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George Papadopoulos’ Social Media Call Records Were Not Subpoenaed Until After His Interviews

I’ve been tracking questions about how aggressively (or not) the FBI investigated George Papadopoulos after receiving a tip, in July 2016, that he had heard the Russians bragging about having dirt in the form of emails from Hillary Clinton in April 2016. In this post, I showed that, given that they didn’t know about Ivan Timofeev until after his interviews, they could not even have started pursuing a warrant until after the first interview, at best (and didn’t know about the existence communications over a Section 702 provider with Timofeev until after both). In this post, I suggested that it looked like the FBI first obtained a preservation order for the device GSA had on him on March 9, 21 days after his second interview.

Since then two details have come out. First, this Peter Strzok/Lisa Page SMS text highlighted by Matt Tait suggests that as late as June 6, 2017, the Special Counsel’s office was still debating whether searching Section 702 presented a litigation risk (meaning Trump’s buddies are getting far more protection than the rest of us might be).

Then there’s a point that Eric Swalwell made in Monday’s hearing debating whether or not to reveal the Schiff memo. In response to Michael Turner’s suggestion that there was no evidence of “collusion” between Trump and Russia, Swalwell pointed out that only after the FBI challenged Trump aide claims did the Bureau find evidence to support a conspiracy.

George Papadopoulos I think is the canary in the coal mine. He was interviewed January 27, 2017, by FBI. He lied about his contacts over in London with the professor. He was interviewed again in February, and he lied. Only when the FBI showed the willingness to subpoena his Skype and Facebook logs did he come around 6 months later.

This makes it clear that the FBI had not even obtained call records from Papadopoulos (via an NSL or a subpoena) before the second interview, the standard for which is really low.

Again, this shows that, at least during that phase of the investigation, the FBI was moving very conservatively. The GOP keep complaining that Carter Page, who had been a suspected foreign agent for years, was targeted under FISA. But they’re not acknowledging that the FBI appears to have treated the other Trump aides with kid gloves. for nine months after the period when they obtained a real tip about their involvement.

[Photo: Emily Morter via Unsplash]

Ruin a Movie with a Name: Get Carter (Page)

[Get Carter by MGM c. 1971]

[NB: As always, check the byline before reading. ~Rayne]

After all the Nunes memo hubbub and the impending Democratic counterpart, erstwhile Trump campaign adviser Carter Page looks sketchier than ever after TIME reported this past Saturday that Page characterized himself as an “informal advisor to the Kremlin” back in 2013.

The FBI warned Page that same year that he was being recruited by spies; Page blew them off. During the following year the FBI obtained a FISA warrant on Page.

Page thought the FBI had retaliated against him — he knew his blow-off was pretty arrogant — but as much as he asked for trouble by saying they should focus on the Boston bombing, then as now, the body of his actions asked for more scrutiny.

Let’s take a step or two back and take a look at the bigger picture surrounding Page; the timeline here is a work in process and will be updated.


2010 — In New York City, Russian spies Igor Sporyshev, Victor Podobnyy, and Evgeny Buryakov began work on several economics-related objectives on behalf of Russia’s SVR ‘Directorate ER’; their efforts started shortly after guilty pleas by members of Russian ‘Illegals’ spy ring and their expulsion.

14 DEC 2012 — Bipartisan Magnitsky Act (Pub.L. 112–208) passed and signed into law.

XX JAN 2013Carter Page met Podobnyy in New York City at an Asia Society meeting where the topic was China and Chinese energy development. (specific date TBD).

2013 — Podobnyy and Sporyshev attempted to recruit Page. Special agents with the FBI’s New York Field Office Counterintelligence Division surveilled and investigated spies and Page.

XX JUN 2013 — FBI interviewed Page about his contacts with Russians and cautioned him he was being recruited (specific date TBD).

25 AUG 2013 — In a letter this date sent to an academic press, Page refers to himself as “an informal advisor to the staff of the Kremlin.”

13 APR 2013 — In response to the Magnitsky Act, Russian lawmakers banned 18 Americans from entering Russian Federation, including Preet Bharara, a judge and 12 other DOJ/DEA personnel from the Southern District of New York. Russia also barred adoptions of Russian children by U.S. citizens.

2014 — FBI obtains a FISA warrant to monitor Page‘s communications (specific date TBD).

26 JAN 2015 — Russian spy Buryakov arrested; he had non-official cover as an employee of Vnesheconombank. Igor Sporyshev and Victor Podobnyy had already left the country; both had diplomatic immunity. Case was under U.S. Attorney Preet Bharara’s office for Southern District of New York. Page‘s identity was masked and appeared in the complaint against the spies as “MALE-1.” (See Buryakov, et al complaint (pdf))

DEC 2015 — George Papadopoulos began work for Ben Carson’s presidential campaign as a foreign policy advisor.

Late 2015 — New York’s GOP chair Ed Cox was in contact with Page. It is not clear from Page‘s testimony how this contact occurred; Page uses the word volunteered more than once.

JAN 2016 — Page had at least one meeting with campaign officials based on his contact with Ed Cox; in his HPSCI testimony he said he met Corey Lewandowski. Page was an unpaid adviser. Unclear from testimony if Sam Clovis had Page sign an NDA now or later in the campaign, before the July trip to Moscow.

FEB 2016 — Papadopoulos left Carson’s campaign.

Early MAR 2016 — Sam Clovis recruited Papadopoulos to work for Trump’s campaign as a foreign policy advisor.

06 MAR 2016 — Clovis relayed to Papadopoulos that “a principal foreign policy focus of the campaign was an improved U.S. relationship with Russia,” according to court records related to Papadopoulos’ eventual indictment. Clovis later denied saying this.

14-21 MAR 2016 — Prof. Joseph Mifsud met twice with Papadopoulos; Mifsud brought to the second meeting “Olga” who posed as Putin’s niece.

XX MAR 2016 — Page had breakfast in “March-ish” timeframe with Sam Clovis in Falls Church, VA to discuss NDA and “general foreign policy topics.”

21 MAR 2016Page joined Trump campaign as one of five foreign policy advisors, including George Papadopoulos.

MAR-APR 2016 — Dialog continued between Papadopoulos, Mifsud, Olga Vinogradova (referred to as Olga Poloskaya in some earlier reports). [link, link]

24 MAR 2016 — Papadopoulos sends an email copying campaign foreign policy advisers and Sam Clovis, offering to set up “a meeting between us and the Russian leadership to discuss US-Russia ties under President Trump.”

28 MAR 2016 — Article: Donald Trump Hires Paul Manafort to Lead Delegate Effort

26 APR 2016 — Papadopoulos learned the Russians had “dirt” on Hillary Clinton consisting of “thousands of emails.”

05 MAY 2016 — Trump is the presumptive GOP presidential nominee. Page emailed fellow foreign policy adviser Walid Phares and J.D. Gordon, asking them to contact him via cell phone or iMessage, adding “P.S. I forgot to mention that I also have the Middle East staple of [redacted]* as well. So that’s another global connectivity alternative if you want to get in touch there.” (* Believed to be the name of a regionalized communications system. See testimony transcript (pdf).)

16 MAY 2016Page sent an email to Walid Phares and J.D. Gordon, suggesting that Trump visit Russia  (see testimony transcript (pdf)).

24 MAY 2016Page emailed J.D. Gordon: “FYI: At the Newark Sky Club, Delta has a private room when you can have a confidential conversation, but, unfortunately, no such luck at Third-World LaGuardia. So I’ll mostly be on the receive mode, since there are a significant number of people in the lounge. Rather than saying too much, I’ll just refer to the seven points on my list which I sent last night.” (see testimony transcript (pdf)).

26 MAY 2016 — Page emailed J.D. Gordon and another foreign policy team member, Bernadette Kilroy, letting them know he will be speaking at the New Economic School’s commencement alongside Russia’s Sberbank’s chair and CEO  (see testimony transcript (pdf)).

27 MAY 2016Page may have met Paul Manafort associate Rick Gates at Trump’s North Dakota speech event (see testimony transcript (pdf)).

Early JUN 2016Page called Putin “stronger and more reliable than President Obama” and “touted the positive effect a Trump presidency would have on U.S.-Russia relations” according to attendees of a meeting of campaign foreign policy team members with India’s Prime Minister Modi. Modi’s trip was five days long, beginning June 8.

09 JUN 2016 — Trump Tower meeting between Donald Trump Jr. and Natalia Veselnitskaya et al., ostensibly about Russian adoptions.

XX JUN 2016 — After back-and-forth and an initial refusal with Corey Lewandowski, J.D. Gordon, and Hope Hicks, Page finally  obtains approval from Lewandowski to travel to Russia as a campaign team member (specific date TBD). In HPSCI testimony there is an exchange about an email he sent asking for feedback about the speech he was going to give in Moscow; same email mentions Russia’s Minister of Economics and Trade Herman Gref was expected to speak at the same event.

30 JUN 2016 — On the Thursday before his Moscow trip Page attended a dinner meeting at the Capitol Hill Club in DC at which both Sen. Jeff Sessions and George Papadopoulos were present and seated next to each other. Page testified to HPSCI this is the last time he saw Papadopoulos, and that he (Page) wasn’t going to Russia as part of the campaign team.

05 JUL 2016Page‘s trip to Russia. (05-09 JUL 2016; in his HPSCI testimony he said he left Sunday night, which would have been July 3.)

06 JUL 2016 — In his HPSCI testimony Page admits to meeting Rosneft’s Directer of Investor Relations Andrey Baranov at a Morgan Stanley-hosted Europa football event as well as [redacted] Nagovitsyn* of Gazprom; he also admitted to having a 10-second exchange with Russia’s Deputy Prime Minister Arkady Dvorkovich as well as meeting members of the Duma. (* This may be Oleg Nagovitsyn who in 2014 had been CEO of Gazprom Investproekt, a subsidiary entity; Nagovitsyn has been elevated to General Director of Gazprom if this is the same Oleg.)

07 JUL 2016Page gave a speech at New Economic School; his speech is critical of U.S. foreign policy. He testified that the school paid for his expenses. (video)

08 JUL 2016Page attended and gave commencement speech at New Economic School graduation.  (videoPage avoided answering journalists’ questions both days regarding officials Page may have/will meet with in Russia. Page emailed campaign advisers Tera Dahl and J.D. Gordon, telling them he would send them “a readout soon regarding some incredible insights and outreach I’ve received from a few Russian legislators and senior members of the Presidential administration here.”

14 JUL 2016 — Page praises fellow foreign policy advisers and campaign team members J.D. Gordon, Walid Phares, Joseph Schmitz, Bert Mizusawa, Chuck Kubic, and Tera Dahl for their work changing the GOP platform on Ukraine.

18-21 JUL 2016Page spoke with Russian Ambassador Sergey Kisylak during the Global Partners in Diplomacy event  associated with the RNC Convention in Cleveland (specific date TBD).

19 JUL 2016 — Former MI6 intelligence officer Christopher Steele wrote a memo about Page‘s July trip to Moscow. Steele’s intelligence said Page met with Rosneft’s Igor Sechin and Russian Internal Affairs minister Igor Diveykin.

U.S. received intelligence that Page met with Igor Sechin, Putin associate, former Russian deputy prime minister, and executive chairman of Rosneft, but it isn’t clear whether this intelligence is based on Steele’s dossier alone and/or if disinformation involved.

After 22 JUL 2016 — Australia’s Ambassador to the U.S. Joe Hockey disclosed to the FBI that diplomat Alexander Downer learned from George Papadopoulos the Trump campaign had “dirt” on HRC in the form of emails.

XX JUL 2016Page had dinner alone with Sam Clovis some time after the July trip to Moscow.

05 AUG 2016 — Article: Trump adviser’s public comments, ties to Moscow stir unease in both parties; includes a profile of Page. Hope Hicks characterized Page as “informal policy adviser.”

19 AUG 2016 — Paul Manafort resigns from the campaign two days after Trump’s first security briefing. Steve Bannon assumes Manafort’s role for the campaign.

26 AUG 2016 — Sen. Harry Reid sent a letter to FBI Director James Comey asking for the investigation of Russian hacking and influence on the 2016 election with publication of findings. Reid cited the example of an unnamed Trump adviser “who has been highly critical of U.S. and European economic sanctions on Russia, and who has conflicts of interest due to investments in Russian energy conglomerate Gazprom, met with high-ranking sanctioned individuals while in Moscow in July 2016…” (link)

XX AUG 2016 — Page said he sold his ADR shares in Gazprom this month, approximately five months after joining the campaign; it’s not clear whether this sale happened before or after Sen. Reid’s letter (see written testimony (pdf)).

XX AUG 2016 — Page traveled to Hungary and met with the ambassador to the US; the ambassador had already met Page at the RNC convention. They discussed U.S.-Russia policy as it affected Hungary — “in general,” according to Page‘s testimony.

23 SEP 2016 — Article: U.S. intel officials probe ties between Trump adviser and Kremlin.

25 SEP 2016Page wrote to Comey and asked him to end the investigation into his trip to Russia (see written testimony).

26 SEP 2016Page left Trump campaign.

Mid to Late SEP 2016 — After discussing the matter with Fusion GPS’ Glenn Simpson, Christopher Steele metwith the FBI in Rome to share what he had learned about the Trump campaign and related Russian efforts. Steele was concerned there was a crime in progress; some of his research shared included information about Page‘s interactions with key Russians during his July trip.

21 OCT 2016 — FISA warrant on Page obtained.

24-OCT-2016 — Page did an interview with Russian media outlet RT on its Going Underground program. Program host and Page characterized Page‘s status as “on leave” from the campaign. Page‘s written testimony shared that Wikileaks and leaked emails “tangentially came up.” (video, uploaded to YouTube on 29-OCT-2016.)

08 NOV 2016 — Election Day.

08 DEC 2016 — Page took another trip to Russia; Arkady Dvorkovich stopped by a dinner Page attended and said hello according to Page‘s testimony (specific date TBD). Page also met Shlomo Weber again; he had lunch with Andrey Baranov, a bank analyst with Bank of America/Merrill Lynch, and a third person whose names were redacted at Page‘s request. He had a laptop with him at the lunch which he said he used to share his speech and slides for another academic presentation. The Kremlin’s spokesperson, Dmitri Peskov, said there were no plans to contact Page yet managed to see Page just before a television interview.

XX DEC 2016 — On the return leg to the U.S., Page stopped in London to attend an energy conference. While in London he met with a Russian national, Sergey Yatsenko, in London on return from Moscow; they talked about opportunities in Kazahkstan related to the country’s privatization process and the sovereign wealth fund, Samruk Kazyna. They were joined by the Kazahk ambassador to the U.K. and an aide.

10 JAN 2017 — BuzzFeed published 35 pages of the dossier Steele prepared for Orbis under contract to Fusion GPS.

Mid JAN 2017 — Jones Day LLP, White House counsel Don McGahn’s former law firm, communicated with Page, instructing him not to depict himself as a representative of the campaign. Steve Bannon conveyed a similar message by text to Page.

XX JAN 2017 — In an interview with ABC News, Page said he didn’t meet with any Russian officials on behalf of Trump campaign or with Igor Sechin (specific date not clear in ABC’s report).

18 JAN 2017 — Deadline, FISA renewal required (before inauguration).

19 JAN 2017 — Article: Intercepted Russian Communications Part of Inquiry Into Trump Associates; Page along with Paul Manafort and Roger Stone have become subjects of an investigation.

20 JAN 2017 — Inauguration Day.

31 JAN 2017 — Trump nominated Maryland’s U.S. Attorney Rod Rosenstein as Deputy Attorney General.

31 JAN 2017 — Page told ABC News’ Brian Ross he never talked to anyone in the Kremlin about the campaign during his July trip, “not one word.”

15 FEB 2017 — Interview: Former Trump adviser says he had no Russian meetings in the last year

JUDY WOODRUFF:
Did you have any meetings — I will ask again — did you have any meetings last year with Russian officials in Russia, outside Russia, anywhere?

CARTER PAGE:
I had no meetings, no meetings.

I might have said hello to a few people as they were walking by me at my graduation — the graduation speech that I gave in July, but no meetings.

02 MAR 2017 — Interview: Page: ‘I don’t deny’ meeting with Russian amb.; Page admitted meeting Russia’s Ambassador Kislyak during the campaign.

04 MAR 2017 — Corey Lewandowski told Fox News, “I never met Carter Page.”

11 MAR 2017 — Preet Bharara fired by USAG Jeff Sessions.

11 MAR 2017Page sent a letter to the HPSCI asking to be interviewed in a public hearing. His letter coincided with letters from Paul Manafort and Roger Stone who both volunteered to be interviewed.

03 APR 2017 — ABC News and BuzzFeed contacted Page about his role as MALE-1 in Buryakov et al spy ring case ((see written testimony (pdf))

13 APR 2017Page told ABC News’ George Stephanopoulos that he “said hello briefly to one individual, who was aboard member of the New Economic School where I gave my speech” during his July 2016 to Moscow. He also hedged as to whether he had any discussion of sanctions while in Russia.

05 APR 2017 — Evgeny Buryakov was released from prison on March 31 and expelled from the U.S. days later; he had been credited with time served while in custody against his 2.5 year sentence. His deportation shortened his sentence by a couple of months.

~19 APR 2017 — Deadline, FISA renewal required (specific date TBD).

25 APR 2017 — Rod Rosenstein confirmed by Senate as Deputy Attorney General.

28 APR 2017 — Senate Intelligence Committee sent a letter to Page along with Mike Flynn, Paul Manafort, and Roger Stone asking for records related to the campaign, including a “list of all meetings between you and any Russian official or representative of Russian business interests which took place between June 16, 2015, and Jan. 20, 2017.”

05 MAY 2017 — Senate Intelligence Committee chair and vice chair sent a joint statement to Page to insist on his cooperation with their investigation.

09 MAY 2017 — FBI Director James Comey fired.

21 MAY 2017—Page requested appealed to the DOJ, FBI, NSA for disclosure of “information, applications and other materials related to my illegitimate FISA warrant” (see written testimony (pdf)).

~18 JUL 2017 — Deadline, FISA renewal required (specific date TBD).

04 OCT 2017 — HPSCI issued a subpoena to Page.

10 OCT 2017Page informed the Senate Intelligence Committee he would plead the Fifth Amendment and not testify in front of the SIC.

30 OCT 2017 — Excerpt from interview with MSNBC’s Chris Hayes suggests Page expected House Speaker Paul Ryan to release the FISA warrant documentation (video, about 06:57):

HAYES: Did you bring an attorney to you when you spent five hours before the Senate?

PAGE: Nope. Nope. I’m very, very open and happy to give all the information I can. In the interest of really getting the truth out there, because I think when the truth comes out, when Speaker Paul Ryan says the FISA warrant or the details about the dodgy dossier and what happened and all this documents around that is going to be released, that’s what I’m really excited about. And I think the truth will set a lot of people free.

02 NOV 2017 — In testimony submitted to the House Permanent Select Committee on Intelligence, Page said he briefly met Russian Deputy Prime Minister Arkady Dvorkovich during his July trip. Page pleaded the Fifth Amendment on some of the materials responsive to the HPSCI’s subpoena.

14 NOV 2017 — Jeff Sessions testified before the House Judiciary Committee; he said he did not remember seeing Page at the June 30, 2016 dinner with campaign team members, nor did he recall any communications about Page‘s trip to Moscow.


Again, this is not a complete timeline of Trump-Russia events, let alone a complete timeline of everything Carter Page. It captures some key points from just before the FBI became aware of Carter Page through the release of the Nunes’ memo Friday last week.

From a comprehensive meta level, the push operation to release the Nunes memo — driven in part with help from Russian bots promoting #ReleaseTheMemo, complementing Page’s request for the FISA warrant documentation — looks less like an effort to remove Robert Mueller as special counsel or Rod Rosenstein as U.S. Deputy AG.

As others have suggested, Page looks like an expendable mule and/or a decoy — a perfect fit for a perfect useful idiot.

The entire picture reflects a more comprehensive effort to attack the USDOJ apart from Jeff Sessions, and to undermine or obscure the opposition research process which included the Steele dossier.

And it looks more like Devin Nunes aided Putin’s continued attack against the U.S.’ Magnitsky Act, attempting to undermine law enforcement charged with executing this public law.

For all the concern that Page and other campaign team members might have talked about the sanctions with Russia, the Magnitsky Act is lost in the media buzz.

There are quite a few oddities about Page which should cause the average Joe to take pause. Why did Page join the campaign in March 2016 when Trump wasn’t the presumptive nominee until the first week of May after the Indiana primary? Did he just show up at the campaign’s doorstep via Ed Cox on his own or was he recruited/encouraged? Why wasn’t Page vetted more thoroughly by the campaign?

And why when he joined the campaign was he not expected to have already eliminated any conflicts of interest like his Gazprom ADRs? The financial conflict made Page an easily compromised mark even though both campaign and administration didn’t and don’t give a fig about ethics. It’s not clear how Page earns his keep; he testified he was living off his savings. Did he sell his ADRs only because he was low on cash? In other words, was he at risk for financial compromise?

(An aside: with Page’s relationships to Russian oil and gas community members, did Page buy or sell his ADRs on what might have been insider information? He didn’t do well if he sold in August 2016 but it’s not clear when and at what price he bought the ADRs to begin with.)

How did a guy with such thin credentials — he was awarded his doctorate in 2012 after his thesis was twice rejected — end up speaking not just once at the New Economic School but twice, giving the commencement speech? Not to mention his flaky personal style spies Podobnyy and Sporyshev noted years earlier. What was in his speeches that students, faculty, and distinguished guests alike needed to hear? Did someone at the New Economic School ‘review’ an electronic or hardcopy version of the speeches in advance? This is a question the HPSCI attempted to ask but didn’t receive a clear answer. Did a member of Russia’s government ‘review’ the speeches?

Why was there such a lag between Page’s trip to Russia and the FISA warrant given Page’s history?

Some pieces in this puzzle hint at other possible connections. Recall that Rosenstein — who has been involved in the FISA warrants since Comey was fired — was the US Attorney for Maryland. Pioneer Point, one of Russia’s compounds confiscated December 29, 2016 under sanctions related to hacking the DNC, is located on the water in Maryland.

Maryland was also home to a Manafort-related business SCG raided on May 11 last year. Has Rosenstein been kept preoccupied so that he would not be involved in anything related to either Pioneer Point or SCG? Who (if anyone) was nominated to replace Rosenstein in Maryland? Has the pressure on Rosenstein been two-fold — not just to discourage another extension of the FISA warrant on Page, but to keep him from looking too closely in what was once his backyard?

Key events from George Papadopoulos’ tenure with the campaign were included in the timeline for comparison between two foreign policy advisers working for the same campaign. What marching orders did these two receive from Clovis or other senior campaign team members? They’re off doing their own things but both generating trouble at the same time. Page’s open activities drew media attention; Papadopoulos’ efforts were not as visible to the public. Was this intentional? Why did the campaign need not one but two foreign policy advisers with fossil fuel-based energy backgrounds mingling with Russians? Were they both proof-of-concepts establishing back channel communications, testing approaches to see which would be more successful? Were there any other attempts at back channels via campaign team members?

And while we’ve been focused on these two advisers, at least three others continued their work for the campaign and possibly into the transition. What were they doing?

It’s worth reading the HPSCI transcript of Page’s oral and written testimony. He’s a lousy writer; his work borders on irrational. His oral responses during the HPSCI hearing are as bad if not worse. Of particular concern is his repetitive use of certain arguments and phrases which have been use at times by online provocateurs.

Other persons and issues aside, consider this particular excerpt in a report published about a month before the FBI obtained a FISA warrant on Page:

Page came to the attention of officials at the U.S. Embassy in Moscow several years ago when he showed up in the Russian capital during several business trips and made provocative public comments critical of U.S. policy and sympathetic to Putin. “He was pretty much a brazen apologist for anything Moscow did,” said one U.S. official who served in Russia at the time.

How could the FBI not have requested a FISA warrant given what we the public already knew about Carter Page once he left for Moscow last July?

In Defense of Suspected Russian Agent Carter Page, Michael Mukasey Just Gave Defense Attorneys a Big Gift

In my post laying out the damage the Nunes memo might have caused, I predicted that defense attorneys would use the release of the memo — and the language Don McGahn used to claim its release served a public interest — to support their arguments that defendants should get to review the underlying application for a FISA warrant.

In the 40 year history of FISA, no defendant who got notice that FISA data was being used against them in prosecution has been able to review the application used against them. Because Nunes released this information so frivolously, because White House Counsel Don McGahn, in his cover memo, suggested this was a time when “public interest in disclosure of [FISA materials] outweighs any need to protect the information, the memo lowers the bar for release of FISA-related information going forward.

I assume Carter Page, if he is charged, will successfully be able to win review of his FISA application (and think that would be entirely appropriate); that may mean he doesn’t get charged or, if he does, Mueller has to bend over backwards to avoid using FISA material.

But I also assume — and hope — that this disclosure ends the 40 year drought on the release of information, which the original drafters of FISA envisioned would be appropriate in certain circumstances. I think this the one salutary benefit of this memo; it makes it more likely that FISA will work the way it is supposed to going forward.

I even think it possible that the release of this information may affect the response to Keith Gartenlaub’s pending appeal in the Ninth Circuit. His is a case that merits FISA review, and whereas the court might have hesitated to give him that in the past, it would be far easier for them to do so here.

Former Attorney General Michael Mukasey, fresh off trying to broker the release of sanctions violator Reza Zarrab, just gave defense attorneys another big gift.

In a WSJ op-ed that ignores all the holes in the Nunes memo and pretends two guilty pleas about lies about negotiations with Russians have nothing to do with an investigation into “collusion” with Russians, he says that Carter Page’s FISA application should be made public so we can figure out whether DOJ misled the FISA Court.

I believe that at a minimum, the public should get access to a carefully redacted copy of the FISA application and renewals, so we can see whether officials behaved unlawfully by misleading a court;

Remember: when defendants who’ve gotten FISA notice ask to see their own applications to see whether “officials behaved unlawfully by misleading a court,” one thing the government has to do to keep the application secret is submit a declaration from the Attorney General saying that FISA applications are so sensitive they can never be shared with defendants. In the declaration Eric Holder submitted in the Gartenlaub case, for example, he claimed,

Based on the facts and considerations set forth below, I hereby claim that it would harm the national security of the United States to disclose or hold an adversary hearing with respect to the FISA Materials.

[snip]

I certify that the unauthorized disclosure of the FISA Materials that are classified at the “TOP SECRET” level could reasonably be expected to cause exceptionally grave damage to the national security of the United States. I further certify that the unauthorized disclosure of the FISA materials that are classified at the “SECRET” level could be expected to cause serious damage to the national security of the United States. The FISA Materials contain sensitive and classified information concerning United States intelligence sources and methods and other information related to efforts of the United States to conduct national security investigations, including the manner and means by which those investigations are conducted. As a result, the unauthorized disclosure of the information could harm the national security interests of the United States.

I’m sure Holder was using boilerplate that Mukasey himself used, when he submitted similar declarations to courts.

Remember, Gartenlaub is awaiting a ruling from the Ninth Circuit on whether he should be able to access his FISA application to see whether officials misled the FISA Court. The government has been claiming over and over that accessing his FISA application to do so would be too dangerous.

And yet, here we have one of the most hawkish Attorneys General in recent history telling the world that even the public release of FISA applications to do just that would be useful.

Nunes Is So Dumb He Missed the Most Likely Way the Trump Campaign Might Have Been Wiretapped

Devin Nunes is so bad at his job overseeing the nation’s intelligence agencies that his memo alleging FISA abuses failed to mention the one way he might have legitimately argued that the Deep State was spying on the Trump campaign.

The memo, released Friday after a week of political drama, purports to show that the process by which the FBI applied for four individualized FISA orders targeting former Trump foreign policy advisor Carter Page, spanning from October 2016 through July 2017, failed to adequately explain to the court that the application included information obtained as part of paid opposition research. On that claim, the memo falls short of making the case. So too does Nunes’ claim that “top officials used unverified information [from the Title I warrants] to fuel a counter-intelligence investigation during an American political campaign,” since Carter Page had been gone from the Trump campaign for a month before he was targeted.

But the memo only deals with the request for traditional “probable cause” FISA orders approved by the FISA Court. The memo even says this surveillance at issue was “not under Title VII,” probably an effort to distinguish this surveillance practice, which Nunes claims is being abused, from collection under FISA’s Section 702, which is even more problematic from a privacy standpoint. Nunes wrote the bill that reauthorized Section 702 two weeks ago, a bill that included no reforms to the practice that allows the government to access the communications of Americans against whom the FBI has no evidence of wrong-doing without a warrant. That is, Nunes wants to make sure you know that only the FISA practice that actually requires probable cause is at issue in his claims of FISA abuse, not the practice that permits warrantless surveillance of Americans that he championed a few weeks ago.

The thing is, Nunes is probably wrong that the surveillance of Carter Page doesn’t involve any of the authorities he recently pushed through. That’s because, along with Section 702, Nunes’ bill extending FISA’s Title VII also reauthorized a section, 705(b), which the government uses to spy on Americans already under surveillance, like Carter Page, during the periods when they travel overseas.

Carter Page traveled to Russia and London in December 2016 and Abu Dhabi in January 2017; he told the House Intelligence Committee he met with a slew of interesting foreigners along the way. It would be malpractice for the government to halt surveillance on someone it suspected of spying for Russia when he went to Russia.

So assuming the NSA kept spying on Page when he was meeting with the Russians they suspected him of conspiring with while he was in Russia, then the government would have switched to 705(b) authority. That permits the NSA to use the different kinds of surveillance tools, more powerful tools like hacking someone’s computer or querying data collected in bulk, that it uses overseas, drawing from more kinds of collection.

The thing is, that kind of individualized overseas surveillance — far more than the domestic individual surveillance at issue in the memo — has been a problem in recent years. Indeed, in the months before the government obtained its first FISA order on Carter Page, the NSA’s Inspector General found that in the 8 years since Congress had passed 705(b), NSA had never set up a system to track surveillance conducted under it. Of particular concern, analysts were conducting surveillance under the authority outside the time frame permitted under the 705(b) order, meaning that analysts might collect data from a period before the 705(b) order, or even before the traditional FISA order underlying it, had been approved. Or, NSA might forget to turn off their hacking sensor in Page’s laptop or smart phone even after he returned to the US. By using overseas spying methods outside the time period when the person was overseas, then, NSA might have gotten what amounts to a time machine, letting the government (perhaps unknowingly) obtain stored communications from the period when Page was still working with the Trump campaign.

The discovery, in early 2016, that NSA hadn’t been following the rules for the kind of spying that would have been used with Page while he was in Russia led to a string of other discoveries, which in turn led to the termination of one kind of NSA spying, called “about” collection. But the process of fixing 705(b) and “about” collection continued well into the period when Page was under FISA surveillance, including the times when he was traveling overseas.

All that said, if the government obtained information from outside the time of Carter Page’s travels overseas improperly, Trump has only Trump to blame. That’s because, even after they did fix the problems with the program in April 2017, the Trump Administration didn’t do what the Obama Administration before it had done on numerous occasions: get rid of any data obtained improperly under such conditions. So while the underlying problems with 705(b) were never fixed under the Obama Administration (which is absolutely something that should be laid at his feet) Jeff Sessions and Dan Coats would be responsible for any lasting harm under the problems. The Trump Administration’s deviation from past practice in destroying improperly obtained data would be responsible for any harm to Trump.

Ultimately, Nunes’ failure to consider for his politicized memo the one FISA practice most likely to have affected Carter Page identifies the real source of any problems with FISA: a failure of oversight, including from people like Devin Nunes. With the Title VII reauthorization bill he authored, Nunes might have ensured some follow-up to make sure known overseas spying problems were fixed. He might have required the government to make sure it destroyed any data on the Trump campaign it collected while Page was overseas.

Instead, Nunes seems completely unaware that such problems existed.

 

Asha Rangappa Demands Progressive Left Drop Bad Faith Beliefs in Op-Ed Riddled with Errors Demonstrating [FBI’s] Bad Faith

It’s my fault, apparently, that surveillance booster Devin Nunes attacked the FBI this week as part of a ploy to help Donald Trump quash the investigation into Russian involvement in his election victory. That, at least, is the claim offered by the normally rigorous Asha Rangappa in a NYT op-ed.

It’s progressive left privacy defenders like me who are to blame for Nunes’ hoax, according to Rangappa, because — she claims — “the progressive narrative” assumes the people who participate in the FISA process, people like her and her former colleagues at the FBI and the FISA judges, operate in bad faith.

But those on the left denouncing its release should realize that it was progressive and privacy advocates over the past several decades who laid the groundwork for the Nunes memo — not Republicans. That’s because the progressive narrative has focused on an assumption of bad faith on the part of the people who participate in the FISA process, not the process itself.

And then, Ragappa proceeds to roll out a bad faith “narrative” chock full of egregious errors that might lead informed readers to suspect FBI Agents operate in bad faith, drawing conclusions without doing even the most basic investigation to test her pre-conceived narrative.

Rangappa betrays from the very start that she doesn’t know the least bit about what she’s talking about. Throughout, for example, she assumes there’s a partisan split on surveillance skepticism: the progressive left fighting excessive surveillance, and a monolithic Republican party that, up until Devin Nunes’ stunt, “has never meaningfully objected” to FISA until now. As others noted to Rangappa on Twitter, the authoritarian right has objected to FISA from the start, even in the period Rangappa used what she claims was a well-ordered FISA process. That’s when Republican lawyer David Addington was boasting about using terrorist attacks as an excuse to end or bypass the regime. “We’re one bomb away from getting rid of that obnoxious [FISA] court.”

I’m more peeved, however, that Rangappa is utterly unaware that for over a decade, the libertarian right and the progressive left she demonizes have worked together to try to rein in the most dangerous kinds of surveillance. There’s even a Congressional caucus, the Fourth Amendment Caucus, where Republicans like Ted Poe, Justin Amash, and Tom Massie work with Rangappa’s loathed progressive left on reform. Amash, Mike Lee, and Rand Paul, among others, even have their name on legislative attempts to reform surveillance, partnering up with progressives like Zoe Lofgren, John Conyers, Patrick Leahy, and Ron Wyden. This has become an institutionalized coalition that someone with the most basic investigative skills ought to be able to discover.

Since Rangappa has not discovered that coalition, however, it is perhaps unsurprising she has absolutely no clue what the coalition has been doing.

In criticizing the FISA process, the left has not focused so much on fixing procedural loopholes that officials in the executive branch might exploit to maximize their legal authority. Progressives are not asking courts to raise the probable cause standard, or petitioning Congress to add more reporting requirements for the F.B.I.

Again, there are easily discoverable bills and even some laws that show the fruits of progressive left and libertarian right efforts to do just these things. In 2008, the Democrats mandated a multi-agency Inspector General on Addington’s attempt to blow up FISA, the Stellar Wind program. Progressive Pat Leahy has repeatedly mandated other Inspector General reports, which forced the disclosure of FBI’s abusive exigent letter program and that FBI flouted legal mandates regarding Section 215 for seven years (among other things). In 2011, Ron Wyden started his thus far unsuccessful attempt to require the government to disclose how many Americans are affected by Section 702. In 2013, progressive left and libertarian right Senators on the Senate Judiciary Committee tried to get the Intelligence Community Inspector General to review how the multiple parts of the government’s surveillance fit together, to no avail.

Rangappa’s apparent ignorance of this legislative history is all the more remarkable regarding the last several surveillance fights in Congress, USA Freedom Act and this year’s FISA Amendments Act reauthorization (the latter of which she has written repeatedly on). In both fights, the bipartisan privacy coalition fought for — but failed — to force the FBI to comply with the same kind of reporting requirements that the bill imposed on the NSA and CIA, the kind of reporting requirements Rangappa wishes the progressive left would demand. When a left-right coalition in the House Judiciary Committee tried again this year, the FBI stopped negotiating with HJC’s staffers, and instead negotiated exclusively with Devin Nunes and staffers from HPSCI.

With USAF, however, the privacy coalition did succeed in a few reforms (including those reporting requirements for NSA and CIA). Significantly, USAF included language requiring the FISA Court to either include an amicus for issues that present “a novel or significant interpretation of the law,” or explain why it did not. That’s a provision that attempts to fix the “procedural loophole” of having no adversary in the secret court, though it’s a provision of law the current presiding FISC judge, Rosemary Collyer, blew off in last year’s 702 reauthorization. (Note, as I’ve said repeatedly, I don’t think Collyer’s scofflaw behavior is representative of what FISC judges normally do, and so would not argue her disdain for the law feeds a “progressive narrative” that all people involved in the FISA process operated in bad faith.)

Another thing the progressive left and libertarian right won in USAF is new reporting requirements on FISA-related approvals for FISC, to parallel those DOJ must provide. Which brings me to Rangappa’s most hilarious error in an error-ridden piece (it’s an error made by multiple civil libertarians earlier in the week, which I corrected on Twitter, but Rangappa appears to mute me so wouldn’t have seen it).

To defend her claim that the FISC judge who approved the surveillance of Carter Page was operating, if anything, with more rigor than in past years, Rangappa points to EPIC’s tracker of FISA approvals and declares that the 2016 court rejected the highest number of applications in history.

We don’t know whether the memo’s allegations of abuse can be verified. It’s worth noting, however, that Barack Obama’s final year in office saw the highest number of rejected and modified FISA applications in history. This suggests that FISA applications in 2016 received more scrutiny than ever before.

Here’s why this is a belly-laughing error. As noted, USAF required the FISA Court, for the first time, to release its own record of approving applications. It released a partial report (for the period following passage of USAF) covering 2015, and its first full report for 2016. The FISC uses a dramatically different (and more useful) counting method than DOJ, because it counts what happens to any application submitted in preliminary form, whereas DOJ only counts applications submitted in final form. Here’s how the numbers for 2016 compare.

Rangappa relies on EPIC’s count, which for 2016 not only includes an error in the granted number, but adopts the AOUSC counting method just for 2016, making the methodology of its report invalid (it does have a footnote that explains the new AOUSC numbers, but not why it chose to use that number rather than the DOJ one or at least show both).

Using the only valid methodology for comparison with past years, DOJ’s intentionally misleading number, FISC rejected zero applications, which is consistent or worse than other years.

It’s not the error that’s the most amusing part, though. It’s that, to make the FISC look good, she relies on data made available, in significant part, via the efforts of a bipartisan coalition that she claims consists exclusively of lefties doing nothing but demonizing the FISA process.

If anyone has permitted a pre-existing narrative to get in the way of understanding the reality of how FISA currently functions, it’s Rangappa, not her invented progressive left.

Let me be clear. In spite of Rangappa’s invocation (both in the body of her piece and in her biography) of her membership in the FBI tribe, I don’t take her adherence to her chosen narrative in defiance of facts that she made little effort to actually learn to be representative of all FBI Agents (which is why I bracketed FBI in my title). That would be unfair to a lot of really hard-working Agents. But I can think of a goodly number of cases, some quite important, where that has happened, where Agents chased a certain set of leads more vigorously because they fit their preconceptions about who might be a culprit.

That is precisely what has happened here. A culprit, Devin Nunes — the same guy who helped the FBI dodge reporting requirements Rangappa thinks the progressive left should but is not demanding — demonized the FISA process by obscuring what really happens. And rather than holding that culprit responsible, Rangappa has invented some other bad guy to blame. All while complaining that people ever criticize her FBI tribe.

The Harm Releasing the Nunes Memo Caused

I did two pieces elsewhere on the Devin Nunes memo yesterday. At Vice, I tracked all the holes in the memo; subsequent reporting showed that I hit virtually all the big ones that Adam Schiff hit in his response memo: the memo misrepresented what FBI told FISC about the political nature of Christopher Steele’s, it misrepresents Andrew McCabe’s testimony, and the memo misrepresented why George Papadopoulos was mentioned in the application. At HuffPo, I described how on the twin FISA events of the last few weeks — 702 reauthorization and the Nunes memo — both Nunes and Paul Ryan were on the wrong side of the principles of rule of law and civil liberties.

Since the memo has proven to be such a dud, a lot of people are now questioning DOJ’s and Democrats’ claims that releasing the memo would harm national security. I want to lay out three ways (DOJ surely believes) it may well do that.

Tells Carter Page and any co-conspirators precisely when FISA surveillance started

The memo tells Carter Page — and any co-conspirators both within the Trump camp and overseas — precisely when the surveillance on Page started and what it consists of.

FBI obtained an electronic surveillance warrant against Page on October 21, 2016, and obtained 3 reauthorizations (so roughly January 19, April 19, and July 18). While Page’s interlocutors overseas were likely wiretapped, if possible, associates in the Trump camp can now assume any conversations they had with him before October 21 were not recorded and remain unavailable to Robert Mueller.

Mind you, we know the memo doesn’t reveal the full extent of surveillance directed against Carter Page, because it gives no details on the 2014 FISA wiretap reportedly used against him. That leaves open the possibility that he was surveilled using other means. I think the GOP would have included had FISC approved a physical search FISA warrant against Page, because that would include the possibility of obtaining stored communications from during the campaign. But I would also bet a lot of money that whatever Attorney General was in charge during periods when Page traveled overseas approved a 705(b) order on him, permitting surveillance to continue while he was overseas. I’ll have more to say on this in upcoming days.

Note, it is also possible that the surveillance against Page continues.

Tells subjects of the investigation the status of the investigation and FBI’s ability to validate the Steele memo

The memo provides other details about the investigation, too.

On October 21, per a quotation from FBI Assistant Director Bill Priestap, the investigation into Russian ties with the Trump camp was is its “infancy.” Again, this will let Russians and Trump associates know that anything they managed to destroy before that date may well be unavailable to Mueller.

Later in October, the source report on Steele reported that the dossier had been “only minimally corroborated.” If any of the events in the dossier are real, then the Russians (especially) will have a sense of how unsuccessful the FBI had been in finding the evidence to corroborate those events. If the dossier is, as I’ve suggested, disinformation, the Russians would know that their disinformation was wasting FBI Agent time at least for months.

Tells Australians and every other foreign partner shared intelligence may be officially declassified

The memo mentions the Papadopoulos tip and confirms that’s what triggered the investigation; it also confirms that nothing shared prior to then had triggered an investigation. While the description here doesn’t attribute that intelligence to the Australians, we know that’s where it came from. Now Australia and every other country will know that intelligence they share, including intelligence that makes it look like Five Eyes officials are reporting on the citizens of other Five Eyes countries, may be released by Devin Nunes for political gain. This will add to the many reasons why our friends will hesitate before sharing intelligence with us.

Makes it more likely defendants will get FISA review

In the 40 year history of FISA, no defendant who got notice that FISA data was being used against them in prosecution has been able to review the application used against them. Because Nunes released this information so frivolously, because White House Counsel Don McGahn, in his cover memo, suggested this was a time when “public interest in disclosure of [FISA materials] outweighs any need to protect the information, the memo lowers the bar for release of FISA-related information going forward.

I assume Carter Page, if he is charged, will successfully be able to win review of his FISA application (and think that would be entirely appropriate); that may mean he doesn’t get charged or, if he does, Mueller has to bend over backwards to avoid using FISA material.

But I also assume — and hope — that this disclosure ends the 40 year drought on the release of information, which the original drafters of FISA envisioned would be appropriate in certain circumstances. I think this the one salutary benefit of this memo; it makes it more likely that FISA will work the way it is supposed to going forward.

I even think it possible that the release of this information may affect the response to Keith Gartenlaub’s pending appeal in the Ninth Circuit. His is a case that merits FISA review, and whereas the court might have hesitated to give him that in the past, it would be far easier for them to do so here.

In other words, the release of this memo likely helped those Mueller is trying to investigate, provided another reason for our foreign partners to hesitate before sharing intelligence with us, and makes it more likely some defendants will get to review their FISA application going forward. I can see how DOJ would consider all of that harmful to national security.

Update: On Twitter some folks added that this makes people distrust FBI, making it less likely they’ll share information with the Bureau. In my opinion actually sharing interview reports with HPSCI already did that (though that Chris Wray was forced to do so wouldn’t be as widely known). I also think the sheer shittiness of the dossier minimizes the impact of that somewhat. But I think it’s a fair point.

Byron York Confirms that Many Names and Sources Implicated Carter Page as an Agent of a Foreign Power

Adam Schiff’s complaints that Republicans won’t release his FISA memo in tandem with the Devin Nunes being reviewed for release at the White House must be doing damage: a bunch of Republicans, including Tom Rooney, ran to Byron York to try to spin the release process as a fair application of process.

But there was also a rare moment of bipartisanship for the bitterly divided panel. At the same meeting, Republicans and Democrats voted unanimously to make the Democratic memo — the counter-memo to the Republican document — available to all members of the House.

That is the same process Republicans, under chairman Devin Nunes, R-Calif., followed with their memo. First, make it available to House members. (That happened on Jan. 18.) Later, after members of both parties have had a chance to read the memo, decide whether to release it to the public.

But along the way, an anonymous source who might be Rooney had this to say:

“It was written by attorneys as a rebuttal to our memo, but it’s not going to move their argument forward,” noted one Republican member who has read the Democratic paper. “It’s too detailed, too confusing, and far more personal — they go after [Nunes] again and again.

The member noted that that Democratic memo contains far more classified information — names and sources — than the GOP paper. “It is much more revealing [of classified information],” he said. “It’s going to have to be heavily redacted before it can be released. We wrote our memo with the hope that it would be released to the American people. Their memo will have to be heavily redacted.”

The anonymous source who might be Rooney admits that the Schiff memo contains far more references to names and sources than the Nunes memo.

What the anonymous source who might be Rooney admits is that there are far more names and sources that implicated Carter Page as an agent of a foreign power than what Nunes’ memo — which reportedly focuses primarily on how the Steele dossier served as one source for at least three FISA applications against Carter Page — admits.

Thanks for clearing that up, Congressman Rooney.

Carter Page Did Not Need to be a Spy to be Targeted Under FISA

The NYT has a story that explains something I was wondering about over the weekend: how the Nunes memo could be used — as it reportedly is being used — to justify a Trump bid to fire Rod Rosenstein. Shortly after he was confirmed, NYT reveals, Rosenstein approved the renewal application for the FISA order targeting Carter Page.

A secret, highly contentious Republican memo reveals that Deputy Attorney General Rod J. Rosenstein approved an application to extend surveillance of a former Trump campaign associate shortly after taking office last spring, according to three people familiar with it.

[snip]

[I]n their efforts to discredit the inquiry, Republicans could potentially use Mr. Rosenstein’s decision to approve the renewal to suggest that he failed to properly vet a highly sensitive application for a warrant to spy on Mr. Page, who served as a Trump foreign policy adviser until September 2016.

The news is interesting for several reasons. First, it provides more granularity for the timing of the surveillance targeted at Page.

American law enforcement officials began conducting surveillance on him in the fall of 2016, shortly after he left the campaign. It is unclear what they learned about Mr. Page between then and when they sought the order’s renewal roughly six months later. It is also unknown whether the surveillance court granted the extension.

The renewal effort came in the late spring, sometime after the Senate confirmed Mr. Rosenstein as the Justice Department’s No. 2 official in late April. Around that time, following Mr. Trump’s firing of James B. Comey as F.B.I. director in May, Mr. Rosenstein appointed Mr. Mueller, a former head of the bureau, to take over the department’s Russia investigation.

Rosenstein was sworn in on April 26. He appointed Mueller on May 17. If we take that window as the timeframe for the reapplication date, it would date the prior authorization (orders targeting US persons last 90 days) to roughly January 26 through February 17, and the fall one to October 26 to November 17 time frame. The later you get in that initial time period, the closer you get to the time when Page would have been planning a follow-up visit to Russia in December.

Glenn Simpson describes Christopher Steele’s second meeting with the FBI, in Rome, about his dossier as occurring sometime in September. So there was perhaps a month between the time Steele provided information on Page and the time the FBI obtained the new order targeting Page.

On top of what the NYT says about Democratic complaints about this memo, there are other reasons to believe this is bogus. Even on 702 — but especially on FISA — the retasking process requires the government to show it obtained new information during the prior surveillance period, meaning the application Rosenstein signed would have been the second to do so.

Plus, there’s one more point.

To be targeted FBI had to provide proof that Page was an agent of a foreign power.

The renewal shows that the Justice Department under President Trump saw reason to believe that the associate, Carter Page, was acting as a Russian agent.

[snip]

To obtain the warrant involving Mr. Page, the government needed to show probable cause that he was acting as an agent of Russia.

But that does not actually entail proving that he, himself, is spying on the US. An American may be targeted as an agent of a foreign power if he knowingly aids or abets someone involved in clandestine intelligence gathering that may involve a violation of criminal statutes.

(A) knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States;

(B) pursuant to the direction of an intelligence service or network of a foreign power, knowingly engages in any other clandestine intelligence activities for or on behalf of such foreign power, which activities involve or are about to involve a violation of the criminal statutes of the United States;

[snip]

(E) knowingly aids or abets any person in the conduct of activities described in subparagraph (A), (B), or (C) or knowingly conspires with any person to engage in activities described in subparagraph (A), (B), or (C).

That’s the standard that — given that Page had been warned by FBI in 2013 that he was being recruited — might be fairly easily within reach for Page. I suspect we’ll eventually learn (after whatever brouhaha ensues) that FBI claimed Page was either aiding or abetting Russian spies, or conspiring with them, not that he was a spy himself. But that’s a distinction that may be lost on Republicans trying to politicize this.

There’s one more thing (one I don’t expect applies here but is worth pointing out in any case). The government can target any facility an agent of a foreign power uses, whether or not the agent owns it.

(B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power

This is how the government got to do a scan of all Yahoo’s users, because the targeted foreign power was using Yahoo mail, generally, and the specific signature searched on identified the people as targets.

Two more points. Trey Gowdy reviewed the underlying intelligence to the memo  that is now being used to target Rosenstein, he’s telling colleagues to stop pressuring Mueller in part because Mueller is pursuing a counterintelligence component (precisely the kind of thing targeted with FISA!) that will explain what really happened in 2016.

Gowdy said there are “two components” to the purview of Mueller’s investigation.

“There is a criminal component. But there’s also a counterintelligence component that no one ever talks about because it’s not sexy and interesting. But he’s also going to tell us definitively what Russia tried to do in 2016,” Gowdy said. “So the last time you and I were together, I told my Republican colleagues, leave him the hell alone, and that’s still my advice.”

Gowdy is one of about six members of Congress who has seen the most sensitive materials in Mueller’s case. It’s really bizarre that he’s saying the GOP needs to back off Mueller because of his CI focus when they’re likely misunderstanding how FISA is used in CI.

Finally, remember that nothing that Mueller is known to have done is identifiably fruit from this Carter Page order. Even with Manafort — who was also reportedly targeted in a FISA order — Mueller has not given FISA notice to suggest he’s relying on anything derived from FISA (though such notice is always suspect).

So even if he dossier is dodgy, it may be that Mueller is pursuing his case such that he avoids any taint from it.

Update: I keep forgetting, but something that happened with Carter Page may well have been abusive, but it’s not what the Republicans are (as far as the public reporting goes) focusing on. It’s a sign that they’re dummies who don’t understand what they purportedly oversee that they haven’t figured this out. I’m not going to lay it out here — because those leading this hoax just reauthorized the practice in any case — but I have written it up elsewhere.

The Simpson Transcript: The Dossier as Predicate

I’m working towards a big post (or a series of small ones) on the Glenn Simpson transcript. I address some of my impressions in this Real News Network video with Aaron Maté from the other day.

Before I do that larger post, however, I want to address something Maté asked me about: whether the Simpson transcript — in which he says that Christopher Steele learned from the FBI about (what independent reporting confirms) the Papadopoulos tip from the Australians — supports or refutes the sharply contested arguments about whether the Steele dossier started the counterintelligence investigation or served as a key source for a FISA warrant against either Carter Page or Paul Manafort. Skeptics of the report that the investigation actually arose from the George Papadopoulos tip have argued that the latest PR effort around the dossier is an attempt to paper over the dossier as the true source of either the investigation or the FISA orders.

As I noted on RNN, the dossier doesn’t actually help the anti-Trump narrative as much as people have made out. Simpson testified that Steele decided to reach out to the FBI towards the end of June or beginning of July (after only the first dossier report had been done), and the conversation actually happened the first week of July (a questioner later refers to it as occurring July 5).

Q. And do you recall when you — when you and Mr. Steele decided kind of that he could or should take this to the FBI, approximately the time frame of that?

A. I believe it was sometime around the turn of the month. It would have been in late June or at latest early July. That’s my recollection.

[snip]

Q. Do you have any knowledge of when that first conversation actually then took place?

A. Over the last several months that this has become a public controversy I’ve learned the general date and I believe it was if first week of July, but I don’t believe he told me — if he told me the time, I don’t remember when he told me.

Simpson later admits his certainty about these dates comes from Fusion’s response to speculation and other reporting.

Q. And that information about that time, that first week of July, where does that come from?

A. It comes from news accounts of these events and conversations between Chris and I and some of my — presumably my business partners too. Generally speaking, we have, as you know, not been eager to discuss any of this in public and there’s been a lot of speculation and guessing and stories, many of which are wrong. So when an incorrect story comes out we would, you know, talk about it. So, you know, in the course of those kinds of things I generally obtained a sense of when things occurred that I might otherwise not be able to provide you.

Regardless of how accurate or not this report, it means that Steele spoke with the FBI weeks before the Australian tip is supposed to have come in, which was after Wikileaks started dumping the emails on July 22 (though as I noted with Maté, there are aspects of that story that are sketchy as well). The reference to Steele learning about what he now believes was the Papadopoulos tip reflects feedback from mid to late September, when the FBI told him his story had been corroborated by a human source, not from that first FBI meeting.

Essentially what he told me was they had other intelligence about this matter from an internal Trump campaign source and that — that they — my understanding was that they believed Chris at this point — that they believed Chris’s information might be credible because they had other intelligence that indicated the same thing and one of those pieces of intelligence was a human source from inside the Trump organization.

Later in the transcript Simpson responds in a way that suggests Steele was reading the FBI response rather than learning actual details of the tip; certainly he might have been able to corroborate it back in London.

Q. And did Mr. Steele tell you that the FBI had relayed this information to him?

A. He didn’t specifically say that.

Q. I’m going to have you take a look at one of the filings —

MR. FOSTER: I thought you said earlier that he did say the FBI told him.

MR. SIMPSON: I think I was saying we did not have the detailed conversations where he would debrief me on his discussions with the FBI. He would say very generic things like I saw them, they asked me a lot of questions, sounds like they have another source or they have another source. He wouldn’t put words in their mouth.

In other words, the record shows that (unless the public story about the Australian tip is really inaccurate) the pee tape report came in first, and then the Oz tip did.

That said, both of these tips came in before late July, which is when Jim Comey testified the CI investigation started.

Which is where this predicate debate has always gone wrong. It imagines that the FBI opened an investigation into one and only one thing. In addition to those two things, there were the actual hack and the Guccifer 2.0 persona — already perceived to be a Russian operation before the first Steele report came in — along with clear indications Wikileaks was involved with it. There was Carter Page’s publicly reported trip and speech in Russia, and the beginnings of the reawakening Paul Manafort scandal. And there were the concerns raised about the change in the GOP platform (though I think that got more press than the evidence justified).

So there were a whole bunch of things leading up to the opening of the investigation. And there’s no reason to believe just one predicated the investigation.

Similarly, the case on the FISA orders is mixed (though this is an area, in particular, where the FBI would have an incentive to release partial stories). One of the first reports on Carter Page’s FISA order dates it to late summer, when the Trump campaign was distancing itself from him. But later reporting said he had been tapped even before he joined the campaign, in conjunction with his earlier recruitment by Russian spies.

Manafort, too, was reportedly targeted under FISA because of his earlier dalliances with Russia. In his case, the wiretap had lapsed, but was restarted after new details of his corruption forced him off the campaign in August.

As I’ll write in my larger post on the Simpson transcript, I don’t think all this means the tie between the dossier and the FBI investigation is above reproach. But it does seem clear that, even if the dossier is one thing that justified the investigation, it was neither the earliest thing nor the only thing.

Incidental Collection Under Section 702 Has Probably Contributed to Trump’s Downfall, Too

As you’ve no doubt heard, the House passed the bad reauthorization to Section 702 yesterday. The Senate will vote on cloture on Tuesday — though both Rand Paul and Ron Wyden have threatened to filibuster it — and will almost certainly be voted into law after that.

I’ll have comment later on the rising costs, for politicians, for mindlessly reauthorizing these bills in a follow-up post.

Paul Ryan told President Trump Section 702 hasn’t affected his people

But for the moment, I want to comment on the debate that took place in response to Trump’s two tweets. The first tweet, which was clearly a response to a Judge Napolitano piece on Fox News yesterday morning, complaining about FISA.

Then, after a half hour lesson from Paul Ryan on the different FISA regimes (note, for some reason Devin Nunes was conspicuously absent from much of this process yesterday, both the coddling of the President and managing debate on the bill), a follow-up tweet hailing Section 702’s utility for “foreign surveillance of foreign bad guys on foreign land.”

In response to those tweets, many commenters stated, as a matter of fact, that Trump hasn’t been impacted by Section 702, that only traditional FISA intercepts drove key developments in the Russian investigation.

That’s unlikely to be true, and I suspect we already have evidence that that’s not the case.

It is true that incidental collection on a Title I got Mike Flynn in trouble

To defend the case that incidental collection off a traditional FISA order has impacted Trump’s administration, people point to the December 29, 2016 intercepts of communications between Sergey Kislyak and Mike Flynn which were cited in Flynn’s guilty plea. It is true that those intercepts were done under a traditional FISA order. Admiral Mike Rogers as much as confirmed that last March in his efforts to explain basic FISA law to the House Intelligence Committee Republicans who are supposed to oversee it.

Rogers: FISA collection on targets in the United States has nothing to do with 702, I just want to make sure we’re not confusing the two things here. 702 is collection overseas against non US persons.

And Speaker Ryan, fresh off his efforts to teach the President basic surveillance law, yesterday clarified — inaccurately — that,

Title 1 of the FISA law is what you see in the news that applies to U.S. citizens. That’s not what we’re talking about here. This is Title 7, Section 702. This is about foreign terrorists on foreign soil.

Whatever the facts about FISA orders targeting Carter Page and Paul Manafort, the intercepts that have done the most known damage to the Trump Administration so far targeted a foreigner on US soil, Sergey Kislyak, and Flynn just got picked up incidentally.

Papadopoulos’ affidavit and statement of offense make different claims about his false claims and obstruction

But as I said, I suspect it is highly likely the Trump Administration has also been brought down by an American being caught up incidentally in a Section 702 tasking. That’s because of several details pertaining to the George Papadopoulos plea which I nodded to here; they strongly suggest that Papadopoulos’ Facebook communications with Joseph Mifsud were first obtained by the FBI via Section 702, and only subsequently parallel constructed using a warrant. It’s further likely that the FBI obtained a preservation order on Papadopoulos’ Facebook account before he deleted it because of what they saw via Section 702. [Update: KC has alerted me that they may not have gotten a preservation order, but instead were able to access the Facebook account because that content doesn’t all go away when you deactivate an account, which is what the October 5 document describes as happening.]

Compare the two descriptions of how Papadopoulos obstructed justice. The July 28, 2017 affidavit supporting Papadopoulos’ arrest describes Papadopoulos destroying his Facebook account to hide conversations he had with Timofeev.

The next day, on or about February 17, 2017, however, GEORGE PAPADOPOULOS, the defendant, shut down his Facebook account, which he had maintained since approximately August 2005. Shortly after he shut down his account, PAPADOPOULOS created a new Facebook account.

The Facebook account that PAPADOPOULOS shut down the day after his interview with the FBI contained information about communications he had with Russian nationals and other foreign contacts during the Campaign, including communications that contradicted his statements to the FBI. More specifically, the following communications, among others, were contained in that Facebook account, which the FBI obtained through a judicially authorized search warrant.

The affidavit makes it clear that Papadopoulos attempted to hide “his interactions during the Campaign with foreign contacts, including Russian nationals.” The descriptions of the communications that Papadopoulos attempted to hide are described as “a Facebook account identified with Foreign Contact 2,” Timofeev.

The FBI recorded both interviews, suggesting they already by January 27 they had reason to worry that Papadopoulos might not tell the truth.

The October 5 statement of the offense describes one of Papadopoulos’ false statements this way:

PAPADOPOULOS failed to inform investigators that the Professor had introduced him to the Russian MFA Connection [Timofeev], despite being asked if he had met with Russian nationals or “[a]nyone with a Russian accent” during the Campaign. Indeed, while defendant PAPADOPOULOS told the FBI that he was involved in meetings and did “shuttle diplomacy” with officials from several other countries during the Campaign, he omitted the entire course of conduct with the Professor and the Russian MFA Connection regarding his efforts to establish meetings between the Campaign and Russian government officials.

And it describes his obstruction this way:

The next day, on or about February 17, 2017, defendant PAPADOPOULOS deactivated his Facebook account, which he had maintained since approximately August 2005 and which contained information about communications he had with the Professor and the Russian MFA Connection. Shortly after he deactivated his account, PAPADOPOULOS created a new Facebook account that did not contain the communications with the Professor and the Russian MFA Connection.

On or about February 23, 2017, defendant PAPADOPOULOS ceased using his cell phone number and began using a new number.

In neither document does FBI mention having the content of Papadopoulos’ April 2016 Skype calls with Timofeev and neither one cites data — such as texts — that might have been on his cell phone.

What FBI (probably) learned when

While we can’t be sure — after all, the government may simply be withholding more information from other suspects — the differences between the two legal filings and other public information suggest the following evolution in what the government knew of Papadopoulous’ communications with his interlocutors when. Most importantly, the FBI had learned of Papadopoulos’ communications with Joseph Mifsud and Olga Vinogradova before his two interviews, but they had not learned of his communications with Ivan Timofeev.

Late July 2016

In a drunken conversation in May 2016, Papadopoulos told the Australian Ambassador Alexander Downer that he had been told (by Joseph Mifsud, but it’s not clear Papadopoulos would have revealed that) the Russians had dirt on Hillary in the form of emails.

Before January 27, 2017

  • Papadopoulos might lie and so should be recorded
  • Papadopoulos had interesting communications with Joseph Mifsud and Olga Vinogradova
  • Since Timofeev did not come up in the interview, FBI appears not to have learned of those conversations yet

Before February 16, 2017

  • Papadopoulos’ Facebook was interesting enough to sustain a preservation request but (because FBI still didn’t know about Timofeev) FBI had not yet accessed its content via Papadopoulos [Though see update above]
  • FBI had not yet accessed Skype, which would have shown call records between Timofeev and Papadopoulos
  • FBI did not have a warrant on Papadopoulos’ phone and never obtained one before February 23

By July 28, 2017

  • FBI had obtained a warrant for Papadopoulos’ email
  • FBI had read the Facebook content Papadopoulos tried to delete, discovering the communications (and the relationship) with Timofeev
  • FBI had identified the Skype conversations that had taken place, but not in time to collect them using 702

By October 5, 2017

  • FBI had obtained far more email from the campaign side
  • FBI had discovered that, in addition to destroying his Facebook account, Papadopoulos had also gotten a new phone number (and, I suspect, a new phone), thereby destroying any stored texts on the phone

FBI probably tracked Papadopoulos’ Facebook communications with Mifsud before February 16

Again, this is just a guess, but given the evolution of FBI’s understanding about Papadopoulos laid out above, it seems highly likely that FBI had obtained some (but not all) of Mifsud’s communications before February 16, had submitted preservation requests to Papadopoulos’ providers, but had not yet obtained any legal process for content via Papadopoulos. Given that Papadopoulos’ Facebook content was preserved even in spite of his effort to destroy it, it seems clear the government had reason to know its content was of interest, but it did not yet know about his Facebook communications with Timofeev. This is how FBI routinely launders Section 702 information through criminal process, by getting a warrant for the very same content available at PRISM providers that they already obtained via PRISM. They key detail is that they appear to have known about the content of some but not all of Papadopoulos’ Facebook messages in time to preserve the account before February 16.

This strongly suggests the FBI had obtained Mifsud’s Facebook content, but not Papadopoulos’.

Once FBI opened a full investigation into the Russian ties — which we know they did in late July, in part because of that Papadopoulos conversation about the Mifsud comments — it could task and obtain a raw feed of any known PRISM account for any foreigner overseas associated with that investigation. Once it identified Mifsud as Papadopoulos’ interlocutor — and they would have been able to identify their common relationship from their common front organization, the London Centre of International Law Practice — they would have tasked Mifsud on any identifier they could collect.

And collecting on Facebook would be child’s play — just ask nicely. So it would be shocking if they hadn’t done it as soon as they identified that Mifsud was Papadopoulos’ interlocutor and that he had a Facebook account.

Incidental collection under 702 may have led to the preservation of evidence about the Timofeev relationship Papadopoulos tried to destroy

If all this is right — and it is admittedly just a string of well-educated guesses — then it means FBI’s ability to incidentally collect on Papapdopoulos by targeting Mifsud may have been what led them to take action to preserve Papadopoulos’ Facebook content, and with it evidence of ongoing communications with Timofeev that he had tried to hide.

And the fact that he did try to hide it is what led to Mueller flipping his first cooperating witness.

So if all this is right, then incidental collection on Papadopoulos under Section 702 may be every bit as central to Trump’s legal jeopardy right now as the incidental collection on Flynn under Title I. They’re both critical pieces in proving any hypothetical case that Trump traded policy considerations for the release of Hillary emails.

This is how Section 702 is supposed to work, and could be done under USA Rights

Let me be clear: I’m not saying the discovery of Papadopoulos’ Facebook communications with Mifsud and through them his Facebook communications with Timofeev is an abuse. On the contrary, this is how 702 is supposed to work.

If we’re going to have this program, it should be used to target suspect agents of a foreign power located overseas, as Mifsud clearly was. If he was targeted under 702, he was targeted appropriately.

But there is no reason to believe doing so required any of the more abusive uses of 702 that USA Rights would limit. Unless Mifsud was already tasked at FBI when they opened the investigation in July 2016, there’s no reason to believe this account could have been found off of a back door search at FBI. Mifsud may have been tasked at NSA or even CIA, but if he was, searching on Papadopoulos because the government suspected he was being recruited by a foreign power would fall under known justifications for back door searches at those foreign intelligence agencies (especially at CIA).

USA Rights would permit the use of this 702 information to support the criminal case against Papadopoulos, because it’s clearly a case of foreign government spying.

And no use of the Tor exception would be implicated with this search.

In other words, Section 702 as Ron Wyden and Rand Paul and Justin Amash and Zoe Lofgren would have it would still permit the use of Section 702 as a tool to — ultimately — lead FBI to figure out that Papadopoulos was hiding his contacts with Ivan Timofeev.

As it turns out, the kinds of people Trump’s foreign policy advisor George Papadopoulos was chatting up on Facebook — Joseph Mifsud and Ivan Timofeev — are precisely the kind of people the FBI considers “foreign bad guys on foreign land” for the purposes of Section 702, meaning the Bureau could get their Facebook account quite easily.

And the incidental collection of Americans of such conversations can be — may well have been — as dangerous to Donald Trump as the incidental collection of Americans under Title I.