about the point in his report, as released, where he did exonerate someone, with Bill Barr’s approval: Jeff Sessions.

As set forth in Volume I, Section IV.A.6, supra, the investigation established that, while a U.S. Senator and a Trump Campaign advisor, former Attorney General Jeff Sessions interacted with Russian Ambassador Kislyak during the week of the Republican National Convention in July 2016 and again at a meeting in Sessions’ s Senate office in September 2016. The investigation also established that Sessions and Kislyak both attended a reception held before candidate Trump’s foreign policy speech at the Mayflower Hotel in Washington, D.C., in April 2016, and that it is possible that they met briefly at that reception.

The Office considered whether, in light of these interactions, Sessions committed perjury before, or made false statements to, Congress in connection with his confirmation as Attorney General. In January 2017 testimony during his confirmation hearing, Sessions stated in response to a question about Trump Campaign communications with the Russian government that he had “been called a surrogate at a time or two in that campaign and I didn’t have – did not have communications with the Russians.” In written responses submitted on January 17, 2017, Sessions answered “[n]o” to a question asking whether he had “been in contact with anyone connected to any part of the Russian government about the 2016 election, either before or after election day.” And, in a March 2017 supplement to his testimony, Sessions identified two of the campaign-period contacts with Ambassador Kislyak noted above, which had been reported in the media following the January 2017 confirmation hearing. Sessions stated in the supplemental response that he did “not recall any discussions with the Russian Ambassador, or any other representatives of the Russian government, regarding the political campaign on these occasions or any other occasion.”

Although the investigation established that Sessions interacted with Kislyak on the occasions described above and that Kislyak mentioned the presidential campaign on at least one occasion, the evidence is not sufficient to prove that Sessions gave knowingly false answers to Russia-related questions in light of the wording and context of those questions. With respect to Sessions’s statements that he did “not recall any discussions with the Russian Ambassador . .. regarding the political campaign” and he had not been in contact with any Russian official “about the 2016 election,” the evidence concerning the nature of Sessions’s interactions with Kislyak makes it plausible that Sessions did not recall discussing the campaign with Kislyak at the time of his statements. Similarly, while Sessions stated in his January 2017 oral testimony that he “did not have communications with Russians,” he did so in response to a question that had linked such not have communications with Russians,” he did so in response to a question that had linked such communications to an alleged “continuing exchange of information” between the Trump Campaign and Russian government intermediaries. Sessions later explained to the Senate and to the Office that he understood the question as narrowly calling for disclosure of interactions with Russians that involved the exchange of campaign information, as distinguished from more routine contacts with Russian nationals. Given the context in which the question was asked, that understanding is plausible.

Accordingly, the Office concluded that the evidence was insufficient to prove that Sessions was willfully untruthful in his answers and thus insufficient to obtain or sustain a conviction for perjury or false statements. Consistent with the Principles of Federal Prosecution, the Office therefore determined not to pursue charges against Sessions and informed his counsel of that decision in March 2018.

In fact, Mueller must have provided similar explanations in at least four more instances, where he explained why other Trump people didn’t get charged, most often for lying.

But all of those other discussions were redacted under a personal privacy exemption (or, in the FOIA version, a b(5), b(6)/b(7)(C) exemption). Presumably, those other instances were less clearcut, or perhaps they simply weren’t someone as senior as Sessions. But redactions consistently applied would have redacted this passage too, denying Sessions (who would be running for his old Senate seat this year if Trump weren’t still angry that Sessions didn’t act more like Bill Barr while serving as Attorney General) of the public explanation why he wasn’t charged.

Nothing Mueller said yesterday indicated he had any complaints about the redactions in the report (though he was more willing to talk about why Trump Sr. didn’t testify — the discussion of which is partly redacted in the report — than Don Jr, which is redacted under the same grand jury justification).

But in the case of Jeff Sessions, the redaction process was not treated in the way applied with everyone else, especially including mentions of Don Jr. And Republican silence about that inconsistency suggests they don’t really have a principled stance about public decisions of exoneration.

Failing to Damage Mueller, GOP Now Claiming Mueller Not Sufficiently Vigorous to Oversee Trump Investigation

Robert Mueller just finished the first of two hearings today.

At times he appeared like those of us who have covered him for years expected, feisty and sharp. Between his responses to Jerry Nadler and Ted Lieu, he made it clear he would have indicted if not for the OLC opinion prohibiting the indictment of a sitting president, even while he refused to say the word impeachment. He repeatedly said that a failure to succeed at obstructing justice is still a crime. He stated that the decision not to reach a prosecutorial decision arose because this investigation is unlike any other, in that Trump couldn’t be prosecuted. He stated that Trump could be charged after he left office.

He defended the integrity of his team and the fairness of his report. He backed his March 27 letter that complained about Attorney General Bill Barr’s misrepresentation of the report.

In short, Mueller made it clear that he believes Trump obstructed justice and Bill Barr lied to obscure that fact.

But at times, he seemed lost. He forgot that Ronald Reagan appointed him US Attorney, often searched to see who was asking questions, and forgot key details. It didn’t help, either, that he refused to read from the report (though that was a pre-arranged refusal to create soundbites at the behest of Democrats).

Having not damaged Mueller, then, the Republicans are already out suggesting that the Robert Mueller that appeared out of it today could not have been fully in charge of the investigation into Donald Trump.

Mueller’s performance raised questions that reached far beyond one appearance before one committee. It called into doubt the degree to which Mueller was in charge of the entire special counsel investigation.

“You wonder how much of this was affecting the investigation,” one Republican member of the House said as he watched Mueller’s testimony. “It sheds a lot of light on what happened the last two years. He wasn’t in charge.”

If Mueller was not fully in charge, that would direct attention to the staff he assembled for the investigation — staff that President Trump has often derided as “17 angry Democrats.” Some of Mueller’s aides were Democratic donors, and a key aide, Andrew Weissmann, famously attended Hillary Clinton’s 2016 election night event that was planned as a victory party. It seems likely that Republicans will direct new attention to them in light of Mueller’s appearance.

Except that representation misstates something that was litigated, all the way to the Supreme Court, in this case. Robert Mueller wasn’t in charge of this investigation. His supervisor — whether it be Rod Rosenstein, Matt Big Dick Toilet Salesman Whitaker, or Bill Barr — was ultimately in charge of the investigation.

And if it is true that Robert Mueller wasn’t all there when he was leading this investigation, it was up to his supervisor to do something about it.

Indeed, if you look at some of the big questions about Mueller’s prosecutorial decisions — most notably, not to demand an interview with the President, but also the decision to stop the investigation before even getting the Andrew Miller testimony or Mystery Appellant evidence  — you might wonder whether someone feistier would have fought for that testimony.

Republicans are, minutes after the conclusion of that hearing, complaining that Robert Mueller wasn’t forceful enough in his testimony. If that’s the question they want to raise, then they should also worry about whether Bill Barr, especially, manipulated Mueller.

Robert Mueller Asked To Be Instructed To Hew To the Report

Since DOJ’s letter to Robert Mueller got released last night, many on the left have fumed that this is part of a nefarious effort by Bill Barr to silence Mueller.

And while I don’t doubt that Barr will do anything he can to limit the damage of Mueller’s testimony to his client, Donald Trump (indeed, there were reports that he met with HJC Ranking Member Doug Collins yesterday), this letter was orchestrated by Mueller, not Barr.

As the letter notes, Mueller wrote to DOJ on July 10. By that point, it was already crystal clear what kind of guidance DOJ would offer if asked. So he had to have known he’d get the letter he did. And yet he asked for instructions, when nothing obligated him to do so.

Moreover, this letter was released by his spox, not by DOJ. Effectively, then, this is Mueller setting — re-setting, repeating what he said in his press conference on May 29 — expectations. That doesn’t mean people can’t ask Mueller questions beyond his report (I would argue that matters about the release of the report are not covered in DOJ’s letter). But he now has the ability to blame DOJ for not answering.

That said, it’s likely that this actually limits GOP plans for the hearing more than Democrats. That’s true, in part, because Democrats have already been planning really milquetoast questions, assuming that having Mueller read directly from his report will be sufficient to generate new outrage over Trump’s actions. But it’s also true because most of the things Republicans want to emphasize — the role of Peter Strzok and Lisa Page, the Steele dossier, the FBI’s use of informants, Carter Page’s FISA application — are mostly outside the scope of the report. About half the questions Chuck Ross suggested, for example, would be outside the scope of the report (while I situated my questions more closely in existing public documents, probably half of mine would be deemed to go beyond the report as well).

If the Republicans want to talk about the Steele dossier, Mueller will guide them to either Jim Comey’s briefing about the dossier on January 6, 2017, or the pee tape — the only allegation in the dossier that made the unredacted parts of the report. And if Republicans choose that option, it’ll mean Mueller will explain over and over that Trump’s fixer, Michael Cohen, was taking steps to chase down the pee tape well before the dossier was made public. (Hope Hicks was also trying to chase down the pee tape, but that didn’t make the report.) It’s not going to help Trump’s case to show that his campaign took the pee tape seriously, along with all the other sex scandals that threatened to erupt right before the election in 2016.

Likewise, if Republicans want to talk about “FISA abuse,” the former FBI Director will either direct them to the three places in the report where Trump included Jeff Sessions’ inaction on FISA among the reasons he wanted to fire him to thwart the investigation, or (more likely) he’ll point to the standard to obtain a FISA warrant.

On four occasions, the Foreign Intelligence Surveillance Court (FISC) issued warrants based on a finding of probable cause to believe that Page was an agent of a foreign power. 50 U.S.C. §§ 1801 (b ), 1805(a)(2)(A). The FISC’s probable-cause finding was based on a different (and lower) standard than the one governing the Office’s decision whether to bring charges against Page, which is whether admissible evidence would likely be sufficient to prove beyond a reasonable doubt that Page acted as an agent of the Russian Federation during the period at issue. Cf United States v. Cardoza, 713 F.3d 656, 660 (D.C. Cir. 2013) ( explaining that probable cause requires only “a fair probability,” and not “certainty, or proof beyond a reasonable doubt, or proof by a preponderance of the evidence”).

And he can then point to all the details in the report, such as Page’s willingness to share non-public information with known Russian intelligence officers, and his claims that he represented the interests of Donald Trump in December 2016, including on negotiating a Ukraine deal.

I’m not happy that Mueller is walking into this hearing setting expectations as low as he can. Though I was sympathetic to his offer to testify in closed session, as I’m fairly certain Congress would get more useful answers with less conspiracy theorizing.

But it’s worth noting that these instructions will serve as a tool to shut down Republican grandstanding even more than it will shut down Democrats.

Updated Questions for Robert Mueller

As I pointed out in this post, lots of commentators mistakenly believe Robert Mueller will never provide damning answers to strictly factual questions. In 2007, he answered a Sheila Jackson Lee question about the most incendiary issue of the day — Stellar Wind — in a way that shows the Attorney General had lied under oath. Yet most proposed questions for Mueller’s testimony on Wednesday seem to assume he won’t similarly answer appropriately framed questions now, and are for the most part milquetoast or horserace issues.

Here are my (updated since I first posted them in June) questions for Mueller. Some are formulated to get him to answer questions about scope or results he otherwise might not (note that there’s a gag now in both the IRA and Roger Stone cases, which will sharply curtail what he can say about those cases). Some are process questions that would help the public understand what Mueller did and did not do. A few are about potential legislation that might arise out of this investigation.

  1. Can you describe how you chose which “links between the Russian government and individuals associated with the campaign of President Donald Trump” to focus your investigation on?
  2. The warrants released in Michael Cohen’s case and other public materials show that your grand jury conducted investigations of people before Rod Rosenstein formally expanded the scope to include them in October 2017. Can you explain the relationship between investigative steps and the Rosenstein scope memos?
  3. Lisa Page has explained that in its initial phase, the investigation into Trump’s aides was separate from the larger investigation(s) into Russian interference. But ultimately, your office indicted Russians in both the trolling and the hack-and-leak conspiracies. How and when did those parts of DOJ’s investigation get integrated under SCO?
  4. An FD-302 memorializing a July 19, 2017 interview with Peter Strzok was released as part of Mike Flynn’s sentencing. Can you describe what the purpose of this interview was? How did the disclosure of Strzok’s texts with Lisa Page affect the recording (or perceived credibility) of this interview? Strzok was interviewed before that disclosure, but the 302 was not finalized until he had been removed from your team. Did his removal cause any delay in finalizing this 302?
  5. At the beginning of the investigation, your team investigated the criminal conduct of subjects unrelated to ties with Russia (for example, Paul Manafort’s ties with Ukraine, Mike Flynn’s ties to Turkey, Michael Cohen’s false statements to banks). Did the approach of the investigation change later in the process — in 2018 — to refer such issues to other offices (for example, the Cohen financial crimes)? If the approach changed, did your team or Rod Rosenstein drive this change?
  6. Prosecutors pursuing documents from an unnamed foreign owned company described that the investigation started at the DC US Attorney’s Office, was integrated into your investigation, and continued after your investigation concluded. Is this foreign owned company owned by a country other than Russia?
  7. Did your integration of other prosecutors (generally from DC USAO) into your prosecution teams stem from a resourcing issue or a desire to ensure continuity? What was the role of the three prosecutors who were just detailees to your team?
  8. Your report describes how FBI personnel shared foreign intelligence and counterintelligence information with the rest of FBI. For more than a year, FBI agents were embedded with your team for this purpose. Were these agents focused just on Russian activities, or did their focus include the actions of other countries and Americans? If their focus included Americans, did it include Trump associates? Did it include Trump himself?
  9. Can you describe the relationship between your GRU indictment and the WDPA one focused on the WADA hacks, and the relationship between your IRA indictment and the complaint against a Yevgeniy Prigozhin employee in EDVA? Can you describe the relationship between the Maria Butina prosecution and your investigation?
  10. Do you regret charging Concord Management in the IRA indictment? Do you have any insight on how indictments against Russian and other state targets should best be used?
  11. Particularly given difficulties in the Bijan Kian case, do you believe the laws on 18 USC 951 unregistered foreign agents and FARA need to be changed to provide the government with tools to protect the country from influence operations?
  12. In discussions of Paul Manafort’s plea deal that took place as part of his breach hearing, Andrew Weissmann revealed that prosecutors didn’t vet his testimony as they would other cooperators. What led to this lack of vetting? Did the timing of the election and the potential impact of Manafort’s DC trial might have play into the decision?
  13. What communication did you receive from whom in response to the BuzzFeed story on Trump’s role in Michael Cohen’s false testimony? How big an impact did that communication have on the decision to issue a correction?
  14. Did Matt Whitaker prevent you from describing Donald Trump specifically in Roger Stone’s indictment? Did you receive any feedback — from Whitaker or anyone else — for including a description of Trump in the Michael Cohen plea?
  15. Did Whitaker, Bill Barr, or Rosenstein weigh in on whether Trump should or could be subpoenaed? If so what did they say? Did any of the three impose time constraints that would have prevented you from subpoenaing the President?
  16. Multiple public reports describe Trump allies (possibly including Mike Flynn or his son) expressing certainty that Barr would shut down your investigation once he was confirmed. Did this happen? Can you describe what happened at the March 5, 2019 meeting where Barr was first briefed? Was that meeting really the first time you informed Rosenstein you would not make a determination on obstruction?
  17. You “ended” your investigation on March 22, at a time when at least two subpoena fights (Andrew Miller and a foreign owned corporation) were ongoing. You finally resigned just minutes before Andrew Miller agreed to cooperate on May 29. Were these subpoenas for information critical to your investigation?
  18. If Don Jr told you he would invoke the Fifth if subpoenaed by the grand jury, would that fact be protected by grand jury secrecy? Are you aware of evidence you received involving the President’s son that would lead him to be less willing to testify to your prosecutors than to congressional committees? Can congressional committees obtain that information?
  19. How many witnesses invoked their Fifth Amendment rights that your office deemed “were not … appropriate candidates for grants of immunity”?
  20. Your report describes five witnesses who testified under proffer agreements: Felix Sater, George Nader, Steve Bannon, Erik Prince, and Jerome Corsi. Aside from the Nader child pornography referred to EDVA by your office, would other US Attorneys offices be able to independently pursue criminal conduct covered by these proffers?
  21. Emin Agalarov canceled a concert tour to avoid subpoena in your investigation. Can you explain efforts to obtain testimony from this key player in the June 9 meeting? What other people did you try to obtain testimony from regarding the June 9 meeting?
  22. Did your investigation consider policy actions taken while Trump was President, such as Trump’s efforts to overturn Russian sanctions or his half-hearted efforts to comply with Congressional mandates to impose new ones?
  23. Can you describe how you treated actions authorized by Article II authority — such as the conduct of foreign policy, including sanctions, and the awarding of pardons — in your considerations of any criminal actions by the President?
  24. The President did not answer any questions about sanctions, even the one regarding discussions during the period of the election. Do you have unanswered questions about the role of sanctions relief and the Russian interference effort?
  25. Your report doesn’t include several of the most alarming interactions between Trump and Russia. It mentions how he told Sergey Lavrov and Sergey Kislyak he had fired Comey because of the Russian investigation, but did not mention that he shared classified Israeli intelligence at the meeting. Your report doesn’t mention the conversations Trump had with Vladimir Putin at the G-20 in Hamburg, including one pertaining to “adoptions,” while he was working on the June 9 meeting. The report doesn’t mention the Helsinki meeting. Did your investigation consider these interactions with Russia? If not, are you aware of another part of the government that did scrutinize these events?
  26. Why did you include Trump’s efforts to mislead the public about the June 9 meeting when it didn’t fit your team’s own terms for obstructive acts?
  27. You generally do not name the Trump lawyers who had discussions, including about pardons, with subjects of the investigation. How many different lawyers are described in your report to have had such discussions?
  28. In your report you say your office “limited its pursuit” of witnesses including attorneys “in light of internal Department of Justice policies,” citing the Justice manual. How many potential witnesses did your office not interview because of DOJ guidelines on interviewing attorneys?
  29. You asked — but the President provided only a partial answer — whether he had considered issuing a pardon for Julian Assange prior to the inauguration. Did you investigate the public efforts — including by Roger Stone — to pardon Assange during Trump’s Administration?
  30. The cooperation addendum in Mike Flynn’s case reveals that he participated in discussions about reaching out to WikiLeaks in the wake of the October 7 Podesta releases. But that does not appear in the unredacted parts of your report. Is the entire scope of the campaign’s interactions with WikiLeaks covered in the Roger Stone indictment?
  31. Hope Hicks has claimed to be unaware of a strategy to coordinate the WikiLeaks releases, yet even the unredacted parts of the report make it clear there was a concerted effort to optimize the releases. Is this a difference in vocabulary? Does it reflect unreliability on the part of Hicks’ testimony? Or did discussions of WikiLeaks remain partially segregated from the communications staff of the campaign?
  32. Without naming any of the people involved, how many witnesses confirmed knowing of conversations between Roger Stone and Donald Trump about WikiLeaks’ upcoming releases?
  33. Did Julian Assange ask for immunity to cooperate with your investigation, as he did with congressional inquiries?
  34. In your report you say your office “limited its pursuit” of witnesses who might claim to be media “in light of internal Department of Justice policies,” citing the Justice manual. How many potential witnesses did your office not interview because of DOJ guidelines on media? Was Julian Assange among them?
  35. The President’s answers regarding the Trump Tower Moscow match the false story for which Michael Cohen pled guilty, meaning the President, in his sworn answers, provided responses you have determined was a false story. After Cohen pled guilty, the President and his lawyer made public claims that are wholly inconsistent with his sworn written answer to you. You offered him an opportunity to clean up his sworn answer, but he did not. Do you consider the President’s current answer on this topic to be a lie?
  36. Did Trump Organization provide all the emails pertaining to the Trump Tower Moscow deal before you subpoenaed the organization in early 2018? Did they provide those emails in response to that subpoena?
  37. In his answers to your questions, President Trump claimed that you received “an email from a Sergei Prikhodko, who identified himself as Deputy Prime Minister of the Russian Federation … inviting me to participate in the St. Petersburg International Economic Forum.” But the footnotes to your discussion of that exchange describe no email. Did your team receive any email? Does the public record — showing that Trump never signed the declination letter to that investigation — show that Trump did not decline that invitation?
  38. The Attorney General has excused the President’s actions taken to thwart the investigation because, “as the Special Counsel’s report acknowledges, there is substantial evidence to show that the President was frustrated and angered by a sincere belief that the investigation was undermining his presidency.” What events did your investigation show the President was frustrated or angry about? Was the President frustrated or angry that Mike Flynn’s conversations with Sergey Kislyak had been discovered as part of an effort to understand Russia’s actions? According to your investigation, what were the President’s feelings towards Flynn at the time? Was the President frustrated or angry that, after consulting with ethics professionals,  Jeff Sessions recused from the investigation? Was the President frustrated or angry that Jim Comey would not provide details of the ongoing investigation into his aides, which would be prohibited by Department of Justice guidelines? Was the President frustrated or angry that the investigation into Russian interference showed that Russia actively sought to help him get elected?
  39. Organizationally your team separated the efforts to obstruct the investigation of Mike Flynn, Michael Cohen, Paul Manafort and others (which appears in Volume I) from the obstruction of the investigation of the President (which appears in Volume II). Why?
  40. In his aborted sentencing hearing, Brandon Van Grack told Judge Sullivan that Mike Flynn could have been charged as an Agent of a Foreign Power under 18 USC 951. More recently, prosecutors in Bijan Kian’s case have treated him as part of a conspiracy to violate that statute. Why did you give Mike Flynn such a lenient plea deal?

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

On Joshua Schulte and Julian Assange’s 10 Year Old Charges

The WaPo has confirmed what Natasha Bertrand earlier reported: the extradition package for Julian Assange will only include the 10 year old charges related to the publication of Chelsea Manning’s leaks, not any of WikiLeaks more controversially handled charges. I’ve been meaning to write a post on how this is the stupidest available approach, which will satisfy neither those who regard him as a villain, will expose other journalists to similarly dangerous charges, and possibly even fuck up the security establishment’s entire effort to exact some revenge against Assange. I hope to return to that when I get some deadlines and travel done, but suffice it to say this is a big hot mess.

To be clear, I actually think it’s not eleven-dimensional chess on the part of Bill Barr to save Trump some embarrassment once Roger Stone’s trial reveals the extent to which Trump’s campaign tried to “collude” with WikiLeaks (though it will not only have that effect, but make it harder for DNC to sustain its lawsuit against the GOP and WikiLeaks for their actions in the 2016 election). Rather, I think this is an attempt to prosecute Assange with the least cost on the security establishment, being run by people who are utterly tone deaf to the costs it will incur elsewhere.

But I do want to say several things about why and how DOJ is not charging Assange in the Vault 7 leak.

Bertrand noted that I thought that the EDVA charges would be related to Vault 7.

Still, just several months ago, numerous experts felt confident that prosecutors would also hit Assange with charges over Vault 7. Prominent national security journalist Marcy Wheeler predicted in Februarythat DOJ would “very clearly go after Assange” for the Vault 7 disclosure, and that a sealed indictment against him in the Eastern District of Virginia was likely related to that leak — the CIA is, after all, headquartered in Virginia, as ABC noted. Assange himselfreportedly expressed concern that prosecutors would charge him with crimes related to Vault 7.

She didn’t provide even the full context of my tweet, much less my post, arguing that Assange’s efforts to extort a pardon using the Vault 7 files would be something obviously unconnected to journalism. The superseding indictment does mention Assange’s use of “insurance files” to ensure his ability to publish documents in his possession, but no charges were attached to that, which later uses of the tactic and the Vault 7 pardon effort would have supported.

Which is to say the government could have charged Assange for something specifically excluded from Bartnicki’s protection of the publication of stolen materials, but did not. Again, the government has chosen to go about this in the stupidest way possible.

That said, I’m not surprised they’re not going after Assange for the Vault 7 leak itself.

As it is, the CIA has been inexcusably uncooperative with Joshua Schulte’s discovery efforts. At times. some pretty aggressive prosecutors have seemed almost apologetic about it. Schulte has staked a lot on trying to expose details of his initial warrants, and while his later behavior seems to suggest there was something to their targeting of him (or, at the very least, his post-indictment behavior has been self-destructive), at the very least the CIA may have participated in some epically bad parallel construction. They may be trying to hide that as much as the actual details of CIA’s hacking program.

Meanwhile, the government and Schulte have been discussing severing his charges from last year — which include one charge of contempt and a charge of attempted leak of classified information — from everything else.

As the Court is aware, trial in this matter is currently set for April 8, 2019. (See Minute Entry for August 8, 2018 Conference). To afford the parties sufficient time to prepare the necessary pretrial motions, including suppression motions and motions pursuant to the Classified Information Procedures Act (“CIPA”), the parties respectfully request that the Court adjourn the trial until November 4, 2019. The parties are also discussing a potential agreement concerning severance, as well as the order of the potentially severed trials. The parties will update the Court on severance and a pretrial motion schedule at or before the conference scheduled for April 10, 2019.

That might be something they tried to base a plea off of: they’d have video evidence to back their case, so it might avoid the CIPA process CIA is unwilling to engage in.

Back in May, Schulte’s team submitted a motion to vacate his SAMs (Special Administrative Measures limit a prisoner’s communication with others). It was based off the case the government made prior to his superseding indictment and left out all the allegations the government made about the 13 email and social media accounts Schulte was allegedly running from his jail cell, and as such deliberately understated why the government wanted the SAMs. The government asked for and got an extension to respond until Monday — notably, after all decisions about Assange would have had to have been made. Any response (unless it’s sealed) will have to provide more details about what happened last fall, so if they’re trying to get a plea deal, it might come this week in lieu of that SAMs response.

But the question would be what that plea agreement would look like.

Finally, the government is going to have to provide some explanation for why Chelsea Manning remains in jail for contempt. Unless they can claim they’re going after other people related to WikiLeaks, they should not be able to keep her jailed.

Mike Flynn Assumed the FBI Agents Interviewing Him Would Be Trump Supporters

Several times in the interview recounting the early aspects of the Russia investigation, Peter Strzok made it clear that Flynn felt comfortable with FBI Agents. Strzok said Flynn was “unguarded” and “relaxed and jocular.” He “clearly saw the FBI agents as allies.” That’s consistent with a guy who — according to his own sentence memo — “had for many years been accustomed to working in cooperation with the FBI on matters of national security.”

But there’s a part of the newly unsealed 302 that makes clear an assumption Flynn clearly had. In describing what he should be pretty ashamed being caught in — clandestine meetings with foreign leaders — he explains why he and Jared Kushner had a meeting at which Kushner asked for a back channel to the Russians.

Flynn explained that other meetings between the TRUMP team and various foreign leaders took place prior to the inauguration, and were sensitive inasmuch as many countries did not want the then-current administration to know about them. There were no personal relationship between the leaders of many countries and the prior administration. FLYNN stated that he and personnel from the incoming administration met with many countries “to set expectations for them, and the expectations were set very high.”

This is a campaign speech, not an interview with the FBI. In it, he implicitly badmouths the guy whom he had worked for for six years (though who,  of course, fired Flynn).

More tellingly though, he assumed he could give this campaign speech to FBI Agents who were interviewing him about being caught undercutting the prior Administration’s efforts to hold an adversarial government accountable. He appears to have assumed they’d be cool with that.

In short, Flynn assumed he was being interviewed by partisan Republicans.

That’s telling, not just because the current Attorney General is certain that any bias in 2016 went against Trump (when there’s abundant evidence that FBI agents, including those investigating Hillary, were none too fond of her). It’s ironic because it means Mike Flynn regarded Peter Strzok — accused endlessly of anti-Trump bias — of someone who’d sympathize with his snide comments about the Obama Administration.

Update: Finally fixed the prior/incoming problem in my transcription. Thanks for your patience!

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

On Nine Different Occasions, Bill Barr Was Unable to Offer Any Evidence of Irregularity in Russia Investigation

Bill Barr says a lot of things in his softball interview with CBS that are factually incorrect. He repeatedly states that counterintelligence activities were directed at the Trump Campaign.

People have to understand, you know, one of the things here is that these efforts in 2016, these counter-intelligence activities that were directed at the Trump Campaign, were not done in the normal course and not through the normal procedures as a far as I can tell.

[snip]

WILLIAM BARR: Well, I just think it has to be carefully look at because the use of foreign intelligence capabilities and counterintelligence capabilities against an American political campaign to me is unprecedented and it’s a serious red line that’s been crossed.

JAN CRAWFORD: [1] Did that happen?

WILLIAM BARR: There were counterintelligence activities undertaken against the Trump Campaign.

[snip]

I think it’s important to understand what basis there was for launching counterintelligence activities against a political campaign, which is the core of our second amendment- I’m sorry, the core of our first amendment liberties in this country.

[snip]

The fact that today people just seem to brush aside the idea that it is okay to you know, to engage in these activities against a political campaign is stunning to me especially when the media doesn’t seem to think that it’s worth looking into. [my emphasis]

Counterintelligence activities were directed at three people the campaign itself fired because of their suspect ties to Russia, and a fourth guy who was secretly acting as a paid agent of a foreign country even while serving as the primary advisor for Trump’s campaign intelligence briefings. And the only known counterintelligence activities, as opposed to predicated criminal investigative techniques, were directed at people after they had been ousted from the campaign.

He claims, falsely and in contradiction to what Mueller said the other day, that there was “no” evidence of a conspiracy.

WILLIAM BARR: Well it might be legit under certain circumstances but a lot of that has to do with how good the evidence was at that point. And you know Mueller has spent two and half years and the fact is there is no evidence of a conspiracy. So it was bogus, this whole idea that the Trump was in cahoots with the Russians is bogus. [my emphasis]

He makes an absolutely hilarious comment about how, if there were evidence that FBI agents investigating — say — Hillary Clinton were biased or leaking, we’d be hearing about it. He even mentions the conspiracy theories about Obama that were fed, at a national level, by a guy named Donald Trump.

JAN CRAWFORD: But it seems like you have a concern that there may have been a bias by top officials in the FBI as they looked at whether to launch and conduct this investigation?

WILLIAM BARR: Well it’s hard to read some of the texts with and not feel that there was gross bias at work and they’re appalling. And if the shoe were on the other–

JAN CRAWFORD: Appalling.

WILLIAM BARR: Those were appalling. And on their face they were very damning and I think if the shoe was on the other foot we could be hearing a lot about it. If those kinds of discussions were held you know when Obama first ran for office, people talking about Obama in those tones and suggesting that “Oh that he might be a Manchurian candidate for Islam or something like that.” You know some wild accusations like that and you had that kind of discussion back and forth, you don’t think we would be hearing a lot more about it?

We’re not hearing about it precisely because Barr is treating the investigation into people who had loose ties to Trump’s campaign as unprecedented as if the investigation into Hillary by FBI Agents who were leaking about it wasn’t happening at the same time. These are all things that he should have been corrected on air — as well as the fact that the public record shows that the investigation into Trump’s former campaign aides was slower than it normally would have been.

In general, Jan Crawford was utterly supine in this interview, letting the Attorney General state one falsehood after another, without correction.

The one place where she did commit some journalism was in asking repeatedly for evidence that something went wrong that justifies his investigation into the investigation. Nine times, Crawford asks the Attorney General for actual evidence that there’s reason for an investigation into the investigation.

JAN CRAWFORD: [2] So I guess in making this turn can you help us understand, I mean what’s- what is the concern? What have you seen, what’s the basis for that?

WILLIAM BARR: Well I don’t want to  get you know, too much into the facts because it’s still under review.

[snip]

JAN CRAWFORD: [3] What have you seen? What evidence? What makes you think, I need to take a look at this? I mean, what have you seen in the summer of 2016?

WILLIAM BARR: Well, I’ll say at this point is that it, you know, I- like many other people who are familiar with intelligence activities, I had a lot of questions about what was going on. I assumed I’d get answers when I went in and I have not gotten answers that are well satisfactory, and in fact probably have more questions, and that some of the facts that- that I’ve learned don’t hang together with the official explanations of what happened.

JAN CRAWFORD: [4] What do you mean by that?

WILLIAM BARR: That’s all I really will say. Things are just not jiving, and I’m not saying at this stage that–

[snip]

JAN CRAWFORD: I mean, [5] there’s a concern that this may have happened before we realized that the investigation was initiated in July. I mean, what…

WILLIAM BARR: I don’t want to get into those details at this point. I would just say that, you know…

JAN CRAWFORD: [6] But you said there’s a timeline concern.

WILLIAM BARR: Well I won’t, I won’t confirm that, but I’ll just say that, you know, there’s some questions that I think have to be answered, and I have a basis for feeling there has to be a review of this.

JAN CRAWFORD: You’ve said, you’ve said the time frame between the election and the inauguration, you’ve said this publicly, was kind of strange. Some strange things may have happened.  [7] What concerns you there? Specifically, the meeting at Trump Tower.

WILLIAM BARR: I don’t want to- I don’t want to get into that.

[snip]

JAN CRAWFORD: [8] What suggests to you there was a failure in the upper echelon at the FBI?

WILLIAM BARR: Because I think the activities were undertaken by a small group at the top which is one of the- probably one of the mistakes that has been made instead of running this as a normal bureau investigation or counterintelligence investigation. It was done by the executives at the senior level. Out of head quarters–

[snip]

JAN CRAWFORD: [9] And you think that happened even with the investigation into the campaign, potentially?

WILLIAM BARR: I am concerned about that.

To each of those nine questions, he responds by making false claims about what happened, speaking about his feelings, or simply dodging.

That should be the takeaway of this interview. The Attorney General has launched an investigation without having any basis on which to do so, even while exhibiting either ignorance or outright deliberate false statements about what happened.

Ted Stevens, The “Toobz”, And The Idiocy Of The Internet

Alright, this will be a fairly short post, but I would like to remind people of some things. Namely, regarding Ted Stevens. As background, Marcy wrote a serious, and important, post on the Trumps Organization’s curious, and semi-hilarious, use of Microsoft. And, yes, Marcy is right, it was amazingly stupid. From clackers whining that Hillary Clinton had insecure internet. If it was not so stupid, it would be extra laughable.

But I want to cut back to something different. In comments, Rayne Loled at Ted Stevens and, then, a relatively new commenter (like just today as far as I can tell), “CJ” chimed in with:

Bizarrely, it’s not an entirely bad metaphor, though that’s probably accidental on his part. See, e.g., Andrew Blum’s “Tubes: A Journey to the Center of the Internet”.

This is bunk. Blum, and his book, tried to make hay off of Stevens, and at his expense, but without giving him much of his due, nor acknowledging how the “tubes” of the internet falsely allowed the demonization of Stevens and cheerleader his prosecution. A prosecution that turned out to be false and craven. In a review in the New York Times in 2012, Dwight Garner noted:

Reading this, you wish Mr. Stevens, who died in an airplane crash in 2010, were here to savor it. “Inside those tubes (by and large) are glass fibers,” the author continues. “Inside those fibers is light. Encoded in that light is, increasingly, us.”

That is exactly right, although Blum never really went deeper into the fraud by the Department of Justice that took Ted Stevens down before his untimely demise by plane crash.

So, as a bit of retrospective:

Say what you will about Ted Stevens, and much of that may be fair. But what was done to him at the end was wrong and a travesty. And the DOJ could not even deal with that then. Much less the pervasive and consuming wrong that is at hand today with Bill Barr and the DOJ he now administers.

For anybody that does not remember just how egregious and blatant the government/DOJ action against Ted Stevens was, here is one of my takes from 2008, and yet another in followup, from 2012.

You can joke about Toobz Stevens, and we have here before, but what happened to him was a complete travesty of justice. And there are serious lessons from that to keep in mind today. Without the “toobz” of the internet, I am not sure the reckless and false case against Stevens could have ever made it as far as it did. There is great irony in that, and it is a lesson that ought remain remembered, not just joked about.

That was a different, and in popular lore, more benevolent and honest era. So, what do you think are the odds for far worse from Trump and Barr? Somewhere, Ted Stevens has an idea.

The Logic of Assange’s EDVA Indictment Is Inconsistent with Mueller’s Apparent Logic on Assange’s Declination

As Emma Best has noted, shortly before GRU targeted John Podesta in a spear-phishing attack, WikiLeaks offered a reward for Hillary’s speech transcripts like the excerpts that were released as part of the John Podesta release.

Hours before Russian hacking operations targeted Hillary Clinton’s campaign in the spring of 2016, WikiLeaks discussed offering a monetary reward for transcripts of her speeches at Goldman Sachs. Soon after, Russian hackers launched a spear phishing campaign that resulted in John Podesta’s email account being compromised. Emails containing excerpts from the speeches were included in the first day of the Podesta email releases. A week later, emails containing the transcripts themselves were released. WikiLeaks heralded these transcripts as their “holy grail.”

The story began on March 9, 2016, when WikiLeaks sent a tweet with a poll asking if they should add Hillary Clinton’s Goldman Sachs speeches to their ”Most Wanted” page for six figure rewards for materials. When the poll completed twenty four hours later, 93% of respondents said that WikiLeaks should offer a reward for the speeches. The Russian hackers at Fancy Bear may have been listening and been inspired by WikiLeaks’ comment. Unpublished targeting data collected by Secureworks shows the hacking campaign began earlier than the Mueller indictment reveals. A week and a half later, after dozens of attempts to penetrate the accounts of Podesta and other Clinton staffers and associates, Fancy Bear sent the phishing email that successfully tricked Podesta into compromising his account and the Goldman Sachs speeches along with it.

Secureworks’ unpublished breakdown of the Russian spear phishing and hacking effort, which AP described last year, shows that the campaign to penetrate the account began hours after WikiLeaks teased the possibility of offering a reward for the information. The tweet first mentioning the potential of a reward for the Goldman Sachs transcripts was sent at 8:16 P.M. Moscow time. At 11:56 AM the next day, less than sixteen hours later, Russian hackers began a campaign that would target “over 300 individuals affiliated with the Clinton Campaign, DCCC, and DNC.“ Podesta’s emails accounts were targeted in the days that followed and successfully compromised a week later, resulting in the exfiltration of nearly 60,000 emails.

Under what I’ve called Theory One of the superseding Julian Assange indictment, WikiLeaks’ publication of a wish list that was subsequently fulfilled would qualify it (or Julian Assange) for a conspiracy charge. Given what we’ve seen of Roger Stone’s actions, it might qualify him for a conspiracy charge as well (though we still don’t know via what means he contacted WikiLeaks).

But this 2.5 page redaction in the Mueller Report appears to explain why they didn’t charge WikiLeaks (and so by association, Stone) in that conspiracy.

We don’t know what that redaction says, though the unredacted footnote makes it clear that in the case of emails stolen from Hillary, DOJ determined that sharing of stolen property does not constitute a crime.

We do, however, have a sense of how the Attorney General understands this declination, because he used it to exonerate Trump, even in spite of Trump’s active role in pushing Roger Stone to optimize the WikiLeaks releases for the campaign. In one of his explanations for the WikiLeaks declination — one that may more directly allude to Stone’s involvement — Bill Barr said that publication of stolen emails would not be criminal “unless the publisher also participated in the underlying hacking conspiracy.”

The Special Counsel also investigated whether any member or affiliate of the Trump campaign encouraged or otherwise played a role in these dissemination efforts.  Under applicable law, publication of these types of materials would not be criminal unless the publisher also participated in the underlying hacking conspiracy.  Here too, the Special Counsel’s report did not find that any person associated with the Trump campaign illegally participated in the dissemination of the materials.

In the case of election interference, then, Barr does not consider the publication of documents identified on a wish list that hackers subsequently steal to amount to joining a conspiracy.

But in the case of Chelsea Manning’s leak, his DOJ does.

There’s obviously a distinction: John Podesta’s risotto recipes are not classified, whereas much of the stuff (but not all) Manning leaked was. But the role of a wish list is not functionally different, and Russian officers were charged both for hacking and dissemination.

I’m still working on a post describing how unbelievably stupid the EDVA case is, both for the press and for DOJ’s hopes to lay a precedent.

But at least at a structural level, the prosecution is also inconsistent with the decisions DOJ made about WikiLeaks on the election year operation.

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

For Three of the Four Early FBI Subjects Tied to the Trump Campaign, the Campaign Agreed with the Mueller Report Conclusions

Of the first four people tied to Trump’s campaign who were investigated by the FBI — Carter Page, George Papadopoulos, and Paul Manafort — the Mueller Report came to remarkably similar conclusions as the campaign did when all three were fired in 2016. As I’ll show in a follow-up post, the FBI’s concerns about the fourth — Mike Flynn — have proven even better founded.

This shows how ridiculous it is for Bill Barr to go after the origins of the investigation. The Trump campaign itself, institutionally, agreed in real time with the conclusion of the investigation.

On August 19, 2016, Trump forced his campaign manager, Paul Manafort, to resign. Sources told the press he was ousted because of his “involvement with Russia” and the fact that “he hadn’t been entirely forthright about his activities overseas.”

In recent days, Manafort had lost the confidence of Jared Kushner, Trump’s son-in-law and one of his closest advisers, and other members of Trump’s family, according to a source close to the campaign. Kushner had once been a major backer of Manafort and was instrumental in his elevation — and the downfall of Corey Lewandowski, Trump’s former campaign manager.

The family was particularly troubled by reports of Manafort’s involvement with Russia and felt he hadn’t been entirely forthright about his activities overseas, the source said. Family members were also unhappy about changes made to the GOP platform that were seen as beneficial to Russia, which they felt Manafort played a role in, the source added.

On February 13, Judge Amy Berman Jackson ruled that Paul Manafort had lied — both to the FBI and to the grand jury — about his interactions and communications with Konstantin Kilimnik. Among the things Manafort lied about, according to the Mueller Report, was an August 2, 2016 meeting where Manafort told Kilimnik how the campaign planned to win Michigan and two other swing states, Kilimnik pitched Manafort on a plan to carve up Ukraine, and also told ways he could be paid by his Ukrainian and Russian paymasters. Mueller ultimately, “could not reliably determine Manafort’s purpose in sharing internal polling data with Kilimnik during the campaign period” and raised his lies to question whether he spoke to people on the campaign about the plan to carve up Ukraine.

In other words, the Trump family members who ousted Manafort came to precisely the same conclusion Mueller did: Manafort was lying about his suspicious ties to Russia.

On September 24, 2016, the Trump campaign severed all ties with unpaid foreign policy advisor Carter Page. The next day, Hope Hicks sent out an email instructing that, “Page was announced as an informal adviser in March. Since then he has had no role or official contact with the campaign. We have no knowledge of activities past or present and he now officially has been removed from all lists etc.”

It was untrue that the campaign had no knowledge of Page’s activities. After all, on July 9, 2016, he wrote Sam Clovis about his activities in Moscow.

Russian Deputy Prime minister and NES board member Arkady Dvorkovich also spoke before the event. In a private conversation, Dvorkovich expressed strong support for Mr. Trump and a desire to work together toward devising better solutions in response to the vast range of current international problems. Based on feedback from a diverse array of other sources close to the Presidential Administration, it was readily apparent that this sentiment is widely held at all levels of government.5

That said, even after surveilling Page for at least a year, the Mueller investigation likewise only gained limited understanding of Page’s activities. “Page’s activities in Russia–as described in his emails with the Campaign–were not fully explained.” And a redaction explaining why Page wasn’t charged as a foreign agent suggests it had been a close call.

In other words, Mueller came to the same conclusion that the Trump campaign did when they severed all ties with Page.

The Mueller Report is more circumspect about why George Papadopoulos got fired.

Papadopoulos was dismissed from the Trump Campaign in early October 2016, after an interview he gave to the Russian news agency Inter/ax generated adverse publicity.492

492 George Papadopoulos: Sanctions Have Done Little More Than to Turn Russia Towards China, Interfax (Sept. 30, 2016).

But a recent profile reveals that Papadopoulos has been lying about the campaign response to his Interfax column.

The book claims that Trump headquarters informed him of an interview request from Russian news service Interfax and gave him instructions about what to say, complimenting him afterward. In reality, Interfax contacted Papadopoulos directly, and though the campaign okayed the interview, the feedback afterward apparently wasn’t positive. Papadopoulos wrote to campaign official Michael Glassner to ask if he was, as others had told him, “off the campaign because of an interview I gave.”

This is the column that Papadopoulos shared with Joseph Mifsud (though that is not discussed in the report), and then lied about to the FBI.

On or about October 1, 2016, PAPADOPOULOS sent Foreign Contact 1 a private Facebook message with a link to an article from Interfax.com, a Russian news website. This evidence contradicts PAPADOPOULOS’s statement to the Agents when interviewed on or about January 27, 2017, that he had not been “messaging” with Foreign Contact 1 during the campaign while “with  Trump.”

It’s unclear whether the campaign distanced itself from Papadopoulos because of the press coverage of this article or because of what he said (an earlier WaPo report on it reveals how enthusiastic the pre-approval for it was, including the promise that Trump would work with Russia on Syria). If they fired him because he misrepresented the campaign’s friendliness with Russia, then it would support the Mueller Report’s conclusion that there was evidence to investigate but not to charge.

In particular, the Office did not find evidence likely to prove beyond a reasonable doubt that Campaign officials such as Paul Manafort, George Papadopoulos, and Carter Page acted as agents of the Russian government-or at its direction, control, or request-during the relevant time period. 1282

If the campaign fired Papadopoulos because he said things that were inconvenient, it would support the worth of his obstruction charge, which he of course pled guilty to.

Given the seriousness of the lies and omissions and their effect on the FBI’s investigation, the Office charged Papadopoulos with making false statements to the FBI, in violation of 18 U.S.C. § 1001. Information, United States v. George Papadopoulos, No. l:17-cr-182 (D.D.C. Oct. 3, 2017), Doc. 8. On October 7, 2017, Papadopoulos pleaded guilty to that charge pursuant to a plea agreement.

In either case, the campaign didn’t want to be associated with Papadopoulos’ pro-Russian public comments.

Update, 5/27/19: Papadopoulos actually told HJC/OGR that he never left the campaign.

Mr. Ratcliffe. How did you leave the campaign? First of all, when did you leave the campaign?

Mr. Papadopoulos. I don’t know if I ever really left the campaign. I think I was involved throughout the whole way in different ways. I mean, one — in one manner I’m helping edit the first foreign policy speech and I’m setting up, helping set up this meeting with the Egyptian President, and then I’m kind of just feeding information into the campaign from March until — all through the transition, quite frankly. So I don’t think I really ever left the campaign, if that makes sense.

Mr. Ratcliffe. Okay.

Mr. Papadopoulos. I was considering leaving, but I don’t think I ever submitted some sort of resignation to the campaign that would — that would suggest I would formally abdicate my duties on the campaign.

The Attorney General is carrying out an unprecedented investigation into a counterintelligence investigation targeting the suspected infiltration of a campaign by men working on behalf of Russia. In real time, the campaign acted to distance itself from all three men for precisely that reason.

In other words, Bill Barr is targeting the intelligence agencies for agreeing with the Trump campaign about the suspect ties of three of the initially predicated subjects of the investigation.

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