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William Barr’s Asymmetric Confusion about Shitty Mueller Reporting

It turns out that once and future Attorney General William Barr has been better able to wade past shitty reporting on the outcome of the Mueller investigation than he has shitty reporting on the public evidence about what Mueller has found.

In two of my posts on Barr’s memo about the Mueller investigation (one, two), I note that Barr’s project consists of writing up 19 pages on a subject that start with an admission he knows nothing about the subject.

Barr also adopts the logically and ethically problematic stance of assuming, in a memo that states, “I realize I am in the dark about many facts” in the second sentence, that he knows what Mueller is up to, repeating over and over claims about what theory of obstruction he knows Mueller is pursuing.

Both in his prepared statement yesterday and in his testimony, he excused his memo by blaming his badly mistaken understanding of what Mueller was doing on media reports.

[M]y memo was narrow in scope, explaining my thinking on a specific obstruction-of-justice theory under a single statute that I thought, based on media reports, the Special Counsel might be considering.

He’s not wrong! I have long bitched about shitty Mueller reporting that suggested Mueller was primarily investigating whether Trump obstructed justice. Such problems persist even in recent reports that the counterintelligence focus on Trump was any different from the obstruction inquiry.

The investigation the F.B.I. opened into Mr. Trump also had a criminal aspect, which has long been publicly known: whether his firing of Mr. Comey constituted obstruction of justice.

That has, in turn, led to claims that the counterintelligence concerns stemmed exclusively from the firing of Jim Comey and not a slew of other behaviors going back some time before that.

So Barr might be excused for totally misunderstanding what the public evidence from the Mueller investigation actually showed (though not his willingness to comment without first learning what the evidence actually was), because most mainstream media reports badly misreported the public record.

Curiously, Barr didn’t get snookered by the other topic that is consistently badly reported (and badly reportedly, most likely, for the same reason — because Trump’s team has seeded that shitty reporting): whether and how Mueller will issue a report. A great deal of yesterday’s testimony pertained to whether Barr will release “the Mueller report.” Barr promised, in his his prepared testimony and later, to release as much of the results of the investigation as he could.

I also believe it is very important that the public and Congress be informed of the results of the Special Counsel’s work. For that reason, my goal will be to provide as much transparency as I can consistent with the law.

But both Democratic and Republican Senators were concerned by that (which is itself a testament to wildly divergent understandings of what Mueller is looking at), with John Kennedy going so far as suggesting Barr should release all the grand jury materials and Dianne Feinstein conditioning her vote on whether Barr commits to make Mueller’s report public.

In fact, Barr did two things. First, he said he’d speak to Rod Rosenstein and Mueller to understand what their current plans for a report were. But he also repeatedly cited the regulations to argue that Mueller’s report is — by regulation — confidential.

For shits and giggles and because I knew what response I’d get, I asked Mueller’s spokesperson Peter Carr what form their report will take today. I wasn’t disappointed. His response was to attach their governing regulations and call attention to the language that describes the mandated Special Counsel Report.

Thanks for reaching out. All I can point you to is the regulations that govern our office, which are attached. Section 600.8 states the following:

(c) Closing documentation. At the conclusion of the Special Counsel’s work, he or she shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel. [my emphasis]

That is, if you ask Mueller — or the closest thing we get, his spokesperson — he will answer precisely what Barr did: that his mandated report is simply a confidential prosecutions and declinations report.

That shouldn’t be surprising, either. Mueller continues to use pseudonyms for identities of people in his filings — like Donald Trump himself — that are readily identifiable, based on the principle that DOJ doesn’t refer to uncharged individuals. It’s a principle that explains part of why Mueller submitted yesterday’s Manafort filing in heavily redacted form.

[T]he redactions relate to ongoing law enforcement investigations or uncharged individuals, and public disclosure of certain information in the submission could unduly risk harming those efforts.

In other words, virtually all of the coverage of the “Mueller report” has promised it will be something other than we had reason to believe — short of an indictment request overridden by the Attorney General — that it would be.

By the same token, there’s abundant reason to believe that that’s not what the “Mueller report” will be.

Yesterday, the same day questions about a Mueller report were central to Barr’s confirmation hearing, the WSJ reported this entirely unsurprising detail about Michael Cohen’s testimony before the Oversight Committee on February 7.

Mr. Cohen, who is scheduled to speak in an open hearing on Capitol Hill for the first time Feb. 7, won’t be able to talk about topics that he has discussed with special counsel Robert Mueller, according to a person close to Mr. Cohen.

The indication that Cohen’s testimony will be sharply limited (presumably based on the intercession of Mueller’s congressional liaison, Stephen Kelly, about whom we’re likely to hear more in coming days) suggests several things: First, Mueller doesn’t expect to be done with Michael Cohen by February 7. That, in turn, suggests that all the claims — which I’ve heard too — that Mueller will soon issue a “report” likely misunderstand what form that report will take, because a one-time report covering the importance of Trump Tower deals to entice Trump’s family would present little reason to silence Cohen next month, particularly because he’d be free to talk about it anyway. But if something more public — such as an indictment, even if it’s just of Trump Organization — or if a non-public report that can be conveyed to the House Judiciary Committee is in the works, then you’d want to silence Cohen. Indeed, contrary to a lot of other bad reporting, Cohen remains on the hook in his cooperation with Mueller; he won’t get a reduction in sentence until they decide he has done enough to get a year lopped off his existing sentence.

That many reporters are being told by reliable sources that Mueller will soon unveil a “report” and that Mueller still officially maintains that their required report won’t be public suggests Mueller is moving towards yet another speaking indictment, which is how he has always reported. That’s consistent with the limits on Cohen’s report, it’s consistent with reports that Mueller is presenting evidence against Jerome Corsi to a grand jury, and it’s consistent with what we saw in yesterday’s Manafort filing (which presented evidence of Trump campaign crimes dating to 2016).

I have my concerns about Barr, especially his willingness to make policy decisions informed only by right wing propaganda (on which point he was worse on his testimony about immigration and criminal justice issues than on Mueller). Those concerns extend to what will happen if Barr gets to decide what parts of a Mueller report gets made public; it’s clear that Barr currently believes that Mueller will issue a report finding that Trump did nothing criminal. Those concerns are heightened by the fact that on virtually every other topic, Barr had not done enough homework to answer basic questions (the most remarkable instance of which was his confession that he hasn’t read the Supreme Court’s decision in Carpenter), but he was prepared to state, correctly, that Mueller’s report will be confidential, addressed solely to him.

I have other concerns. Once CSPAN fixes their transcript, I hope to show how badly hypocritical Barr is about both Matt Whitaker and Donald Trump’s sleazy influence peddling. His comments about recusal from the Mueller investigation were troubling. And he seems to believe — as he explained to Patrick Leahy near the end of the hearing — that in November 2017 there remained, after DOJ had investigated both and after Mueller had rolled out the George Papadopoulos plea deal showing him trying to hide that he was discussing emails and meetings with Putin in the days after he became a foreign policy advisor to Trump, more evidence to support an investigation of the Uranium One and Clinton Foundation allegations than into “collusion.”

But Barr also strongly suggested he would not step in the way of any Mueller indictments. And Senators did get him on the record agreeing that if Trump suborned perjury it would be criminal. And he respects Mueller, so if Mueller shows him evidence that Trump has been gravely compromised, then he should take that evidence seriously.

Barr appears to be an arrogant man who believes right wing propaganda is sufficient evidence to base policy decisions on.

But he also has a better idea of what the regulations say to expect from a Mueller report — as distinct from Mueller indictments — than the Senators questioning him did.

Update: This useful JustSecurity piece lays out the regulations and the Attorney General’s discretion.

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

William Barr Falsely Denies His Mueller Memo Makes the Case for Impeachment

William Barr has released his opening statement for his confirmation hearing tomorrow. While it surely is tailored to address the biggest concerns about his nomination, there’s a lot to like about it.

He suggests he’s not as big of a hawk on criminal justice as he used to be. He emphasizes the need to protect the right to vote. He seems to suggest a concern about rising hate crimes.

And — as most outlets have focused on — he affirms the importance of Robert Mueller finishing his work and being able to publish his findings.

First, I believe it is vitally important that the Special Counsel be allowed to complete his investigation. I have known Bob Mueller personally and professionally for 30 years. We worked closely together throughout my previous tenure at the Department of Justice under President Bush. We’ve been friends since. I have the utmost respect for Bob and his distinguished record of public service. When he was named special counsel, I said that his selection was “good news” and that, knowing him, I had confidence he would handle the matter properly. I still have that confidence today.

Given his public actions to date, I expect that the Special Counsel is well along in his investigation. At the same time, the President has been steadfast that he was not involved in any collusion with Russian interference in the election. I believe it is in the best interest of everyone – the President, Congress, and, most importantly, the American people – that this matter be resolved by allowing the Special Counsel to complete his work. The country needs a credible resolution of these issues. If confirmed, I will not permit partisan politics, personal interests, or any other improper consideration to interfere with this or any other investigation. I will follow the Special Counsel regulations scrupulously and in good faith, and on my watch, Bob will be allowed to complete his work.

Second, I also believe it is very important that the public and Congress be informed of the results of the Special Counsel’s work. For that reason, my goal will be to provide as much transparency as I can consistent with the law. I can assure you that, where judgments are to be made by me, I will make those judgments based solely on the law and will let no personal, political, or other improper interests influence my decision.

I’m most interested, however, in the way that Barr addresses the memo on the Mueller investigation he wrote last year. In comments also surely designed to reassure Democrats, Barr claims that the memo only addressed one theory of obstruction.

I would like to briefly address the memorandum that I wrote last June. I wrote the memo as a former Attorney General who has often weighed in on legal issues of public importance, and I distributed it broadly so that other lawyers would have the benefit of my views. As I explained in a recent letter to Ranking Member Feinstein, my memo was narrow in scope, explaining my thinking on a specific obstruction-of-justice theory under a single statute that I thought, based on media reports, the Special Counsel might be considering. The memo did not address – or in any way question – the Special Counsel’s core investigation into Russian interference in the 2016 election. Nor did it address other potential obstruction-of-justice theories or argue, as some have erroneously suggested, that a President can never obstruct justice. I wrote it myself, on my own initiative, without assistance, and based solely on public information.

The claim that that’s what he addressed — which I correctly unpacked here — is important because, as Jack Goldsmith has since laid out, Barr’s views on that theory of obstruction fit solidly within OLC precedent.

Yet Barr makes a false claim in that paragraph: that his memo “did [not] address other potential obstruction-of-justice theories.” Indeed, before he finishes his first page, he addresses another potential obstruction-of-justice theory:

Obviously, the President and any other official can commit obstruction in this classic sense of sabotaging a proceeding’s truth-finding function. Thus, for example, if a President knowingly destroys or alters evidence, suborns perjury, or induces a witness to change testimony, or commits any act deliberately impairing the integrity or availability of evidence, then he, like anyone else, commits the crime of obstruction. Indeed, the acts of obstruction alleged against Presidents Nixon and Clinton in their respective impeachments were all such “bad acts” involving the impairment of evidence. Enforcing these laws against the President in no way infringes on the President’s plenary power over law enforcement because exercising this discretion — such as his complete authority to start or stop a law enforcement proceeding — does not involve commission of any of these inherently wrongful subversive acts.

It’s right there, on the bottom of his first page, another potential obstruction of justice theory.

As if his reference to Nixon and Clinton didn’t already make it clear, the rest of his memo describes that the proper remedy when the President engages in such crimes is impeachment.

And, as I have laid out, the public evidence (even before recent disclosures about how the FBI worried that Trump was literally taking orders from Russian when he fired Comey) provides strong circumstantial evidence that Trump attempted to impair the integrity and availability of evidence to the FBI, possibly including suborning perjury from Mike Flynn.

While Barr doesn’t presume to dictate whether Congress must judge such behavior adequate to sustain impeachment, he certainly sees it as an adequate basis for impeachment.

Which is why I find his statement troubling. He’s not only placating Democrats with this statement (and opposing any possibility that the President can be charged for criminal acts). He’s also backing off the clear implication of his memo, that if Trump engaged in witness tampering, it would be improper.

All that’s separate from the wisdom and ethics of writing 19 pages, as he did, on a theory based off a really skewed understanding of the evidence, or accepting a job after having done so in the scope of job considerations.

To be sure, if Barr really intends to let Mueller finish and ensure the right to vote, he may be the best Attorney General candidate we’re likely to get from Trump. But he still needs to be asked whether he backs the implications of his memo, which actually back impeachment.

Update: This is fairly batshit. In a letter to Lindsey Graham dated yesterday — the same day Barr released opening statements that say “Nor did [his memo] address other potential obstruction-of-justice theories,” he said that his entire memo was a different theory of obstruction of justice.

The principal conclusion of my memo is that the actions prohibited by section 1512(c) are, generally speaking, the hiding, withholding, destroying, or altering of evidence – in other words, acts that impair the availability or integrity of evidence in a proceeding. The memorandum did not suggest that a President can never obstruct justice. Quite the contrary, it expressed my belief that a President, just like anyone else, can obstruct justice if he or she engages in wrongful actions that impair the availability of evidence. Nor did the memorandum claim, as some have incorrectly suggested, that a President can never obstruct justice whenever he or she is exercising a constitutional function. If a President, acting with the requisite intent, engages in the kind of evidence impairment the statute prohibits – regardless whether it involves the exercise of his or her constitutional powers or not – then a President commits obstruction of justice under the statute. It is as simple as that.

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

Trump Risks that Every Action Matt Whitaker Takes as Attorney General Can Be Legally Challenged

George Conway (Kellyanne’s spouse, whom Trump considered to be Solicitor General) continues his habit of criticizing Trump from a conservative legal stance. This time, he joins Neal Katyal, author of the Special Counsel regulations under which Mueller operates, to argue that Trump’s appointment of Matt Whitaker is unconstitutional because Trump can’t name someone who hasn’t been Senate confirmed when a Senate confirmed candidate is available. The whole op-ed — which relies on a recent Clarence Thomas concurrence — is worth reading, but my favorite line is where they call Whitaker a constitutional nobody.

We cannot tolerate such an evasion of the Constitution’s very explicit, textually precise design. Senate confirmation exists for a simple, and good, reason. Constitutionally, Matthew Whitaker is a nobody. His job as Mr. Sessions’s chief of staff did not require Senate confirmation. (Yes, he was confirmed as a federal prosecutor in Iowa, in 2004, but President Trump can’t cut and paste that old, lapsed confirmation to today.) For the president to install Mr. Whitaker as our chief law enforcement officer is to betray the entire structure of our charter document.

I’m just as interested in what three rising Democratic House Chairs (House Judiciary Committee’s Jerrold Nadler, HPSCI’s Adam Schiff, and Oversight and Government Reform’s Elijah Commings) did, along with Dianne Feinstein. In the wake of Jeff Sessions’ resignation, they sent letters to every relevant department warning them to preserve all records on the Mueller investigation and Sessions’ departure. In their press release, they referred to Sessions departure not as a resignation, but as a firing.

Last night, House Judiciary Committee Ranking Member Jerrold Nadler (D-NY), Intelligence Committee Ranking Member Adam Schiff (D-CA), Oversight and Government Reform Committee Ranking Member Elijah Cummings (D-MD), and Senate Judiciary Committee Ranking Member Dianne Feinstein sent letters to top Administration officials demanding the preservation of all documents and materials relevant to the work of the Office of the Special Counsel or the firing of Attorney General Jeff Sessions.

In their letters, the Members wrote:  “Committees of the United States Congress are conducting investigations parallel to those of the Special Counsel’s office, and preservation of records is critical to ensure that we are able to do our work without interference or delay. Committees will also be investigating Attorney General Sessions’ departure. We therefore ask that you immediately provide us with all orders, notices, and guidance regarding preservation of information related to these matters and investigations.”

Letters were sent to the White House Counsel Pat Cipollone, FBI Director Chris Wray, Director of National Intelligence Dan Coats, CIA Director Gina Haspel, Deputy U.S. Attorney for the Southern District of New York Robert Khuzami, Treasury Secretary Steven Mnuchin, NSA Director Paul Nakasone, IRS Commissioner Charles Rettig, and Acting Attorney General Matt Whitaker. [my emphasis]

Even the letters themselves, while they don’t use the word “firing,” emphasize the involuntary nature of Sessions’ ouster.

Our understanding is that Attorney General Jeff Sessions has been removed at the request of the President. We ask that you confirm that the Justice Department has preserved all materials of related to any investigations by the Special Counsel’s office, including any related investigations conducted by any component of the Justice Department. We also ask that you preserve all the materials related to the departure of Attorney General Sessions.

While it’s not clear whether they more basis to believe this was a firing rather than a resignation, they’re proceeding as if it was, legally, a firing. That’s crucial because the only way that Whitaker’s appointment, as someone who is not Senate confirmed, would be legal under the Vacancies Reform Act is if Sessions legally resigned. The Democrats seem to suspect they can argue he did not.

And that’s important because (as Katyal and Conway argue) if his appointment is not legal, than nothing he does as Attorney General is valid.

President Trump’s installation of Matthew Whitaker as acting attorney general of the United States after forcing the resignation of Jeff Sessions is unconstitutional. It’s illegal. And it means that anything Mr. Whitaker does, or tries to do, in that position is invalid.

Plus, by demanding preservation of the records and framing this in terms that suggest Whitaker’s appointment was not legal (I’m not sure I agree, but encourage HJC to ask Katyal and Conway to argue the case for them), HJC lays out a basis to claim standing to challenge this, particularly if and when Whitaker makes a decision (such as preventing HJC from obtaining any report Mueller writes) that will cause them injury as an independent branch of government.

Again, I’m not sure I agree with the Katyal/Conway legal argument, though if HJC can prove that Sessions was fired then it’s clear Whitaker was not legally appointed. But these two challenges pose a real risk for Trump. It risks not just decisions pertaining to the Mueller investigation, but even things like surveillance approvals, can be challenged by anyone harmed by them (who gets notice of it). That’s an unbelievable risk for a position as important as Attorney General.

Back when a guy named Robert Mueller had his FBI tenure extended two years in 2011, Tom Coburn worried that even that action, done with Senate approval, would make the approvals Mueller made under Section 215 (this was before we knew the scope of the phone dragnet) legally suspect.

Could you envision colorable challenge to use of 215 authority during your 2 year extension of power?

While I have no problem with you staying on for two more years, I do have concerns we could get mired in court battles [over 215] that would make you ineffective in your job.

Coburn was worried about one (or a few) surveillance programs. The Attorney General touches far more than the FBI Director, and Trump’s DOJ could spend just as much time in court trying to defend the actions of his hatchetman.

And it looks like both the author of the statute governing Mueller’s appointment and the people who will oversee DOJ in a few months have real questions about the legality of Whitaker’s appointment.

Can Senator Feinstein Block The Appointment of Rachel Mitchell?

As you know by now, Maricopa County (Arizona) sex crimes unit chief Rachel Mitchell has been deemed by Chuck Grassley and the Senate Judiciary Republicans as their front person to examine Dr. Christine Blasey Ford. From NBC News:

The woman chosen by Senate Judiciary Committee Republicans to question Supreme Court nominee Brett Kavanaugh’s accuser will be in an unusual position when she goes face-to-face with Christine Blasey Ford on Thursday.

Senate Judiciary Committee Chairman Chuck Grassley announced Tuesday that he hired Rachel Mitchell, an outside attorney to question Kavanaugh and Ford, on behalf of the 11 male Republicans on the committee — despite Ford’s wishes to be questioned by the senators themselves about her accusation that Kavanaugh sexually assaulted her when the two were teenagers.

So, the eleven old white men of the SJC want a female stand in to make their evisceration and shining on of putative kidnapping, sexual assault and attempted rape victim Dr. Ford. Because the optics the GOP men, and men are the only sex that has ever served for Republicans on SJC, looked too ugly for even them.

But is this unprecedented move, clearly designed with public optics and maximal humiliation of Dr. Ford even appropriate? Maybe not!

Now, I am not a Senate Rules expert, but a comment made me go do a little digging. Here is the text of the the most recent version of the United States Senate Standing Rules, Orders, Laws, And Resolutions. Here, specifically, is the section, contained in Chapter 43 thereof, in §4301(i)(3) relating to committee retention of consultants:

(3) With respect to the standing committees of the Senate, any such consultant or organization shall be selected by the chairman and ranking minority member of the committee, acting jointly. With respect to the standing committees of the House of Representatives, the standing com- mittee concerned shall select any such consultant or organization. The committee shall submit to the Committee on Rules and Administration in the case of standing committees of the Senate, and the Committee on House Oversight in the case of standing committees of the House of Representatives, information bearing on the qualifications of each consultant whose services are procured pursuant to this subsection, including organizations, and such information shall be retained by that committee and shall be made available for public inspection upon request. (Emphasis added)

So, Senator Feinstein, is this indeed the case? If so, why would you assent to appointment of a prosecutorial thug like Rachel Mitchell to examine the putative victim here, Dr. Ford?

Rachel Mitchell is currently head of the Sex Crimes Unit in the Maricopa County Attorney’s Office (MCAO). She has served under three heads of the MCAO, but she was elevated to her current position because she was an extremist who fit the desired bill by the notorious former MCAO head, Andrew Thomas. As you may recall, Andy Thomas not only had to leave the MCAO in disgrace, but subsequently was disbarred for his zealotry. And that kind of craven zealot is exactly who Rachel Mitchell identified with and was promoted by back in January of 2005. And is Mitchell always hard on sex criminals? No, in fact her past also includes sweetheart deals to abusive clergy members in politically charged cases.

Rachel Mitchell is one of the worst choices imaginable for the current task. It is a heinous move by Chuck Grassley and a direct and complete screw you to Dr. Ford and sexual abuse and rape victims across the United States and world.

And the “screw you” to victims is especially salient with the existence of additional putative victims of Brett Kavanaugh’s drunken debauchery. Not only is there Debbie Ramirez, who did not seek to come forward, but was located because friends and classmates of hers and Kavanaugh, while Kavanaugh was at Yale, started recalling her victimization and talking about it. Jane Mayer has more on that, not to mention her and Ronan Farrow’s original reporting on Ramirez.

And, just as of an hour or two ago, yet another troubling story of Brett Kavanaugh’s misogyny and conduct has been made public by her lawyer Michael Avenatti. Julie Swetnick has issued a sworn affidavit that is chilling. Swetnick is a A 1980 graduate of Gaithersburg High School in Gaithersburg, Maryland, and has has held multiple security clearances for work done at the Treasury Department, U.S. Mint, IRS, State Department and Justice Department. In short, she is a more than credible person who has put her statement under oath and penalty of perjury.

Here is her affidavit, and it is chilling. It describes what now seems obvious, Brett Kavanaugh and his friend Mark Judge were part of a group of a private boys school wilding gang that drank to excess regularly mistreated women. Judge and Kavanaugh were “joined at the hip” according to Swetnick. She further states:

There is more, much more, including descriptions of girls, including Ms. Swetnick herself, being knocked out with spiked punch and gang raped.

And that is where we find ourselves today. It appears that Senator Feinstein can put the kibosh on the craven hiring of a zealot prosecutorial thug like Rachel Mitchell and, further, can with the help of any and all Republican Senators of conscience, slow down this train wreck and investigate the claims and give a real hearing. That means someone among Jeff Flake, Lisa Murlowski, Susan Collins, or another, needs to step up and do the right thing. Will they? Will Senator Feinstein?

Within the last minute, Senator Feinstein has issued the following statement:

Washington—Following the release of a sworn affidavit from Julie Swetnick detailing new allegations of sexual assault by Brett Kavanaugh, all 10 Democratic members of the Senate Judiciary Committee today urged President Trump to immediately withdraw the nomination or order an FBI investigation into all allegations.

The senators wrote: “We are writing to request that you immediately withdraw the nomination of Brett Kavanaugh to be an Associate Justice on the Supreme Court or direct the FBI to re-open its background investigation and thoroughly examine the multiple allegations of sexual assault.

“Judge Kavanaugh is being considered for a promotion. He is asking for a lifetime appointment to the nation’s highest court where he will have the opportunity to rule on matters that will impact Americans for decades. The standard of character and fitness for a position on the nation’s highest court must be higher than this. Judge Kavanaugh has staunchly declared his respect for women and issued blanket denials of any possible misconduct, but those declarations are in serious doubt.”

That is a nice statement, but there appears to be so much more that Senator Feinstein can do Jeff Flake just took to the Senate Floor and, despite some words of empathy, wholeheartedly accepted that tomorrow’s sham hearing in SJC is all that there will ever be. While Flake appeared close to tears, he, as usual, said and intends to do nothing admirable and/or heroic.

It is a sad show we are watching. The hallowed halls of the Supreme Court deserve better, and so too do the American people.

Two Details about DOJ IG’s Leak Investigations, Plural, Including the One into Rudy Giuliani’s Sources

Amid the discussions about the NY office’s rampant leaks to Rudy Giuliani back in 2016, HuffPo confirmed that he was interviewed by two FBI Agents who, he said, were investigating on behalf of the IG.

Giuliani told HuffPost that he spoke with [James] Kallstrom as well as one other former FBI official he would not identify.

But Giuliani said he told the FBI agents who interviewed him that he had neither inside knowledge of the Clinton probe’s status nor advance warning of Comey’s Oct. 28 announcement. He was merely speculating that FBI agents were so upset by Comey’s earlier decision not to charge the Democratic nominee with any crimes that they would “revolt,” either by leaking damaging information about her or by resigning en masse.

“Did I get any leaks from the FBI? I said no,” Giuliani said, adding that the “surprise” that he promised in 2016 was a 20-minute national television ad he was urging Trump to buy to deliver a speech “hitting very hard on the Comey decision.”

[snip]

The agents did not record the interview and did not offer him the opportunity to review their report before they submitted it to their supervisor. One of Giuliani’s private security guards was also present, he said.

“They seemed like straight kids,” he said of the agents.

He added that he was unconcerned that his inquisitors were from the FBI, which conducts criminal investigations, rather than investigators from Horowitz’s office. “They definitely told me they were investigating for the IG,” Giuliani said. “I wasn’t surprised at all.”

I’d like to add two data points from Inspector General Horowitz’s testimony about leaks.

First, while it should have been obvious, this exchange with North Carolina Congressman Mark Walker (particularly Horowitz’ lovely agreement self-correction) made me realize that there are leak investigations, plural.

Horowitz: Looking at the charts here you can see that these are not, generally speaking, one call. So, I would leave it at that. We’re looking at the, that deeper question.

Walker: When you say you’re looking at it, does that mean there may be warrant–it may warrant more investigation for some of those who’ve been players in this situation?

Horowitz: There is — there are, there are active investigations ongoing by our office.

As I said, that should have been clear: the IG Report refers to them as investigations.

Chapter Twelve describes the text messages and instant messages expressing political views we obtained between certain FBI employees involved in the Midyear investigation and provides the employees’ explanations for those messages. It also briefly discusses the use of personal email by several FBI employees, and provides an update on the status of the OIG’s leak investigations.

[snip]

In addition to the significant number of communications between FBI employees and journalists, we identified social interactions between FBI employees and journalists that were, at a minimum, inconsistent with FBI policy and Department ethics rules. For example, we identified instances where FBI employees received tickets to sporting events from journalists, went on golfing outings with media representatives, were treated to drinks and meals after work by reporters, and were the guests of journalists at nonpublic social events. We will separately report on those leak investigations as they are concluded, consistent with the Inspector General (IG) Act, other applicable federal statutes, and OIG policy. [my emphasis]

As a footnote notes, we learned of one result — the Andrew McCabe investigation — when it got referred for criminal investigation.

Between two hearings and three committees, not a single person asked about the methodology of the link clusters I complained about the other day, but I wonder whether they each represent a separate leak investigation?

The far more interesting exchange, however, came yesterday, between Horowitz and Dianne Feinstein. After she laid out Rudy’s claims back in 2016, she asked Horowitz if he was investigating. As he did repeatedly when asked about Rudy, he deferred. But after she asked if such leaks were lawful, and then followed up about whether the investigation was ongoing, he said something interesting.

Horowitz: I’m not in a position at this point to speak to any investigative outcomes.

Feinstein: Do you believe disclosures of this sort, especially during an election are appropriate, are they lawful?

Horowitz: I don’t believe disclosures of this sort are appropriate at any point in time in a criminal investigation. I was a former prosecutor. Worked extensively with FBI Agents, in my prior capacity, and all of us would have thought that was entirely inappropriate.

Feinstein: The report says that you, and I quote, will separately report on those investigations as they are concluded. Does this mean that this leak investigation is ongoing?

Horowitz: Our work remains ongoing and when we can do that consistent with the IG Act, the law, policy, we will do so.

Horowitz suggested that the reason they haven’t reported out the conclusions to these other leak investigations, plural, including the Rudy one is (in part) because it would be inconsistent with the IG Act.

There are specific restrictions on the DOJ IG in the IG Act, but the key one — which permits the Attorney General to halt an investigation for a variety of reasons — itself requires notice to the two committees that were in today’s hearing.

Which leaves the general restrictions on disclosing information in the IG Act. In both the specific DOJ IG language and here, the key restriction is on disclosing information that is part of an ongoing criminal investigation.

(1) Nothing in this section shall be construed to authorize the public disclosure of information which is—
(A) specifically prohibited from disclosure by any other provision of law;
(B) specifically required by Executive order to be protected from disclosure in the interest of national defense or national security or in the conduct of foreign affairs; or
(C) a part of an ongoing criminal investigation.

(2) Notwithstanding paragraph (1)(C), any report under this section may be disclosed to the public in a form which includes information with respect to a part of an ongoing criminal investigation if such information has been included in a public record.

Which would say that, as with the firing of Comey (which Horowitz explained they’ve halted because an ongoing investigation is investigating it), DOJ IG might have been unable to further report the results of its leak investigations because it referred them, plural.

Mind you, that’s not what happened with Andrew McCabe. The DOJ IG completed its investigation, concluded McCabe lied, and then referred him. But it does seem likely that the hold-up on explaining all those link clusters has to do with criminal investigations.

The Same Day Aras Agalarov Was Talking about Restoring Communication with Trump, Jared Kushner Pitched a Back Channel

I want to pull out a few details regarding the December 1, 2016 meeting between Mike Flynn, Jared Kushner, and Russian Ambassador Sergey Kislyak that come out of the SJC materials released some weeks back. They show that the same day that Jared pitched Kislyak on a back channel, Trump’s handler was in Moscow trying to figure out how to restore communications in the wake of the election.

In his statement (remember, he chickened out of testifying before SJC after Flynn pled guilty, though he attributed the decision to Dianne Feinstein’s release of Glenn Simpson’s transcript), Kushner stated that Kislyak requested the meeting on November 16.

On November 16, 2016, my assistant received a request for a meeting from the Russian Ambassador.

On November 18, Ike Kaveladze texted Aras Agalarov, following up on a phone conversation they had already had, reporting on Rob Goldstone’s outreach to the Trump team to set up a second meeting with Natalia Veselnitskaya to discuss Magnitsky sanctions again.

Q. Could you please take a look at the entry for November 18, 2016, at 17:45. This appears to  be a message from you to Aras Agalarov. Mr. Kaveladze, could you please translate the content of that message?

A. “Hello. Rob spoke with Trump people. They asked a short synopsis of what is she going to be discussing. Last time she produced a lot of emotions and less facts. Most of the people who took part in that meeting are moving to Washington, D. C. Some of them already fired. When they receive synopsis, they will decide who to send to that meeting.”

The text is bizarre for several reasons. While Kaveladze’s English is not great, the description of what has happened to the attendees at the June 9 meeting would suggest more than three attendees, not least because by saying “some” people got fired suggests more than one person — Paul Manafort — had been. In any case, the text makes it clear that the Agalarovs had already started their efforts to resume the discussion about raising Magnitsky sanctions first presented during the summer, which Don Jr had said  in that meeting they would revisit after his father won.

Indeed, while we don’t know when those calls occurred, the outreach seems to nearly if not exactly coincide with Kislyak’s outreach to Kushner, the one known June 9 meeting attendee who was already headed to Washington.

In his testimony, Goldstone claimed he hadn’t done the outreach clearly reflected in Kaveladze’s text and hadn’t forwarded Veselnitskaya’s document the previous week, as reflected in another text to Kaveladze.

Q. So in your November 27th message to Mr. Kaveladze, you said you forwarded the information last week. The last email was an email sent on November 28th, the day after this message with Kaveladze, forwarding the document to Ms. Graff. Had you, in fact, forwarded the document the week before your November 27th message with Kaveladze?

A. I don’t recall, but because I know myself, and I know how I write , I would imagine that the minute he reminded me of it in here, I forwarded it to Rhona, probably the next day. So I don’t recall one before then, no.

Q. All right. Prior to sending that email to Ms. Graff on November 28th, 2016, did you speak with Ms. Graff or any other Trump associates about a second meeting with Veselnitskaya?

A. I don’t believe so.

The Kaveladze transcript and his text messages reveal that the efforts to get Veselnitskaya back in to meet with the Trump team continued for the rest of November.

Probably because he was interviewed before Kaveladze’s documents were provided to the committee, Don Jr was not asked about any of those texts (and Goldstone wasn’t asked about the Kaveladze ones that clearly rebutted his story). Don Jr was asked only about a November 28, 2016 email from Goldstone to Rhona Graff forwarding Veselnitskaya’s document, which was not CCed to Junior. Even though he was probably the one whom Goldstone spoke to and was instructed by to send a synopsis and probably got a synopsis a week before Graff did, Junior claimed not to recall any other follow-up besides the email to Graff.

Q. It appears Mr. Goldstone continued his anti-Magnitsky effort beyond your June 9, 2016 meeting. Other than this e-mail, were you aware of any other effort he made on this issue after your meeting?

A. Not that I recall, no.

Goldstone told Kaveladze he made a bunch of calls following up on the synopsis on November 28, but got no response (though he testified he didn’t make the calls because he didn’t want to pitch the second meeting). He also texted Kaveladze about having Emin call “Trump” (presumably Junior) directly.

In a text on November 29 to Veselnitskaya, Kaveladze explained, without describing from whom Goldstone had learned this, that “Robert says that logistics of organizations of meetings with Team Trump now would be difficult and lengthy. I’ve landed in Moscow. I will discuss this situation … with my boss.”

The next day, December 1 at 11:49AM, Kaveladze texted again (Veselnitskaya was by this point frantic because Trump had met with Preet Bharara, with her even discussing who Trump might, “Wet and not to wet” with respect to the US Attorney, which Kaveladze translated as “crush”), explaining that Aras planned on meeting with Trump to restore communications. “Unfortunately, we don’t have communication. My boss planned to meet with him. We will send a formal request. Hopefully after the meeting we will keep communication.”

The timing on all of Kaveladze’s communications are difficult to track since he travels to Moscow so often, but his time stamps probably reflect PT, meaning that text would have been sent in the evening Moscow time, which is 7 hours ahead of DC.

On December 1, Jared Kushner (the one June 9 meeting attendee definitely on his way to DC at that point) and Mike Flynn met with Sergey Kislyak. Even according to Jared’s prepared statement, that meeting was about establishing communication channels to Russia.

The meeting occurred in Trump Tower where we had our transition office, and lasted twenty-thirty minutes. Lt. General Michael Flynn (Ret.), who became the President’s National Security Advisor, also attended. During the meeting, after pleasantries were exchanged, as I had done in many of the meetings I had and would have with foreign officials, I stated our desire for a fresh start in relations. Also, as I had done in other meetings with foreign officials, I asked Ambassador Kislyak if he would identify the best person (whether the Ambassador or someone else) with whom to have direct discussions and who had contact with his President. The fact that I was asking about ways to start a dialogue after Election Day should of course be viewed as strong evidence that I was not aware of one that existed before Election Day.

The Ambassador expressed similar sentiments about relations, and then said he especially wanted to address US. policy in Syria, and that he wanted to convey information from what he called his “generals.” He said he wanted to provide information that would help inform the new administration. He said the generals could not easily come to the U.S. to convey this information and he asked if there was a secure line in the transition office to conduct a conversation. General Flynn or I explained that there were no such lines. I believed developing a thoughtful approach on Syria was a very high priority given the ongoing humanitarian crisis, and I asked if they had an existing communications channel at his embassy we could use where they would be comfortable transmitting the information they wanted to relay to General Flynn. The Ambassador said that would not be possible and so we all agreed that we would receive this information after the Inauguration. [emphasis original]

Of course, intercepts of Kislyak’s calls back to Moscow captured his alarm that Kushner wanted to use Russian diplomatic facilities to communicate with Russia.

Ambassador Sergey Kislyak reported to his superiors in Moscow that Kushner, son-in-law and confidant to then-President-elect Trump, made the proposal during a meeting on Dec. 1 or 2 at Trump Tower, according to intercepts of Russian communications that were reviewed by U.S. officials. Kislyak said Kushner suggested using Russian diplomatic facilities in the United States for the communications.

[snip]

Kislyak reportedly was taken aback by the suggestion of allowing an American to use Russian communications gear at its embassy or consulate — a proposal that would have carried security risks for Moscow as well as the Trump team.

In any case, this makes it clear that the same day that Trump’s handler, Aras Agalarov, was discussing restoring communication channels with Trump in the post-election period, Jared was pitching the Russian Ambassador on using Russian facilities to conduct such communication. And even though Kushner claims he and Kislyak deferred such communications until after the inauguration, we know that within weeks, Kislyak had set up a meeting with the head of a sanctioned bank to meet with Kushner, a meeting that would precede Flynn’s calls with Kislyak about delaying any response to Obama’s December 28 sanctions, which would, in turn, lead to another meeting in Seychelles, all before the inauguration.

Natalia Veselnitskaya never got her second meeting to pitch the end to Magnitsky sanctions, but Sergey Gorkov got a meeting.

One more detail. Kushner’s statement suggests the meeting with Kislyak took place in formal transition space. But that’s not the case.

Don Jr revealed that meeting took place in his office (he came in at the end, sweaty from a workout).

Q. You mentioned during the conversation with my colleagues that you had become aware of a meeting or meetings with Ambassador Kislyak. Can you just explain like what meetings did you become aware of? When did they take place?

A. I don’t remember the exact timing of when they took place. I believe it was after we had already secured — meaning after the election, but I could be mistaken. The only reason I’m aware of it is because it occurred in my office. I came back from the gym and they were in there.

Q. So when you say after the election, you mean after November 8, 2016?

A. I believe so.

Q. Was it a meeting in December of 2016?

A. That would fit the description, yes, I believe so.

Q. So it was a meeting in Trump Tower?

A. Yes.

Q. In your office but you hadn’t known about it beforehand?

A. Correct.

Q. Do you know why they used your office?

A. It was open, I was at the gym.

Q. And who was in that meeting?

A. I believe it was Jared Kushner, the Ambassador, maybe Flynn, but I don’t remember.

Q. Anyone else, to the best of your recollection?

A. No, not that I recall.

Q. Was the meeting still ongoing when you returned?

A. I believe it was, yes.

Q. Did you go in and join the meeting?

A. No, I did not.

Q. Why not?

A. Because I didn’t know what it was about and I was sweaty from the gym.

Q. Did you ask Mr. Kushner or Lieutenant General Flynn about the meeting after?

A. No, I don’t think I did.

Don’t people shower at the gym before they head back to work? Especially if it’s a fancy schmancy private gym?

At the very least, this suggests that the meeting between Kushner, Flynn, and Kislyak took place outside of formal transition space, which might mean it took place outside the view of Secret Service (a habit Don Jr himself adopted the following year for a period). Don Jr’s claims to have been at the gym, ignorant to the meeting that seemed to parallel one taking place that day in Moscow between Agalarov team members in the wake of discussions about Emin reaching out to Don Jr, are suspicious, not least because he claimed to have forgone the normal shower process following a workout. Had he been in the meeting, you’d think Kislyak would have reported that back. Maybe he did.

But one thing is clear: In NYC and Moscow, on the same day, the Trump team and their Russian handlers were trying to figure out how to restore communications in the wake of the election.

Gina Haspel’s Fluid Moral Compass

I expected to dislike Gina Haspel, but be impressed with her competence (the same view I always had about John Brennan). But she did not come off as competent in her confirmation hearing, in large part because the lies surrounding her career cannot be sustained.

Let’s start with the questions she didn’t answer (usually offering a non-responsive rehearsed answer instead). She refused to say:

  • Whether she believes, with the benefit of hindsight, torture was immoral.
  • If a terrorist tortured a CIA officer, whether that would be immoral.
  • Whether the torture program was consistent with American values.
  • Whether she oversaw the torture of Abd al Rahim al-Nashiri.
  • Whether she was in a role supervising torture before she became Jose Rodriguez’ Chief of Staff.
  • Whether she pushed to keep the torture program between 2005 and 2007 (see that question here).
  • Whether she would recuse from declassification decisions relating to her nomination.
  • Whether Dan Coats should oversee declassification decisions regarding her nomination.
  • Whether she has been alone with President Trump.
  • Whether she would tell Congress if he asked her for a loyalty oath.

She also answered that she didn’t think torture worked, but then hedged and said she couldn’t say that because we got evidence from it.

She did answer one question that went to the core of her abuse when she participated in the destruction of the torture tapes. She said she would consider it insubordination today if an officer bypassed her for something as substantive as destroying the tapes, as Jose Rodriguez did. But she as much as said she would have destroyed the tape much earlier, because of the security risk they posed to the officers who appeared in the videos.

Then there was the logical inconsistency of her presentation. Several Senators, including Mark Warner, Dianne Feinstein, Ron Wyden, and Kamala Harris, complained about the selective declassification of information surrounding her confirmation. Haspel explained that she had to abide by the rules of classification just like everyone else. Not only was that transparent bullshit on its face (as Harris noted, the CIA released a great deal of information that revealed details of her operations), during the course of the hearing she provided details about her first meeting with an asset, Jennifer Matthews’ life and assignments, and a counter-drug program that also must be classified, and yet she was willing to simply blurt them out.

Perhaps most remarkable, though, is a key claim she made to excuse the destruction of the torture tape.

She claimed she did not recall which of the long list of entities that opposed the destruction of the torture tape she knew about at the time. That includes a move by Carl Levin to form a congressional commission to investigate torture. But on several occasions, she said that because the torture was covered in cable traffic, no other evidence needed to be kept.

That assumes, of course, that both the specific CIA cable and CIA cables generally are a fair rendition of any event CIA does (it’s not; in this case, and some videos were destroyed before the reviews finding them to match).

But when the Senate Intelligence Committee did a 6.700 page report based on the cables CIA used to describe their own torture, CIA wailed because SSCI didn’t interview the individual officers. Haspel effectively suggested that cables, in the absence of the torture tapes, would be sufficient for a congressional commission. Yet when Congress used cables to do an investigation of torture, CIA then claimed that was invalid.

When asked whether torture was moral, Haspel instead repeatedly insisted she has a sound moral compass. Except what her testimony made clear is that her idea of moral compass has everything to do with what is good for the CIA and its officers. It has absolutely nothing to do with traditional moral values. That’s not actually surprising. That’s what we ask of clandestine CIA officers: to break the rules normal people adhere to, in the name of serving our country, and to remain absolutely loyal to those whose lives are exposed in doing so.

Except today, Haspel proved unable to move beyond the fluid moral compass of a CIA officer to adopt a more stringent moral code of an official serving a democracy.

Mueller Tells Guy Who Legally Can’t Be a Target That He’s Not a Target, Perhaps in a Bid to Make Him Legally Targetable

The WaPo has a fascinating report describing that Robert Mueller informed Trump’s lawyers “in early March” that he doesn’t consider Trump a target in his investigation. That news made Trump even more determined to sit for an interview with Mueller, a decision which some of Trump’s less appropriate lawyers seem to have supported. That’s what led John Dowd to quit on March 22 (which would presumably have been two weeks or so later).

John Dowd, Trump’s top attorney dealing with the Mueller probe, resigned last month amid disputes about strategy and frustration that the president ignored his advice to refuse the special counsel’s request for an interview, according to a Trump friend.

Of course, as many people have pointed out, a sitting President can’t be indicted. NYCSouthpaw pointed to the appropriate section of the US Attorney’s Manual, which states that, “A ‘target’ is a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant.”

If Trump, as President, can’t be indicted, then he can’t be a putative defendant. So he’ll never be a target so long as he remains President. Dowd is likely the only lawyer on Trump’s team who has enough defense experience to understand that this should offer the President zero assurance at all.

He left when the other, ill-suited attorneys refused to believe him on this point.

Which is why the other main thrust of the story is so interesting. Mueller has also indicated that Mueller wants to start writing his report on obstruction — according to Robert Costa, with the intent of finishing it by June or July, just before Congress breaks for August recess, the official start of campaign season — with plans for a second report on the election conspiracy to follow.

The special counsel also told Trump’s lawyers that he is preparing a report about the president’s actions while in office and potential obstruction of justice, according to two people with knowledge of the conversations.

Mueller reiterated the need to interview Trump — both to understand whether he had any corrupt intent to thwart the Russia investigation and to complete this portion of his probe, the people said.

[snip]

Mueller’s investigators have indicated to the president’s legal team that they are considering writing reports on their findings in stages — with the first report focused on the obstruction issue, according to two people briefed on the discussions.

Under special counsel regulations, Mueller is required to report his conclusions confidentially to Deputy Attorney General Rod J. Rosenstein, who has the authority to decide whether to release the information publicly.

“They’ve said they want to write a report on this — to answer the public’s questions — and they need the president’s interview as the last step,” one person familiar with the discussions said of Mueller’s team.

Trump’s attorneys expect the president would also face questions about what he knew about any contacts by his associates with Russian officials and emissaries in 2016, several White House advisers said. The president’s allies believe a second report detailing the special counsel’s findings on Russia’s interference would be issued later.

That leads us to the question of how a report that Rod Rosenstein has authority to quash could be assured of “answering the public’s questions.” One option is Mueller could propose charges he knows Rosenstein won’t — or can’t — approve, which guarantees that the Chairs and Ranking Members of the Judiciary Committees (currently, Bob Goodlatte, who is retiring, Jerry Nadler, Chuck Grassley, and Dianne Feinstein, who faces a real challenge this year) will get at least a summary.

Mueller could trigger a reporting requirement in the special counsel regulations under which the attorney general must inform “the Chairman and Ranking Minority Member of the Judiciary Committees of each House of Congress” — both parties, in other words — at the end of the special counsel’s investigation, of any instance in which the attorney general vetoed a proposed action. Simply by proposing to indict Trump, Mueller could ensure that Congress gets the word. But this would be of only limited scope: instead of an evidence dump, it need only be a “brief notification, with an outline of the actions and the reasons for them.”

Alternately, Mueller could recommend impeachment, but Rosenstein would be bound by grand jury secrecy rules.

If Mueller believes he has information that could warrant impeachment, he could weave it into a narrative like the Starr Report. But even if Rosenstein wanted to make the report public, he would be limited by Federal Rule of Criminal Procedure 6(e), which imposes strict limits on the disclosure of grand jury materials. This rule, which has the force of law, is intended to preserve the integrity of grand jury investigations and encourage witnesses to testify fully and frankly. Rosenstein could, if he chose, issue a redacted report that conveys the gist of Mueller’s findings.

While the election conspiracy has involved grand jury subpoenas (to people like Sam Nunberg and Ted Malloch, most recently), the obstruction investigation into Trump has involved (as far as I remember) entirely voluntary interviews and mostly, if not entirely, voluntarily produced evidence. So whereas for the larger investigation, Rosenstein will face this limit (but not if the targets — like Roger Stone — are indicted), he may not here.

All of which is to say we may be looking at a public report saying that Trump should be impeached just as Republicans attempt to keep Congress.

Even as some of Mueller’s 17+ prosecutors write that up (by my estimate, only Watergate prosecutor James Quarles has been working the Trump obstruction full time), the rest will continue to roll out evidence — possibly in the form of very inflammatory indictments — of what Trump was trying to obstruct.

Effectively, I think Mueller is giving the GOP Congress a choice. They impeach Trump on the less inflammatory stuff,which will remove all threat of firing and/or pardons to threaten the investigation, not to mention make Trump eligible to be a target for the actual election conspiracy he tried to cover up. Or after they fail to hold the House while explaining why they’re covering up for Trump’s cover up, they will face a more serious inquiry relating to Trump’s involvement in the election conspiracy.

On the Grassley-Feinstein Dispute

In a podcast with Preet Bharara this week, Sheldon Whitehouse had the following exchange about whether he thought Carter Page should have been surveilled. (after 24:30)

Whitehouse: I’ve got to be a little bit careful because I’m one of the few Senators who have been given access to the underlying material.

Bharara: Meaning the affidavit in support of the FISA application.

Whitehouse And related documents, yes. The package.

Bharara: And you’ve gone to read them?

Whitehouse: I’ve gone to read them.

Bharara: You didn’t send Trey Gowdy?

Whitehouse: [Laughs] I did not send Trey Gowdy. I actually went through them. And, so I’ve got to be careful because some of this is still classified. But the conclusion that I’ve reached is that there was abundant evidence outside of the Steele dossier that would have provoked any responsible FBI with a counterintelligence concern to look at whether Carter Page was an undisclosed foreign agent. And to this day the FBI continues to assert that he was a undisclosed Russian foreign agent.

For the following discussion, then, keep in mind that a very sober former US Attorney has read the case against Carter Page and says that the FBI still — still, after Page is as far as we know no longer under a FISA order — asserts he “was” an undisclosed foreign agent (it’s not clear what that past tense “was” is doing, as it could mean he was a foreign agent until the attention on him got too intense or remains one; also, I believe John Ratcliffe, a Republican on the House Judiciary Committee and also a former US Attorney, has read the application too).

With that background, I’d like to turn to the substance of the dispute between Chuck Grassley and Dianne Feinstein over the dossier, which has played out in the form of a referral of Christopher Steele to FBI for lying. In the wake of the Nunes memo theatrics, Grassley released first a heavily redacted version of the referral he and Lindsey Graham sent the FBI in early January, followed by a less-redacted version this week. The referral, even as a transparent political stunt, is nevertheless more substantive than Devin Nunes’ memo, leading some to take it more seriously.  Which may be why Feinstein released a rebuttal this week.

In case you’re wondering, I’m tracking footnote escalation in these documents. They line up this way:

  • 0: Nunes memo (0 footnotes over 4 pages, or 1 over 6 if you count Don McGahn’s cover letter)
  • 2.6: Grassley referral (26 footnotes over 10 pages)
  • 3.6: Schiff memo (36 footnotes, per HPSCI transcript, over 10 pages)
  • 5.4: Feinstein rebuttal (27 footnotes over 5 pages)

So let me answer a series of questions about the memo as a way of arguing that, while by all means the FBI’s use of consultants might bear more scrutiny, this is still a side-show.

Did Christopher Steele lie?

The Grassely-Graham referral says Steele may have lied, but doesn’t commit to whether classified documents obtained by the Senate Judiciary Committee (presumably including the first two Page applications), a declaration Steele submitted in a British lawsuit, or Steele’s statements to the FBI include lies.

The FBI has since provided the Committee access to classified documents relevant to the FBI’s relationship with Mr. Steele and whether the FBI relied on his dossier work. As explained in greater detail below, when information in those classified documents is evaluated in light of sworn statements by Mr. Steele in British litigation, it appears that either Mr. Steele lied to the FBI or the British court, or that the classified documents reviewed by the Committee contain materially false statements.

On September 3, 2017 — a good three months before the Grassley-Graham referral — I pointed to a number of things in the Steele declaration, specifically pertaining to who got the dossier or heard about it when, that I deemed “improbable.”

That was the genius of the joint (!!) Russian-Republican campaign of lawfare against the dossier. As Steele and BuzzFeed and Fusion tried to avoid liability for false claims against Webzilla and Alfa Bank and their owners, they were backed into corners where they had to admit that Democrats funded the dossier and made claims that might crumble as Congress scrutinized the dossier.

So, yeah, I think it quite possible that Steele told some stretchers.

Did Christopher Steele lie to the FBI?

But that only matters if he lied to the FBI (and not really even there). The UK is not about to extradite one of its former spies because of lies told in the UK — they’re not even going to extradite alleged hacker Lauri Love, because we’re a barbaric country. And I assume the Brits give their spooks even more leeway to fib a little to courts than the US does.

The most critical passage of the referral on this point, which appears to make a claim about whether Steele told the FBI he had shared information with the press before they first used his dossier in a Page application, looks like this.

The footnote in the middle of that redacted passage goes to an unredacted footnote that says,

The FBI has failed to provide the Committee the 1023s documenting all of Mr. Steele’s statements to the FBI, so the Committee is relying on the accuracy of the FBI’s representation to the FISC regarding the statements.

1023s are Confidential Human Source reports.

I say that’s the most important passage because the referral goes on to admit that in subsequent FISA applications the FBI explained that the relationship with Steele had been terminated because of his obvious involvement in the October 31, 2016 David Corn story. Graham and Grassley complain that the FBI didn’t use Steele’s defiance of the FBI request not to share this information with anyone besides the FBI to downgrade his credibility rankings. Apparently FISC was less concerned about that than Graham and Grassley, which may say more about standards for informants in FISA applications than Steele or Carter Page.

The footnote, though, is the biggest tell. That’s because Feinstein’s rebuttal makes it quite clear that after Grassley and Graham made their referral, SJC received documents — which, given what we know has been given to HPSCI, surely include those 1023s — that would alter the claims made in the referral.

The Department of Justice has provided documents regarding its interactions with Mr. Steele to the Judiciary Committee both before and after the criminal referral was made. Despite this, the Majority did not modify the criminal referral and pressed forward with its original claims, which do not take into account the additional information provided after the initial January 4 referral.

Feinstein then goes on to state, several times and underlining almost everything for emphasis, that the referral provides no proof that Steele was ever asked if he had served as the source for Isikoff.

  • Importantly, the criminal referral fails to identify when, if ever, Mr. Steele was asked about and provided a materially false statement about his press contacts.
  • Tellingly, it also fails to explain any circumstances which would have required Mr. Steele to seek the FBI’s permission to speak to the press or to disclose if he had done so.

[snip]

But the criminal referral provides no evidence that Steele was ever asked about the Isikoff article, or if asked that he lied.

In other words, between the redacted claim about what Steele said and Feinstein’s repeated claims that the referral presents no evidence Steele was asked about his prior contacts with the press, the evidence seems to suggest that Steele was probably not asked. And once he was, after the Corn article, he clearly did admit to the FBI he had spoken with the press. So while it appears Steele blew off the FBI’s warnings not to leak to the press, the evidence that he lied to the FBI appears far weaker.

Does it harm the viability of the FISA application?

That should end the analysis, because the ostensible purpose of the referral is a criminal referral, not to make an argument about the FISA process.

But let’s assess the memo’s efforts to discredit the FISA application.

In two places, the referral suggests the dossier played a bigger role in the FISA application than, for example, Whitehouse suggests.

Indeed, the documents we have reviewed show that the FBI took important investigative steps largely based on Mr. Steele’s information–and relying heavily on his credibility.

[snip]

Mr. Steele’s information formed a significant portion of the FBI’s warrant application, and the FISA application relied more heavily on Steele’s credibility than on any independent verification or corroboration for his claims. Thus the basis for the warrant authorizing surveillance on a U.S. citizen rests largely on Mr. Steele’s credibility.

These claims would be more convincing, however, if they acknowledged that FBI had to have obtained valuable foreign intelligence off their Page wiretap over the course of the year they had him wiretapped to get three more applications approved.

Indeed, had Grassley and Graham commented on the addition of new information in each application, their more justifiable complaint that the FBI did not alert FISC to the UK filings in which Steele admitted more contact with the press than (they claim) show up in the applications would be more compelling. If you’re going to bitch about newly learned information not showing up in subsequent applications, then admit that newly acquired information showed up.

Likewise, I’m very sympathetic with the substance of the Grassley-Graham complaint that Steele’s discussions with the press made it more likely that disinformation got inserted into the dossier (see my most recently post on that topic), but I think the Grassley-Graham complaint undermines itself in several ways.

Simply put, the more people who contemporaneously knew that Mr. Steele was compiling his dossier, the more likely it was vulnerable to manipulation. In fact, the British litigation, which involves a post-election dossier memorandum, Mr. Steele admitted that he received and included in it unsolicited–and unverified–allegations. That filing implies that implies that he similar received unsolicited intelligence on these matters prior to the election as well, stating that Mr. Steele “continued to receive unsolicited intelligence on the matters covered by the pre-election memoranda after the US Presidential election.” [my underline]

The passage is followed by an entirely redacted paragraph that likely talks about disinformation.

This is actually an important claim, not just because it raises the possibility that Page might be unfairly surveilled as part of a Russian effort to distract attention from others (though its use in a secret application wouldn’t have sown the discord it has had it not leaked), but also because we can check whether their claims hold up against the Steele declaration. It’s one place we can check the referral to see whether their arguments accurately reflect the underlying evidence.

Importantly, to support a claim the potential for disinformation in the Steele dossier show up in the form of unsolicited information earlier than they otherwise substantiate, they claim a statement in Steele’s earlier declaration pertains to pre-election memos. Here’s what it looks like in that declaration:

That is, Steele didn’t say he was getting unsolicited information prior to the election; this was, in both declarations, a reference to the single December report.

Moreover, while I absolutely agree that the last report is the most likely to be disinformation, the referral is actually not clear whether that December 13 report ever actually got included in a FISA application. There’s no reason it would have been. While the last report mentions Page, the mention is only a referral back to earlier claims that Trump’s camp was trying to clean up after reports of Page’s involvement with the Russians got made public. So the risk that the December memorandum consisted partially or wholly of disinformation is likely utterly irrelevant to the validity of the three later FISA orders targeting Page.

Which is to say that, while I think worries about disinformation are real (particularly given their reference to Rinat Akhmetshin allegedly learning about the dossier during the summer, which I wrote about here), the case Grassley and Graham make on that point both miscites Steele’s own declaration and overstates the impact of their argued case on a Page application.

What about the Michael Isikoff reference?

Perhaps the most interesting detail in the Grassley-Graham referral pertains to their obsession with the applications’ references to the September 23 Michael Isikoff article based off Steele’s early discussions with the press. Grassley-Graham claim there’s no information corroborating the dossier (there’s a redacted Comey quote that likely says something similar). In that context, they point to the reference to Isikoff without explaining what it was doing there.

The application appears to contain no additional information corroborating the dossier allegations against Mr. Page, although it does cite to a news article that appears to be sourced to Mr. Steele’s dossier as well.

Elsewhere, I’ve seen people suggest the reference to Isikoff may have justified the need for secrecy or something, rater than as corroboration. But neither the referral nor Feinstein’s rebuttal explains what the reference is doing.

In this passage, Grassley and Graham not only focus on Isikoff, but they ascribe certain motives to the way FBI referred to it, suggesting the claim that they did not believe Steele was a source for Isikoff was an attempt to “shield Mr. Steele’s credibility.”

There’s absolutely no reason the FBI would have seen the need to shield Steele’s credibility in October. He was credible. More troubling is that the FBI said much the same thing in January.

In the January reapplication, the FBI stated in a footnote that, “it did not believe that Steele gave information to Yahoo News that ‘published the September 23 News Article.”

Let’s do some math.

If I’m doing my math correctly, if the FISA reapplications happened at a regular 90 day interval, they’d look like this.

That’d be consistent with what the Nunes memo said about who signed what, and would fit the firing dates of January 30 for Yates and May 9 for Comey, as well as the start date for Rosenstein of April 26 (Chris Wray started on August 1).

If that’s right, then Isikoff wrote his second article on the Steele dossier, one that made it clear via a link his earlier piece had been based off Steele, before the second application was submitted (though the application would have been finished and submitted in preliminary form a week earlier, meaning FBI would have had to note the Isikoff piece immediately to get it into the application, but the topic of the Isikoff piece — that Steele was an FBI asset — might have attracted their attention).

But that’s probably not right because the Grassley-Graham referral describes a June, not July, reapplication, meaning the application would have been no later than the last week of June. That makes the reauthorization dates look more like this, distributing the extra days roughly proportionately:

That would put the second footnote claiming the FBI had no reason to believe the September Isikoff piece was based on Steele before the time when the second Isikoff piece made it clear.

I’m doing this for a second reason, however. It’s possible (particularly given Whitehouse’s comments) Carter Page remains under surveillance, but for some reason it’s no longer contentious.

That might be the case if the reapplications no longer rely on the dossier.

And I’m interested in that timing because, on September 9, I made what was implicit clear: That pointing to the September Isikoff piece to claim the Steele dossier had been corroborated was self-referential. I’m not positive I was the first, but by that point, the Isikoff thing would have been made explicit.

Does this matter at all to the Mueller inquiry?

Ultimately, though, particularly given the Nunes memo confirmation that the counterintelligence investigation into Trump’s people all stems from the George Papadopoulos tip, and not Page (particularly given the evidence that the FBI was very conservative in their investigation of him) there’s not enough in even the Grassley-Graham referral to raise questions about the Mueller investigation, especially given a point I made out in the Politico last week.

According to a mid-January status report in the case against Manafort and his deputy, Rick Gates, the government has turned over “more than 590,000 items” to his defense team, “including (but not limited to) financial records, records from vendors identified in the indictment, email communications involving the defendants, and corporate records.” He and Gates have received imaged copies of 87 laptops, phones and thumb drives, and copies off 19 search-warrant applications. He has not received, however, a FISA notice, which the government would be required to provide if they planned to use anything acquired using evidence obtained using the reported FISA warrant against Manafort. That’s evidence of just how much of a distraction Manafort’s strategy [of using the Steele dossier to discredit the Mueller investigation] is, of turning the dossier into a surrogate for the far more substantive case against him and others.

And it’s not just Manafort. Not a single thing in the George Papadopoulos and Michael Flynn guilty pleas—for lying to the FBI—stems from any recognizable mention in the dossier, either. Even if the Steele dossier were a poisoned fruit, rather than the kind of routine oppo research that Republicans themselves had pushed to the FBI to support investigations, Mueller has planted an entirely new tree blooming with incriminating details.

Thus the point of my graphic above. The Steele dossier evidence used in the Carter Page FISA application to support an investigation into Cater Page, no matter what else it says about the FISA application process or FBI candor, is just a small corner of the investigation into Trump’s people.

 

Feinstein’s Homework Assignments

While Devin Nunes has been getting all the headlines for trying to muck up the Mueller investigation, Chuck Grassley and Dianne Feinstein are increasingly at odds, as well. First there was the Grassley-Lindsey Graham bogus referral of Christopher Steele (I say it’s bogus not because I doubt his sworn statements have been inconsistent — they have been — but because FBI doesn’t need a referral for statements made to FBI itself). Then Feinstein released, and then apologized for, releasing the Glenn Simpson transcript. Grassley used that to invent the story that Jared Kushner was spooked and so wouldn’t sit for an interview with the Senate Judiciary Committee (we know that’s bullshit because Kushner released his own statement before giving it to the Senate Intelligence Committee, which “spooked” Richard Burr). Still, in response to a Sheldon Whitehouse and Richard Blumenthal request that Don Jr’s transcript be shared with FBI (because he likely lied in it), Grassley suggested he’d release the transcripts of all the interviews pertaining to the June 9 meeting.

So now both are continuing to collect evidence on their own, at least in part to generate headlines rather than investigative leads. But the most recent requests, both sent out yesterday, provide some insight into what they believe might have happened and what they know (or still don’t know).

In this post, I’ll look at whom Feinstein is requesting information from. In a follow-up I’ll comment on Grassley’s latest request.

Who Feinstein wants to talk to and who represents them

Some of Feinstein’s requests are immediately understandable, including the following people (thoughout this post, I’ve noted the lawyer’s name if the letter was sent to one):

As for the others, the explanation for why the Committee is seeking information explains any connection understood to the investigation. Most of this is open source information to footnoted reporting (click through to see those sources). Where that’s not the case, I’ve bolded it, as that presumably reflects still classified information the Committee received.

Michael Caputo (Dennis Vacco):

You joined the presidential campaign of Donald Trump as a communications advisor upon the recommendation of Paul Manafort, and it has been reported you have close ties to campaign advisor Roger Stone. It also has been reported that you have deep ties to Russia, including having worked for the Kremlin and Russian energy conglomerate Gazprom.

Paul Erickson (sent to him directly):

In May 2016, you were involved in efforts to broker a meeting between Alexander Torshin — someone you described as “President Putin’s emissary” — and top officials for the Trump campaign. In your communications with the Trump campaign about this meeting, you said that you had been “cultivating a back-channel to President Putin’s Kremlin” and that the “Kremlin believes htat the only possibility of a true reset in this relationship would be with a new Republican White House.”

Robert Foresman (sent to him directly):

As a long-time investment banker in Russia, you have developed relationships with senior Kremlin officials and have expressed your passion for private diplomacy to help foster improved U.S.-Russia relations. The Committee has reason to believe you sought to engage the Trump campaign in discussions concerning outreach from senior Kremlin officials.

Rhona Graff (Alan Futerfas, who is also representing Don Jr):

As a senior vice president in the Trump Organization and longtime assistant to Donald Trump, you are likely familiar with the President’s communications and schedule, particularly during the 2016 presidential campaign. For example, Roger Stone and Paul Manafort, [sic] have said they contact you to get access to President Trump. And when Rob Goldstone emailed Donald Trump Jr. about setting up the June 9, 2016 meeting between the Trump campaign and a Russian lawyer, he noted, “I can also send this info to your father via Rhona, but it is ultra sensitive so wanted to send to you first.”

Philip Griffin (sent directly to his email):

You have been a longstanding associate of former Trump campaign manager Paul Manafort and served, reportedly at his request, as an advisor to the Trump campaign during the Republican National Convention in Cleveland in July 2016.

[snip]

You have been a longtime of [sic] associate of Manafort, and you hired Konstantin Kiliminik [sic] to work with you and Manafort in Ukraine. In 2014, you were named in a lawsuit filed by Russian oligarch Oleg Deripaska as a “ley” partner, along with Manafort, Gates, and Kilimnik, in an investment fund that Deripaska contends stole nearly $19 million from him. In 2016, while Manafort was serving as the Trump campaign manager, Kilimnik reportedly emailed Manafort about reporting on Manafort’s role in the campaign with Deripaska, which Manafort suggested might be used to “get whole.”

David Keene (sent directly to him):

In spring 2016, Russian banker Alexander Torshin and Russian national Maria Butina were reportedly involved in efforts to arrange a meeting between Mr. Torshin and then-candidate Donald Trump or his campaign. Mr. Torshin is a “senior Russian official who claimed to be acting at the behest of President Vladimir V. Putin of Russia.” Ms. Butina is the founder of the Russian group known as the Right to Bear Arms and has described herself as a “representative of the Russian Federation” and a “connection between Team Trump and Russia.” You reportedly were introduced to Mr. Torshin in 2011, and were invited by Mr. Torshin and Ms. Butina to speak at the 2013 annual meeting in Moscow for the Right to Bear Arms. Ms. Butina was your guest at the NRA’s 2014 annual meeting, and you traveled along with Trump campaign surrogate Sheriff David Clarke to Moscow in December 2015 for another meeting with Ms. Butina’s organization.

Joseph Keith Kellogg, Jr. (sent directly to him):

As a member of the Trump campaign’s foreign policy team, you worked alongside George Papadopoulos and Carter Page, both of whom had multiple contacts with Russian officials (or their surrogates) that they reported back to the campaign. You also worked on the Trump transition team before joining the National Security Council and served as Chief of Staff under Lt. General Michael Flynn until his removal.

[snip]

You served as Chief of Staff on the National Security Council during the period when General Flynn lied to administration officials about his Russian contacts. It has been reported that, once the White House learned of those lies from Acting Attorney General Sally Yates, you started participating in the President’s daily security briefings, and — once General Flynn was removed — you served as the President’s interim national security advisor.

John Mashburn (sent to him at the White House):

As the Trump campaign policy director, you worked alongside members of the foreign policy team who had multiple contacts with Russian officials (or their surrogates). For example, Rick Dearborn, another senior policy aide, who reportedly shared a May 2016 request from Alexander Torshin, a senior Russian official with close ties to Vladimir Putin, to meet then-candidate Trump or other top campaign officials at the National Rifle Association’s 2016 annual convention. It also has been reported that JD Gordon informed you about pro-Russian changes to the Republican party platform that were championed by the Trump campaign. You role as senior advisor on the transition team, and now White House Deputy Cabinet Secretary, also has given you a firsthand look at other significant events affecting the Trump administration, including the removals of National Security Advisor Michael Flynn and FBI Director James Comey.

Frank Mermoud (sent via email directly to him):

You served as an advisor to the Trump campaign during the Republican National Convention in Cleveland in July 2016, running the program for ambassadors and foreign delegations — a post that you reportedly held at the recommendation of former Trump campaign manager Paul Manafort. Because of your role at the convention, longstanding relationship with Mr. Manafort, and deep business ties to Ukraine,

Amanda Miller (Alan Futerfas, who also represents Don Jr):

As a vice president for marketing at the Trump Organization, you are likely intimately familiar with President Donald Trump and the inner workings of the Trump Organization. For example, you have made public statements on behalf of the Trump Organization regarding the Trump Organization’s efforts to build a Trump Tower in Moscow. In addition, the Committee has reason to believe that you may have information on other Trump business ties to Russia.

Feinstein wants to know who lied to David Ignatius

In general, the items requested are not the surprising. I am, however, interested that Kellogg, Miller, and Spicer were asked about,

All communications concerning the story written by David Ignatius that appeared in the Washington Post on January 12, 2017, titled, “Why did Obama dawdle on Russia’s hacking?

Note, before the story, the transition team did not comment, but after it revealed that Flynn had phoned Sergei Kislyak several times on December 29, two aides called Ignatius and told what we now know are lies.

The Trump transition team did not respond Thursday night to a request for comment. But two team members called with information Friday morning. A first Trump official confirmed that Flynn had spoken with Kislyak by phone, but said the calls were before sanctions were announced and didn’t cover that topic. This official later added that Flynn’s initial call was to express condolences to Kislyak after the terrorist killing of the Russian ambassador to Ankara Dec. 19, and that Flynn made a second call Dec. 28 to express condolences for the shoot-down of a Russian plane carrying a choir to Syria. In that second call, Flynn also discussed plans for a Trump-Putin conversation sometime after the inauguration. In addition, a second Trump official said the Dec. 28 call included an invitation from Kislyak for a Trump administration official to visit Kazakhstan for a conference in late January.

Burck’s clients get different treatment

Also as I noted above, Feinstein staff treated the letter to the two William Burck clients differently. Bannon’s was sent to him, but care of Burck.

But McGahn’s was addressed to Burck.

Unless I missed it, McGahn’s is the only letter treated this way. Which is one reason I suspect the blizzard of stories about what a hero McGahn was in June after he had done clearly obstructive things in May and earlier may have more to do with McGahn’s legal jeopardy than Trump’s.

Update: This Politico piece (h/t PINC) says that McGahn hired Burck last May, right after he had done some really stupid things with respect to the Jim Comey firing.

McGahn came calling in May amid the fallout from Trump’s decision to fire Comey from his post as FBI director — an explosive move that prompted Mueller’s appointment.