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Bill Barr Risks becoming Joseph Mifsud’s New Coffee Boy

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Yesterday, the Daily Beast provided details about what Bill Barr was doing in Italy on the trip to dig up dirt first confirmed by the WaPo. According to DB, Barr and John Durham went to Italy on short notice (that is, even as the Ukraine scandal he is personally implicated in was breaking) to watch a videotaped deposition by Joseph Mifsud.

Barr was in Rome on an under-the-radar mission that was only planned a few days in advance. An official with the embassy confirmed to The Daily Beast that they had to scramble to accommodate Barr’s sudden arrival. He had been in Italy before, but not with such a clear motive. Barr and Durham are looking into the events that led to Robert Mueller’s Russia investigation, and suddenly all roads were leading to Rome.

The Daily Beast has learned that Barr and Durham were especially interested in what the Italian secret service knew about Joseph Mifsud, the erstwhile professor from Malta who had allegedly promised then-candidate Donald Trump’s campaign aide George Papadopoulos he could deliver Russian “dirt” on Hillary Clinton. The Italian justice ministry’s public records show that Mifsud had applied for police protection in Italy after disappearing from Link University, where he worked and, in doing so, had given a taped deposition to explain just why people might want to harm him.

A source in the Italian Ministry of Justice, speaking on the condition of anonymity, told The Daily Beast that Barr and Durham were played the tape. A second source within the Italian government also confirmed to The Daily Beast that Barr and Durham were shown other evidence the Italians had on Mifsud.

There are a ton of reasons why this trip is batshit crazy. For one, Barr is placing himself in the role of a line Special Agent, someone without the requisite expertise chasing off to watch taped depositions while he should be running DOJ. For another (as I’ll show in more detail later), Barr is literally just chasing conspiracy theories sown by sworn liar George Papadopoulos, conspiracy theories which fabulist John Solomon (and his obvious sources named Rudy Giuliani and some Russian and Ukrainian oligarchs including Oleg Deripaska) has both fed and magnified. That Barr is doing it as he becomes personally embroiled in a scandal which could implicate him criminally suggests he and Trump may be trying to beat the clock, produce results before the shit really hits the fan.

But what’s most remarkable about the trip is the Attorney General of the United States went out on this goose chase without first ensuring he’d get what he was promised.

There’s a principle often aired when discussing Trump’s failed diplomacy with North Korea. You don’t send out the Principal for a meeting before getting certain commitments that advance your own goals. Trump should not have met with Kim Jong-Un without first getting concessions, because by doing so he took away several things of value (such as conferring credibility on the world stage) that Kim was most interested in.

The same is true here. The Attorney General should never run off to do the work of an FBI line Special Agent. But he certainly shouldn’t do so unless he was getting what he was really after.

And Billy Barr just flew to Italy without getting what he was really looking for.

Handily, for this scandal, Papadopoulos and Solomon and Chuck Ross have been ready scribes for the script that Trump and Billy Barr are supposed to be following. It’s all out in the open.

The Attorney General’s voyage to Italy got set in motion last fall when Ross published two stories relying on Mifsud’s “attorney” Stephen Roh (who himself has close ties to Russia). The first, dated September 10, reported that Mifsud was alive and well hiding in Italy. The second, published October 24, was explicitly a set-up for George Papadopoulos’ testimony before the joint OGR/HJC investigation into the Russian investigation. It included comments from Roh alleging that Mifsud was not a Russian asset, but was instead a Western one. Ross included those comments almost as a side note, even though the comments make what would normally be big news.

Roh told TheDCNF this week that Mifsud claimed in their previous meetings that he was working under the direction of the FBI when he made contact with Papadopoulos. He also claims that Mifsud told him that he was ordered to stay out of the public spotlight until the conclusion of special counsel Robert Mueller’s investigation.

“Prof Mifsud explained that he is and was always a trusted cooperator of Western Intelligence services,” Roh said on Oct. 20.

“Prof Mifsud explained to us that he agreed not to speak, not to give interviews and to hide until the [Mueller] Investigation is terminated,” said Roh, who added that Mifsud claimed that he was being assisted by a London law firm in his discussions with the Mueller team.

The claims, if true, would be bombshell developments in the Russiagate saga. But TheDCNF was not able to independently verify Roh’s claims. The special counsel’s office declined comment.

While some of Roh’s claims about Mifsud would seem to support Papadopoulos’s theories, Roh has also said that Mifsud denies Papadopoulos’s allegation that he mentioned Clinton emails during their April 2016 meeting. Roh has asserted that Papadopoulos was working as an “agent provocateur” for a Western spy agency.

The next day, Papadopoulos — cued by Zachary Somers, then Majority Counsel for Bob Goodlatte — pointed to the Daily Caller piece as the basis for his belief that Joseph Mifsud was actually western intelligence.

Q Okay. So, and Mifsud, he presented himself as what? Who did he tell you he was?

A So looking back in my memory of this person, this is a mid-50’s person, describes himself as a former diplomat who is connected to the world, essentially. I remember he was even telling me that, you know, the Vietnamese prime minister is a good friend of mine. I mean, you have to understand this is the type of personality he was portraying himself as.

And, you know, I guess I took the bait because, you know, usually somebody who — at least in Washington, when somebody portrays themselves in a specific way and has credentials to back it, you believe them. But that’s how he portrayed himself. And then I can’t remember exactly the next thing that happened until he decided to introduce me to Putin’s fake niece in London, which we later found out is some sort of student. But I could get into those details of how that all started. Q And what’s your — just to kind of jump way ahead, what’s your current understanding of who Mifsud is?

A My current understanding?

Q Yeah. A You know, I don’t want to espouse conspiracy theories because, you know, it’s horrifying to really think that they might be true, but just yesterday, there was a report in the Daily Caller from his own lawyer that he was working with the FBI when he approached me. And when he was working me, I guess — I don’t know if that’s a fact, and I’m not saying it’s a fact — I’m just relaying what the Daily Caller reported yesterday, with Chuck Ross, and it stated in a categorical fashion that Stephan Roh, who is Joseph Mifsud’s, I believe his President’s counsel, or PR person, said that Mifsud was never a Russian agent.

In fact, he’s a tremendous friend of western intelligence, which makes sense considering I met him at a western spying school in Rome. And all his interactions — this is just me trying to repeat the report, these are not my words — and when he met with me, he was working as some sort of asset of the FBI. I don’t know if that’s true or not. I’m just reporting what my current understanding is of this individual based on reports from journalists.

As I’ll show, this was not the only time Papadopoulos did this in a deposition that was supposed to air what Papadopoulos knew, personally. His testimony served to validate conspiracy theories planted in right wing propaganda outlets.

In May Devin Nunes, in the guise of raising counterintelligence concerns about the number of high level people (including Boris Johnson, who would not be Prime Minister of the UK right now without dodgy financing of Leave) who had interacted with Mifsud, wrote a letter airing Roh’s claims and information that otherwise has been sourced from Roh, wrote Mike Pompeo, Paul Nakasone, Gina Haspel, and Chris Wray claiming Mueller misrepresented Mifsud.

Alternatively, if Mifsud is not in fact a counterintelligence threat, then that would cast doubt on the Special Counsel’s fundamental description of him and his activities, and raise questions about the veracity of the Special Counsel’s statements and affirmations. It should be noted that the Special Counsel declined to charge Mifsud with any crime even though, to justify seeking a prison sentence for Papadopoulos, the Special Counsel claimed Papadopoulos’ untruthful testimony “undermined investigators’ ability to challenge the Professor [Mifsud] or potentially detain or arrest him while he was still in the United States.” Furthermore, it’s still a mystery how the FBI knew to ask Papadopoulos specifically about Hillary Clinton’s emails, on multiple occasions throughout 2016-17 before having interviewed Mifsud, if the FBI hadn’t already somehow received this information directly or indirectly from Mifsud himself.

Obviously, Nunes’ “concerns” are rank bullshit. The tip from Australia was sufficient to raise question about the emails. And Mueller didn’t charge a bunch of other suspected foreign assets (some even in the US), which is how counterintelligence works. But Nunes’ letter sufficed to make this an official request.

Apparently, then, Stephen Roh shared a transcript of a deposition with some Republicans in Congress and Solomon. That, and more cues from Republicans, Roh, Papadopoulos, and who knows who else, got laundered through a Solomon story full of obvious misrepresentations (one that irks me, for example, is his use of a February 2017 email Mifsud sent following up on his FBI interview to claim Mifsud exchanged emails with the FBI, as if that substantiated an otherwise independent relationship with the Bureau). The news hook of the story is that John Durham wanted to interview Mifsud. But if he couldn’t do that, Solomon dutifully reported, Durham would like to “review a recorded deposition” he gave to Roh.

An investigator told Swiss attorney Stephan Roh that Durham’s team wanted to interview Mifsud, or at the very least review a recorded deposition the professor gave in summer 2018 about his role in the drama involving Donald Trump, Russia and the 2016 election.

The contact, confirmed by multiple sources and contemporaneous email, sent an unmistakable message: Durham, the U.S. attorney handpicked by Attorney General William Barr to determine whether the FBI committed abuses during the Russia investigation, is taking a second look at one of the noteworthy figures and the conclusions of former special counsel Robert Mueller’s final report.

Solomon went on to claim — and the frothy right believes it as scripture now — that if Durham would just interview Mifsud, he would learn that the whole Papadopoulos story was actually a set-up by Western intelligence agencies seeking to frame George Papadopoulos and Donald Trump.

Roh told me the information he is preparing to share with Durham’s team from his client will accentuate those concerns.

Mifsud was a “longtime cooperator of western intel” who was asked specifically by his contacts at Link University in Rome and the London Center of International Law Practice (LCILP) — two academic groups with ties to Western diplomacy and intelligence — to meet with Papadopoulos at a dinner in Rome in mid-March 2016, Roh told me.

A May 2019 letter from Nunes to U.S. intelligence officials corroborates some of Roh’s account, revealing photos showing that the FBI conducted training at Link in fall 2016 and that Mifsud and other Link officials met regularly with world leaders, including Boris Johnson, elected today as Britain’s new prime minister.

A few days after the March dinner, Roh added, Mifsud received instructions from Link superiors to “put Papadopoulos in contact with Russians,” including a think tank figure named Ivan Timofeev and a woman he was instructed to identify to Papadopoulos as Vladimir Putin’s niece.

Mifsud knew the woman was not the Russian president’s niece but, rather, a student who was involved with both the Link and LCILP campuses, and the professor believed there was an effort underway to determine whether Papadopoulos was an “agent provocateur” seeking foreign contacts, Roh said.

The evidence, he told me, “clearly indicates that this was not only a surveillance op but a more sophisticated intel operation” in which Mifsud became involved.

The point is, though, that the ask was an interview, at which Barr and Durham (and, if they had brought experienced interrogators, which the DB does not report they did) would be able to test Mifsud’s credibility. Sitting in a secure room and watching a deposition (without experts there to test the provenance of the deposition video, no less) was not the ask and provides no way to obtain what would really be necessary.

But Barr didn’t demand that, and he didn’t get that. Instead, he allowed himself to be lured into a dark room in Italy to watch something — possibly without anyone with the relevant counterintelligence expertise to help him understand it — that provides very little useful information to test Mifsud’s claims. That puts the Attorney General in an incredibly vulnerable position (even beyond being implicated in covering up the President’s extortion to get such access), because he not only has traded away a lot of leverage to get what he would actually need to test this information, but he has already met a suspected Russian asset on the asset’s terms.

A lot of what Papadopoulos has done over the last three years was downright idiotic. But he has the excuse of being stupid, untrained, venal, and overly ambitious.

Billy Barr has no excuses for doing something that is even stupider than much of what Papadopoulos did. And yet he did just that.

Is Bill Barr Already Feeding Sidney Powell So-Called Evidence Trump Coerces?

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The WaPo confirms what was becoming obvious: The Attorney General of the United States is spending his days flying around the world collecting claims that Trump has coerced from foreign governments. It reports that Barr has already had conversations similar to those Trump seeded with Ukraine with the UK, Italy, and Australia.

Barr has already made overtures to British intelligence officials, and last week the attorney general traveled to Italy, where he and Durham met senior Italian government officials and Barr asked the Italians to assist Durham, according to one person familiar with the matter, who spoke on the condition of anonymity to discuss a sensitive issue. It was not Barr’s first trip to Italy to meet intelligence officials, the person said. The Trump administration has made similar requests of Australia, said people who discussed the interactions on the condition of anonymity because they involve an ongoing investigation and sensitive talks between governments.

In a recent phone call, Trump urged Australian Prime Minister Scott Morrison to provide assistance to the ongoing Justice Department inquiry, the people said. Trump made the request at Barr’s urging, they said.

I raise all this because of something Sidney Powell said on September 10. At the status hearing for her client, Mike Flynn, she said that they had a letter from the British Embassy that “undoes the whole Steele dossier debacle.”

It was an interesting claim for several reasons. Most notably, the only references to Powell’s client in the Steele dossier simply repeat public claims about Flynn’s paid trip to an RT gala in 2015. That is, it’s totally irrelevant to the question of Flynn’s guilt on the charges he pled to or even the counterintelligence investigation into her client. Even if DOJ had such a record, it’d not be discoverable under Brady.

But Powell seemed to be saying she had the letter.

That raises the possibility that Bill Barr is not — as he claims — collecting “evidence” for a John Durham investigation into the start of the Russian investigation, but is instead (or also) collecting evidence he can share with those prosecuted by Mueller to help them undermine their guilty pleas and or convictions (which would raise interesting questions about Roger Stone’s focus on Crowdstrike, given that’s included in Trump’s list of propaganda he wants to extort from foreign countries).

Mind you, Powell could be lying or unclear about this document–she has been caught in both multiple times so far before Emmet Sullivan. But this claim — which was surprising to me at the time — raises real questions about whether Barr is using coerced evidence to undermine his own DOJ.

Update: I think I have the timing of this letter wrong. I think it was sent under Obama, not recently. 

Bill Barr’s OLC Treated His Implication in the Whistleblower Complaint as Top Secret

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Because I was on my epic road trip with June Bug the Terrorist Foster Dog, I’m just now reading some of the documents underlying the whistleblower complaint closely. Doing so makes it clear that Bill Barr’s DOJ (specifically, the Office of Legal Counsel) treated his implication by the whistleblower as Top Secret, even though the White House considered the fact only Secret.

This post relies on these documents:

  • The TELCON of the Trump-Zelensky call, treated throughout as Secret/NoForn
  • The unclassified whistleblower complaint with classified appendix, the latter of which has one paragraph marked Top Secret, one redacted, and other paragraphs marked Secret
  • ICIG Michael Atkinson’s letter to Director of National Intelligence Joseph Maguire; the letter itself, four paragraphs, and one footnote are marked Top Secret and something redacted (probably NOFORN), with a longer classification mark as a whole
  • The first version of the OLC memo dated September 3 deeming this not urgent; the memo itself, eight paragraphs of it, and three footnotes are marked Top Secret and something redacted (probably NOFORN), with a longer classification mark as a whole
  • The official version of the OLC memo dated September 3 currently available on DOJ’s website; it explains that after the underlying documents were declassified, it was released as an unclassified memo
  • A September 24 version of the OLC memo, described in the currently official September 3 one as an “unclassified version”

Here’s the editor’s note that describes why there are three versions of the OLC memo:

Editor’s Note: This memorandum was originally issued in classified form on September 3, 2019. An unclassified version was signed on September 24, 2019, and publicly released in slip-opinion form on September 25, 2019. That unclassified version avoided references to certain details that remained classified at the time it was signed. After the underlying documents were themselves declassified, the September 3 memorandum was declassified in its entirety and publicly released on September 26, 2019.

That suggests we can compare either September 3 version of the OLC memo with the September 24 one to identify what OLC itself (the name of the person who classified the memo is classified) claimed to be classified on September 3.

The ICIG letter makes clear that Atkinson had not yet read the TELCON when he wrote his letter. The whistleblower letter doesn’t say whether or not he read the TELCON (I’m using “he” to refer to the whistleblower because that’s the pronoun the NYT used). He explains that he believes all classified information in the letter is in his enclosure. He also reiterates that marking the information included in his unclassified letter with classification marks would,

violate EO 13526, Part I, Section 1.7, which states: “In no case shall information be classified, continue to be maintained as classified, or fail to be declassified in order to: (1) conceal violations of law, inefficiency, or administrative error; [or] (2) prevent embarrassment to a person, organization, or agency.”

Among the information the whistleblower included in his unclassified letter is that Trump:

[S]ought to pressure the Ukrainian leader to take actions to help the President’s 2020 reelection bid. According to the White House officials who had direct knowledge of the call, the President pressured Mr. Zelenskyy to, inter alia:

  • initiate or continue an investigation into the activities of former Vice President Joseph Biden and his son, Hunter Biden;
  • assist in purportedly uncovering that allegations of Russian interference in the 2016 U.S. presidential election originated in Ukraine, with a specific request that the Ukrainian leader locate and turn over servers used by the Democratic National Committee (DNC) and examined by the U.S. cyber security firm Crowdstrike, which initially reported that Russian hackers had penetrated the DNC’s networks in 2016; and
  • meet or speak with two people the President named explicitly as his personal envoys on these matters, Mr. Giuliani and Attorney General Barr, to whom the President referred multiple times in tandem.

The ICIG letter marks the paragraph describing that part of the complaint as Top Secret, though it doesn’t include the specific allegations naming Rudy and Barr, It describes the gist of the complaint this way:

Here, the Complainant’s Letter alleged, among other things, that the President of the United States, in a telephone call with Ukrainian Volodymyr Zelenskyy on July 25, 2019, “sought to pressure the Ukrainian leader to take actions to help the President’s 2020 reelection bid.”

But DOJ did see the TELCON of the call. Therefore, they would have known that the White House — the original classification authority for the content of the call — had deemed the entire thing Secret/NOFORN. Nothing in it was deemed Top Secret.

Among the things removed from paragraphs marked Top Secret in the September 24 memo are:

  • The date of the call
  • Zelenskyy’s identity and country
  • Approximately a dozen officials had listened in
  • A description of Trump pressuring Zelenskyy
  • The reference to election assistance
  • The citations to the ICIG letter
  • The references to Rudy and Barr
  • The ICIG deemed the complaint credible but did not conduct legal analysis on whether this was solicitation of a campaign contribution
  • OMB had cut off security assistance to Ukraine*
  • White House officials had moved the TELCON to the covert server*

The whistleblower treated the placement of the TELCON onto the covert server as Top Secret and the OMB detail as Secret, since neither of those appear in the TELCON marked Secret those are both properly treated by OLC as classified (though OLC bumped up the OMB detail to Top Secret).

But given that OLC took this language out of a paragraph that it marked Top Secret for its unclassified version, it must be treating this information as Top Secret.

The complainant alleged that he or she had heard reports from White House officials that in the course of a routine diplomatic communication between President Trump and Ukrainian President Volodymyr Zelenskyy, President Trump had “sought to pressure the Ukrainian leader to take actions to help the President’s 2020 reelection bid.” ICIG Letter at 3 (quoting the complainant’s letter). Specifically, the complainant allegedly heard that the President had requested that the Ukrainian government investigate the activities of one of the President’s potential political rivals, former Vice President Joseph Biden, and his son, Hunter Biden. The complainant also allegedly heard that the President had requested Ukrainian assistance in investigating whether Russian interference in the 2016 U.S. presidential election originated in Ukraine, and that Ukrainian investigators meet with the President’s personal lawyer, Rudolph Giuliani, as well as Attorney General William Barr regarding these matters.

In other words, DOJ, after having reviewed a White House document that treated this information as Secret, instead bumped up the classification of it to Top Secret, including the detail that the Attorney General himself was implicated in the attempt to frame the President’s opponents.

It’s not just the White House that was abusing the classification system in an attempt to cover up what really happened here. It was also DOJ.

The CIA Affiliation of the Whistleblower Isn’t the Key, It’s CIA General Counsel’s Role in a Cover-Up

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The second paragraph of the NYT story that identified that the Ukraine whistleblower as a CIA employee describes the CIA’s General Counsel, Courtney Simmons Elwood, telling first the White House and then DOJ about the complaint.

The officer first shared information about potential abuse of power and a White House cover-up with the C.I.A.’s top lawyer through an anonymous process, some of the people said. The lawyer shared the officer’s concerns with White House and Justice Department officials, following policy.

Starting on paragraph 15, the NYT provides more details about how and why Elwood responded to a whistleblower complaint by running to the people who were implicated by it (and note, it says this was proper, as it may well have been — I’m not saying Elwood has legal exposure here).

The week after the call, the officer delivered a somewhat broad accusation anonymously to the C.I.A.’s general counsel, Courtney Simmons Elwood, according to multiple people familiar with the events. The initial allegations reported only that serious questions existed about a phone call between Mr. Trump and a foreign leader.

As required by government policy, Ms. Elwood had to assess whether a “reasonable basis” for the accusation existed. During the preliminary inquiry, Ms. Elwood and a career C.I.A. lawyer learned that multiple people had raised concerns about Mr. Trump’s call.

Ms. Elwood also called John A. Eisenberg, a deputy White House counsel and her counterpart at the National Security Council, according to three people familiar with the matter. He was already aware of vague concerns about the call.

Ms. Elwood, Mr. Eisenberg and their deputies spoke multiple times the following week. They decided that the accusations had a reasonable basis.

Mr. Eisenberg and Ms. Elwood both spoke on Aug. 14 to John Demers, the head of the Justice Department’s national security division, according to three people familiar with the discussion. Ms. Elwood did not pass on the name of the C.I.A. officer, which she did not know because his concerns were submitted anonymously.

The next day, Mr. Demers went to the White House to read the transcript of the call and assess whether to alert other senior law enforcement officials. The deputy attorney general, Jeffrey A. Rosen, and Brian A. Benczkowski, the head of the department’s criminal division, were soon looped in, according to two administration officials.

Department officials began to discuss the accusations and whether and how to follow up, and Attorney General William P. Barr learned of the allegations around that time, according to a person familiar with the matter.

A CNN story provided the detail that NYT (and AP) missed: when and how Barr learned he was implicated personally.

Demers went to the White House to review the transcript of the call on August 15. His office then alerted other senior Justice officials that Barr was mentioned on the call.

Since they NYT story came out, a lot of people have attacked it for revealing where the whistleblower worked. Dean Baquet claimed they did so to lend credibility to the story, a thoroughly ridiculous explanation (especially in the wake of the transcript release, which made it clear the complaint was corroborated by the White House’s own record of the call).

What is, instead, the important detail is that everything Elwood did in the wake of receiving the report, whether intentionally or not, not only served a cover-up, but also put the whistleblower at heightened risk. We may not know the ID of the whistleblower, but the White House, which now includes all the former Devin Nunes aides who were so critical to blowing up the Russian investigation in 2017, would have been able to identify who was seconded to the White House as soon as Elwood brought the complaint to the White House. And Elwood is, in significant part, responsible for that. So it’s not the whistleblower’s affiliation, but Elwood’s, that’s important, and Elwood’s alone identifies where the whistleblower works (and did, for the White House, over a month ago).

The really important part of this story — which is clarified when adding the CNN detail that Demers and Brian Benczkowski and Jeffrey Rosen knew their boss was directly implicated when they decided to scope the prosecutorial analysis very narrowly, completely ignoring the kind of quid pro quo that the Constitution explicitly names as a reason to impeach the President — is that those implicated had the opportunity to cover-up the investigation even before the whistleblower filed his formal complaint. And once he did that, DOJ did things (may have felt forced to) that tried to further suppress their earlier decisions, most notably by getting an OLC opinion that ruled the proper resolution of the complaint — which OLC deemed not to be urgent because it ignored that Bill Barr, the State Department, and those who hid the communications on the covert server were also implicated, and by association Barr’s efforts to feed intelligence into John Durham’s investigation — was to have people at FBI reporting to Bill Barr investigate. Whether the implication of those others makes this an IC complaint (the most obvious way it does is in the abuse of classification authority to hide the transcript) is a matter requiring analysis, analysis that Bill Barr’s direct report, Steven Engel, did not do.

And that’s the point (or should have been): The NYT named a number the people who may be involved in this cover-up: John Eisenberg, John Demers, Brian Benczkowski, Jeffrey Rosen, and CIA General Counsel Courtney Simmons Elwood. Elwood is the one who first approached the problem in such a way that a cover-up would be possible.

Yes, by relaying that detail, the NYT told all of us that the whistleblower is a CIA employee. But the people involved in the cover-up, and the firebreathers at NSC, already knew that.

Bill Barr’s (Claimed) Surprise about Being in the Zelensky Transcript Is Irrelevant To His (Non) Recusal

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Bill Barr continues to excel at placing carefully worded self-exonerations in the press. Consider this AP story, purportedly telling how helpless little Billy Barr has been put in an uncomfortable situation because Trump treats him the same way he does Rudy Giuliani, as his personal lawyer. You wouldn’t know, from reading it, that Barr is one of the most powerful cabinet members in government, and fairly unique among Trump’s appointees for the breadth of governmental experience he has.

Much of the story describes Barr as the passive object things happen to, not as the agent of his own circumstances. The AP describes him finding himself in a political firestorm and coming under scrutiny rather than acting in scandalous ways that merit such scrutiny.

As Washington plunges into impeachment, Attorney General William Barr finds himself engulfed in the political firestorm, facing questions about his role in President Donald Trump’s outreach to Ukraine and the administration’s attempts to keep a whistleblower complaint from Congress.

[snip]

Barr has come under the scrutiny of congressional Democrats who have accused him of acting on Trump’s personal behalf more than for the justice system. Democrats have also called on Barr to step aside from decisions on the Ukraine matter.

The article does affirmatively say what Barr (claims he) has not done. He has not spoken with Trump about Biden and he has not spoken to Rudy about anything related to Ukraine (which is, notably, different than saying he hasn’t hasn’t had inappropriate conversations with the President’s personal lawyer).

Barr has not spoken with Trump about investigating Biden or Biden’s son Hunter, and Trump has not asked Barr to contact Ukranian officials about the matter, the department said. Barr has also not spoken with Giuliani about anything related to Ukraine, officials have said.

As for Barr’s affirmative actions, they are (like the descriptions of what he did not do) always couched in claims made by some anonymous source. The department — not a named person in the department — “insists” that Barr wasn’t aware of the call until some vague point in mid-August.

The department insists Barr wasn’t made aware of the call with Zelenskiy until at least mid-August.

The money quote, the one everyone is tweeting about, is from someone identifiably close enough to Barr to know he was “surprised and angry” but who claims not to be authorized to speak “publicly.”

When Barr did learn of that call a few weeks later, he was “surprised and angry” to discover he had been lumped in with Giuliani, a person familiar with Barr’s thinking told The Associated Press. This person was not authorized to speak about the matter publicly and spoke on condition of anonymity.

So, too, are the sources for the really important claims that tell us everything we don’t need to know pertaining to recusal. A person (likely the same one) not authorized to speak “publicly,” says the Department of Justice first learned of the call when CIA General Counsel Courtney Simmons Elwood brought the complaint to National Security Division head John Demers (as described in detail by the NYT). Other DOJ lawyers learned about the complaint after the whistleblower filed a complaint with the Intelligence Community Inspector General.

The Justice Department was first made aware of Trump’s call when a CIA lawyer mentioned the complaint from the unidentified CIA officer on Aug. 14, said a person familiar with the matter who wasn’t authorized to discuss the matter publicly and spoke anonymously. Some Justice Department lawyers learned about the accusations after the whistleblower filed a complaint with the intelligence community’s internal watchdog.

The watchdog later raised concerns that Trump may have violated campaign finance law. The Justice Department said there was no crime and closed the matter.

Note what’s not described in that passage, or anywhere else in the story? Precisely when Bill Barr himself learned about the substance of the complaint. When Bill Barr himself learned he was named in the transcript. It does not matter at all whether Bill Barr was surprised to hear the President roping him into framing his opponent’s son (though we should not believe he was surprised until the Attorney General says that publicly himself, preferably under oath). It does not matter when Demers learned of the substance of the complaint, it matters when Barr did, and whether it preceded other actions he took.

What matters is whether Barr learned he was named in the transcript before the DOJ made the decision there was no crime there. What matters is whether Barr knew he was implicated before making the decision not to recuse in advance of a prosecutorial decision made while lacking all the facts. What matters is whether Barr knew he was named in the transcript before getting an OLC opinion justifying withholding the complaint. (h/t F for the last point)

The AP story doesn’t tell us that. Instead, it tells us everything we don’t need to know.

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

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

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

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

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

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

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

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

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

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

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

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

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

How Roger Stone’s Trial Relates to the Ukraine Scandal

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The White House released the readout from one (but not all) of the calls involved in the whistleblower complaint. It shows that before Trump asked Volodymyr Zelensky for help framing Joe Biden, he first asked Zelensky for help attacking Crowdstrike.

The President: I would like you to do us a favor though because our country has been through a lot and Ukraine knows a lot about it. I would like you to find out what happened with this whole situation with Ukraine, they say Crowdstrike … I guess you have one of your wealthy people… The server, they say Ukraine has.it. There are a lot. of things that went on, the whole situation. I think you are surrounding yourself with some of the same people. I . would like to have the Attorney General call you or your people and I would like you to get to the bottom of it. As you saw yesterday, that whole nonsense ended with a very poor performance by a man named Robert Mueller, an incompetent performance, but they say a lot of it started with Ukraine. Whatever you can do, it’s very important that you do it if that’s possible.

As with the sections involving the request on Biden, this one includes ellipses, hiding part of Trump’s ask. Also like those sections, this one suggests Bill Barr is involved in his improper request.

A request about Crowdstrike more directly addresses matters of intelligence — the attribution of the 2016 operation to Russia — than an effort to frame Joe Biden.

And this Crowdstrike request is what ties the call obviously to the timing — the day after the Mueller testimony gave Trump the belief he had weathered the Russian investigation.

Only, Trump is not clear of the impact of the Mueller investigation. On the contrary, if all goes on schedule, prosecutors will present abundant evidence of what even Mark Meadows calls “collusion,” the campaign’s effort to optimize the WikiLeaks releases, in Roger Stone’s November trial. As I have noted, in addition to Steve Bannon and Erik Prince, the trial will talk about Stone’s texts and calls to four different Donald Trump phone numbers, as well as his aides and bodyguard, Keith Schiller. (This screen cap comes from a list of stipulated phone numbers and emails that has since been sealed.)

The Stone trial (if it goes forward–I still have my doubts) will show that Trump was personally involved in these efforts and got repeated updates directly from Stone.

And a key strand of Stone’s defense is to question the Crowdstrike findings on the hack. Stone has been pursuing this effort for months — it’s what almost got him jailed under his gag. And while Amy Berman Jackson ruled twice this week against Stone getting any further Crowdstrike reports (once in an opinion denying Stone’s efforts to get unredacted Crowdstrike reports as moot since the government doesn’t have them, and once today in his pre-trial hearing when she deemed the remaining unredacted passages to pertain to ongoing Democratic cybersecurity protections and so unrelated to what Stone wants them for), Stone still has several redacted Crowdstrike reports from discovery.

Stone’s defense has focused entirely on discrediting the evidence that Trump partnered with a hostile country to get elected (which presumably is part of his effort to get a pardon). If he can support that effort by releasing currently private Crowdstrike reports he will do so.

Today’s pre-trial hearing — where ABJ also ruled that Stone won’t be able to question the underlying Russian investigation — may have mooted the effort to tie Ukrainian disinformation to Stone’s own disinformation effort. But the two efforts are linked efforts by Trump to deny his own role in “colluding” with Russia.

Bill Barr Refuses to “Comply First, Complain Later” with Congressional Oversight

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A number of people have talked about how dangerous — and how outdated — is much of what Attorney General Bill Barr said to a police organization the other day. I’d like to take another approach with his speech: to show what it looks like when you replace “police” with a co-equal branch of government constitutionally empowered to police the Executive. The italicized words below have swapped out the original. I’ve underlined my own additions.

The anti-oversight narrative is fanning disrespect for the law.  In recent years, we have witnessed increasing toleration of the notion that it is somehow okay to resist oversight.

Previously, it was well understood that, regardless of the circumstances, legal resistance is unacceptable because it necessarily leads to a spiral of escalating resistance that endangers the ability of Congress to oversee the Executive.  For that reason, virtually all jurisdictions have made resistance a serious crime.

Not too long ago influential public voices — whether in the media or among community and civic leaders — stressed the need to comply with oversight commands, even if one thinks they are unjust.  “Comply first” and, if you think you have been wronged, “complain later.”

But we don’t hear this much anymore.  Instead, when an incident escalates due to a suspect’s legal resistance to oversight, that fact is usually ignored by the commentary.  Congress’ every action is dissected, but the suspect’s resistance, and the danger it posed, frequently goes without mention.

We need to get back to basics.  We need public voices, in the media and elsewhere, to underscore the need to “Comply first, and, if warranted, complain later.”  This will make everyone safe – the police, suspects, and the community at large.  And those who resist must be prosecuted for that crime.  We must have zero tolerance for resisting police.  This will save lives.

[snip]

These anti-oversight Attorneys General have tended to emerge in jurisdictions where the nomination process is undermined by an abuse of Vacancy Reform Act.  Frequently, these candidates get rushed through because the incumbent is an entirely unqualified flunky and their confirmations are sometimes accompanied by large infusions of money from outside groups.

Once in office, they have been announcing their refusal to enforce broad swathes of the criminal law.  Most disturbing is that some are refusing to prosecute cases of resisting oversight.

Bill Barr doesn’t believe any average American should ask questions before complying with those empowered to force them to abide by the law.

But his view is entirely different when it comes to his boss complying with the only body — given the OLC memos Barr has reinforced — with the authority to police Executive branch abuses. Indeed, he has (unsurprisingly) refused to enforce contempt citations, and has instead fostered the kind of disrespect for the law he claims to believe in.

Four Months Ago Attorney General Bill Barr Called BOP Staff Shortages that Led to Whitey Bulger Murder “a SNAFU”

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At an Appropriations hearing in April, Republican Senator Shelley Moore Capito premised a question about cuts to Bureau of Prison staffing budgets by reminding, “We’ve had several murders at Hazelton,” the federal Maximum Security facility in her state of West Virginia. (The WaPo noted this exchange in one of their early stories on Jeffrey Epstein’s death, though without this context.)

She doesn’t mean just any murders. In addition to some inmates from DC that Eleanor Holmes Norton had raised concerns about last fall, Hazelton was the site of Whitey Bulger’s murder, a death in BOP custody of an inmate every bit as worthy of close attention as Jeffrey Epstein, a death that was every bit as predictable as Epstein’s.

Capito went on to list several of the same problems that appear to have permitted Epstein’s death in the Metropolitan Correctional Center: staffing shortages and people assigned to perform duties they’re not trained for.

We’ve had complaints from staffing that there’s staffing shortages, it’s not safe for our correctional officers, they’re being asked to perform different duties maybe than what they’re originally assigned for, and in the budget, there’s a funding reduction for correctional officer staffing and salaries in the budget. Could you help me square with that, and is this a national problem that you’re finding across the BOP?

After Bulger’s murder, correctional officer union representatives cited the same problems: severe understaffing and people hired for other functions filling in for guards.

“(The) reported death at USP Hazelton, while concerning, is unsurprising,” said J. David Cox Sr., president of the American Federation of Government Employees. “Federal prisons across the country are suffering from severe understaffing, and the situation is perhaps no more dire than at Hazelton.”

The union reported that one in five positions authorized two years ago is vacant, and teachers, administrative assistants and accountants have had to fill in shifts as officers and first responders to violent incidents.

In response to a question from a Republican Senator about these issues, the Attorney General admitted failure. “I think this is an area where we have stumbled.” Rather than answering Senator Capito’s question about the budget, though (again, this was an Appropriations hearing), he instead explained that the problem wasn’t budget, it’s that the BOP doesn’t have all its assigned slots full because of how it hires.

I’ve been looking into this because it’s been very frustrating to me because I’ve always supported Bureau of Prisons in the past and think it’s a great organization and if we’re going to have people incarcerated we have to make sure they’re incarcerated under proper conditions. We are  — The way I look at it our authorized level is good and adequate. It’s that we’re four to five thousand people short of our authorized level.

Barr went on to provide evidence of a systematic underlying problem. “Every year we lose 2,600 of these correctional officers.” Without considering why turnover in the BOP is so high, he instead offered this solution. “My view is we just have to turn on the spigot and just keep these new entry level people coming in at a rate where we’re going to be able to get up to and maintain our enacted level. So I think this is largely a SNAFU by the department.”

Senator Capito warned once more about staffing levels and noted that those staffing levels are one of the reasons why people — even in West Virginia — don’t want the jobs.

I’m glad to hear what you’ve said in terms of getting more people in because the ratios are going up and in certain situations can be very dangerous for the officers that are working there, and then it discourages people from wanting to stay. It’s a tough job.

In a statement the other day, Barr claimed that some of the things that led to Epstein’s death (whether murder or suicide) — the same understaffing leading to people playing roles they weren’t hired for that Capito warned of in April — were “severe irregularities.”

I was appalled – indeed, the entire Department was – and frankly angry, to learn of the MCC’s failure to adequately secure this prisoner.  We are now learning of serious irregularities at this facility that are deeply concerning and that demand a thorough investigation.  The FBI and the Office of Inspector General are already doing just that.  We will get to the bottom of what happened at the MCC and we will hold people accountable for this failure.

This afternoon, Barr took action against the MCC warden and the two staffers on whose watch Epstein died, temporarily reassigning the warden and putting the officers on leave, effectively blaming them for conditions he called a SNAFU back in April.

On Tuesday, Barr “directed the Bureau of Prisons to temporarily assign” warden Lamine N’Diaye to a regional office, pending the outcome of internal investigations into Epstein’s death, the Justice Department said in a statement. Two staffers who were assigned to Epstein’s unit at the time of his death were placed on administrative leave, the department said.

Back in April, Barr called staffing shortages in prisons “a SNAFU.” Now, having been warned and having acknowledged the problem, he’s claiming some of the same problems were not regular, but instead severely irregular, and he’s blaming the people on the front lines rather than those in charge of the “SNAFU.”

What I Would Do with the Mueller Report If I Were Reggie Walton

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According to Politico, a hearing in the EPIC/BuzzFeed effort to liberate the Mueller Report went unexpectedly well today. It seems that Bill Barr’s propaganda effort to spin the results of the Mueller Report got Walton’s hackles up, leading him to believe that Barr’s effort covered up the degree to which Trump “colluded” with Russia.

Walton said he had “some concerns” about trying to reconcile public statements Trump and Attorney General William Barr have made about the report with the content of the report itself.

The judge pointed to Trump’s claims that Mueller found “no collusion” between his campaign and Russia and the president’s insistence that he had been exonerated from a possible obstruction of justice charge. These comments, Walton said, appeared bolstered by Barr’s description of Mueller’s findings during a DOJ news conference — before the public and media could read the document for themselves.

“It’d seem to be inconsistent with what the report itself said,” Walton said. The judge also cited a letter Mueller’s office sent to Barr questioning the attorney general’s decision to release a four-page summary of the investigation’s conclusions that “did not fully capture the context, nature and substance” of the report.

Separately on Monday, Walton raised questions about a DOJ submission defending the agency’s decision to black out large portions of the Mueller report.

“I also worked for the department,” Walton said. “Sometimes the body does what the head wants.”

I thought I’d lay out what I would do if I were Judge Walton. I’d make different decisions if I were a judge, but having covered some of his biggest confrontations with an expansive Executive, I’m pretending I can imagine how he’d think.

I’m doing this not because I think he’ll follow my guidance, but to establish what I think might be reasonable things to imagine he’ll review for unsealing.

Unseal the discussions of how Donald Trump père and fils avoided testifying to the grand jury

As I have noted, there are two passages apiece that describe how Donald Trump Sr and Donald Trump Jr avoided testifying to the grand jury. While they might discuss the grand jury’s interest in subpoenaing the men, and while they might (both!) say that the men would invoke the Fifth if forced to show up and invoke it, those passages likely don’t describe that the men did so.

Particularly given Jr’s willingness to testify to Congressional committees that likely don’t have all the documents from Trump Organization that Mueller had, those passages should be unsealed unless they involve real grand jury decisions.

Unseal the names of Trump flunkies against whom investigations were opened in October 2017

The most obviously dishonest thing Bill Barr did in releasing the Mueller Report is claim that those against whom prosecutions were declined were peripheral people. At least one person (and up to three people) in this passage is not: Don Jr. Walton should unseal these names, especially given that Barr lied about how peripheral, at least, the President’s son is.

Review the longer descriptions of those who lied but weren’t charged

There are up to three people that Mueller appears to have considered for perjury charges (page 194 and two people on page 199) and at least one more whom he considered charging for false statements. Some of the discussion of the people in the former category include non grand jury material as well.

If I were Walton, I’d review this entire section and (treating Roger Stone separately) would unseal at least the names of the senior Trump officials not charged (one is KT McFarland). Given the treatment of Jeff Sessions — whose prosecution declination was not sealed — DOJ has already treated people inconsistently in this section.

Review the declinations starting on page 176, page 179, and page 188 for possible unsealing

There are three declinations that are candidates for unsealing. The most important — which describes the office’s consideration of charging WikiLeaks’ releases of stolen emails as an illegal campaign donation — is the last one. It raises real campaign finance questions and would feed right into impeachment.

The charging decision on page 179 may explain why Don Jr wasn’t charged for sharing a link to a non-public site releasing stolen emails (but it could also pertain to someone no one knows who tried to hack Guccifer 2.0). If it’s the former, if I were Walton, I might consider unsealing that.

The most interesting charging decision, starting on page 176, may explain why WikiLeaks wasn’t charged, why Stone wasn’t or why others were not. If it’s WikiLeaks, it’s the kind of decision already made public in the recent SDNY decision and could be released. In any case, that’s a redaction that likely would be worth Walton’s judicial consideration.

Order that Roger Stone sections be unsealed if there’s a substantive change in his gag order

A huge chunk of the remaining redactions pertain to Roger Stone or his trial. They also are among the most damning to Trump, as they implicate him personally in trying to make the most of Russia’s effort to help him. I, as Marcy Wheeler, would love to see them, today.

But Reggie Walton, who presumably eats lunch with Amy Berman Jackson in the DC District Judges cafeteria, will also recognize the difficulties she faces in seating a jury for the trial of the President’s rat-fucker in November. So unless something changes to the status quo — in which ABJ has imposed a strict gag on Stone — then I suspect he’ll cede to her judgment.

And, frankly, anyone who’d like to see Stone face some kind of repercussions for his rat-fuckery should also support him getting a fair trial, meaning they should support the continued sealing.

That doesn’t stop Walton from ordering that if something changes — if Stone wins an appeal he announced today to get his gag overturned, if Trump pardons Stone, or if Stone pleads — then the sections will automatically become unsealed. One of the biggest ways Trump can avoid all repercussion for his efforts to optimize the release of stolen information is to have Stone avoid trial (either by pleading or being pardoned) but preventing a reconsideration of redactions done to protect his right to a fair trial.

Leave national security sections sealed because I’m Reggie Walton

I and many others would love to see more of the IRA and GRU sections (though there’s a gag in the IRA case now too), especially those sections about how GRU passed on materials to WikiLeaks.

But I’m not Reggie Walton. While he’s very happy to take on an expansive Executive, he generally shows significant deference for claims of national security. Thus, I expect he’ll likely leave this stuff sealed.

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.