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The Mistaken Presumptions of Virtually All Discussions of a Future Trump Prosecution

Jack Goldsmith has written a piece arguing against a Trump prosecution under the Biden Administration. He’s wrong on a key point that many other people engaging in this discussion also are. He’s wrong about what crime might be prosecuted and whose DOJ investigated it.

Before I get to that, though, I want to critique two smaller issues in his post.

First, he links to the DOJ IG investigation on Carter Page, apparently suggesting it supports a claim that that report found there were inappropriate parts of the investigation into Donald Trump.

The first in this line was the investigation of the 2016 Trump campaign and presidential transition by the FBI and the Obama Justice Department, which continued with the Mueller investigation. Some elements of this investigation were clearly legitimate and some, clearly not.

Except that’s not what that report shows (even ignoring the report’s own problems). It shows that FBI followed the rules on informants and even on including an investigative agent in Trump’s first security briefing (after which Flynn promptly moved to cover up his secret relationship with Turkey). It shows that there were problems with the Carter Page FISA application. But the single solitary thing in the report that would not survive a Franks review is Kevin Clinesmith’s alteration of an email. Every single other thing would meet the Good Faith standard used in Fourth Amendment review. And all that’s separate from the question of whether Carter Page was a legitimate target for investigation, which the bipartisan SSCI investigation has said he was.

I also disagree with Goldsmith’s concerns about the status of the Durham investigation going forward.

But though Durham started out as a credible figure, the review was damaged from the beginning due to Trump’s and Barr’s ceaseless public prejudging of the case (and, for some, Durham’s response to one of Horowitz’s reports). And all of that was before Barr expanded the investigation into a criminal one and then later appointed Durham as a special counsel to ensure that his criminal investigation could continue into the Biden administration. Once again, the nation is divided on the legitimacy of all of this.

The third challenge, exacerbating the first two, is that these investigations—the FBI investigation of the Trump campaign and transition, the Durham investigation, and the Hunter Biden investigation—extended (or will extend) into an administration of a different party. That means that what began as a cross-party investigation where the worry was bias against political opponents will transform, in the middle of the investigation, into an intraparty investigation, where the worry will shift to one party’s desire for self-protection.

I think the Durham investigation is misunderstood by all sides. Even according to Billy Barr, Durham has debunked some conspiracy theories Republicans have floated and he appears to have moved beyond the question of whether the CIA wrongly concluded that Putin wanted to elect Trump. That means if he were to write a report, it would substantially consist of telling the frothy right that their conspiracy theories were just that, and that George Papadopoulos really did entertain recruitment by at least one Russian agent.

That said, the Durham investigation has, unfortunately, been hopelessly biased by Billy Barr’s work in at least two ways. Durham apparently believes that the treatment of partisan bias at DOJ has been equally applied, which is demonstrably false (which also means he’s relying on witnesses who have themselves committed the sins he has used to predicate his own investigation, using FBI devices to speak for or against a political candidate). More troublingly, every single legal document his prosecutors have filed thus far have betrayed that they don’t understand the most basic things about the counterintelligence investigations they’re focusing on. But because of that ignorance, I’m fairly confident that if Durham tried to prosecute people for the theories that Bill Barr has been pushing while micromanaging this, Durham’s prosecutors would get their ass handed to them. Plus, even without Biden’s AG doing anything, I think there’s a possibility that Durham’s independence can be put to good use to investigate the crimes that Barr’s DOJ may have committed in pushing these theories. And there’s an easy way to solve the political nastiness of Barr’s special counsel appointment: by swapping Durham for Nora Dannehy. In short, freed from the micromanaging and mistaken beliefs of Bill Barr, Durham may evolve into a totally useful entity, one that will debunk a lot of the bullshit that the frothy right has been spewing for years.

In any case, the only reason it would be perceived as a cross-party investigation was the micromanagement of Barr. The FBI is not a member of either party, and if Durham finds real crimes — like that of Clinesmith — by all means he should prosecute. Once he is freed of Barr’s micromanagement, though, he may discover that he was given a very partial view of the evidence he was looking at.

Which brings me to Goldsmith’s treatment of whether or not Trump should be prosecuted. Before giving three reasons why one shouldn’t investigate Trump, he lays out what he sees as the potential crime this way:

Many people have argued that the Biden Justice Department should continue this pattern by examining the criminal acts Trump might have committed while in office—some arguing for a full-blown broad investigation, others (like my co-author, Bob Bauer, in “After Trump”) for a measured, narrowly tailored one. I don’t think this is a good idea. I doubt Trump has committed prosecutable crimes in office (I am confident that obstruction of justice prosecution would fail), I doubt he will ever go to jail if he did commit criminal acts in office (which would make the effort worse than useless), Trump will thrive off the attention of such an investigation, and the Biden administration will be damaged in pursuing other elements of its agenda (including restoration of the appearance of apolitical law enforcement). But the main reason I am skeptical is that such an investigation would, in the prevailing tit-for-tat culture, cement the inchoate norm of one administration as a matter of course criminally investigating the prior one—to the enormous detriment of the nation. (I do not believe that federal investigations for Trump’s pre-presidential actions raise the same risk.

There are two problems inherent with Goldsmith’s logic here, problems that virtually all the other people who engage in this debate also make.

First, he assumes that any prosecution of Trump would have to engage in further investigation. Here’s just one of several places where he makes that assumption clear.

The investigation by one administration of the predecessor president for acts committed in office would be a politically cataclysmic event.

Goldsmith doesn’t consider the possibility that such an investigation was begun under Mueller and continued under Bill Barr, waiting for such time as Trump can be charged under DOJ guidelines. It’s odd that he doesn’t consider that possibility, because Mueller laid that possibility out clearly in the report, describing leaving grand jury evidence banked for such time as Trump could be charged (indeed, it’s fairly clear a January 2019 Steve Bannon grand jury appearance included such evidence). If Bill Barr’s DOJ conducted an investigation that shows Trump committed a crime, it would break out of the tit-for-tat that Goldsmith complains about.

Goldsmith also appears to believe, even in spite of Trump’s transactionalism, that any crime Trump committed in office would have begun and ended during his term of office.

Part of these two errors appear to stem from another one. Goldsmith clearly believes the only crime for which Mueller investigated Trump is obstruction and he dismisses the possibility that an obstruction prosecution would stick. I’m agnostic about whether that view of obstruction is true or not. Even just reviewing how the Mueller Report treated the Roger Stone investigation, though, I’m certain there are places where the Mueller Report protected investigative equities. That may be true of the obstruction case as well. If so, then it would suggest the obstruction case might be far stronger than we know.

But it is false that Mueller only investigated Trump for obstruction. That’s because Trump may have entered into a conspiracy with his rat-fucker. In addition to investigating Roger Stone for covering up who his tie to Wikileaks was, Mueller also investigated Roger Stone for entering the CFAA conspiracy with Russia, a part of the investigation that recently declassified information as well as the warrants in the case make clear continued after the close of the Mueller investigation. Not only did Mueller ask Trump about his contacts with Stone on the specific issue for which the rat-fucker remained under investigation after Mueller closed up shop, but Mueller’s last warrants listed Stone’s written record of his communications with Trump during the campaign among the items to be seized in the search of Stone’s homes. If Stone entered into the CFAA conspiracy with Russia and those contacts show that Trump entered into an agreement with Stone on his part of the conspiracy, then Mueller was investigating Trump himself in the conspiracy. There is no way you target Stone’s records of communications with Trump unless Trump, too, was under investigation for joining that conspiracy.

I know I’m the only one saying this, but that’s in significant part because — as far as I know — I’m the single solitary journalist who has read these documents (plus, the unsealed language showing the investigation into Stone on the CFAA charges got buried in the election). But the record makes this quite clear: by investigating Roger Stone, Mueller also investigated Donald Trump for joining the CFAA conspiracy with Russia that helped him get elected. And because Mueller did not complete the investigation into Roger Stone before he closed up shop, he did not complete the investigation into Donald Trump.

And while I’m less certain, abundant evidence tells us what Stone and Trump’s role in the conspiracy may have been: to enter into a quid pro quo trading advance access to select John Podesta files (and, possibly, optimizing their release to cover up the DHS/ODNI Russian attribution statement) for a pardon for Julian Assange.

Stone did something in August 2016 to obtain advance copies of the Podesta files that the frothy right believed would be particularly beneficial in attacking Podesta and Hillary. Days before the Podesta file release in October 2016, Stone and Credico appear to have started talking about a pardon for Julian Assange. After the release of the Podesta files, Trump discussed reaching out to Assange with more people, including Mike Flynn. And no later than 7 days after the election — and given Credico’s refusal to give a straight answer about this, probably before — Stone set out on an extended effort to deliver on that pardon. And Trump took an overt act, as President, to try to deliver on that quid pro quo when he ordered Corey Lewandowski to tell Jeff Sessions to shut down any investigation into the hack-and-leak (which would have shut down the investigation into Assange’s role in it).

I have no idea whether DOJ obtained enough evidence to charge a former president in conspiring with a hostile foreign power to get elected. The investigation into Stone’s role in the conspiracy may have shut down when Barr’s intervention in Stone’s sentencing led all four prosecutors to drop from the case, so it’s possible that a Biden DOJ would need to resume that investigation (and finish it up before statutes of limitation tolled). Still, as of October 1, when DOJ withheld almost the entirety of two interviews with Margaret Kunstler to protect an ongoing investigation, that part of the investigation was ongoing. So if you want to consider the possible universe of Trump charges, this is the possibility you’d need to consider: that after Mueller shut down but before the end of Barr’s tenure, DOJ acquired enough evidence to prosecute Donald Trump once he becomes available to prosecute under DOJ rules.

I think there are other instances where Trump cheated to win in criminal fashion (even ignoring the hush payments for which he got named in Cohen’s charging documents). For example, Barr very obviously violated DOJ guidelines in his treatment of the whistleblower complaint about the Volodymyr Zelenskyy call, and with the evidence that OMB, State, and DOD withheld from the impeachment inquiry and witnesses subject to subpoena (indeed, at least some of whom will likely have no Fifth Amendment privileges after a pardon), the impeachment case is likely far stronger than Goldsmith imagines. Plus, there is an obvious tie to the SDNY investigation into Lev Parnas (where the whistleblower complaint would have been referred had Barr not violated DOJ guidelines). So on that case, it might be a question of Biden shutting down an ongoing investigation, not one of starting a new investigation.

Perhaps the most difficult and controversial decision for a Biden AG will be whether to reopen the investigation into the Egyptian payment Trump may have gotten in 2016 that kept his campaign afloat, one that SCOTUS reviewed (for the Mystery Appellant challenge) and sustained a subpoena for. Per CNN, DOJ doesn’t yet have enough to prosecute that, but that’s because DOJ chose not to subpoena Trump Organization for documents. And a Biden Administration could sanction the Egyptian bank to require it to cooperate in a way they refused to do under Mueller.

But those two instances can’t be shown via the public evidence. The overt act that Trump took in response to Roger Stone’s request — one Stone documented in a DM to Julian Assange — is public. Importantly, this would be a conspiracy that started before Trump got elected and extended into his presidency.

If you want to imagine whether Biden would prosecute Trump, you have to consider the possibility that he would prosecute Trump for crimes Bill Barr investigated.

Republicans Push to Punish Eric Swalwell because He Didn’t Sell Out the Country Like They Did

I’d like to tell a story about how six different men responded when law enforcement approached them about possible compromise by foreign spies.

Carter Page knowingly shares non-public information with known Russian spies

When Carter Page learned that he had been named in an indictment of Russian spies, he called up a Russian minister at the UN to tell him, in the spirit of openness, he was the guy identified as the recruiting target in the indictment. When the FBI interviewed him about his relationships with those foreign spies, Page admitted he had called the Russian minister, but explained that his relationship with the Russian intelligence officer was positive for him. He later explained that sharing non-public information with people he knew to be foreign spies helped both the US and Russia. Page enthusiastically took a trip to Moscow to give two speeches that — witnesses observed — normally featured far more prominent speakers than Page. Page came back from that trip bragging about the “open checkbook” he had been offered to start a pro-Russian think tank. When Page was asked a year later whether he could see why people thought he was being recruited, he disagreed and — according to an FBI 302 — backed off his prior admission to the FBI that he had reached out to the Russian minister.

For three years, the GOP has claimed that Carter Page is a maligned victim of FBI overreach.

George Papadopoulos refuses to explain the back channel meeting with Putin he tried to schedule

When the FBI first interviewed George Papadopoulos about the suspicious job offers Sergei Millian offered him — an offer to pay him so long as he also worked at the White House, asked how he learned in advance that the Russians had dirt on Hillary that they planned to release to help Trump get elected, and told him they thought he was being recruited, he lied. Among other things, Papadopoulos hid his entire relationship with one Russian national, Ivan Timofeev, whom he had interacted with. After the interview, Papadopoulos called Trump’s personal lawyer and told him of the interview. As others did, Papadopoulos crafted a false statement to share with Congress. In subsequent interviews, even after he agreed to cooperate, Papadopoulos hid the existence of a phone he used to interact with Joseph Mifsud. When asked about notes planning a back channel meeting with Putin’s people in London in September that ultimately didn’t happen, Papadopoulos claimed he couldn’t read his notes to explain the plans.

The GOP not only claimed that Papadopoulos was a maligned hero, the Attorney General of the United States assigned a US Attorney, in part, to fly around the world chasing Papadopoulos’ conspiracy theories in an attempt to substantiate his denials that these were Russian assets trying to cultivate Papadopoulos.

Mike Flynn gets a defensive briefing then hides his Turkish clients

Shortly after the FBI sat down with Donald Trump and Mike Flynn to warn them, generally, about how foreign intelligence services would increase their focus on the two and those around them, Mike Flynn went back to his business partner and the go-between with his Turkish clients, and adopted a new name for the project for Turkey — Confidence rather than Truth — and a payment vehicle that would hide the true client, attempting to sever the prior discussions directly with Turkey’s ministers from the half-million dollar deal that resulted.

Trump just pardoned Flynn for his efforts to hide those ties.

Rather than cooperating with the FBI about Flynn’s suspect Russian calls, Trump fires them

When DOJ came to the White House on January 26, 2017 and told White House counsel Don McGahn that Mike Flynn — seemingly without any approval from Donald Trump himself and clearly without notifying the Vice President — had called up the Ambassador from Russia and, in a conversation where the Ambassador was addressing other issues, raised sanctions imposed to punish Russia and asked the Ambassador not to respond in kind, and then lied about that publicly, McGahn assigned lawyer John Eisenberg to figure out whether Flynn could be prosecuted. Chief of Staff Reince Priebus tried to find out what kind of surveillance Flynn had been and was under. Trump first asked the head of the FBI for loyalty, then asked him to let the investigation of Flynn go, and then fired him to end the investigation.

Trump just pardoned Mike Flynn claiming that it was wrong for the FBI to try to figure out why Flynn had secretly undermined sanctions and then lied about it.

Trump calls Paul Manafort “very brave” for hiding details about his Russian intelligence officer partner

When the government entered into a cooperation agreement with Paul Manafort in 2018, in part to learn what Manafort knew about his business partner Konstantin Kilimnik’s ties to Russian intelligence, and particularly to learn why Manafort had swapped campaign polling data and the campaign’s strategy to win swing states with a discussion of carving up Ukraine and payoffs from Ukranian and Russian oligarchs, the President’s defense attorney remained in regular contact with Manafort’s lawyer to learn about the interrogations. After prosecutors told Judge Amy Berman Jackson on November 26 that Manafort had been lying rather than cooperating — in significant part, it would become clear, to protect his Russian spy business partner — Rudy complained on the President’s behalf about “the un-American, horrible treatment of Manafort.” Not long later, Trump would call Manafort “very brave” for (among other things) lying to prosecutors to protect his Russian spy business partner.

Eric Swalwell cooperates with the FBI and cuts off the Chinese intelligence officer trying to recruit him

According to a recent Axios piece witten without context, when the FBI approach Eric Swalwell and told him a woman volunteering with his campaign was a Chinese spy, he cooperated with the FBI and cut off all contact with her.

A statement from Swalwell’s office provided to Axios said: “Rep. Swalwell, long ago, provided information about this person — whom he met more than eight years ago, and whom he hasn’t seen in nearly six years — to the FBI. To protect information that might be classified, he will not participate in your story.”

What happened: Amid a widening counterintelligence probe, federal investigators became so alarmed by Fang’s behavior and activities that around 2015 they alerted Swalwell to their concerns — giving him what is known as a defensive briefing.

Swalwell immediately cut off all ties to Fang, according to a current U.S. intelligence official, and he has not been accused of any wrongdoing.

For this, GOP Majority Leader Kevin McCarthy and others argue, Swalwell should be kicked off the House Intelligence Committee.

McCarthy, however, is demanding answers from Pelosi and Rep. Adam Schiff, chair of that committee, after Swalwell said they knew about the report.

“This is a national security threat,” McCarthy said. “Now we have Eric Swalwell, who’s been swindled by the Chinese, but what’s even more interesting here is why did he attack the American Director of Intelligence John Ratcliffe’s report talking about the expansion of China spying throughout … just last week. He attacked … Ratcliffe defending China.”

“This man should not be in the intel committee. He’s jeopardizing national security,” he doubled down, adding, “When did Nancy Pelosi know of this and why did she maintain him on the committee? Adam Schiff, who has spent four years as chair worried about the foreign intervention into our country, knowingly keep an individual on the committee, if he knew, as Swalwell says, that he was with a Chinese individual who was a spy, who helped him run for Congress?”

I can only assume that McCarthy thinks that Swalwell cooperated too much with the FBI and should have lied or fired people instead.

 

The Clinesmith Sentencing Memos: Politically Biased Data In, Politically Biased Data Out

The government and Kevin Clinesmith — the FBI lawyer who altered a document relating to the Carter Page FISA application — submitted their sentencing memos in his case yesterday. The sentencing guidelines call for 0 to 6 months of prison time (as they did for the now pardoned Mike Flynn). Clinesmith asked for probation. The government asked for a sentence in the middle to top of that range — effectively calling for 3 to 6 months of prison time.

I think the government has the better argument on a key point, for reasons that I expect will be very persuasive to the judge in the case, James Boasberg, who is also the presiding FISA judge. The government argues that Clinesmith’s actions undermined the integrity of the FISA process.

The defendant’s conduct also undermined the integrity of the FISA process and struck at the very core of what the FISC fundamentally relies on in reviewing FISA applications: the government’s duty of candor. The FISC serves as a “check on executive branch decisions to conduct surveillance in order to protect the fourth amendment rights of U.S. persons[,]” but it can “serve those purposes effectively only if the applicant agency fully and accurately provides information in its possession that is material to whether probable cases exists.” Order, In Re Accuracy Concerns Regarding FBI Matters Submitted to the FISC, Docket No. Misc. 19-02, at 2 (FISA Ct. Dec. 17, 2019) (internal quotations and citations omitted). Accordingly, and particularly because FISA applications involve ex parte proceedings with no adverse party on the other side to challenge the facts, the government “has a heightened duty of candor to the [FISC].” Id. (internal quotations and citations omitted). In other words, “[c]andor is fundamental to [the FISC’s] effective operation[.]” Id. (citation omitted).

While I think the government’s case on Clinesmith’s understanding of the term “source” is not persuasive, this language is. It matters that Clinesmith did this within the context of the FISA process. Boasberg has a real incentive to ensure that those preparing FISA applications do think of Clinesmith as an object lesson about the duty of candor. I expect he’ll agree with the government and impose some prison term.

That said, the government sentencing memo goes off the rails on another point, one that badly discredits the John Durham investigation.

Both the government and Clinesmith provide the same explanation for why he did what he did: it was a shortcut to avoid filing a footnote with the FISA court.

Clinesmith explains it this way:

Kevin, however, reviewed the OGA email and realized that it did not specifically address the issue of whether Individual #1 had been a source. In a misguided attempt to save himself time and the embarrassment of having to backtrack on his assurance he had it in writing, Kevin forwarded the OGA’s response to the SSA (including the list of OGA reports) immediately after telling the SSA he would do so, but Kevin added the phrase notated in bold to reflect his understanding of Individual #1’s status:

[The OGA uses] the [digraph] to show that the encrypted individual . . . is a [U.S. person]. We encrypt the [U.S. persons] when they provide reporting to us. My recollection is that [Individual #1] was or is . . . [digraph] and not a “source” but the [documents] will explain the details.

OIG Report at 254-55.

And the government endorses that explanation in its sentencing memo (in language that further reinforces why Clinesmith should be treated sternly to preserve the integrity of the FISA process).

By his own words, however, it appears that the defendant falsified the email in order to conceal Individual #1’s former status as a source and to avoid making an embarrassing disclosure to the FISC. Such a disclosure would have likely drawn a strong and hostile response from the FISC for not disclosing it sooner since the FBI had the information in its possession before the first FISA application was filed. Indeed, in the June 19, 2017 instant message conversation with the SSA, the defendant wrote “at least we don’t have to have a terrible footnote” explaining that Individual #1 was a source. OIG Report at 253. While the defendant told OIG he was referring to how “laborious” it would be to draft a footnote explaining that Individual #1 had been an OGA source, see id., that reading is self-serving and absurd. Moreover, as a practical matter, how laborious would it have been to draft a single footnote to explain to the FISC that Individual #1 had been a source for the OGA. The SSA involved in the application understood the defendant to be referring to the terrible optic of just now, in the fourth application, disclosing to the Court that Individual #1 had been a source for another agency after failing to do so in all of the prior applications. See id. Such a disclosure would have undermined the probable cause in the FISA application and the overall investigation of Individual #1, which the defendant was able to avoid by altering the email.

That’s it. At that point, both sides have explained what happened as the kind of bureaucratic sloppiness that can be particularly dangerous where there’s no transparency. Case closed. Clinesmith may not have meant this maliciously but because it happened as part of the FISA process it was very problematic.

Except the government continues by suggesting, without evidence, that Clinesmith did what he did out of political bias.

The public record also reflects that political or personal bias may have motivated or contributed to his offense conduct. As noted in the OIG Report and PSR, the defendant was previously investigated, and ultimately suspended, for sending improper political messages to other FBI employees. See OIG Report at 256 n.400. For example, on the day after the 2016 presidential election, the defendant wrote “I am so stressed about what I could have done differently.” Id. When another FBI colleague asked the defendant “[i]s it making you rethink your commitment to the Trump administration[,]” the defendant replied, “Hell no,” and then added “Viva le resistance.” Id. The defendant was referred to the Office of Professional Responsibility for investigation for these and other related messages, and in July 2018 he was suspended, without pay, for 14 days. The defendant’s prior disciplinary infraction for expressing his political views in a work setting is a relevant aspect of his background. Indeed, it is plausible that his strong political views and/or personal dislike of the current President made him more willing to engage in the fraudulent and unethical conduct to which he has pled guilty. While it is impossible to know with certainty how those views may have affected his offense conduct, the defendant plainly has shown that he did not discharge his important responsibilities at the FBI with the professionalism, integrity, and objectivity required of such a sensitive job position. [my emphasis]

There are several reasons why this argument is not only problematic, but betrays an unbelievable stupidity about the investigation before Durham.

First, as prosecutors admit, they have no evidence that Clinesmith’s claimed bias influenced his actions. The bias “may have motivated” him, “it is plausible” that it did, “it is impossible to know with certainty how those views may have affected his offense conduct.” This kind of language has no place in a sentencing memo. They’re effectively admitting they have no evidence, but relying on their lack of evidence anyway. It’s the kind of shoddy unethical work they’re trying to send Clinesmith to prison for.

Worse still, as Lawfare has shown, the data the government is relying on here comes from a politically biased application of discipline within DOJ. Since 2011, the only cases of people being disciplined for expressing political views on their government devices involved people opposing Trump.

Five employees, the documents show, have been disciplined for private communications using government devices in which they have criticized President Trump. But none, at least not since 2011, has been disciplined for similar conduct with respect to presidential candidates Hillary Clinton or Mitt Romney, or President Barack Obama—or for praising Trump.

[snip]

The verdict is now in, at least for the past four major-party presidential candidates, one of whom served as president of the United States for eight full years. FBI employees who voiced political sentiments in favor of or opposed to Clinton, Obama and Romney did not face consequences—nor did those who praised Trump. Those who criticize the current president appear to be the only people subject to discipline.

Lawfare raises the example of an FBI agent who — unlike Clinesmith, Lisa Page, or Peter Strzok — was running informants targeting Hillary in the Clinton Foundation investigation during the campaign who expressed clear bias. That person — clearly identified as biased by the same Inspector General who identified Clinesmith’s bias — wasn’t disciplined. And there are reports that a key witness in the Durham probe, Bill Barnett, similarly expressed pro-Trump bias on his devices. No one has done an IG Report into whether Barnett’s self-described role in single-handedly preventing the Mueller team from concluding that Mike Flynn lied to protect President Trump reflected improper political bias, much less sent him home for two weeks without pay. You can’t treat OPR’s treatment of biased FBI employees as valid for sentencing because it has already been demonstrated to be itself biased in the same way it treats as discipline-worthy.

Most importantly, you’d have to be fucking stupid to believe that supporting the FISA application of Carter Page in June 2017 would inherently reflect any anti-Trump bias. Even on the first application, the claim that targeting Page would be a way to hurt Trump was a bit of a stretch. At that point, the Trump campaign had very publicly distanced themselves from him because of his embarrassing ties to Russia. Thus, if the FBI treated Trump’s public statements with any weight, then they would be right to view Trump as victimized by Page, someone pushing his pro-Russian views far beyond what the candidate supported, someone removed from the campaign for precisely that reason. That’s one of the potential problems arising from a suspected foreign agent working on a campaign, that the person will make policy commitments that the candidate doesn’t support on behalf of the foreign country in question. Still, you might argue (and Bill Barr has argued) that the FBI targeted Page as a way to collect campaign emails, so one might make some claim to support the case that by targeting Page the FBI was targeting Trump with the October 2016 application.

But Clinesmith wasn’t in the loop on the non-disclosure of Page’s ties with CIA on that first application.

Kevin was not aware of that information, however. When he assisted the FBI’s efforts to obtain the initial FISA warrant, Kevin knew of no prior relationship between Individual #1 and the OGA. And he was not involved in any discussions—including the one discussed above between the case agent and DOJ attorney—concerning whether or not to include information about that relationship in the FISA application. As was typical, the DOJ attorney worked primarily with the case agent to collect and develop information for the FISA application. The first time Kevin was asked to inquire into whether, and to what extent, Individual #1 had a relationship with the OGA was in connection with the fourth and final application.

To suggest that someone would target Page in June 2017 because of anti-Trump bias, though, takes gigantic flights of fancy. Already in October 2016, it was clear that Page (like every other person originally targeted under Crossfire Hurricane) was using Trump, attempting to monetize his access to Trump to get a plush deal to start a think tank that, in his case, would have been funded by the Russian government. Page boasted to Stefan Halper the Russians had offered him an “open checkbook.”

But even before the first renewal in January 2017, Page had victimized Trump in the way that is dangerous for counterintelligence cases. When he was in Russia in December 2016 — at a time when he was still hoping to get a think tank funded by the Russian government — Page claimed to speak on behalf of Trump with respect to Ukraine policy.

According to Konstantin Kilimnik, Paul Manafort’s associate, Page also gave some individuals in Russia the impression that he had maintained his connections to President-Elect Trump. In a December 8, 2016 email intended for Manafort, Kilimnik wrote, “Carter Page is in Moscow today, sending messages he is authorized to talk to Russia on behalf of DJT on a range of issues of mutual interest including Ukraine.”

There’s no record that Page made those representations with the approval of Trump. As such, Page’s representations risked undermining Trump’s ability to set his own foreign policy, whatever it was.

By June, moreover, Page had been totally marginalized by Trump’s people. The fourth warrant served significantly to obtain encrypted content from a phone Page had destroyed when he came under investigation. Tactically, there’s almost no way that that application would have generated new content involving Trump’s people because they were no longer talking to Page. So there’d be no political advantage to targeting him, neither based on the potential content the FBI might collect nor on any political taint from a guy the campaign had loudly dissociated from nine months earlier. Indeed, if your goal was to paint Trump as a pro-Russian asset, focusing on Page — the guy Trump himself had distanced himself from — is the last thing you’d do in June 2017. It’s just a profoundly stupid attack from Durham’s prosecutors, one with no basis in logic or (as the prosecutors admit) evidence.

In short, not only does the gratuitous, evidence-free insinuation that Clinesmith did what he did out of political bias misrepresent the biased quality of the targeting of those OPR investigations, but it fundamentally misunderstands why the FBI would investigate the infiltration of a campaign by a suspected foreign agent. Someone infiltrating Trump’s campaign on behalf of Russia could and — in Page’s misrepresentations in Moscow in December 2016 — did harm Trump. That’s a harm the FBI is paid to try to prevent. Here, prosecutors are trying to criminalize Clinesmith’s efforts to protect Trump from that kind of damage.

After making it clear in his first official filings that Durham’s team didn’t understand the investigation they were investigating, in this one, his prosecutors make it crystal clear they don’t understand how, if an agent of a foreign power were to hypothetically infiltrate a political campaign (which is what the FBI had good reason to believe in October 2016 and more evidence to believe by December 2016), it could be damaging to the campaign and to the President and to the country. That’s not just dangerous malpractice given their involvement in this case, but it betrays a really basic level of stupidity about how the world works.

The government is right that Clinesmith’s alteration of a document should be treated aggressively given that it occurred as part of the FISA process. But oh my goodness has the government discredited both this sentencing filing and the larger Durham investigation by betraying continued ignorance about the investigation, the politicized nature of the evidence they’re getting, and basic facts about counterintelligence investigations.

The Investigations into the Russian Investigation Have Lasted 69% Longer than the Russian Investigation Itself

The AP just broke the news that Bill Barr made John Durham a Special Counsel back in October so Durham can continue to investigate the Russian investigation after Joe Biden becomes President. Given the indications that Billy Barr had closed down the remaining aspects of the Russian investigation by September 18, and that Jeffrey Jensen closed his investigation by October 22, here are the presumed dates of the Russian investigation and some of the known investigations into the Russian investigation.

The investigations into the Russian investigation, combined, have lasted 2557 days. And this is not an inclusive list (for example, it doesn’t include John Bash’s investigation into the unmasking of Trump officials, which found no wrongdoing).

Even without all the investigations included, the investigations into the Russian investigation have, thus far, lasted 69% longer than the investigation itself.

And it’s still going.

 

[Photo: National Security Agency, Ft. Meade, MD via Wikimedia]

The Frothy Right Proves Trump Buried 7 Details of Russian Outreach by Wailing about Carter Page

The other day, the government released a spreadsheet that the FBI used to validate the Steele dossier.

The spreadsheet shows that, if the Steele dossier included disinformation, the disinformation was really well crafted, because the disinformation was close enough to the truth to make known events — like Paul Manafort’s expanding corruption scandal — appear to confirm the dossier.

It also shows that when John Solomon claimed, in 2019, that the spreadsheet “was a sea of blanks,” he was wrong.

Multiple sources familiar with the FBI spreadsheet tell me the vast majority of Steele’s claims were deemed to be wrong, or could not be corroborated even with the most awesome tools available to the U.S. intelligence community. One source estimated the spreadsheet found upward of 90 percent of the dossier’s claims to be either wrong, nonverifiable or open-source intelligence found with a Google search.

In other words, it was mostly useless.

“The spreadsheet was a sea of blanks, meaning most claims couldn’t be corroborated, and those things that were found in classified intelligence suggested Steele’s intelligence was partly or totally inaccurate on several claims,” one source told me.

Given the redactions, it is unclear whether the redacted material affirmatively disproves claims from the dossier or provides partial corroboration. Since I’ve argued the dossier was problematic for longer than even the frothers, I don’t have a stake in that. But the spreadsheet in no way was full of blanks. There are relatively few blank entries in the spreadsheet.

Which means, if it was disinformation, it succeeded in wasting a lot of the FBI’s time.

But a potentially more important detail from the spreadsheet is that it shows the Carter Page FISA collection was useful in testing the dossier’s claims. Probably, given other soft corroboration and Igor Danchenko’s claims to have two independent sources backing the claim, the FISA collection produced evidence that made it harder to rule out a meeting between Igor Sechin and Page (which is what the Mueller Report ultimately concluded, that they couldn’t rule it out; 302s show there was time in Page’s schedule he didn’t account for).

And Trump has succeeded in burying that useful intelligence, even the intelligence collected during a period when — the bipartisan SSCI Report concluded — the FISA application targeting Page was appropriate.

In September, the FISA Court unsealed an opinion explaining its decision to sequester the intelligence collected under the Carter Page orders. The order reveals that, when the Court asked whether it should treat the first two applications targeting Page the same way it would treat the two for which DOJ had withdrawn probable cause determination, DOJ declined to do so.

In fact, in response to the Conrt’s directive to explain why retaining the Page FISA information “in the manner intended by the government, and any contemplated use or disclosure of it,” comport with§§ 1809(a)(2) and 1827(a)(2), Jan. 7, 2020, Order at 2, the government declined to argue, even alternatively, that those provisions do not apply ( or apply differently) to information obtained under the first two dockets. See Feb. 5, 2020, Resp. at 28-29. Under the circumstances, the Court will assume that§§ l 809(a)(2) and l 827(a)(2) apply to information acquired under color of the first and second dockets just as, per the government’s admission, they apply to information acquired under color of the third and fourth.

This had the result that, even though DOJ itself did not withdraw its probable cause determination, and even though a bipartisan committee at SSCI believed the initial applications were merited, all four applications targeting Page would be treated as if the applications were improper.

DOJ did not tell the FISC that it was (and probably still is) criminally investigating several people involved in these applications, meaning the FISC opinion sequestering case file information would be make necessary source information unavailable for anyone targeted in that investigation to show that the applications were reasonable.

That may have been part of the point.

And the Steele dossier spreadsheet shows in tangible form that useful information — whether it corroborated suspicions against Page or disproved them — has been sealed permanently as a result. The spreadsheet redacts information on the following topics because of FISC’s decision to sequester everything collected under the Page applications:

I get why the FISC would want to rule aggressively to protect Carter Page’s privacy, and I’m fine with the decision.

But this intelligence seems like it would be really useful to understanding the Russian operation, even if Page was targeted by Russian disinformation. Indeed, this intelligence would be really important to understand the nature of the disinformation Russia fed the US.

The decision by Trump’s DOJ not to stand by its earlier decision that the first two applications were appropriate had the effect, then, of burying intelligence on Trump and the Russian operation.

Which was likely part of the point.

The Desperation of the Jeffrey Jensen Investigation Already Made Clear that John Durham Won’t Indict

Yesterday, a sick man called into Maria Bartiromo’s show and wailed that his opponents had not been indicted.

Bartiromo: Mr. President. We now know from these documents that John Ratcliffe unveiled that it was Hilary Clinton’s idea to tie you to Russia in some way. It was successful. The whole country was talking about it for two and a half years. But what comes next, Mr. President? We can have all of these documents, we can see exactly what happened but unless John [Durham] comes out with a report or indictments unless Bill Barr comes out with a — a — some kind of a ruling here, do you think this is resonating on the American people?

Trump: Unless Bill Barr indicts these people for crimes, the greatest political crime in the history of our country, then we’re going to get little satisfaction unless I win and we’ll just have to go, because I won’t forget it. But these people should be indicted, this was the greatest political crime in the history of our country and that includes Obama and it includes Biden. These are people that spied on my campaign and we have everything. Now they say they have much more, OK? And I say, Bill, we’ve got plenty, you don’t need any more. We’ve got so much, Maria, even — just take a look at the Comey report, 78 pages of kill, done by Horowitz, and I have a lot of respect for Horowitz, and he said prosecute. He recommended prosecute and they didn’t prosecute. I was — I couldn’t believe it, but they didn’t do it, because they said we have much bigger fish to fry. Well, that’s OK, they indicted Flynn for lying and he didn’t lie. They destroyed many lives, Roger Stone, over nothing. They destroyed lives. Look at Manafort, they sent in a black book, it was a phony black book, phony, they made up a black book of cash that he got from Ukraine or someplace and he didn’t get any cash.

In the comment, he described speaking directly to Billy Barr about the urgency of prosecuting his political opponents.

In response to this attack, Billy Barr has started telling Republican members of Congress that John Durham isn’t going to indict before the election.

Attorney General Bill Barr has begun telling top Republicans that the Justice Department’s sweeping review into the origins of the Russia investigation will not be released before the election, a senior White House official and a congressional aide briefed on the conversations tell Axios.

Why it matters: Republicans had long hoped the report, led by U.S. Attorney John Durham, would be a bombshell containing revelations about what they allege were serious abuses by the Obama administration and intelligence community probing for connections between President Trump and Russia.

  • “This is the nightmare scenario. Essentially, the year and a half of arguably the number one issue for the Republican base is virtually meaningless if this doesn’t happen before the election,” a GOP congressional aide told Axios.
  • Barr has made clear that they should not expect any further indictments or a comprehensive report before Nov. 3, our sources say.

Barr is excusing the delay by saying that Durham is only going to prosecute stuff he can win.

What we’re hearing: Barr is communicating that Durham is taking his investigation extremely seriously and is focused on winning prosecutions.

  • According to one of the sources briefed on the conversations Barr said Durham is working in a deliberate and calculated fashion, and they need to be patient.
  • The general sense of the talks, the source says, is that Durham is not preoccupied with completing his probe by a certain deadline for political purposes.

This back and forth represents a fundamental misunderstanding of what must be going on.

The Durham investigation should not, at this point, be considered separately from the Jeffrey Jensen investigation attempting to invent a reason to blow up the Flynn prosecution. That’s been true since Barr appointed Jensen because Durham hadn’t yet discovered anything to dig Sidney Powell out of the hole she had dug Flynn. But it’s especially true now that documents that would be central to the Durham inquiry are being leaked left and right — whether it’s the report that the FBI knew that Igor Danchenko had been investigated (like Carter Page and Mike Flynn) as a possible Russian agent, or specific details about when the FBI obtained NSLs on Mike Flynn.

The investigative integrity of the Durham investigation has been shot beyond recovery.

Plus, the sheer desperation of the Jensen investigation raises real questions about whether a credible investigation could ever find anything that could sustain a prosecution, in any case. That’s because:

  • Jensen has repeatedly provided evidence that proves the opposite of what DOJ claims. For example, the Bill Priestap notes that DOJ claimed were a smoking gun actually show contemporaneous proof for the explanation that every single witness has offered for Mike Flynn’s interview — that they needed to see whether Flynn would tell the truth about his calls with Sergey Kisklyak. Plus, now there’s a Priestap 302, one DOJ is hiding, that further corroborates that point. That evidence blows all the claims about the centrality of the Logan Act to interviewing Flynn out of the water, and it’s already public.
  • Jensen’s investigators submitted altered exhibits to sustain easily disprovable claims. DOJ has claimed that this tampering with evidence was inadvertent — they simply forgot to take sticky notes off their files. That doesn’t explain all the added dates, however, undermining their excuse. Moreover, if they didn’t intentionally tamper with evidence, they’re left claiming either that they haven’t read the exhibits they’ve relied on thus far in this litigation, or that they’re so fucking stupid that they don’t realize they’ve already disproven their own assumptions about dates. Add in the way their “errors” got mainlined to the President via a lawyer meeting with Trump’s campaign lawyer, and the whole explanation gets so wobbly no prosecutor would want to proceed toward prosecution with problems that could so easily be discoverable (or already public).
  • Jensen’s investigators got star witness William Barnett to expose himself as a partisan willing to forget details to help Trump. Along with an analyst that was skeptical of the Flynn case (but who was moved off before the most damning evidence came in), Barnett would need to be the star witness in any case alleging impropriety in the investigation. But rather than hiding Barnett’s testimony and protecting his credibility, Jensen made a desperate bid to get his claims on the record and make it public. And what the 302 actually shows — even without a subpoena of Barnett’s personal ties and texts sent on FBI phones — is that in his interview, Barnett claimed not to understand the case (even though documents he filed show that he did, contemporaneously), and either did not remember or deliberately suppressed key evidence (not least that Flynn told Kislyak that Trump had been informed of his calls).  The 302 further showed Barnett presenting as “truth” of bias claims that instead show his willingness to make accusations about people he didn’t work with, even going so far as to repackage his own dickish behavior as an attempt to discredit Jeannie Rhee. Finally, by hiding how many good things Barnett had to say about Brandon Van Grack, DOJ has made it clear that the only thing Barnett can be used for is to admit that he, too, believes Flynn lied, didn’t have a problem with one of the key investigators in the case, and that his views held sway on the final Mueller Report. Had Durham managed this witness, Barnett might have been dynamite. Now, he would be, at best, an easily discredited partisan.

Jensen is working from the same evidence that Durham is. And what the Jensen investigation has shown is that it takes either willful ignorance or deliberate manipulation to spin this stuff as damning. And in the process, Jensen has destroyed the viability of a witness and possibly other pieces of evidence that any credible prosecution would use.

DOJ might make one last bid in giving Trump what he wants, allegations against his adversaries, by using the initial response in the McCabe and Strzok lawsuits as a platform to make unsubstantiated attacks on them (DOJ got an extension in both cases, but one that is still before the election). But those attacks will crumble just like the Jeffrey Jensen case has, and do so in a way that may make it easier for McCabe and Strzok to get expansive discovery at the underlying actions of people like Barnett.

Billy Barr has largely shot his wad in drumming up accusations against Trump’s critics. And along the way, he has proven how flimsy any such claims were in the first place.

DOJ Decides Leaked, Inaccurate DOJ IG Materials Are Awful

The NYT has a story–on which Michael Shear, who is home in quarantine with his spouse after catching COVID in the White House’s superspreader cluster, has the lead byline–on DOJ’s complicit role in separating children from their parents.

It describes how five border-state US Attorneys tried to avoid imposing the draconian policies masterminded by Stephen Miller (who, like Shear, got infected in Trump’s super-spreader event). But those US Attorneys were overruled by Jeff Sessions and Rod Rosenstein. Those findings appear in a draft DOJ IG Report, which has been sent to DOJ for comment, but not yet published.

The five U.S. attorneys along the border with Mexico, including three appointed by President Trump, recoiled in May 2018 against an order to prosecute all undocumented immigrants even if it meant separating children from their parents. They told top Justice Department officials they were “deeply concerned” about the children’s welfare.

But the attorney general at the time, Jeff Sessions, made it clear what Mr. Trump wanted on a conference call later that afternoon, according to a two-year inquiry by the Justice Department’s inspector general into Mr. Trump’s “zero tolerance” family separation policy.

“We need to take away children,” Mr. Sessions told the prosecutors, according to participants’ notes. One added in shorthand: “If care about kids, don’t bring them in. Won’t give amnesty to people with kids.”

Rod J. Rosenstein, then the deputy attorney general, went even further in a second call about a week later, telling the five prosecutors that it did not matter how young the children were. He said that government lawyers should not have refused to prosecute two cases simply because the children were barely more than infants.

Passages of the report citing John Bash, who recently resigned his position as US Attorney for WD TX only to be replaced by a Billy Barr flunky, are quoted twice.

“Those two cases should not have been declined,” John Bash, the departing U.S. attorney in western Texas, wrote to his staff immediately after the call. Mr. Bash had declined the cases, but Mr. Rosenstein “instructed that, per the A.G.’s policy, we should NOT be categorically declining immigration prosecutions of adults in family units because of the age of a child.”

[snip]

In a briefing two days after Christmas in 2017, top Justice Department officials asked Mr. Bash for statistics from the pilot program, conducted by his predecessor, that could be used to develop “nationwide prosecution guidelines.” Mr. Bash, a former White House adviser, did not receive a follow-up request for the information. Thinking that the idea had been abandoned, he did not provide it.

And there’s at least one other prosecutor quoted — revealing that the no-tolerance policy targeting children let some far more serious criminals go free — who could be him.

Border Patrol officers missed serious felony cases because they were stretched too thin by the zero-tolerance policy requiring them to detain and prosecute all of the misdemeanor illegal entry cases. One Texas prosecutor warned top Justice Department officials in 2018 that “sex offenders were released” as a result.

The article itself is based off a draft copy of the report and interviews with three anonymous officials.

This article is based on a review of the 86-page draft report and interviews with three government officials who read it in recent months and described its conclusions and many of the details in it.

Bash should not have had access to this entire report to review his own role in it. Past practice would have suggested he get just those passages that pertain to him directly (though this report appears to cover his time both at Main DOJ and as a US Attorney). But he would have access to the passages that quote him directly.

The article is most amusing, however, for the response from DOJ, which complains about an inaccurate DOJ IG Report and improper leaks.

Alexa Vance, a spokeswoman for the Justice Department, disputed the draft report and said the Homeland Security Department referred cases for prosecution.

“The draft report relied on for this article contains numerous factual errors and inaccuracies,” she said. “While D.O.J. is responsible for the prosecutions of defendants, it had no role in tracking or providing custodial care to the children of defendants. Finally, both the timing and misleading content of this leak raise troubling questions about the motivations of those responsible for it.”

As I have laid out, the DOJ IG Report on Carter Page has numerous factual errors, just some of which they’ve corrected. The central complaint in the parallel Lisa Page and Peter Strzok Privacy Act lawsuits about the release of their texts is that those were released improperly, both as to timing and legality, and led to misleading interpretations of what the texts mean. Both of those lawsuits implicate a sworn declaration made by Rod Rosenstein (who is badly implicated by this report and who issued a statement to the NYT, suggesting he could be one of the anonymous sources as well). The Rosenstein statement in the Page and Strzok lawsuits will test how credible his claims are about his own actions in response to illegal requests from the President.

In other words, the entire article is thick with irony and revenge. And it will surely focus more scrutiny on the denials that DOJ issues once it is released after the election.

But none of that helps the infants who got separated from their parents.

With a Charitable Description that Bill Barnett Was “Confus[ed]” Jim Comey Undercuts the Agent’s Entire Interview

Long into yesterday’s Jim Comey hearing, Lindsey Graham suddenly called a break. I got the feeling, watching him, that he had finally figured out the hearing was having the opposite effect as he had intended. Jim Comey was repeatedly explaining the import of the Russian investigation, distinguishing the Carter Page application from the rest of the investigation, and Democrats were reviewing all the things the Committee could have been doing rather than chasing three year old allegations.

After the break, the remaining Senators (John Kennedy and Marsha Blackburn) and Lindsey Graham seemed intent on dirtying up Comey a bit, even if required discussing stuff that had nothing to do with Carter Page.

Still, this exchange between Comey and Lindsey also didn’t seem to go the way Lindsey wanted. In it, Jim Comey undercut the credibility of the William Barnett 302 in plenty of time for John Gleeson or Emmet Sullivan’s clerks to use it in the Flynn motion to dismiss opinion. First, Lindsey asked Comey if he was aware that Barnett didn’t believe Flynn committed a crime.

Lindsey Graham: Are you aware that Mr. Barnett, who is the lead investigator of the Flynn case recently said that he did not believe there was a crime involving General Flynn?

Jim Comey: I read his 302 and I think it does say he thought that before January 5, or before Flynn was interviewed.

Comey answered that that was true before January 24. Implicit in Comey’s answer (and something that Gleeson pointed out explicitly in Tuesday’s hearing) is that when Barnett said he “believed FLYNN lied in the interview to save his job,” Barnett was confirming that Flynn had committed a crime, lying to the FBI.

Lindsey ignored that though, going on to misstate Barnett’s testimony in a significant way.

Lindsey: How normal is it for the lead investigator to believe that the person he’s investigating didn’t commit a crime, and went so far as to say he thought the whole team was out to get Trump. Is that a normal thing in the FBI? Is that something the court should consider as to whether or not this is a legitimate prosecution?

Barnett did not say “the whole team was out to get Trump.” He said, “there was a ‘get TRUMP’ attitude by some at the SCO,” and specifically excluded Brandon Van Grack from that (though DOJ hid that by redacting Van Grack’s name). He then said “it was not necessarily ‘get TRUMP’ but more the conviction there was ‘something criminal there.'” Barnett’s most significant claims to substantiate this involve a real lead Weissmann chased down (involving Manafort and Tom Barrack), and a description of himself being a dick to Jeannie Rhee because she was doing her job; both involve people he didn’t work with closely.

In response to Lindsey’s observation that Barnett repeatedly stated — in response to Jeffrey Jensen’s cues — that he didn’t think there was evidence of a crime against Flynn, Comey pointed out the fundamental problem with the entire 302. This wasn’t a criminal investigation. It was a counterintelligence investigation.

Comey: I think Mr. Barnett was confusing the nature of the investigation which is a little bit concerning, if he was working on it. It was a counterintelligence investigation, not a criminal investi–

Lindsey: No, see, here’s the point, Mr. Comey. You set Flynn up to get prosecuted. This was a counterintelligence investigation. And there was no there there. This man was the incoming National Security Advisor, he had every reason in the world to be talking to the Russians about changing policy, but this whole rogue thing, setting up an interview in the White House, going around normal procedures bothered a lot of people.

After interrupting Jim Comey as he was pointing out how Barnett’s own 302 discredits every one of his claims [even ignoring that Barnett claimed to be ignorant of four known pieces of evidence], Lindsey nevertheless repeats the point (and then goes on to misread some texts about liability insurance that Barnett himself had debunked in his 302).

This was a counterintelligence investigation.

The fact that Jeffrey Jensen kept asking about crimes is proof that Jensen wants the investigation to be something other than virtually every witness, except Barnett, has testified both contemporaneously, and since. Even answering the question about what crimes he saw seems to suggest that Barnett didn’t understand what he was doing, didn’t understand that he was conducting a counterintelligence investigation.

Only, that’s not what Bill Barnett said in January 2017, just weeks before the interview, when he drafted a closing communication for the Flynn investigation.

The FBI opened captioned case based on an articulable factual basis that CROSSFIRE RAZOR (CR) may wittingly or unwittingly be involved in activity on behalf of the Russian Federation which may constitute a federal crime or threat to the national security.

Contrary to Comey’s least-damning interpretation, Bill Barnett wasn’t confusing whether this was a criminal investigation or a counterintelligence one. He noted in January 2017 that Flynn might have been unwittingly used by the Russians (and reading the transcripts, it’s obvious how Kislyak played to Flynn’s resentments and Trump’s ego.

When Barnett focused on crimes, rather than national security threats, he was playing a role.

And in playing that role, his interview will not withstand the kind of scrutiny he may one day face if — for example — his claims about Andrew McCabe’s micro-management get him deposed as part of McCabe’s lawsuit.

Lindsey Graham, Chuck Grassley, and Mike Lee Exhibit Utter Ignorance about FBI Certification on FISA Applications

Jim Comey’s testimony in Lindsey’s Graham’s purported investigation of FISA — by which Lindsey means using the Carter Page FISA application as a stand-in for the Russian investigation more generally while remaining silent about both DOJ IG findings that the problems identified with the Page application are true more generally, and about ongoing 702 abuses under Bill Barr and Chris Wray — just finished.

As a Comey hearing connoisseur, it wasn’t bad. Notably, he repeatedly refused to answer questions for which the presumptions were false.

But as a connoisseur of hearings on FISA and FBI oversight, it was an atrocity.

This hearing was meant to talk about the dangers of counterintelligence investigations that unfairly treat people as Russian agents, meaning Page. But by my count, on at least 19 occasions, Republicans raised the investigation into Christopher Steele’s primary subsource, Igor Danchenko, for being a suspected Russian Agent. The investigation lasted from 2009 to 2011. It used many of the same tactics used against Page, Mike Flynn, and Paul Manafort. While the FBI closed the investigation in 2011 because Danchenko left the country — meaning they never affirmatively decided he wasn’t a Russian spy — neither did they decide he was.

That makes Danchenko exactly like Carter Page, someone once suspected of and investigated over a period for being a Russian Agent, but about whom the investigation was inconclusive, with remaining unanswered questions.

If you believe in due process in this country, you treat Igor Danchenko exactly like you’d like Carter Page to be treated.

And Republicans — starting and ending with Lindsey Graham — over and over again — stated that Danchenko was a suspected Russian agent in 2016 (which is plausible but for which there is no evidence) and even, repeatedly, stated as fact that he was a Russian spy. Lindsey claimed at one point that “the Primary Subsource was a Russian agent.” He later called Danchenko, “Igor the Russian spy.”

Republicans today did everything they complain was done with Carter Page, but they did so in a public hearing.

Danchenko may very well have been still suspect in 2016; that may very well have been something to consider when vetting the dossier (though as Comey noted, it could either corroborate that Danchenko had the sources he claimed or raise concerns about Russian disinformation). That absolutely should have been a factor to raise concerns about Russian disinformation. But everything in the public record shows that Danchenko was, in 2016, in exactly the same status Page will be in 2022, someone against whom an inconclusive foreign agent investigation was closed years earlier.

Still worse, at a hearing in which Lindsey Graham and other Republican Senators claimed they wanted to fix the problems in the FISA process identified as part of the Carter Page application, one after another — including Graham, Chuck Grassley, Mike Lee, Josh Hawley, and Joni Ernst — betrayed utter ignorance about the role of the FBI Director’s certification in a FISA application.

By statute, the FBI Director (or National Security Advisor) certification requires a very limited set of information, basically explaining why the FBI wants to and can use a FISA warrant rather than a criminal warrant, because they believe the desired information in part pertains to a national security threat.

(6)a certification or certifications by the Assistant to the President for National Security Affairs, an executive branch official or officials designated by the President from among those executive officers employed in the area of national security or defense and appointed by the President with the advice and consent of the Senate, or the Deputy Director of the Federal Bureau of Investigation, if designated by the President as a certifying official–

(A)that the certifying official deems the information sought to be foreign intelligence information;

(B)that a significant purpose of the surveillance is to obtain foreign intelligence information;

(C)that such information cannot reasonably be obtained by normal investigative techniques;

(D)that designates the type of foreign intelligence information being sought according to the categories described in section 1801(e) of this title; and

(E)including a statement of the basis for the certification that—

(i)the information sought is the type of foreign intelligence information designated; and

(ii)such information cannot reasonably be obtained by normal investigative techniques;

Thanks to the declassification of the Carter Page FISA applications, we can see what the declaration Comey signed looked like. In 8 pages tracking the statutory requirement, it explains (in redacted language) what kind of foreign intelligence information FBI hoped to obtain from the FISA, and why normal investigative methods are not sufficient to achieve those objectives.

Not a shred of that declaration pertains to the underlying affidavit.

And Comey tried to alert people to this, over and over, in the hearing, stating that his certification was very limited, even while taking responsibility in the affidavit that he didn’t sign (and once, in response to a question from Lindsey, stating explicitly that he had not signed). Rather than asking him what his certification entailed and how he thought about that responsibility, Republican Senators entrusted with overseeing FISA insinuated over and over, falsely, that he should have known the underlying pieces of evidence used to obtain the FISA.

Maybe he should have. He frankly exhibited some awareness of what was in that.

But that’s not what the law requires. And if the Senate Judiciary Committee wants FBI Directors signing FISA applications to have that kind of granular awareness of case, they need to rewrite the law to mandate it.

Instead, they simply exhibited their utter lack of awareness of what FISA law requires.

Some of these Senators, notably Grassley, have been overseeing FISA for decades. Lindsey heads this committee. Mike Lee is easily among the Senators who is best informed about FISA. And yet none of them know — not even with a declassified application to read — what it is that the FBI Director certifies.

Billy Barr Releases 302 that Proves View of Pro Mike Flynn Agent Held Sway in Mueller Report Conclusions

Before I do a deep dive of the 302 that Billy Barr had released in yet another attempt to blow up the Mike Flynn prosecution, let me review the conclusion of the Mueller Report was with regards to whether President Trump even knew about Mike Flynn’s calls with Sergey Kislyak, much less ordered them.

Some evidence suggests that the President knew about the existence and content of Flynn’s calls when they occurred, but the evidence is inconclusive and could not be relied upon to establish the President’s knowledge.

[snip]

Our investigation accordingly did not produce evidence that established that the President knew about Flynn’s discussions of sanctions before the Department of Justice notified the White House of those discussions in late January 2017.

The conclusion is central to the finding that there was no proof of a quid pro quo. If Trump had ordered Flynn to undermine sanctions — as a sentencing memo approved by Main DOJ explained — it would have been proof of coordination.

The defendant’s false statements to the FBI were significant. When it interviewed the defendant, the FBI did not know the totality of what had occurred between the defendant and the Russians. Any effort to undermine the recently imposed sanctions, which were enacted to punish the Russian government for interfering in the 2016 election, could have been evidence of links or coordination between the Trump Campaign and Russia. Accordingly, determining the extent of the defendant’s actions, why the defendant took such actions, and at whose direction he took those actions, were critical to the FBI’s counterintelligence investigation.

That means the conclusion adopted by the Mueller Report is precisely the one that the FBI Agent who investigated Flynn, William Barnett, held, as described repeatedly in the interview done by Jeffrey Jensen in an attempt to undermine the Mueller prosecution.

With respect to FLYNN’s [redacted] with the Russian Ambassador in December 2016, BARNETT did not believe FLYNN was being directed by TRUMP.

The Mueller Report reached that conclusion in spite of the fact that — as Barnett describes it — in his second interview, Flynn said that Trump was aware of the calls between him and the Russian Ambassador.

During one interview of FLYNN, possibly the second interview, one of the interviewers asked a series of questions including one which FLYNN’s answer seemed to indicate TRUMP was aware of [redacted] between FLYNN and the Russian Ambassador. BARNETT believed FLYNN’s answer was an effort to tell the interviewers what they wanted to hear. BARNETT had to ask the clarifying question of FLYNN who then said clearly that TRUMP was not aware of [redacted]

Barnett then goes on a paragraph long rant claiming there was no evidence that Trump was aware.

BARNETT said numerous attempts were made to obtain evidence that TRUMP directed FLYNN concerning [redacted] with no such evidence being obtained. BARNETT said it was just an assumption, just “astro projection,” and the “ground just kept being retreaded.”

The claim that there was no evidence that Trump directed Flynn to undermine sanctions is false. I say that because Flynn himself told Kislyak that Trump was aware of his conversations with Kislyak on December 31, 2016, when Kislyak called up to let Flynn know that Putin had changed his mind on retaliation based on his call.

FLYNN: and, you know, we are not going to agree on everything, you know that, but, but I think that we have a lot of things in common. A lot. And we have to figure out how, how to achieve those things, you know and, and be smart about it and, uh, uh, keep the temperature down globally, as well as not just, you know, here, here in the United States and also over in, in Russia.

KISLYAK: yeah.

FLYNN: But globally l want to keep the temperature down and we can do this ifwe are smart about it.

KISLYAK: You’re absolutely right.

FLYNN: I haven’t gotten, I haven’t gotten a, uh, confirmation on the, on the, uh, secure VTC yet, but the, but the boss is aware and so please convey that. [my emphasis]

Flynn literally told the Russian Ambassador that Trump was aware of the discussions, but Barnett claims there was no evidence.

Now is probably a good time to note that, months ago, I learned that  Barnett sent pro-Trump texts on his FBI phone, the mirror image of Peter Strzok sending anti-Trump texts.

So Billy Barr has released a 302 completed just a week ago, without yet releasing the Bill Priestap 302 debunking some of the earlier claims released by Billy Barr in an attempt to justify blowing up the Flynn prosecution, much less the 302s that show that Flynn appeared to lie in his first interview with Mueller’s investigators (as well as 302s showing that KT McFarland coordinated the same story).

And the 302 is an ever-loving shit show. Besides the key evidence — that his claim that investigators didn’t listen to him even though the conclusion of the Mueller Report is the one that he says only he had — Barnett disproves his claims over and over in this interview.

Barnett’s testimony substantially shows five things:

  • He thought there was no merit to any suspicions that Flynn might have ties to Russia
  • He nevertheless provided abundant testimony that some of the claims about the investigation (specifically that Peter Strzok and probably Brandon Van Grack had it in for Flynn) are false
  • Barnett buries key evidence: he mentions neither that Flynn was publicly lying about his conversations with Sergey Kislyak (which every other witness said was driving the investigation), and he did not mention that once FBI obtained call records, they showed that Flynn had lied to hide that he had consulted with Mar-a-Lago before he called Sergey Kislyak
  • Jensen didn’t ask some of the most basic questions, such as whether Barnett thought he had to investigate further after finding the Kislyak call or who the multiple people Barnett claimed joked about wiping their phone were
  • Barnett believes that Mueller’s lawyers (particularly Jeannie Rhee and Andrew Weissmann) were biased and pushing for a conclusion that the Mueller Report shows they didn’t conclude, but he didn’t work primarily with either one of them and his proffered evidence against Rhee actually shows the opposite

According to the org charts included in the Carter Page IG Report (PDF 116), it appears that Barnett would have been on a combined Crossfire Hurricane team from July 31 to December 2016; the report says he was working on the Manafort case.

Then, he took over the Flynn case. He would have reported up through someone else who also oversaw the George Papadopoulos investigation, but he would not be part of that investigation.

Even after a subsequent reorganization, that would have remained true until the Mueller investigation, when — by his own description — Barnett remained on the Flynn team.

Early in his 302, Barnett described that he thought the investigation was “supposition on supposition,” which he initially attributed to not knowing details of the case. Much later in the interview, he said he, “believed there were grounds to investigate the other three subjects in Crossfire Hurricane; however, he thought FLYNN was the ‘outlier.'” which conflicts with his earlier claim.

By his own repeated description, Barnett did not open the Flynn case and did not understand why it had been opened (he doesn’t explain that this was an UNSUB investigation, which undermines much of what he says). Moreover, his complaints about the flimsy basis for the Flynn investigation conflict with what Barnett said in the draft closing memo for the investigation, which explained that the investigation was opened,

on an articulable factual basis that CROSSFIRE RAZOR (CR) may wittingly or unwittingly be involved in activity on behalf of the Russian Federation which may constitute a federal crime or threat to the national security.

[snip]

The goal of the investigation was to determine whether the captioned subject, associated with the Trump campaign, was directed and controlled by and/or coordinated activities with the Russian Federation in a manner which is a threat to the national security and/or possibly a violation of the Foreign Agents Registration Act, 18 U.S.C. section 951 et seq, or other related statutes.

A key detail here is that Barnett himself said part of this was an attempt to figure out whether Flynn may have unwittingly been targeted by Russia, which makes his focus on crime in the Jensen interview totally contradictory.

Barnett did explain that NSLs were written up in December but pulled back (these were also released last night, though not with the detail that they were withdrawn). He claimed not to know why the NSLs were withdrawn.

A National Security Letter (NSL) had been prepared to obtain “toll records” for a phone belonging to FLYNN. The request was “pulled back” prior to the records being obtained. Peter Strzok (STRZOK) was the individual who ordered the NSL be pulled back. BARNETT was not told why the NSL was pulled back.

In the draft closing that Barnett himself wrote, he explained that because Flynn was not at that point named as a possible agent of a foreign power, that limited the investigative techniques they might use.

The writer notes that since CROSSFIRE RAZOR was not specifically named as an agent of a foreign power by the original CROSSFIRE HURRICANE predicated reporting, the absence of any derogatory information or lead information from these logical source reduced the number of investigative avenues and techniques to pursue.

That’s also another reason (not noted by Barnett in this interview) why he didn’t get a 215 order.

BARNETT chose not to obtain records through FISA Business Records because he advised this process is comparatively onerous.

Note that Strzok’s order to withdraw the NSL is yet more proof that Strzok was not out to get Flynn.

Barnett also confirmed something else that Strzok has long said — that they chose not to use any overt methods during the election (unlike the Hillary investigation).

BARNETT was told to keep low-key, looking at publicly available information.

Again, this adds to the evidence that no one was out to get Trump.

Barnett also explains how Stefan Halper shared information about Flynn, and he — a pro-Trump agent skeptical of the investigation — decided to chase down the Svetlana Lokhova allegation.

The source reported that during an event [redacted] 2014 FLYNN unexpectedly left the event [redacted] The source alleged FLYNN was not accompanied by anyone other [redacted] BARNETT believed the information concerning [redacted] potentially significant and something that could be investigated. However, Intelligence Analysts did not locate information to corroborate this reporting concerning redacted] FLYNN, including inquiries with other foreign intelligence agencies. BARNETT found the idea FLYNN could leave an event, either by himself or [redacted] without the matter being noted was not plausible. With nothing to corroborate the story, BARNETT thought he information was not accurate.

Later on, Barnett seems to make an effort to spin his inclusion of the Lokhova information in the closing memo as an attempt to help Flynn, describing,

BARNETT wanted to include information obtained during the investigation, including non-derogatory information. BARNETT wanted to include [redacted] specifically [redacted] FLYNN. The [redacted] and FLYNN were only in the same country, [redacted], the same time on one occasion and at that time they were visiting different cities.

That is, something in the closing memo that has been spun as an attack on Flynn he here spins as an attempt to include non-derogatory information, to help Flynn.

I find it curious that the main reason Barnett dismissed this allegation is because he found it implausible that a 30-year intelligence officer would know how to leave a meeting unnoticed. But let it be noted that for over a year, Sidney Powell has suggested that chasing down this tip was malicious targeting of Flynn, and it turns out a pro-Trump agent is the one who chased it down.

In many places, Barnett’s narrative is a muddle. For example, early in his interview, he said that he worked closely with Analyst 1 and Analyst 2. Analyst 2 worked on the Manafort investigation. Barnett had to get the Flynn files from Analyst 1, suggesting Analyst 1 had a key role in that investigation. But then later in the interview, after explaining that Analyst 1, “believed the investigation was an exercise in futility,” Barnett then said that Analyst 3 “was the lead analyst on RAZOR.” Barnett described that Analyst 3 was “‘a believer’ due to his conviction FLYNN was involved in illegal activity,” but also described that Analyst 3 was the one who didn’t want to interview Flynn. But then Barnett explains several other people who did not want to interview Flynn, in part because the pretense Barnett wanted to use (that it was part of a security clearance) was transparently false.

Barnett then explains that he did not change his opinion about whether Flynn was compromised based on reading the transcript (it’s unclear whether he read just one or all of them) of Flynn’s call with Kislyak. He explained that he “did not see a potential LOGAN ACT violation as a major issue concerning the RAZOR investigation.”

There are several points about this request. First, Jeffrey Jensen is taking a line agent’s opinion about a crime as pertinent here, after Billy Barr went on a rant the other day about how line agents and prosecutors don’t decide these things (showing the hypocrisy of this entire exercise). Barnett’s account undermines the disinformation spread before that the Logan Act claim came from Joe Biden, disinformation which Jensen himself wrongly fed.  Significantly, Barnett does not appear to have been asked whether he thought the transcripts meant he had to investigate further. 

Barnett says “in hindsight” he believes he was cut out of the interview of Flynn, based solely on the norm that normally “a line agent/case agent would do the interview with a senior FBI official present in cases concerning high ranking political officials.” He doesn’t consider the possibility that Joe Pientka did it because he had been in the counterintelligence briefing with Flynn the previous summer, which is what the DOJ IG Report said.

He then says “There was another reorganization of the Crossfire Hurricane investigation after the 1/24/17 interview of Flynn. This conflicts, somewhat, with both the org charts Michael Horowitz did, but also texts already released showing the reorg started in the first days of January (though the texts are consistent with the initial plan for Barnett and Andy McCabe to interview Flynn and I don’t necessarily trust the DOJ IG Report over Barnett), but that was before a lot else happened.

Only after describing a post-interview reorganization does Barnett raise something that all the public record says happened earlier, that, “The FBI was reacting to articles being reported in the news, most notably an article written by Ignatius concerning [redacted] involving FLYNN to a Russian Ambassador.” But even here, Barnett does not talk (nor does he appear to have been asked) about Flynn lying to the press about the intercepts. In other words, Jensen’s investigators simply didn’t address what every single witness says was the most important factor at play in the decision to interview Flynn, his public lies about the calls with Kislyak.

In one place, Barnett claims that “base-line NSLs” were filed “after the article by Ignatius,” which would put it in mid-January, before the interview. Later, he says that “In February 2017, NSLs were being drafted with [SA3] instructing BARNETT what needed to be done,” putting it after Flynn obviously lied in his interview. At best, that suggests Barnett is eliding the timeline in ways that (again) don’t deal with the risk of Flynn’s public lies about the Kislyak call.

Barnett then claims that McCabe was running this (in spite of the involvement of SA3 and his earlier report — and Horowitz’s org chart, not to mention other evidence documents already released — showing the continued involvement of Strzok). Barnett also backed getting NSLs in early 2017, and even insisted, again, that they should have been obtained earlier. Jensen appears to be making a big deal out of the fact that Kevin Clinesmith approved the NSLs against Flynn in 2017.

BARNETT said he sent an e-mail to CLINESMITH on 02/01/2017 asking CLINESMITH about whether the predication information was acceptable, as it was the same information provided on the original NSL request in 2016. CLINESMITH told BARNETT the information was acceptable and could be used for additional NSLs.

There’s a lot that’s suspect about this line of questioning, not least that the predicate for the investigation as a whole was different than the one for Flynn. But I’m sure we’ll hear more about it.

A Strzok annotation of a NYT article that Lindsey Graham released makes it clear that by February 14, 2017, the FBI still hadn’t obtained the returns from most of the NSLs.

Barnett seems to suggest that as new information came in “in BARNETT’s opinion, no evidence of criminal activity and no information that would start a new investigative direction.” If he’s referring to call records (which is what the NSLs would have obtained) that is, frankly, shocking, as the call records would have shown that Flynn also lied about being in touch with Mar-a-Lago before calling Kislyak. It’s what Flynn was trying to hide with his lies! And yet Barnett says that was not suspect.

Then Barnett moved onto the Mueller team. He starts his discussion with another self-contradictory paragraph.

BARNETT was told to give a brief on FLYNN to a group including SCO attorney Jean Rhee (RHEE), [four other people], and possibly [a fifth] BARNETT said he briefly went over the RAZOR investigation, including the assessment that there was no evidence of a crime, and then started to discuss [redacted — probably Manafort] which BARNETT thought was the more significant investigation. RHEE stopped BARNETT’s briefing [redacted] and asked questions concerning the RAZOR investigation. RHEE wanted to “drill down” on the fees FLYNN was paid for a speech FLYNN gave in Russia. BARNETT explained logical reasons for the amount of the fee, but RHEE seemed to dismiss BARNETT’s assessment. BARNETT thought RHEE was obsessed with FLYNN and Russia and she had an agenda. RHEE told BARNETT she was looking forward to working together. BARNETT told RHEE they would not be working together.

First, by his own description, Barnett was asked to brief on Flynn, not on Manafort (or anyone else); he was still working Flynn and not (if Horowitz’s org chart is to be trusted) involved anymore with Manafort at all. So if he deviated from that, he wasn’t doing what he was supposed to do in the briefing, which might explain why people in the briefing asked him to return to the matter at hand, Flynn. Furthermore, in much of what comes later, Barnett claims the prosecutors overrode the agents (in spite of the fact that, as shown, the final conclusion of the report sided with Barnett). But Barnett here shows that from his very first meeting with Mueller prosecutors, he was the one being bossy, not the prosecutors.

Update: I’ve since learned that the redacted information pertains to the Flynn Turkey case. The point about Rhee still stands, however. Rhee was in charge of the Russian side of the investigation. She asked questions about the Russian side of the investigation. She was polite and professional. He responded by being an abusive dick. What this paragraph shows is that Barnett has a workplace behavior problem, and he used his own workplace behavior problem to try to attack the female colleague he was being an asshole to.

Barnett’s continued complaints about Rhee (and Weissmann) are nutty given that, as a Flynn agent, he wouldn’t have been working with them.

Barnett claims that,

In March or April 2017, Crossfire Hurricane went through another reorganization. All of the investigations were put together.

The timing coincides with, but the structure does not match, what appears in the Carter Page IG Report (though, again, I don’t necessarily assume DOJ IG got it right).

Then Barnett makes a claim that conflicts with a great deal of public facts:

On 05/09/2017, COMEY was fired which seemed to trigger a significant amount of activity regarding Crossfire Hurricane. Carter Page was interviewed three times and PAPADOPOULOS was also interviewed. Both investigations seemed to be nearing an end with nothing left to pursue. the MANAFORT case was moved from an investigative squad to a counter intelligence squad [redacted] The Crossfire Hurricane investigations seemed to be winding down.

The appointment of the SCO changed “everything.”

At least according to the Horowitz org chart, these weren’t his investigations. A list of interviews shows that FBI had not interviewed the witnesses to Carter Page’s trip before June 2017 (though it is true that the investigation into him was winding down). The details of the Papadopoulos investigation would have shown that it was after at least the first (and given the Strzok note about NSLs) after probably several more interviews before the FBI discovered that Papadopoulos tried to hide extensive contacts with Russians by deactivating his Facebook account. Mueller didn’t even obtain Papadopoulos’ Linked In account until July 7, 2017, and that was just the second warrant obtained by Mueller’s prosecutors, almost three months after he was appointed; that warrant would have disclosed Papadopoulos’ ties to Sergei Millian and further contacts with the Russians. Some of the earliest activity in the investigation pertain to Michael Cohen (in an investigation predicated off of SARs), with the Roger Stone investigation barely beginning in August, neither of which are included in Barnett’s comments. And Barnett makes no mention of the June 9 meeting, discovered only as a result of Congress’ investigations, which drove some of the early investigative steps.

Which is to say, the evidence seems to have changed everything. And yet he says it was Mueller.

And yes, Jim Comey’s firing is part of that. But as to that, Barnett has this ridiculous thing to say:

As another example [of a “get Trump” attitude] BARNETT said the firing of FBI Director COMEY was interpreted as obstruction when it could just as easily have been done because TRUMP did not like COMEY and wanted him replaced.

Well, sure, in the absence of the evidence that might be true. But not when you had Comey’s memos that described how, first of all, Trump had committed to keeping Comey on (meaning he didn’t not like Comey!) but afterwards had tried to intervene in an ongoing investigation. It’s possible Barnett did not know that in real time — it wasn’t his investigation — but it’s not a credible opinion given what is in the memos.

Barnett also claims, as part of his “proof” that people wanted to get Trump that,

Concerning FLYNN, some individuals in the SCO assumed FLYNN was lying to cover up collusion between the TRUMP campaign and Russia. BARNETT believed Flynn lied in the interview to save his job, as that was the most plausible explanation and there was no evidence to contradict it.

Yes. There is evidence. The evidence is that Flynn’s lies hid his consultations with Mar-a-Lago, about which he also lied.

In a passage similarly suggesting that KT McFarland told the same lies that Flynn did because she wanted to get the Singapore job, Barnett seems to refer to (and DOJ seems to have redacted) a reference to Brandon Van Grack (who is the only Mueller prosecutor whose name would span two lines).

If that is, indeed, a reference to Van Grack, then it means DOJ is hiding evidence that Van Grack (along with Strzok) was not biased against Flynn.

Note, too, that Barnett doesn’t reveal that McFarland only unforgot her conversations with Flynn after Flynn pled guilty, which has a significant bearing on how credible that un-forgetting was. Nor does he note that Mueller didn’t charge McFarland with lying. The Mueller Report almost certainly has a declination description for why they didn’t charge McFarland, which (if true), would make a second thing where Barnett’s minority opinion had been determinative for the actual report, in spite of his claim that the prosecutors were running everything.

Finally, the 302 notes that Barnett was asked about whether he “wiped” his own phone.

BARNETT had a cellular telephone issued by the SCO which he did not “wipe.” BARNETT did hear other agents “comically” talk about wiping cellular telephones, but was not aware of anyone “wiping” their issued cellular telephones. BARNETT said one agent had a telephone previously issued to STRZOK.

If this were even a half serious investigation, Barnett would have been asked to back that claim with names. He was not.

What Billy Barr and Jeffrey Jensen have done is show that the only witness they’ve found to corroborate their claims can’t keep his story straight from one paragraph to another, and claims to be ignorant of several central pieces of evidence against Flynn.

That’s all they have.


Given that this post takes such a harsh view on Barnett, reminder I went to the FBI in 2017 regarding someone with no ties to Trump but who sent me a text about (and denigrating) Flynn.