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DOJ Is Abusing FOIA Exemptions to Hide Later, More Damning Testimony of Trump Aides

The government has now “released” around 200 302s (FBI interview reports) in response to BuzzFeed/CNN’s FOIA. The vast majority of those, however, are heavily and at times entirely redacted. DOJ is using an unprecedentedly broad interpretation of the already badly abused b5 (deliberative) FOIA exemption to keep much of this hidden. This includes treating communications with the following people as “presidential communications:”

a. Donald Trump, President

b. Michael Pence, Vice President

c. John Kelly, Chief of Staff

d. Reince Priebus, Chief of Staff

e. Donald McGahn, Counsel to the President

f. Michael Flynn, National Security Advisor

g. Emmett Flood, Special Counsel to the President

h. Sean Spicer, Press Secretary

i. Sarah Huckabee Sanders, Deputy Press Secretary; Press Secretary

j. Robert Porter, Staff Secretary

k. Stephen Bannon, Chief Strategist and Senior Adviser to the President

l. Richard Dearborn, Deputy Chief of Staff

m. John Eisenberg, Deputy Counsel to the President and Legal Adviser to the National Security Council

n. K.T. McFarland, Deputy National Security Advisor

o. Uttam Dhillon, Deputy Counsel to the President

p. Annie Donaldson, Chief of Staff to the Counsel to the President

q. Jared Kushner, Senior Adviser to the President

r. Ivanka Trump, Senior Adviser to the President

s. Hope Hicks, Director of Strategic Communications; Director of Communications

t. Stephen Miller, Senior Adviser to the President

DOJ has offered a similar — albeit smaller — list (pages 16-17) of people covered by “Presidential” privileges during the Transition (yes, both Ivanka and Jared are on that list, too).

This is outright abuse, and given yesterday’s opinion stating he will review the existing redactions in the Mueller Report, I expect Judge Reggie Walton to deem it as such once the litigation rolls around to that point.

All the more so given that it can be demonstrably shown that DOJ is selectively releasing 302s such that Trump aides’ false statements are public, but their later more accurate (and damning) statements are hidden. There are at least three examples (Steve Bannon, KT McFarland, and Mike Flynn) where DOJ is still withholding later, more accurate statements while releasing earlier deceitful ones, and two more cases (JD Gordon and Sam Clovis) where DOJ may be hiding discussions of Trump pro-Russian policy stances. And in one case (Clovis), DOJ appears to have used a b3 (protected by statute) exemption that doesn’t appear to be justifiable.

Steve Bannon

Steve Bannon was interviewed on at least five occasions:

  • February 12, 2018: large swaths unredacted
  • February 14, 2018: Heavily redacted under both b5 and (pertaining to WikiLeaks, Stone, and Cambridge Analytica, ongoing investigation), but with key passages revealed
  • October 26, 2018: Not yet released
  • January 18, 2019: Proffer released, but 302 not yet released
  • Unknown date (in advance of Stone trial): Not yet released

There are significantly redacted discussions (protected under ongoing investigation redactions) in Bannon’s February 14 302 that conflict with his later public admissions. And Bannon’s testimony in the Roger Stone trial shows that his 302s — including the trial prep one — conflict with his grand jury testimony. What has thus far been made public includes denials of coordination on WikiLeaks that both his October 2018 and January 2019 302s must contradict. Yet DOJ has not released the later, more damning 302s yet.

KT McFarland

As has been publicly reported, KT McFarland at first lied to the FBI but — in the wake of Mike Flynn’s plea deal — unforgot many of the key events surrounding discussions about sanctions during the Transition. While DOJ has not yet released her first 302, the others are, in general, lightly redacted. They show how she appears to have told a cover story about discussions about sanctions during the Transition. The 302 in which she cleaned up her testimony, which would show what really happened during the Transition, is largely redacted.

  • August 29, 2017: Not yet released
  • September 14, 2017: Lightly redacted (though hiding details of Tom Bossert email and her claims about the Flynn sanctions discussion)
  • October 17, 2017: Lightly redacted, though with some Mar-a-Lago and sanctions cover story details redacted
  • October 19, 2017: Significantly redacted
  • December 5, 2017: Lightly redacted; this captures McFarland’s panic in the days after Flynn’s plea
  • December 22, 2017: Very heavily redacted

Mike Flynn

Mike Flynn’s initial 302, from January 24, 2017, has been public for some time. Flynn has twice admitted, under oath, that he lied in that 302.

None of his other Russia-related 302s, including those where he corrected his story in November 2017, have been made public (though DOJ may be withholding these because he has not yet been sentenced). Among the 302s DOJ is withholding involves at least one describing how the Trump campaign discussed reaching out to WikiLeaks after the John Podesta emails dropped.

JD Gordon

JD Gordon’s testimony was critical to Mueller’s finding that Trump and Paul Manafort had no personal involvement in preventing convention delegate Diane Denman from making the RNC platform more hawkish on Ukraine. Details of this investigation into Gordon’s role appear entirely unredacted in the DOJ IG Report on Carter Page as part of the case that FBI should have removed any claim that Page was involved in the platform.

Gordon’s first interview is largely unredacted. It soft-pedals Trump’s pro-Russian stance on the campaign.

GORDON flagged DENMAN’s amendment because TRUMP had mentioned not wanting to start World War III over Ukraine. TRUMP had mentioned this both in public and in private, including at the campaign meeting on March 31, 2016. This was not GORDON’s stance but TRUMP’s stance on Ukraine.

[snip]

DENMAN [redacted] and asked GORDON what he had against the free people. GORDON explained TRUMP’s statements regarding World War III to her. She asked why they were there and who GORDON was on the phone with. GORDON told her he was on the phone with his colleagues but didn’t provide names.

But Gordon’s final 302 is largely redacted, though it leaves unredacted the World War III excuse. Some of the redactions appear to hide Gordon’s testimony about the things Trump said in campaign appearances that Gordon used to explain his intervention in the Convention.

There is also discussion in his last interview about whether he consulted with Jeff Sessions on the platform issue during phone calls placed at the time (which he denied he had).

The Mueller Report also describes how Sergey Kislyak invited Gordon to his residence in DC shortly after the convention; that reference is based entirely on emails exchanged between the two; it would be worthwhile to know what he said if he was asked about the invite in his FBI interviews, but if so, it is redacted.

Sam Clovis

Sam Clovis appears to have had three interviews, though it seems Mueller’s team may never have trusted his testimony. The interviews are cited just three times in the Mueller Report, and he makes denials in his interviews that conflict with communication-based evidence laid out in the Mueller Report and what he is reported to have told Stefan Halper in the DOJ IG Report on Carter Page (PDF 367-370). Clovis’ testimony is particularly important because he claims there was a shift in policy towards Russia during the campaign, but his released testimony is inconsistent on that point.

Clovis was first interviewed on October 3, 2017 at his office at USDA. The 302 makes clear that “about a quarter of the way through the interview, CLOVIS was warned that lying to the agents could constitute a federal offense.” In that interview, Clovis makes extremely strong denials about Russia.

CLOVIS started off the interview by explaining that he hates Russia and that should be clear throughout his interview.

[snip]

Russia was never a topic between CLOVIS and TRUMP. They would occasionally discuss it in debate prep. CLOVIS did most of the debate prep during the primaries. They talked about a Ukrainian policy and discussed having a bipartisan approach to this because of the divided based on Ukraine.

[snip]

A lot of people approached the campaign with ideas about foreign policy topics. Some of them wanted to approach and engage Russia but CLOVIS never trusted RUSSIA.

[snip]

CLOVIS thought interacting with Russia was a bad idea on any level because of comments TRUMP made.

[snip]

CLOVIS thinks the Special Counsel investigation is more political than practical. From CLOVIS’ perspective he didn’t see anything that warranted an investigation. CLOVIS said the campaign didn’t have anything to do with Russians. No one advised anyone to meet with Russians. CLOVIS wanted nothing to do with Russia and would never approve a meeting with the Russians. CLOVIS explained that Russians are different with Russia. You can’t just sit down at the table with them.

[snip]

CLOVIS does not recall Russia being brought up in the March 31, 2016 meeting.

[snip]

PAGE had an interesting background, including time in the Navy, experience in energy policy and Russian business. They were rushed into putting a foreign policy team together. CLOVIS thought PAGE was pretty harmless but also didn’t provide much value. CLOVIS said he never talked to PAGE about meetings with Russia and doesn’t remember PAGE ever bringing up Russia.

[snip]

CLOVIS didn’t think the change [in platform] was in line with TRUMP’s stance. CLOVIS thought their plan was to support Ukraine in their independence by engaging their NATO allies. CLOVIS is concerned PUTIN is trying to establish a Soviet empire.

That very same day, the FBI interviewed Clovis a second time, also in his USDA office. In the second interview, Clovis made comments that probably conflict with what Clovis told Stefan Halper in August 2016.

CARTER PAGE and GEORGE PAPADOPOULOS were not involved with the campaign team. They were not players in the campaign.

More importantly, in the second interview — on the same day!! — Clovis admitted that Trump did want better ties with Russia.

TRUMP wanted improved relations with Russia. The “bromance” TRUMP had with PUTIN bothered CLOVIS but the press and the public fed on it. CLOVIS felt like he had to cleanup with a shovel because TRUMP played up his bromance with PUTIN for the public.

Clovis also denied discussions of a trip to Russia that the FBI had proof he was personally involved in.

CLOVIS was asked about emails regarding an “unofficial trip” to Russia which were discussed in a Washington Post article. CLOVIS indicated this was info he was not privy to. CLOVIS said he doesn’t know who would have authorized such meetings but he never gave PAPADOPOULOS any indication to setup meetings.

CLOVIS denied learning about any dirt on Hillary, something that Papadopoulos provided conflicting testimony on.

CLOVIS was asked if he ever heard anyone discuss Russians having dirt on HILLARY CLINTON. CLOVIS said he wasn’t aware of that and if someone had that info they probably wouldn’t bring it to CLOVIS. CLOVIS pointed out that he was never asked to do anything untoward.

And in this second interview, Clovis softened on whether anyone had been compromised by Russia.

CLOVIS further explained how Russia can be very sneaky and will try to distract you on one side while sneaking by you on the other side. They will use any mechanism they can. CLOVIS fought them for years. CLOVIS didn’t feel like there was anything going on with the campaign though.

The interview ends with what may to be a discussion about a subpoena.

CLOVIS asked the agents [redacted] since he had cooperated. He was concerned about his travel plans and indicated he planned on leaving [redacted] and returning to D.C. [redacted] Agents agreed to [redacted] but said they would contact him later with information [redacted].

Note, the most substantive redactions in these two 302s have b3 redactions, which covers information “exempted from disclosure by statute.” While some of the last paragraph might be a discussion about serving a grand jury subpoena, none of the rest of it should be. And in other 302s, discussions of the same events (such as the March 31 meeting) are not redacted under b3 exemptions. It is hard to see how that redaction is permissible.

Clovis’ October 26 interview is entirely redacted under b5 exemptions.

Amid Discussions of FISA Reform, James Boasberg Pushes for Greater Reform

It’s not entirely clear what will happen in a few weeks when several existing FISA provisions expire; there are ongoing discussions about how much to reform FISA in the wake of the Carter Page IG Report. But before anyone passes legislation, they would do well to read the order presiding FISA Judge James Boasberg issued yesterday.

On its face, Boasberg’s order is a response to DOJ’s initial response to FISC’s order to fix the process, Amicus David Kris’ response to that, and DOJ’s reply to Kris. The order ends by citing In re Sealed Case, the 2002 FISCR opinion that limited how much change the FISA Court can demand of DOJ, and “acknowledging that significant change can take time, and recognizing the limits of its authority.” By pointing to In re Sealed Case, Boasberg highlights the limits of what FISC can do without legislation from Congress — and, importantly, it highlights the limits of what FISC could do to improve the process if Bill Barr were to convince Congress that DOJ can fix any problems itself, without being forced to do so by Congress.

After invoking In Re Sealed Case, Boasberg orders reports (due March 27, May 4, May 22, June 30, and July 3) on the progress of a number of improvements. He orders that any DOJ or FBI personnel under disciplinary or criminal review relating to work on FISA applications may not participate in preparing applications for FISC, and he requires additional signoffs on applications, including Section 215 orders, which currently don’t require such affirmations.

Boasberg recognizes that DOJ, not just FBI, needs to change

Remarkably, Boasberg notes what I have — the IG Report provides evidence, its focus on FBI notwithstanding, that some of the blame for the Carter Page application belongs with DOJ, not FBI.

According to the OIG Report, the DOJ attorney responsible for preparing the Page applications was aware that Page claimed to have had some type of reporting relationship with another government agency. See OIG Rpt. at 157. The DOJ attorney did not, however, follow up to confirm the nature of that relationship after the FBI case agent declared it “outside scope.” Id. at 157, 159. The DOJ attorney also received documents that contained materially adverse information, which DOJ advises should have been included in the application. Id. at 169-170. Greater diligence by the DOJ attorney in reviewing and probing the information provided by the FBI would likely have avoided those material omissions.

As a result, Boasberg requires the DOJ attorney signing off on a FISA application to attest to the accuracy of it as well. He also suggests DOJ attorneys “participate in field-office visits to assist in the preparation of FISA applications.”

Boasberg recognizes that DOJ’s existing plan doesn’t address any root cause

Similarly, Boasberg recognizes that if the real problem with the Carter Page FISA applications involved information withheld from the application, improving the Woods procedure won’t fix the problem. In an extended section on oversight, Boasberg strongly suggested that DOJ needs to review whether information was withheld from the application.

Amicus agrees that reviews designed to elicit any pertinent facts omitted from the application, rather than merely verifying the facts that were included, would be extremely valuable, but also recognizes that such in-depth reviews would be extremely resource intensive. See Amicus Letter Br. at 12. He thus recommends that such reviews be conducted periodically at least in some cases and, echoing Samuel Johnson, advises that selection of cases for such reviews should be unpredictable because the possibility that any case might be reviewed “should help concentrate the minds of FBI personnel in all cases.” Id. In its response, the government advised that “it will expand its oversight to include additional reviews to determine whether, at the time an application is submitted to the FISC, there was additional information of which the Government was aware that should have been included and brought to the attention of the Court.” Resp. to Amicus at 13. DOJ advised, however, that given limited personnel to conduct such reviews, it is still developing a process for such reviews and a sampling methodology to select cases for review. ld. The Court sees value in more comprehensive completeness reviews, and random selection of cases to be reviewed should increase that value. As DOJ is still developing the necessary process and methodology, the Court is directing further reporting on this effort.

Amicus also encouraged the Court to require a greater number of accuracy reviews using the standard processes already in place. See Amicus Letter Br. at 12. He believes that the FBI and DOJ have the resources to ensure that auditing occurs in a reasonable percentage of cases and suggested that it might be appropriate to audit a higher percentage of certain types of cases, such as those involving U.S. persons, certain foreign-agent definitions, or sensitive investigative matters. Id. The government did not address Amicus’s recommendation that it increase the number of standard reviews.

Even though accuracy reviews are conducted after the Court has ruled on the application in question, the Court believes that they have some positive effect on future accuracy. In addition to guarding against the repetition of errors in any subsequent application for the same target, they should provide a practical refresher on the level of rigor that should be employed when preparing any FISA application. It is, however, difficult to assess to what extent accuracy reviews contribute to the process as a whole, partly because it is not clear from the information provided how many cases undergo such reviews. The Court is therefore directing further reporting on DOJ’s current practices regarding accuracy reviews, as well as on the results of such reviews.

Finally, the FBI has directed its Office of Integrity and Compliance to work with its Resource Planning Office to identify and propose audit, review, and compliance mechanisms to assess the effectiveness of the changes to the FISA process discussed above. See OIG Rpt. app. 2 at 429. Although the Court is interested in any conclusions reached by those entities, it will independently monitor the government’s progress in correcting the failures identified in the OIG Report.

Again, as I already noted, Boasberg himself found DOJ’s oversight regime inadequate in a 702 opinion written last year. He knows this is insufficient.

But as noted above, all Boasberg can do is order up reports and attestations.

At a minimum, Congress should put legal language behind the oversight he has now demanded twice.

A far better solution, however, would be to provide the oversight on FISA applications that other criminal warrant applications receive: review by defense attorneys in any cases that move to prosecution, which by itself would build in “unpredictabl[y] because the possibility that any case might be reviewed.”

James Boasberg, the presiding judge of the FISA court, issued an order in the middle of a debate about reform that points to several ways FISA should be improved, ways that the he can’t do on his own.

Congress would do well to take note.

Driving Carter Page: What the 302 Says

One of the seventeen Woods violations the DOJ IG Report cites in its list of errors in the Carter Page report involves a chauffeured car.

It involves a June 1, 2017 interview with Yuval Weber, who is the son of Shlomo Weber, the academic who invited Page to speak before the New Economic School. The IG Report seems to raise doubts about the more important allegation here — that Page was rumored to have met with Igor Sechin (which would match a claim made in the Steele dossier).

A June 2017 interview by the FBI of an individual closely tied to the President of the New Economic School in Moscow who stated that Carter Page was selected to give a commencement speech in July 2016 because he was candidate Trump’s “Russia-guy.” This individual also told the FBI that while in Russia in July 2016, Carter Page was picked up in a chauffeured car and it was rumored he met with Igor Sechin. However, the FD-302 documenting this interview, which was included in the Woods File for Renewal Application No. 3, does not contain any reference to a chauffeured car picking up Carter Page. We were unable to locate any document or information in the Woods File that supported this assertion. 371

This week’s release of Mueller 302s includes the 302 from this interview. It shows that, amid a broad discussion of the way that Russia tries to cultivate Americans (including using invitations such as the one offered to Mike Flynn), Weber described,

SA [redacted] later asked why would NES want a speaker [redacted] Weber said that it was because he was Trump’s Russia-guy. The university typically had heads of state and Nobel Laureates as commencement speakers; in fact, Weber claimed they could have any Nobel Laureate they wanted for the speech.

[redacted]

In July, when Page had traveled to give the commencement speech at NES, Weber recalled that it was rumored in Moscow that Page met with Igor Sechin. Weber said that Moscow is filled with gossip and people in Moscow were interested in Page being there. It was known that a campaign official was there.

Page may have briefly met with Arkady Dvorkovich at the commencement speech, considering Dvorkovich was on the board at NES. But Weber was not aware of any special meeting.

[redacted] was not with Page 100% of the time, he met him for dinner, attended the first public presentation, but missed the commencement speech. They had a few other interactions. Page was very busy on this trip.

The 302 notes the follow-up call (but, as the IG Report correctly notes, does not mention the chauffeured car):

On 6/06/2017, SA [redacted] and SA [redacted] conducted a brief telephone follow-up interview of Weber. Weber provided the following information:

SA [redacted] asked a question specifying Weber’s previous statement that it was rumored in Moscow in July of 2016 that Page had met with Igor Sechin, as stated above, Weber said “I think so.” Weber described that Page mentioned in July that he previously met with the Prime Minister of India Narendra Modi. Weber was surprised that Page would meet a head of state, but it made him less surprised about the rumor of Page meeting Sechin.

Weber also told the agents that if they wanted to chase the rumor that Moscow had started monitoring Trump when oligarchs started “moving” money into NY real estate, they should,

…speak to any billionaire who purchased real estate from Trump, including [redacted] and Kirill Dimitriev.

Dmitriev, of course, is the Russian who successfully reached out to the Trump Transition via Erik Prince and Rick Gerson.

Ultimately, this was still just a rumor, and the FBI accurately noted it as such in the FISA application. The detail about a chauffeured car — which in this day and age could be an Uber! — seems unnecessary to the application, but also did make it into the application in violation of Woods procedures.

Still, as always, the real problems with Page’s applications were not the Woods procedure violations; they involved the more substantive exculpatory information that didn’t make it into the application.

The Carter Page Clauses in the FISA Reform Bill Wouldn’t Help Carter Page

The House Judiciary Committee has released a mark-up for a bill that would reauthorize Section 215 and make some improvements. It’s not a bad bill. It would:

  • End the Call Detail Record program and prohibit prospective call record collection
  • Include notice for 215 collection
  • End FBI’s exemption for reporting requirements
  • Improve the FISA amicus
  • Impose deadlines for releasing FISA orders

But the bill almost certainly doesn’t accomplish the things it first set out to do, to provide added protections for someone like Carter Page. It does this in two ways.

First, it requires the Privacy and Civil Liberties Oversight Board to complete a report on how much First Amendment activities or race, ethnicity, national origin, religion, or sex are used in targeting decisions under FISA.

SEC. 303. REPORT ON USE OF FISA AUTHORITIES REGARDING PROTECTED ACTIVITIES AND PROTECTED CLASSES.

(a) REPORT.—Not later than one year after the date of the enactment of this Act, the Privacy and Civil Liberties Oversight Board shall make publicly available, to the extent practicable, a report on—

(1) the extent to which the activities and protected classes described in subsection (b) are used to support targeting decisions in the use of authorities pursuant to the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.); and

(2) the impact of the use of such authorities on such activities and protected classes.

(b) ACTIVITIES AND PROTECTED CLASSES DESCRIBED.—The activities and protected classes described in this subsection are the following:

(1) Activities and expression protected by the First Amendment to the Constitution of the United States.

(2) Race, ethnicity, national origin, religious affiliation, sex, and any other protected characteristic determined appropriate by the Board.

(c) FORM.—In addition to the report made publicly available under subsection (a), the Board may submit to the appropriate congressional committees a classified annex.

One would imagine that Carter Page, whom the Republicans think was targeted because he volunteered for the Trump campaign, would be among the people bill drafters had in mind for First Amendment protect activities.

Except he wouldn’t be included, for two reasons.

First, PCLOB’s mandate is limited to counterterrorism programs. That didn’t matter for their very good Section 215 report, because they were examining only the CDR program, which itself was limited to terrorism (and Iran).

But it did matter for the Section 702 report. In fact, PCLOB ignored some of the most problematic practices under Section 702, conducted under the guise of cybersecurity, because that’s outside their mandate! It also didn’t explore the impact of NSA’s too-broad definition of targeting under the Foreign Government certificate.

In this case, unless you expand the scope of PCLOB, then this report would only report on the targets of terrorism FISA activity, not foreign intelligence FISA activity, and so not people like Carter Page.

Carter Page would also not be covered under this and a clause attempting to ensure the FISA amicus reviews applications with any First Amendment component.

(a) EXPANSION OF APPOINTMENT AUTHORITY.— Subparagraph (A) of section 103(i)(2) (50 U.S.C. 1803(i)(2)) is amended to read as follows:

‘‘(A) shall appoint an individual who has been designated under paragraph (1) to serve as amicus curiae to assist such court in the consideration of any application for an order or review that, in the opinion of the court—

‘‘(i) presents a novel or significant interpretation of the law, unless the court issues a finding that such appointment is 16 not appropriate; or

‘‘(ii) presents significant concerns with respect to the activities of a United States person that are protected by the first amendment to the Constitution, unless the court issues a finding that such appointment is not appropriate; and’’.

Here, the problem has to do with the investigation into Carter Page, and the way I understand FISA was written originally.

As I note in this post, DOJ IG didn’t figure out until 11 days after it published the Carter Page IG Report that the FBI used (and may still use) the same investigative code for both FARA — which by definition has a political component — and 18 USC 951 — which doesn’t need to have. The report as a whole had a long discussion of the standard to get beyond First Amendment considerations, as if all four Trump flunkies targeted under Crossfire Hurricane would qualify.

FISA provides that a U.S. person may not be found to be a foreign power or an agent of a foreign power solely upon the basis of activities protected by the First Amendment. 129 Congress added this language to reinforce that lawful political activities may not serve as the only basis for a probable cause finding, recognizing that “there may often be a narrow line between covert action and lawful activities undertaken by Americans in the exercise of the [F]irst [A]mendment rights,” particularly between legitimate political activity and “other clandestine intelligence activities. “130 The Report by SSCI accompanying the passage of FISA states that there must be “willful” deception about the origin or intent of political activity to support a finding that it constitutes “other clandestine intelligence activities”:

If…foreign intelligence services hide behind the cover of some person or organization in order to influence American political events and deceive Americans into believing that the opinions or influence are of domestic origin and initiative and such deception is willfully maintained in violation of the Foreign Agents Registration Act, then electronic surveillance might be justified under [“other clandestine intelligence activities”] if all the other criteria of [FISA] were met. 131

129 See 50 U.S.C. §§ 1805(a)(2)(A), 1824(a)(2)(A).

130 H. Rep. 95-1283 at 41, 79-80; FISA guidance at 7-8; see also Rosen, 447 F. Supp. 2d at 547-48 (probable cause finding may be based partly on First Amendment protected activity).

131 See S. Rep. 95-701 at 24-25. The Foreign Agents Registration Act, 22 U.S.C. § 611 et seq., is a disclosure statute that requires persons acting as agents of foreign principals such as a foreign government or foreign political party in a political or quasi-political capacity to make periodic public disclosure of their relationship with the foreign principal, as well as activities, receipts and disbursements in support of those activities.

Except it miscited the reference to the Senate Report. The citation, as written, goes to a passage of the Senate Report that says that if a potential target is acting under the direction of an intelligence service of a foreign power, they can be targeted even for their political activities.

It is the intent of this requirement that even if there is some substantial contact between domestic groups or individual citizens and a foreign power, as defined in this bill, no electronic surveillance wider this subparagraph may be authorized unless the American is acting under the direction of an intelligence service of a foreign power.

The investigation into Carter Page started because he kept sharing non-public economic information with people he knew to be Russian intelligence officers (it was probably started as some kind of economic espionage case).

That is, even before he joined the campaign, FBI had gotten beyond the bar that would treat Page’s targeting as a First Amendment concern, because the entire suspicion stemmed from Page’s explicit willingness to act at the direction of Russia’s intelligence service.

Don’t get me wrong. These are both improvements, with the amicus review for First Amendment activities especially (indeed, I suspect that’s what some of the applications that FBI withdrew in recent years pertained to).

But to do what this bill wants to do on the PCLOB report, you’d have to expand the mandate of PCLOB to cover hacking and spying — something that should happen in any case. That’s especially crucial in this case, given that one of the ethnicities most affected by FISA are Chinese Americans, but as suspected spies, not as suspected terrorists.

And if you want Carter Page to get these enhanced protections, you’d need to change how working for a foreign country affects the First Amendment calculation on FISA.

The President’s Conspiracy Theories Get More Whacko than George Papadopoulos’

Perhaps because the entire legal establishment is pushing back against Bill Barr’s wholesale politicization of DOJ, the President is disturbed on Twitter. After launching a 3-tweet tirade against juror Tameka Hart and Judge Amy Berman Jackson based off a Judge Andrew Napolitano appearance on Fox on Friends (that perhaps unsurprisingly neglects to remind his followers that Napolitano made a case in favor of Trump’s removal by the Senate). he then launched a 3-tweet tirade against the Stone prosecution more generally.

I’m interested in it because of the way Trump attempts to deploy all the other conspiracy theories he has against the Russian investigation to the Stone prosecution, to which they simply don’t apply.

Start with the way Trump claims that 1) the Mueller investigation was “illegally set up” based on the Steele dossier and 2) “forging documents to the FISA Court.”

This is a conceit that has worked well since Paul Manafort, fresh off a meeting with an Oleg Deripaska deputy, suggested Trump could use attacks on the dossier to attack the Mueller Report.

Except one glaring fault of the dossier is that Roger Stone, who had already made comments that suggested he had a direct role in the operation by the time FBI opened investigations on the four initial subjects of it, doesn’t appear in the Steele dossier.

Moreover, whatever else the DOJ IG Report on the Carter Page FISA applications showed, it also showed that the predication of the investigation had nothing to do with the Steele dossier; in fact, Steele’s reports didn’t make it to the investigative team until about six weeks after opening the investigation.

Further, the suggestion that Kevin Clinesmith’s alteration of an email in June 2017 to claim that Page was “not a source” for CIA had anything to do with Roger Stone’s investigation falls flat given that Mueller’s team obtained the first warrant targeting Roger Stone on August 4, 2017, and there’s no insinuation anywhere that Stone ever spoke with Carter Page. (Indeed, in spring 2016, Stone was bitching to Rick Gates that he was not in the loop of foreign policy discussions.) In fact, had Roger Stone been more closely associated with Trump’s freebie foreign policy team, than both Page and George Papadopoulos’ claims to know nothing of campaign efforts to optimize WikiLeaks’ releases would be anything but exculpatory, as DOJ IG treated them, since Stone was doing just that in the time period when they were asked by informants.

Plus, Robert Mueller testified under oath that his team didn’t have anything to do with the Carter Page FISA order. And the investigative record shows that the investigation into Page was largely done by the time Mueller took over.

There’s simply no tie between either the Steele dossier or the Page FISA warrants and Roger Stone’s prosecution.

Trump continues to claim that Mueller interviewed to be FBI Director, even after evidence showing that Steve Bannon, Reince Priebus, and Don McGahn debunked this in real time, not to mention Rod Rosenstein’s 302 that shows that Mueller specifically said he did not want to be interviewed before he met with Trump about Jim Comey’s replacement. That is, a bunch of witnesses — all Republicans — say Trump is wrong.

The most interesting accusation is that the prosecutors who won a conviction against Stone “were Mueller prosecutors.”

Two were: Aaron Zelinsky and Adam Jed.

But two weren’t. Jonathan Kravis (the sole prosecutor who quit DOJ entirely) and Michael Marando were career DC prosecutors brought in to prosecute the case after Mueller shut down. These were, pointedly, not Mueller prosecutors, and the case still went off without a hitch.

In fact, in his interview the other day, Bill Barr made quite clear that this prosecution happened on his watch, and he believes it’s a righteous prosecution.

BARR: Well, as you know, the Stone case was prosecuted while I was attorney general. And I supported it. I think it was established, he was convicted of obstructing Congress and witness tampering. And I thought that was a righteous prosecution. And I was happy that he was convicted.

If Trump has a problem with the guy who prosecuted the case against Roger Stone, he has a problem with his Attorney General Bill Barr.

Which may be why Trump — who shouldn’t be affected by mere lies by Roger Stone to Congress — is threatening to “sue everyone all over the place.” Of course, he is affected by Stone — Stone is going to prison to protect the President, to avoid describing the multiple conversations they had about optimizing the WikiLeaks releases. And suing (whom?!?!) won’t help Trump suppress that.

The President sounds crazier than George Papadopoulos in this rant, and his conspiracy theories are just as unhinged. Which is, I guess, what happens when all the conspiracy theories you’ve been using to undermine the prosecution implicating you turn out to be utterly irrelevant to the most important firewall to protect.

The Real News in Bill Barr’s Announcement: He’s Vetoing Campaign Finance Investigations, Too

Yesterday, NYT broke the news that Attorney General Barr had issued a memo, as promised, requiring his approval before opening an investigation into a presidential candidate. (Update: here’s the memo.)

The memo, which said the Justice Department had a duty to ensure that elections are “free from improper activity or influences,” was issued on the same day that President Trump was acquitted on charges that he had abused his office to push a foreign power to publicly announce investigations into his political rivals. The memo said that the F.B.I. and all other divisions under the department’s purview must get Mr. Barr’s approval before investigating any of the 2020 presidential candidates.

The NBC version of this — written by Barr mouthpiece Pete Williams — falsely suggests this decision was justified by the entirety of the IG Report.

His directive follows a report by the Justice Department’s inspector general that harshly criticized the FBI’s investigation of the 2016 Trump campaign. It recommended an evaluation of the kind of sensitive matters that should require high-level approval, particularly those involving politics.

While the IG Report recommended different practices for sensitive investigations going forward, the report actually showed that a lot of conspiracy theories that Barr had embraced about the opening of the investigation and the use of informants were false. The criticisms — as distinct from recommendations — were largely limited to the Carter Page FISA.

The distinction is important because the other excuse Barr offers is that, if an investigation became known — like both the Hillary email investigation and the Breitbart-dirt predicated Clinton Foundations ones — it might affect the election.

“In certain cases, the existence of a federal criminal or counterintelligence investigation, if it becomes known to the public, may have unintended effects on our elections,” Mr. Barr wrote.

Those concerns, combined with the inspector general’s findings, seemed to underpin Mr. Barr’s memo to top Justice Department officials.

All the evidence in the world suggests that the known problems in Crossfire Hurricane stemmed from the opposite problem, working too hard to keep the investigation secret. Had the FBI not worked so hard to keep it secret, it wouldn’t have been run out of FBI HQ, and so would have had more resources available. Had the FBI not avoided overt steps, it would have obtained call records to indicate that George Papadopoulos (and Paul Manafort and Roger Stone), and not Carter Page, should have been the priority targets. Had the FBI not worked so hard to keep this secret, it might have caught several of Trump’s flunkies in the act of selling out the country. (And all three of those men hid information to prevent their actions from becoming known.) And now Bill Barr wants to make it harder, not easier, to find people selling out our country before they do real damage.

Indeed, this extends even to the larger investigation into Russian interference. SSCI released its report on what the Obama Administration should have done better in 2016 yesterday, and many of the criticisms stem from how closely it held the intelligence about the attack, from Congress, election professionals, and agencies that might respond. (The report also undermined Barr’s justification for the Durham investigation, in that it suggested the IC should have warned policy makers far earlier than happened about Russian intentions, and points to John Brennan’s sensitive intelligence about the operation as the first alarm.)

So the stated purpose doesn’t hold up, as most of Barr’s stated purposes don’t. That’s all the more true when you look at how Barr’s rule has dramatically expanded since he first floated it.

As both NYT and NBC noted, Barr announced the policy in January. The policy, as laid out back then, was far more limited — extending just to counterintelligence investigations.

Attorney General William Barr on Monday announced the Justice Department’s first policy change in response to the FBI’s mucking around in the 2016 election. Henceforth, both an AG and the FBI director must sign off on any proposed counterintelligence investigation into a presidential campaign.

Neither the NYT nor NBC describe any such limitation. Indeed, the make it clear that criminal investigations, including into donors!!!, must be approved.

While the department must respond “swiftly and decisively” to credible threats to the electoral process, “we also must be sensitive to safeguarding the department’s reputation for fairness, neutrality and nonpartisanship,” he wrote.

He previewed the new policy at a news conference in January, when he said his approval would be required in future investigations involving presidential candidates or campaigns.
In the memo, Mr. Barr established a series of requirements governing whether investigators could open preliminary or full “politically sensitive” criminal and counterintelligence investigations into candidates or their donors.

No investigation into a presidential or vice-presidential candidate — or their senior campaign staff or advisers — can begin without written notification to the Justice Department and the written approval of Mr. Barr.

The F.B.I. must also notify and consult with the relevant leaders at the department — like the heads of the criminal division, the national security division or a United States attorney’s office — before investigating Senate or House candidates or their campaigns, or opening an inquiry related to “illegal contributions, donations or expenditures by foreign nationals to a presidential or congressional campaign.”

This rule would have protected the following people from any investigation in 2016:

  • Trump, for paying off former sex partners
  • Paul Manafort, for taking $2.4M after discussing carving up Ukraine to Russia’s liking in 2016
  • Roger Stone, for dark money activity and coordination still unresolved as well as optimizing materials stolen from the Democrats
  • Mike Flynn, for being on Turkey’s payroll while attending Top Secret candidate briefings
  • George Papadopoulos, for trying to monetize his access to Trump with foreign countries including Israel
  • Illegal donations from Russians, Malaysians, Emiratis, and Ukrainians in 2016
  • Illegal coordination between the campaign and its SuperPAC

The only criminal investigations into Trump flunkies that wouldn’t have been covered in 2016 would be the money laundering investigation into Manafort (which started two months before he joined the campaign) and, possibly, the counterintelligence investigation into Page (because his tie to the campaign was not known at the time).

As stated, the rule would require pre-approval for the Ukrainian grifter investigation and any investigation into known coordination problems Trump campaign manager Brad Parscale has engaged in. It would protect not just Trump, but also (because they work on his campaign) his failson and son-in-law.

Plus, Barr believes that because the President can’t be indicted, he should not be investigated. So this is, quite literally, a guarantee that no crime Trump commits between now and election day will be investigated — not even shooting someone on Fifth Avenue  (at the federal level, at least, but DOJ has maintained that NYS cannot investigate the sitting president either). Barr has just announced, using fancy language to avoid headlines describing what this is, that from now until November, he will hold President Trump above the law.

Citizens United has opened up a floodgate of barely hidden cash from foreign donors into our elections. This is not a partisan thing; as noted, Mohammed bin Zayed was dumping huge money into both Hillary and Trump’s campaign. And the Attorney General of the United States has just made it easier for foreigners to tamper in our elections.

Barr has snookered reporters into believing this is the same announcement as he made in January.

It’s not. This is not about spying on a campaign, much as Pete Williams wants to pretend it is. This is about telling Trump and his associates they will not be prosecuted by DOJ, going forward, for the same crimes they’ve committed in the past.

Update: Two more details. The memo requires signed approval by the Deputy Attorney General to open a preliminary investigation of any presidential candidate. But it also requires prompt notice to the Assistant Attorney General for any assessment. That means the AG is demanding that his top deputies learn when someone does a database search.

The Very Limited Republican Concern about FISA

There are a number of FISA submissions made by the Trump Administration that the FISA Court has found problematic. They include:

March 24-27, 2017: FBI conducts queries on FISA data using identifiers for over 70,000 facilities associated with persons with access to FBI facilities and systems (noticed to the court on November 22, 2017)

April 7, 2017: Reauthorization of Carter Page FISA, signed by Jim Comey and Dana Boente, at a time when probable cause was thin and contrary evidence mounting

June 29, 2017: Reauthorization of Carter Page FISA, signed by Andrew McCabe and Rod Rosenstein, at a time when few believed the order was producing valuable intelligence and abundant contrary evidence was known

October 11, 2017: FBI conducts queries to identify cleared personnel on whom to serve process (noticed to the court on February 21, 2018)

November 22, 2017: FBI takes 8 months before notifying FISC of the March 2017 queries

December 1, 2017: FBI conducts over 6,800 queries using a group of social security numbers (noticed to the court on April 27, 2018)

December 7-11, 2017: FBI conducts queries on the identifiers of 1,600 people (noticed to the court on April 12, 2018)

Unknown date: FBI conducts queries of 57,000 identifiers (or individuals) that may not have been designed to return foreign intelligence information (noticed to the court on April 13, 2018)

February 5 and 23, 2018: FBI conducts 30 queries on potential sources (noticed to the court on June 7, 2018)

February 21, 2018: FBI conducts 45 queries on persons being considered as sources (noticed to the court on May 21, 2018)

March 27, 2018: Submission of FBI 702 querying procedures, accompanying an application that included a declaration from Christopher Wray, that fell far short of what Congress recently required

September 18, 2018: Submission of FBI 702 querying procedures that still fall short of standards mandated by Congress, including a supplemental declaration from Wray that relies, in part, on FBI’s “strong culture that places great emphasis on personnel consistently conveying true and accurate information”

Not only did both the Carter Page applications from which DOJ withdrew its probable cause claim come under the Trump Administration, but a slew of fairly alarming uses of FISA data happened under Trump as well. A bunch of them occurred under Chris Wray. Indeed, Chris Wray submitted a declaration to the FISC in September 2018 — long after there were questions about the Carter Page FISAs — suggesting the FBI shouldn’t have to write stuff down as it queries 702 data, in spite of what Congress required by law.

The Director anticipates that approach would divert resources from investigative work, delay assessment of threat information, and discourage its personnel from querying unminimized FISA information, to the detriment of public safety. Id. at 9-12. He also describes an alternative approach whereby personnel would be allowed to forgo such research and rely solely on their “personal knowledge” in making those assessments. Id. at 12. The Director expects that practice would “result in inconsistent and unreliable information in FBI systems,” id., thereby complicating other aspects of the FBI’s work – e.g., implementing its Section 702 targeting procedures. Id. at 13-14. The Director also expresses concern that such an approach would be inconsistent with the FBJ’s “strong culture that places great emphasis on personnel consistently conveying true and accurate information.” Id. at 14.

[snip]

The government further objects that requiring a written justification to examine the contents provided in response to U.S.-person queries of Section 702 information “would substantially hinder the FBI’s ability to investigate and protect against threats to national security.” Supplemental FBI Declaration at 17. Different fo1ms of hindrance are claimed.

[snip]

[At the heart of the government’s objections to the documentation requirement proposed by amici is an understandable desire to ensure that FBI personnel can] perform their work with the utmost efficiency and “connect dots” in an effort to protect the national security. Given the lessons learned following 9/11 and the Fort Hood shooting, as well as the FBI’s significant reliance on queries to effectively and efficiently identify threat streams in its holdings, the FBI is extremely concerned about anything that would impede, delay, or create a disincentive to querying FBI databases. Supplemental FBI Declaration at 7 (emphasis added).

Yet in spite of the fact that Chris Wray, himself, participated in a 18-month effort to ignore the will of Congress with respect to 702 queries, no one raised that in yesterday’s oversight hearing. Not to mention the GOP got plenty of facts wrong, such as treating FISA as a terrorism thing, and not, increasingly, the very same counterintelligence purpose used with Page.

To be sure, aside from some comments acknowledging that IG Report, Democrats weren’t raising any questions about FISA (though Jerry Nadler did thank Jim Sensenbrenner for agreeing to delay consideration of Section 215 reauthorization to allow for consideration of the IG Report).

Here’s the thing, though: The FISA Court has complained about FBI surveillance practices all occurring under Trump affecting up to 135,476 Americans.

And Republicans claiming to give a goddamn about FISA are really just concerned about one of those Americans.

Which is a pretty good indication they’re not really concerned about the surveillance at all.

Mike Flynn Seizes the Rope to Hang Himself With: Flynn’s Motion to Dismiss Carter Page’s Non-Existent Plea

As I noted yesterday, Mike Flynn’s legal team and the government submitted a bunch of filings yesterday.

I’m collectively titling my posts on them, “Mike Flynn Seizes the Rope to Hang Himself,” which is the advice Rob Kelner gave his then-client in December 2018 when Judge Emmet Sullivan swore him in to reallocute his guilty plea, effectively arguing that if Flynn withdrew his plea, it would lead to worse consequences. Flynn’s current lawyer, Sidney Powell, argues that advice was objectively incompetent. I predict the outcome of the next few weeks will show Kelner had the better judgment.

This post from yesterday covers the government reply to Flynn’s sentencing memo.

This post will focus on Flynn’s motion to dismiss for misconduct, a 27-page motion that Flynn submitted yesterday with neither warning nor pre-approval from Sullivan. Flynn has made much of this argument before (and Sullivan has rejected it) in a filing that argued,

The government works hard to persuade this Court that the scope of its discovery obligation is limited to facts relating to punishment for the crime to which Mr. Flynn pleaded guilty. However, the evidence already produced or in the public record reveals far larger issues are at play: namely, the integrity of our criminal justice system and public confidence in what used to be our premier law enforcement institution. When the Director of the FBI, and a group of his close associates, plot to set up an innocent man and create a crime—while taking affirmative steps to ensnare him by refusing to follow procedures designed to prevent such inadvertent missteps—this amounts to conduct so shocking to the conscience and so inimical to our system of justice that it requires the dismissal of the charges for outrageous government conduct.

[snip]

As new counsel has made clear from her first appearance, Mr. Flynn will ask this Court to dismiss the entire prosecution based on the outrageous and un-American conduct of law enforcement officials and the subsequent failure of the prosecution to disclose this evidence— which it had in its possession all along—either in a timely fashion or at all.

In a footnote in yesterday’s filing, Flynn lawyer Sidney Powell explains that, no, the last time she tried this argument, which Sullivan rejected in an unbelievably meticulous 92 page opinion, wasn’t actually her motion to dismiss, this is,

Contrary to a suggestion in this Court’s recent opinion, Mr. Flynn did not previously move to dismiss the case against him. ECF No. 144 at 2. As the docket sheet and this Court’s recital of motions show, this is Mr. Flynn’s only Motion to Dismiss. In Mr. Flynn’s previous filings, he made clear he would ultimately move for dismissal, that the evidence requested in his Brady motion would further support the basis for dismissal, and that the case should be dismissed.

Particularly given that much of this repeats what Powell said in the earlier motion, the claim that this is the real motion to dismiss probably won’t sit well with Judge Sullivan. But Powell has to try again, because (as I’ll show) her motion to dismiss doesn’t actually claim that Flynn is innocent of lying to the FBI about his call with Sergey Kislyak — he says the opposite. So this motion to dismiss appears designed to explain why Flynn should not be held accountable for that lie.

Powell justifies doing so because she claims she found new damning information in the IG Report on Carter Page. (She also complains that she received Flynn’s 302s since the prior motion, but presents not a single piece of evidence from them; as I’ll show in my third post on these filings, she’s probably going to regret raising them.)

Such exculpatory evidence and outrageous misconduct includes that on December 9, 2019, the Inspector General of the Department of Justice (“DOJ”) issued its 478-page report on the “Review of Four FISA Applications and Other Aspects of the FBI’s Crossfire Hurricane Investigation” (“IG Report”).2 The IG Report illustrates the misconduct by the government as further detailed below.

[snip]

Additionally, the IG Report shows that the government long suppressed evidence of shocking malfeasance by the leadership of the FBI and Supervisory Special Agent 1 (“SSA 1”) that was favorable to Mr. Flynn’s defense. For these reasons, and those outlined in prior briefing, Mr. Flynn moves to dismiss this entire prosecution for outrageous government misconduct and in the interest of justice.

In a probably ill-considered move, Powell blames Sullivan for not considering the IG Report in his previous opinion.

Despite the defense, the government, and this Court agreeing to abate the schedule in this case because of the pending and admittedly-relevant IG Report (ECF No. 140 and this Court’s Minute Order of November 27, 2019), this Court denied Mr. Flynn’s Motion to Compel Production of Brady Evidence without allowing for additional briefing in light of that report or considering any of the deliberate government misconduct it disclosed. ECF Nos. 143 and 144. Mr. Flynn now moves to dismiss the indictment for the additional egregious misconduct documented in the IG Report, other recently produced materials, all previously briefed issues, and in the interest of justice.

A week passed between the time the IG Report came out — which has just one small section relating to Flynn — and the date Sullivan issued his opinion. It is Powell’s job to ask him to consider any new information in it, not his job to cull through the report and find out if anything is relevant. She did not do so. Which is one of many reasons why Sullivan would be in his right to just dismiss this as untimely.

As I note in this thread, much of what follows is either a repetition of complaints that Sullivan already rejected or a claim that Mike Flynn, honored General of thirty years, is actually Carter Page, maligned gadfly, because they describe things that did injure Page but did not injure Flynn and are utterly irrelevant to the lies Flynn told on January 24, 2017.

  • Asks that Sullivan rely on a Ninth Circuit opinion on the Bundy family to reconsider Brady violations he already ruled did not happen.
  • Revisits a Jim Comey comment that was briefed before Flynn pled guilty the last time and Powell’s conspiracy theories about a draft 302 that she claims differs from the notes and the released 302s which are all consistent.
  • Invokes Ted Stevens by invoking the Henry Shuelke report, which laid out problems with the Senators prosecution, but which Sullivan has already said is an inapt comparison.
  • Mixes up the 2017 FISA order that shows (in part) that Flynn, personally, presided over FISA abuses with the 2018 FISA order that shows Chris Wray’s FBI committed querying violations that affected thousands (quite possibly in an attempt to find out who leaked details of Flynn’s comments to Sergei Kislyak).
  • Claims that the Carter Page FISA allowed the FBI to illegally obtain the communications of “hundreds of people, including Mr. Flynn,” which is a claim that doesn’t show up in the IG Report (Powell cites to it “generally,” which is her tell in this motion that she’s making shit up); while it’s possible emails from the campaign (possibly group emails on National Security) involving both Page and Flynn were collected, there is zero chance any of them pertain to the lies Flynn told on January 24, 2017. Moreover, there is virtually no chance that Flynn was communicating with Carter Page after April 2017 via encrypted messaging apps — months after both had been ousted from Trump’s circles because of their problematic interactions with Russians — which is what it likely would have taken to have been collected under the applications deemed problematic by FBI.
  • Twice claims that Flynn’s obligation (which he fulfilled) to tell DIA when he went traipsing off to RT Galas in Russia equates to CIA’s designation of Carter Page as an acceptable contact and notes that Sullivan already ruled that wasn’t exculpatory on the charges before him (the government has made it clear Flynn’s DIA briefing was actually inculpatory).
  • Claims SSA1 — whom Powell asserts, probably but not necessarily correctly, is the second Agent who interviewed Flynn — supervised Crossfire Hurricane, but doesn’t note that was only until December 2016, at least four weeks before Flynn lied to FBI agents on January 24, 2017; Powell repeatedly claims, falsely, that SSA1 supervised Crossfire Hurricane during the entire period when Carter Page was under surveillance.
  • Insinuates, with no evidence, that SSA1 knew that Case Agent 1 had excluded comments from George Papadopoulos that the frothy right believes are exculpatory but which the FBI judged correctly at the time were just a cover story.
  • Claims falsely that Lisa Page had a role in opening an investigation into Flynn.
  • Complains that the FISA applications made statements about Stefan Halper that were true but not backed by paperwork in the Woods File, even though (contrary to Flynn’s conspiracy theories) Halper never spoke with Flynn as part of tihs investigation.

Pages and pages into this, Powell admits that actually all of this would matter if she were representing Carter Page, but she claims (with no evidence, and given the scope of the Page warrants, there would be none) that it nevertheless injures her client.

While Mr. Flynn’s case is not even the focus of the IG Report, the Report reveals illegal, wrongful, and improper conduct that affected Mr. Flynn, and is the subject of an ongoing criminal investigation by United States Attorney John Durham.

Even where the IG Report does describe something that affected Flynn directly — in SSA1’s inclusion in Trump’s first briefing, in part, to see what kinds of questions he was asking — Powell manages to lard it with false claims. On top of misrepresenting how long SSA1 oversaw the investigation into Trump’s flunkies (noted above and exhibited specifically below), Powell suggests that SSA1 snuck into the August 17, 2016 intelligence briefing Flynn attended as Trump’s top national security advisor and had no purpose but to observe her client.

There were two FBI agents who interviewed Mr. Flynn in the White House on January 24, 2017—Agent Peter Strzok and SSA 1. The IG Report confirms both participated in government misconduct. As explained in further detail below, not only was Strzok so biased, calculated, and deceitful he had to be terminated from Mueller’s investigation and then the FBI/DOJ, but it has also now been revealed that SSA 1 was surreptitiously inserted in the mock presidential briefing on August 17, 2016, to collect information and report on Mr. Trump and Mr. Flynn. Moreover, SSA 1 was involved in every aspect of the debacle that is Crossfire Hurricane and significant illegal surveillance resulting from it. Further, SSA 1 bore ultimate responsibility for four falsified applications to the FISA court and oversaw virtually every abuse inherent in Crossfire Hurricane— including suppression of exculpatory evidence. See generally IG Report.

[snip]

Shockingly, as further briefed below, SSA 1 also participated surreptitiously in a presidential briefing with candidate Trump and Mr. Flynn for the express purpose of taking notes, monitoring anything Mr. Flynn said, and in particular, observing and recording anything Mr. Flynn or Mr. Trump said or did that might be of interest to the FBI in its “investigation.” IG Report at 340

[snip]

More specifically, as the Inspector General explained further in his testimony to Congress on December 11, 2019, SSA 1 surreptitiously interviewed and sized-up Mr. Flynn on August 17, 2016, under the “pretext” of being part of what was actually a presidential briefing but reported dishonestly to others as a “defensive briefing.”

[snip]

Strzok and Lisa Page texted about an “insurance policy” on August 15, 2016.20 They opened the FBI “investigation” of Mr. Flynn on August 16, 2016. IG Report at 2. The very next day, SSA 1 snuck into what was represented to candidate Trump and Mr. Flynn as a presidential briefing. IG Report at 340. [my emphasis]

The overwhelming bulk of her complaint about this is that — she claims — SSA1’s participation was secret. Reading this motion, you’d think he was hidden under the couch while the briefing was conducted. His presence, of course, was in no way surreptitious. What was secret was that Flynn was under investigation and SSA1 was overseeing it.

In one of her discussions of the briefing, Powell quotes the part of the IG Report that refutes her suggestions that SSA1 was only in this briefing to observe Flynn.

In August 2016, the supervisor of the Crossfire Hurricane investigation, SSA 1, participated on behalf of the FBI in an ODNI strategic intelligence briefing given to candidate Trump and his national security advisors, including Flynn, and in a separate briefing given to candidate Clinton and her national security advisors. The stated purpose of the FBI’s participation in the counterintelligence and security portion of the briefing was to provide the recipients ‘a baseline on the presence and threat posed by foreign intelligence services to the National Security of the U.S.’ However, we found the FBI also had an investigative purpose when it specifically selected SSA 1, a supervisor for the Crossfire Hurricane investigation, to provide the FBI briefings. SSA 1 was selected, in part, because Flynn, who would be attending the briefing with candidate Trump, was a subject in one of the ongoing investigations related to Crossfire Hurricane. SSA 1 told us that the briefing provided him ‘the opportunity to gain assessment and possibly some level of familiarity with [Flynn]. So, should we get to the point where we need to do a subject interview…I would have that to fall back on.’

As the passage she quotes makes clear, that was just part of the reason why he was selected. She doesn’t mention that, as a senior counterintelligence agent, SSA1 was appropriate to give the briefing in any case, and in fact did give the equivalent first briefing to Hillary, as well.

In one place, however, Powell totally misrepresents what the purpose of this briefing was claiming that it was the defensive briefing about specific threats to the candidate.

While SSA 1’s stated purpose of the presidential briefing on August 17, 2016, was “to provide the recipients ‘a baseline on the presence and threat posed by foreign intelligence services to the National Security of the U.S,’” IG Report at xviii (Executive Summary), the IG Report confirmed that, in actuality, the Trump campaign was never given any defensive briefing about the alleged national security threats. IG Report at 55. Thus, SSA 1’s participation in that presidential briefing was a calculated subterfuge to record and report for “investigative purposes” anything Mr. Flynn and Mr. Trump said in that meeting. IG Report at 408. The agent was there only because Mr. Flynn was there. IG Report at 340. Ironically, Mr. Flynn arranged this meeting with ODNI James Clapper for the benefit of candidate Trump.

As the IG Report makes clear, these are different things. The IG Report even provides several different explanations for why the FBI did not give Trump a defensive briefing that Russia was trying to influence his campaign, but which Powell doesn’t include. Andrew McCabe’s explanation was particularly prescient.

[T]he FBI did not brief people who “could potentially be the subjects that you are investigating or looking for.” McCabe told us that in a sensitive counterintelligence matter, it was essential to have a better understanding of what was occurring before taking an overt step such as providing a defensive briefing.

You couldn’t brief Trump on a potential Russian threat with Flynn present because Flynn was considered — because of his past close ties to the GRU and his paid appearances with Russian entities, including one where he met Putin — one of the most likely people for Russia to have alerted about the email hack-and-dump plan. And, as I noted, there was a bunch of language about counterintelligence issues in the government’s original sentencing memo specifically pertaining to Flynn that should concern him if he weren’t so busy producing fodder for the frothy right. So, in fact, the FBI was right to worry (and I suspect we may hear more about this).

Moreover, as this entire effort to blow up the plea deal emphasizes, Flynn turned out to be an egregious counterintelligence risk for other reasons, as well: the secret deal he was arranging with Turkey even as this briefing occurred, which he explained, at length, under oath, to the grand jury. That is, this proceeding makes it clear that the FBI was right not to trust Mike Flynn, because, days before this briefing, his firm had committed, in secret to working on a frenemy government’s payroll.

This is tangential to Powell’s trumped up complaints about the only thing the IG Report says that directly affected her client. But — as with so much of this stunt — my suspicion is that if she presses this issue it will backfire in spectacular fashion.

In any case, the main takeaway from this motion to dismiss the plea is that virtually all the new stuff that Judge Sullivan hasn’t already ruled was irrelevant in meticulous fashion doesn’t affect Mike Flynn, it affects Carter Page. And the stuff that does affect Flynn directly is probably not something he wants to emphasize before Sullivan weighs the gravity of his lies.

More importantly, for the motion to withdraw his plea, nothing here undercuts the fact that Mike Flynn pled guilty to his lies about Russia.

FISC Reveals DOJ Has Withdrawn Probable Cause Assertion for Two of Carter Page Applications

The FISA Court just declassified an order — issued on January 7 — revealing that along with the previously released December 9 order listing problems with the Carter Page applications, DOJ also reassessed its previous probable cause assessment.

DOJ assesses that with respect to the applications in Docket Number 17-375 and 17-679, “if not earlier, there was insufficient predication to establish probable cause to believe that [Carter] Page was acting as an agent of a foreign power.”

[snip]

The Court understands the government to have concluded, in view of the material misstatements and omissions, that the Court’s authorizations in Docket Numbers 17-375 and 17-679 were not valid. The government apparently does not take a position on the validity of the authorizations in Docket Numbers 16-1182 and 17-52, but intends to sequester information acquired pursuant to those dockets in the same manner as information acquired pursuant to the subsequent dockets.

The function of this January 7 order is to demand that FBI follow up on a previous agreement to “sequester all collection the FBI acquired pursuant to the Court’s authorizations in the above-listed four docket numbers targeting [Carter] Page pending further review of the OIG Report and the outcome of related investigations and any litigation,” to explain how it is doing so, how it has chased down all information collected pursuant to the Page orders, and why it needs to keep the data at all.

The reason it needs to keep the data, incidentally, is in case it is sued or John Durham decides to prosecute someone (including Kevin Clinesmith, who altered an email that was used as back-up to the final renewal application) or Page decides to sue. Indeed, one of the most unprecedented aspects of this order is that the docket numbers have been declassified, which will make FOIAing the records far easier.

Which is probably what the only substantive redaction remaining in the order pertains to: the possibility that someone will be held liable under FISA for illegal surveillance.

A lot of people are assuming that DOJ took this stance only because Bill Barr wanted to prove that Trump was illegally wiretapped (which would only be true if he was in direct contact with Page, which everyone has denied). That’s certainly possible!

But it’s quite possible that DOJ and FBI feel the need to be proactive on this point and FISC — particularly given the letters it has received from Congress — feels the need to look stern. Moreover, it is in everyone’s interest for DOJ to withdraw at least the last application (the one influenced by Clinesmith’s actions). It’s an important precedent, and there’s no reason Carter Page’s personal data should be floating around the FBI after discovering he was improperly surveilled. This doesn’t mean the FBI didn’t have reason to investigate Page. In a March 23, 2017 interview, after all, Carter Page was quite clear he knew he was being recruited by Russian intelligence officers and he believed the more immaterial non-public information he gives them, the better off we are.

But, first of all, he wasn’t hiding his happiness to share information with Russian spies, meaning he wasn’t acting in the clandestine matter that would merit a FISA order. And by April 2017, it was pretty clear that the Russians had lost all interest in recruiting Page.

In any case, FISC’s demand for what the government is doing with the data is not unusual. Similar things have happened virtually every other time the government did something improper.

There’s one more important lesson, though: Even from the start, people raised questions about whether the applications targeting Page were prudential. By the third application — the first one being withdrawn — there were not only real questions about whether it would yield anything more, but whether Page was central enough to their investigation to want to surveil him. Had the FBI simply not pursued surveillance it questioned whether it really needed, the worst revelations of the IG Report would have been avoided.

So one of the lessons of this whole fiasco is that the FBI would benefit from giving greater consideration about whether its most intrusive methods are necessary.

Beware the Deep State Bearing Granola Bars: George Papadopoulos’ 302s

The government released another bunch of 302s in response to BuzzFeed’s FOIA last night. They include a bunch (but not all, and not the most important) of the reports from George Papadopoulos. This post will lay out what they show.

As background, however, remember what FBI knew about some of his interactions with Joseph Mifsud before interviewing Papadopoulos.

Interactions with informants

First, there was the tip FBI received from Australia on July 27, 2016, after the release of the WikiLeaks emails made it seem like Papadopoulos had had advance knowledge they would be released. As laid out in the DOJ IG Report, after telling Alexander Downer and Erica Thompson that,

he felt confident Mr. Trump would win the election, and … the Clintons had a lot of baggage and that the Trump team had plenty of material to use in its campaign.

Papadopoulos then,

suggested the Trump team had received some kind of suggestion from Russia that it could assist this process with the anonymous release of information during the campaign that would be damaging to Mrs. Clinton (and President Obama). It was unclear whether he or the Russians were referring to material acquired publicly of [sic] through other means. It was also unclear how Mr. Trump’s team reacted to the offer. We note the Trump team’s reaction could, in the end, have little bearing of what Russia decides to do, with or without Mr. Trump’s cooperation.

In at least one (late October 2016) interview with the informant identified as “Source 3” in the IG Report, Papadopoulos had laid out the outlines of his conversations with Mifsud in direct connection with the possibility he might meet Putin.

In the second consensually monitored conversation, at the end of October 2016, Papadopoulos told Source 3 that Papadopoulos had been “on the front page of Russia’s biggest newspaper” for an interview he had given 2 to 3 weeks earlier. Papadopoulos said that he was asked “[w]hat’s Mr. Trump going to do about Russia if he wins, what are your thoughts on ISIS, what are your thoughts on this?” and stated that he did not “understand why the U.S. has such a problem with Russia.” Papadopoulos also said that he thinks Putin “exudes power, confidence.” When Source 3 asked Papadopoulos if he had ever met Putin, Papadopoulos said that he was invited “to go and thank God I didn’t go though.” Papadopoulos said that it was a “weird story” from when he “was working at … this law firm in London” that involved a guy who was “well connected to the Russian government.” Papadopoulos also said that he was introduced to “Putin’s niece” and the Russian  Ambassador in London. 472 Papadopoulos did not elaborate on the story, but he added that he needed to figure out

how I’m going monetize it, but I have to be an idiot not to monetize it, get it? Even if [Trump] loses. If anything, I feel like if he loses probably could be better for my personal business because if he wins I’m going to be in some bureaucracy I can’t do jack … , you know?

That said, with both Stefan Halper and this source, Papadopoulos had denied that the campaign had any foreknowledge of the WikiLeaks releases, likening optimizing them (in the way that Roger Stone did) to treason. Papadopoulos had told Source 3 that he gave that story to Halper, in part, because he thought Halper might tell CIA what he had said, so he was already crafting a story to tell authorities.

The FBI also knew Papadopoulos was spending a lot of time with Sergei Millian, whom they also had under a counterintelligence investigation.

January 27, 2017

The government didn’t release the substantive 302 from Papadopoulos’ first interview, there’s just the 302 recounting what happened on the way to the FBI and that Papadopoulos sent the FBI agent two emails after the interview. There are 12 pages withheld for a referral right before that 302 — which makes me wonder whether they’ve referred Papadopoulos’ original 302 to John Durham (which would be really corrupt, because there’s nothing classified in there, and hiding would make it harder to assess the legitimacy of the Durham investigation). The 302 that got released does make it clear the FBI told Papadopoulos, “the nature of the interview was to discuss a contact of his, who currently resides in New York,” meaning Millian, who had just been reported as a source for Christopher Steele. That is consistent with what Papadopoulos has said about the interview; he has complained he accepted the interview thinking it would only be about Millian.

Excerpts of this interview described in the government’s sentencing memo make it clear that Papadopoulos only raised Mifsud after pressed by agents.

the defendant identified the Professor only after being prompted by a series of specific questions about when the defendant first learned about Russia’s disclosure of information related to the campaign and whether the defendant had ever “received any information or anything like that from a [] Russian government official.” In response, while denying he received any information from a Russian government official, the defendant identified the Professor by name – while also falsely claiming he interacted with the Professor “before I was with Trump though.” Over the next several minutes in the interview, the defendant repeatedly and falsely claimed that his interactions with the Professor occurred before he was working for the Trump campaign, and he did not mention his discussion with the Professor about the Russians possessing “dirt” on Clinton. That fact only came up after additional specific questioning from the agents. The agents asked the defendant: “going back to the WikiLeaks and maybe the Russian hacking and all that, were you ever made aware that the Russians had intent to disclose information [] ahead of time? So before it became public? Did anyone ever tell you that the Russian government plans to release some information[,] like tell the Trump team ahead of time[,] that that was going to happen?” The defendant responded, “No.” The agents then skeptically asked, “No?” The defendant responded: “No, not on, no not the Trump [campaign], but I will tell you something and – and this is . . . actually very good that we’re, that you just brought this up because I wasn’t working with Trump at the time[.] I was working in London . . . with that guy [the Professor].” Only then, after acknowledging that the agents had “brought this up” and lying about when he received the information, did the defendant admit that the Professor had told him “the Russians had emails of Clinton.”

February 1, 2017

On February 1, the FBI agent called Papadopoulos directly to set up a meeting at George’s Ice Cream & Sweets shop for another interview (the call was recorded in a 302).

The substantive 302 makes it clear that, in the previous one, Papadopoulos had agreed to help the FBI, because he “stated that he wished to hear more about how he could potentially help the FBI.” The agent explained that he wanted Papadopoulos’ cooperation “specifically in an attempt to obtain further information about his London-based contact, JOSEPH MIFSUD.” Papadopoulos revealed what he had learned from Googling Mifsud subsequent to his first interview. He revealed that Mifsud was “an associate of a Russian discussion club of some sort” — a reference to the Valdai Discussion Club, which Mifsud had attended between the time he first met Papadopoulos and started cultivating him in London.

It’s clear that Papadopoulos had provided more information about Olga Polonskaya (possibly her email), because the agent asked about her, and Papadopoulos explained he was first introduced as one of Mifsud’s students (which was true), but then Nagi Idris told him she was Putin’s niece.

The agent also asked Papadopoulos whether he had ever met the Russian Ambassador, which he had told Source 3 he had the previous October. Papadopoulos said he had not met any Russian government officials, the meeting with the Ambassador never happened.

The agent asked Papadopoulos (who, remember, said he learned about the emails before he joined the campaign) if he had told the campaign about the emails. He responded by saying he had raised Mifsud’s name, though appears to have dodged whether he raised the emails.

Papadopoulos told the FBI that Mifsud had recently reached out and would be in DC in February, and also offered to go meet with him in the UK.

Papadopoulos was asked about Millian; his responses appear defensive, affirmatively raising both whether Millian knew about the emails and his role in the dossier.

The agent then told Papadopoulos he may have been recruited and asked if there was anyone else who might be doing so.

The agent then asked Papadopoulos if he still wanted the FBI to analyze his phone for malware; Papadopoulos said he had replaced it, but would still like to have the FBI analyze his old phone (nothing in the record suggests that happened, and the statement of the offense reveals he got a new phone on February 23, so it’s possible he just decided he didn’t want to hand over the phone and afterwards got a new one).

Papadopoulos said he wanted to speak to an attorney before committing to help the FBI, said he did not yet have one, but would be getting one the following day.

Note: From this interview, I can understand why Republicans think Papadopoulos got a bad deal, because he clearly kept saying he wanted to cooperate.

February 2, 2017

As he said he would do, the agent tried to call Papadopoulos the next day, only to find his voicemail box was full. Instead, he texted Papadopoulos. Papadopoulos said he had discussed the matter with a lawyer and had been advised not to engage any longer.

I truly feel proud that was able to do my part to assist with everything I know but as you saw yesterday there was nothing else to add and we had a nice coffee but nothing of substance.

[snip]

You guys are professionals and am sure you can deal with that person if he truly is a threat. Can’t help anymore than I have. If there is something directly related to me then that’s another matter.

The agent said he had one more thing to clear up, asked to talk to Papadopoulos, they agreed to meet at 6:30 PM, then Papadopoulos called back and said he had spoken with an attorney who told him not to go, but offered to meet Monday in the Chicago Field Office.

In spite of repeated questioning, Papadopoulos did not offer up the name of the attorney he had consulted (nor did they meet the following Monday, which would have been February 6). That’s significant, because in his Congressional testimony, Papadopoulos revealed that he had called Marc Kasowitz — at a time when he was representing Trump — and asked him if he wanted to represent him (meaning, this happened before he had an attorney).

Q And you didn’t talk to anyone from the Trump organization about that interview with the FBI?

A I don’t think I did, no. Q So you were interviewed again by the FBI — A I can’t remember if I reached out to Marc Kasowitz about either that or my subpoena from the Senate. And I emailed him and I said, Look, would you be interested in representing me? I think that’s what happened. But I don’t — I can’t remember exactly why I emailed him, but I think I emailed Marc Kasowitz’ firm sometimes after the interview, but I don’t remember if he ever responded or anything like that.

[snip]

Q Right, right, right. So when you sent this email, would it have been after the first FBI interview, but before the second one, or –

A I think it would be after I was done with my initial contacts with the FBI.

It’s certainly possible that Papadopoulos just consulted a friend who was an attorney (who wisely told him to stop meeting with the FBI without representation). But it is possible that the President’s then-defense attorney told him to stop meeting with the FBI.

February 10, 2017

The date of interview recorded on the second 302 is February 10, 2017. But both Papadopoulos’ arrest affidavit and his statement of offense say the interview happened on February 16. That’s actually a fairly significant discrepancy because, per the Mueller Report, the FBI interviewed Mifsud on February 10, and one argument they made to substantiate that his lies were material were that those lies prevented them from pinning down Mifsud on his lies. It appears the February 10 date is correct, but that FBI treated a call (also with his counsel) on February 16, as the interview in question.

In any case, this is Papadopoulos’ first interview represented by counsel. The government has said that Papadopoulos repeated the same lies he told on January 27, and it’s clear he did. He said Mifsud wanted to impress him because he “had recently come off his advisory position for the BEN CARSON campaign.” Papadopoulos misrepresented how he got hired by Sam Clovis, suggesting there was a time between when they spoke and his hiring, when it happened on the same call; in the interview Papadopoulos said happened in person in London, though it happened by phone. Papadopoulos describes the emails coming up during a discussion about Hillary’s campaign, not Trump’s. He left out that Mifsud said the Russians planned to anonymous leak the emails. Papadopoulos twice falsely said he hadn’t told any foreign government officials that Russia planned to disclose information (in addition to Australia, he told a Greek official).

This 302 seems to reflect the FBI agents cueing Papadopoulos to tell them about telling someone at a nightclub about emails, which he said he had not; it makes me wonder if he said that to Source 3 in one of their interviews after the election (which, if so, would make the IG Report’s silence on the topic really suspect), or whether — as many people suspect — he said that to Erica Thompson at a dinner party, then repeated it again to her and Downer when they had drinks.

February 16, 2017

On February 16, the Assistant General Counsel for FBI’s Cyber Law Branch called and set up a phone interview to try to clarify the timing of the conversation with Mifsud, explaining that resolving some inconsistencies in his story was time sensitive. The 302 is heavily redacted, but it’s clear that Papadopoulos refused to be pinned down on timing — it even seems like FBI had figured out that it had occurred at his breakfast meeting with Mifsud, but Papadopoulos couldn’t recall whether it had happened then.

Papadopoulos then dug in on a story that tried to claim these emails couldn’t be the ones stolen from the DNC, first reiterating that “he did not believe MIFSUD’s claims that the Russians had HILLARY CLINTON’s e-mails” (a claim utterly inconsistent with having told others about it), and then suggesting that the emails might be Hillary’s deleted emails.  This passage — and its heavy redaction — is particularly interesting, because it appears to be the first time Papadopoulos told this story, and it’s the story he has since settled on, but it appears that he only told it after the FBI asked him about the comments three times.

This interview appears to be the first time the FBI asked Papadopoulos not to speak to the media, which he agreed to do.

July 27, 2017

The next interview report documents his arrest at Dulles on July 27, 2017. While this was not an interview — indeed, arresting agents had to tell Papadopoulos several times to shut up because he didn’t have his attorney present — Papadopoulos did offer up some lame excuses that seem to indicate he knew he hadn’t told the full truth:

[H]e was only able to provide the information that he remembered, PAPADOPOULOS then stated that if he had forgotten something, that doesn’t necessarily mean he’s lying.

[snip]

[Papadopoulos] then added that he was only twenty-eight years old when he was thrust into the national spotlight with all this.

[snip]

PAPADOPOULOS stated that he didn’t understand why he was in the current situation that he was, when both FLYNN and MANAFORT are not.

[snip]

At one point while PAPADOPOULOS was waiting in the booking room he expressed concern with the fact that he was just a small fish and yet he was going to look like the fall guy for this investigation.

Papadopoulos appears to have asked to call a second attorney, in addition to his own, who by the length of last name could be Jay Sekulow, which would be consistent with him having reached out to Kasowitz earlier in this process.

Papadopoulos also repeatedly said he had told the whole story in a statement to the Senate Intelligence Committee, which is interesting given that this would have taken place when Jared Kushner and Michael Cohen were writing statements for Committee testimony as a way to script and coordinate stories. That would make it all the more interesting if Papadopoulos did mention Sekulow, because Sekulow was the one coordinating all these statements.

After he turned into a MAGA star, Papadopoulos would suggest the FBI bullied him during his arrest. According to the 302, he thanked them for their kindness.

At approximately 10:40 PM PAPADOPOULOS was provided with coffee and water and PAPADOPOULOS thanked the agents for treating him very well.

July 28, 2017

The day after he was arrested, Papadopoulos needed help getting home because he had had his passports confiscated and had not replaced his driver’s license after he had recently lost his wallet, so the agents drove him to the airport and made sure he could get on a plane.

Agents then provided PAPADOPOULOS with his attorney’s telephone number and a granola bar for his travel back to Chicago.

August 10, 2017

In his first interview after being charged, Papadopoulos told a very clear story of the chronology of working for Carson, then interviewing with Clovis and being hired that same call, then traveling to Rome where he met Mifsud, all details he had claimed to not remember previously. He explained how Olga offered to connect him with people in Russia. He described both Trump and Jeff Sessions responding to his offer to try to set up a meeting with Putin enthusiastically. He described Mifsud introducing him to Ivan Timofeev, something he had not disclosed previously (but which would have been apparent once FBI accessed his Facebook account). Papadopoulos still claimed, at this point, not to have told anyone about the Russians having dirt on Hillary.

August 11, 2017

Though heavily redacted, this 302 appears to parallel the August 10 one, getting the timeline of meeting Mifsud correct, describing Trump and Sessions’ enthusiasm for a Putin meeting,

It describes Papadopoulos remembering, then backing off a memory of discussing the emails with Clovis.

PAPADOPOULOS stated to the best of his recollection he remembered CLOVIS being upset after PAPADOPOULOS said, “Sam, I think they have her emails.” PAPADOPOULOS then reiterated he was not certain if that event actually happened or if he was wrongfully remembering an event which did not occur.

September 19, 2017

This interview, his most substantive, is almost entirely redacted. From what’s unredacted, it’s clear Papadopoulos was withholding information until shown the evidence of something via communication records. For example, he admitted to an April 12 meeting that did not appear elsewhere. He was prodded to describe a Skype conversation with Timofeev. Papadopoulos needed to be “specifically asked,” before he admitted he told the Greek Foreign Minister about Russia having dirt on Hillary Clinton, too.

This interview included questions about the Transatlantic Group that he attended with Walid Phares and Sam Clovis, during which Papadopoulos discussed a September 2016 meeting with Putin’s office in London. Papadopoulos refused to walk the FBI through his notes on this planned meeting.

PAPADOPOULOS then stated he could not read his own handwriting and, therefore he could not assist the interviewers with further identifying what his notes referenced.

September 20, 2017

Papadopoulos had one more interview during the pre-plea period, which was memorialized in a 4-page 302. But that was not included in yesterday’s dump. That interview covered:

  • How the campaign supported his efforts to set up a meeting with Putin.
  • Details about how he used his journal.
  • What he told others on the campaign about the Hillary dirt, possibly including the Sam Clovis reference.
  • What an email Sergei Millian sent him on August 23, 2016, offering a disruptive technology that might help his political work, meant.

October 5, 31, 2017

Papadopolous pled guilty on October 5, 2017. A 302 describes how Papadopoulos got the card of the FBI agent to talk to him about a problem he had had with his email account. The next day Papadopoulos explained what the problem was, and the agent told him to change his password and make sure forwarding was not on.

On October 28, the agent asked Papadopoulos whether the media or anyone from the Trump campaign had tried to contact him. Papadopoulos said neither had, and agreed to let the FBI know if that happened. After news of his plea broke on October 31, the FBI agent contacted Papadopoulos again, to find out whether he made any contact. Papadopoulos said he didn’t think the media has his phone number.

November 7, 2017

The agent called Papadopoulos to ask about media reports on people in the campaign that conflicted with his own testimony. Papadopoulos explained he had seenreports that Sessions had shut down his efforts to arrange a Trump Putin meeting. Papadopoulos said he “would stick to his original story,” (which is what he did earlier than year on telling anyone about emails). Papadopoulos said he wouldn’t have continued his efforts if Sessions hadn’t approved.

Papadopoulos disputed Bannon’s claims never to have met with Papadopoulos. Papadopoulos “remembered specifically coordinating with BANNON when he was arranging the meeting between TRUMP and the Egyptian president.” (Bannon would distance himself from Papadopoulos in his second interview with the FBI, saying that Mike Flynn handled all this.)

Papadopoulos responded to reading the first five pages of Carter Page’s HPSCI transcript by describing a call, possibly in late March, where Page told Papadopoulos to “stop showing off,” possibly because Papadopoulos was trying to broker a Russia meeting.

December 2017

Per the sentencing memorandum, the government reached out to set up a meeting in late December, but after learning that Papadopoulos had cooperated in a NYT interview, canceled the interview.

the government arranged to meet again with the defendant to ask further questions in late December 2017. However, upon learning that the defendant had participated in a media interview with a national publication concerning his case, the government canceled that meeting.

There may or may not be a 302 pertaining to this.