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Running Thread of emptywheel’s Running Threads on the SSCI Report

I’ve been doing running Twitter threads on each chapter of the SSCI Russia Report. It has gotten too unwieldy for Twitter, so I’ll collect all those threads here:

Here are the posts I’ve written so far:

DOJ’s Accounting of Its FISA Errors Cannot Be Compared to the Carter Page Report

August 7, 2020/10 Comments/in 2016 Presidential Election, emptywheel, FISA, Mueller Probe /by emptywheel

Last year, Bill Barr adopted the stance that Inspector General Michael Horowitz’s assessment of FISA — in the report on the Carter Page FISA applications — wasn’t strict enough, because it found no evidence that the errors in the applications arose from political bias. Last week, Bill Barr’s DOJ adopted the opposite stance, that DOJ IG was too critical of FISA, finding errors in the FBI process where there were none.

It did so in the second of two filings reviewing the errors that DOJ IG had found in 29 other FISA applications. When DOJ IG released an interim report (MAM) describing those errors in March, it appeared to suggest that the level of error in the Carter Page applications — at least with respect to the Woods Files — was actually lower than what DOJ IG had found in the 25 applications.

Now, DOJ appears to be trying to claim — without basis — that that’s not the case.

Ahead of the release of the actual filing, DOJ and FBI orchestrated a press release last week, announcing that they would tell the court none of the errors identified by DOJ IG invalidated the probable cause finding for the 29 files. Predictably, both the responsible press and the frothy right (in stories that misunderstood the findings of either DOJ IG report and at times made errors about the FISA process), concluded that this review shows that Page’s application was uniquely bad.

Only after the press had jumped on that conclusion did DOJ release the filing (here’s the earlier one and here’s AAG John Demers’ statement in conjunction with last week’s release).

The filing makes it clear that it is impossible to draw any comparison between these findings about the earlier Carter Page ones (or even to declare — as many in the press have — that this filing proves DOJ’s FISA problems aren’t as bad as DOJ IG suggested).

That’s true for three reasons:

DOJ IG has not finished the kind of review on any of the 29 files it did for Page, and DOJ is not claiming it did either
DOJ used a dramatically different methodology for this Woods review than DOJ IG did for the Page review
DOJ effectively disagreed with DOJ IG’s findings for roughly 46% of the errors DOJ IG identified — and it’s not clear they explained to the FISA Court why they did so

Before I explain these, there’s a more important takeaway.

In giving itself a clean bill of health, DOJ judged that it doesn’t matter that a 2016 FISA application claimed that one of their sources accused a person of sympathizing with a particular terrorist organization when in fact the source said the person had become sympathetic to radical Muslim causes. For the purposes of FISA, this is a huge distinction, because a terrorist organization counts as a foreign power for the sake of FISA, but radical Muslim causes do not. It’s the difference between targeting someone as a suspected agent of a foreign power and targeting them for First Amendment protected activities. DOJ said this error didn’t matter because there was so much other derogatory information against the target; whether that’s true or not, it remains the case that DOJ’s self-congratulation nevertheless admits to a key First Amendment problem in one of the applications.

Woods violations are different from significant inaccuracies are different from material inaccuracies are different from probable cause

As I explained in this post, the IG Report on Carter Page found two types of problems: 17 “significant inaccuracies” that were mostly errors of omission (see PDF 12 and 14-15 for a list), and Woods file errors (PDF 460ff) for which an assertion made in the application did not have or match the back-up in the accuracy file that is supposed to prove it. The “significant inaccuracies” are the more serious of the two, but a number of those were overblown and in a few cases, dubious, in the DOJ IG Report.

Both of those categories are different from material misstatements, of which DOJ admitted to a number by the time they withdrew the probable cause claim from the third and fourth, but not the first two, Page applications. Before the conclusion of the DOJ IG Report they had told the court of the following material misstatements:

July 12, 2018: Cover stories Papadopoulos gave to informants that FBI accurately assessed in real time as false, statements Bruce Ohr made that (in the slightly misrepresented form included in the DOJ IG Report) call into question Christopher Steele’s motives, admissions that Steele himself had spoken to the press
October 25, 2019 and November 27, 2019: Details about the actions of Kevin Clinesmith — first not disclosing and then altering a document to hide Page’s relationship with the CIA that covered some but not all of his willful sharing of non-public information with known Russian intelligence officers

It’s not clear the government specified which aspects of the DOJ IG Report it submitted to Rosemary Collyer in December 2019 it deemed material, but she focused on:

Statements made by Steele’s primary sub-source that undermined key claims about Page
Page’s denials (some proven true, some of still undetermined veracity) of details in the Steele dossier
Steele’s derogatory comments about Sergei Millian

On the scale of severity, the material misstatements are the ones that matter, because they’re the ones that will affect whether someone gets wiretapped or not. But the Woods file errors in the Carter Page report identified by DOJ IG describe just four (arguably, three) details even related to things ultimately deemed material which, in turn, led to the withdrawal of two of the applications. None directly described the core issues that led to the withdrawal of the two applications (though the Page denials in conjunction with the sub-source comments did).

Indeed, one key conclusion of this entire process — one that DOJ, DOJ IG, and FISC have all agreed with — is that the Woods files process is not very useful at finding the more important errors of omission of the kind that were the most serious problems in the Page application.

And that’s important because all three of these reports — the March DOJ IG MAM and the June and July responses to FISA — stem from, and only explicitly claim to address, Woods file errors. In its MAM, DOJ IG described what it called its “initial” review this way:

During this initial review, we have not made judgments about whether the errors or concerns we identified were material. Also, we do not speculate as to whether the potential errors would have influenced the decision to file the application or the FISC’s decision to approve the FISA application. In addition, our review was limited to assessing the FBI’s execution of its Woods Procedures, which are not focused on affirming the completeness of the information in FISA applications.

For its part, DOJ calls DOJ IG’s report “preliminary” (seemingly ignoring that the IG claimed in that MAM and claims on its website to be continuing this part of what it calls a preliminary part of a larger review of FISA). DOJ’s Office of Intelligence did do materiality reviews of both the errors DOJ IG found and some that it found in the process of compiling these reports (in addition to the CT material misstatement described above, it found what sounds like the omission of exculpatory statements in a CI case).

But all this amounts to the more basic of the two kinds of reviews that DOJ IG did in the Carter Page case.

For these reports, DOJ continued to use the accuracy review methodology it now agrees is inadequate

As noted, all parties now agree that the Woods procedure wasn’t doing what it was supposed to do. One reason it wasn’t is because the FBI has always given agents a few weeks notice before they review one of their Woods files, allowing them to scramble to fill out the accuracy file.

But DOJ IG (perfectly reasonably) didn’t give the Crossfire Hurricane team or any of the people involved in the 29 FISA applications it reviewed here that same notice. It conducted its Woods file assessment on what was actually in the accuracy file. In the case of the Carter Page review, they found a placeholder for a 302 that said exactly what DOJ IG faulted FBI for not having evidence for, an observation about how much Stefan Halper has been paid, and publicly available details about Gazprombank, among other true claims that were nevertheless not backed up in the Woods file. It would have been child’s play — but take some work — to get proof of those and most other claims in the file. The Woods file review that DOJ IG did in the Page case — and almost certainly, the review of the 29 files — tested whether the Woods procedures were being adhered to at all, not whether the Woods procedure effectively ensured only documented claims made it into a FISA application.

If you’re going to rely on the Woods procedure as an accuracy tool, that’s what reviews need to do, because otherwise they’re doing nothing to test the accuracy of the reports.

And DOJ now agrees. In its June filing, DOJ committed to changing how it does accuracy reviews starting in September (maybe). Starting then, agents will get no notice of a review before it happens, and the accuracy rate of that no-notice review will be tracked along with the accuracy once an agent is given time to chase down the documentation he didn’t include the first time.

NSD has determined that commencing with accuracy reviews starting after September 30, 2020, it will not inform the FBI field offices undergoing NSD oversight reviews which applications will be subjected to accuracy reviews in advance of those reviews. This date is subject to current operational limitations the coronavirus outbreak is imposing. NSD would not apply this change in practice to accuracy reviews conducted in response to a request to use FISA information in a criminal proceeding, given the need to identify particular information from particular collections that is subject to use. NSD also would not apply this change in practice to completeness reviews ( discussed further below); because of the pre-review coordination that is contemplated for those reviews.

NSD will expect that the relevant FBI field offices have ready, upon NSD’s arrival, the accuracy sub-files for the most recent applications for all FISAs seeking electronic surveillance or physical search. NSD will then, on its arrival, inform the FBI field office of the application(s) that will be subject to an accuracy review. If the case will also be subject to a completeness review, pre-coordination, as detailed below, will be necessary. The Government assesses that implementing this change in practice will encourage case agents in all FISA matters to be more vigilant about applying the accuracy procedures in their day-to-day work.

In addition, although NSD’s accuracy reviews allow NSD to assess individual compliance with the accuracy procedures, NSD’s historical practice has been to allow agents to obtain documentation during a review that may be missing from the accuracy sub-file. NSD only assesses the errors or omissions identified once the agent has been given the opportunity to gather any additional required documentation. While the Government believes that, in order to appropriately assess the accuracy of an application’s content, it should continue to allow agents to gather additional documentation during the accuracy review, it assesses that this historical practice has not allowed for the evaluation of how effective agents have been at complying with the requirement to maintain an accuracy sub-file, complete with all required documentation.

As a result, NSD will tally and report as a part of its accuracy review process all facts for which any documentation, or appropriate documentation, was not a part of the accuracy sub-file at the time the accuracy review commenced.

That said, that’s not how DOJ did these reviews. In fact, John Demers emphasized this fact in his statement claiming victory over these reviews.

In addition, when the OIG found a fact unsupported by a document in the Woods file, the OIG did not give the FBI the opportunity to locate a supporting document for the fact outside the file.

Indeed, that’s not the only thing that DOJ did to help DOJ clean up DOJ’s shitty performance on DOJ IG’s review of their work. After FBI Field Office lawyers got the DOJ IG assessment, they pulled together the existing documentation, then DOJ’s OI worked with agents to fill in what wasn’t there. In fact, DOJ even got an extension on the second report because DOJ and FBI agents were still working through the files, suggesting it took up to three months of work to get the files to where DOJ was willing to tell FISC about them.

In other words, whereas the Crossfire Hurricane team got judged — by Bill Barr’s DOJ — on what was in the Woods file when DOJ IG found it, Bill Barr’s DOJ is judging Bill Barr’s DOJ on what might be in a Woods file after agents have up to three months to look for paperwork to support claims they made as long as six years ago.

DOJ disagreed with DOJ IG’s finding of error about 46% of the time

Finally, DOJ and DOJ IG did not use the same categories of information to track errors on the Woods file reviews, and one of the most common ways they dismissed the import of an error was by saying that DOJ IG was wrong.

The MAM divides the errors it found into three categories: claims not supported by any documentation, claims not corroborated by the supposed back-up, and claims that were inconsistent with the supporting documentation.

[W]e identified facts stated in the FISA application that were: (a) not supported by any documentation in the Woods File, (b) not clearly corroborated by the supporting documentation in the Woods File, or (c) inconsistent with the supporting documentation in the Woods File.

In addition to the two material errors they found, DOJ claims the errors they found fall into five categories (described starting on page 10):

Non-material date errors
Non-material typographical errors
Non-material deviations from the source documentation
Non-material misidentified sources of information
Non-material facts lacking supporting documentation

But to get to that number, DOJ also weeded out a number of other problems identified by DOJ IG via three other categories of determination reflected in the up to three month back and forth with OI:

Claims made that were substantiated by documents added to the file after DOJ IG’s review
Claims that, after reviewing additional information, OI “determined that the application accurately stated or described the supporting documentation, or accurately summarized other assertions in the application that were supported by the accuracy subfile”
Claims not backed by any document, but for which “the supporting documentation taken as a whole provided support for the fact in the application”

DOJ doesn’t count those instances in its overview — as distinct from individual narratives — of the report (indeed, the scope of added documentation is not qualified at all). And while the DOJ fillings say FBI described that it added documentation to the file in the redacted FBI declaration for FISC, it’s not clear whether it told FISC what it added and how much and where and when it came from (FBI has been known to write 302s long after the fact to document events not otherwise documented in real time).

Here’s what all this looks like in one table (FBI did what is probably a similar table, but it’s classified). Note that DOJ IG used still different categories for the Carter Page review: “Supporting document does not state this fact,” which is probably the same as their “not clearly corroborated” category. In my table, I’ve counted that as a “lacking documentation error.”

There are several takeaways from this table.

First, the numerical discrepancy provides some idea of how many errors DOJ IG found that DOJ made go away either by finding documentation for them, or by deciding that DOJ IG was wrong. DOJ IG said it found an average of 20 errors in the 25 applications it was able to review, or 500 total. DOJ says it found 63 errors in the June report and 138 errors in the July Report, over a total of 29 applications (they did a review of the four files for which DOJ IG was provided with no Woods file, so had 4 more files than DOJ IG).

My numbers are off by 3 from theirs, which might be partly accounted for recurrent errors in a reauthorized application or lack of clarity on DOJ’s narrative. Or maybe like DOJ, I subtracted 48 from 138 and got 91.

Approximately 48 of these 138 non-material errors reflect typographical errors or date discrepancies between an assertion in an application and a source document. Of the remaining 91 non-material errors or unsupported facts, four involve nonmaterial factual assertions that may be accurate, but for which a supporting document could not be located in the FBI’s files; 73 involve non-material deviations between a source document and an application; and 13 involve errors in which the source of an otherwise accurate factual assertion was misidentified.

But my count shows that DOJ simply declared DOJ IG to be wrong 151 times in its assessment that something was an error, with an amazing 35 examples of that in one application, and of which 14 across all applications were instances where DOJ couldn’t find a document to support a claim (not even with three months to look), but instead said the totality of the application supported a claim.

Claiming that the totality of an application supports a claim, while being unable to find documentation for a discrete fact, sure sounds like confirmation bias.

And in the up to three months of review, FBI found documentation to support upwards of 130 claims that originally were not supported in the Woods file. In other words, these weren’t errors of fact — they were just instances of FBI not following the Woods procedure.

We know that if the Crossfire Hurricane team had been measured by the standard DOJ did in these filings, it would have done better than most of these applications (again, only with respect to the Woods file). That’s because, aside from the four claims that rely on intercepted information (which is not public), there is public documentation to support every claim deemed unsupported in the report but three: the one claiming that James Clapper had said that Russia was providing money in addition to the disinformation to help Trump.

The DNI commented that this influence included providing money to particular candidates or providing disinformation.

And the two claiming that Christopher Steele’s reporting had been corroborated, something the DOJ IG Report lays out at length was not true in the terms FBI normally measured. Except, even there, Steele handler Mike Gaeta’s sworn testimony actually said it had been. He described jumping when Steele told him he had information because he was a professional,

And at that time there were a number of instances when his information had borne out, had been corroborated by other sources.

He also provided a perfectly reasonable explanation for why Steele’s reporting was not corroborated in the way DOJ IG measured it in the report: because you could never put Steele on a stand, so his testimony would never be used to prosecute people.

From a criminal perspective and a criminal investigative kind of framework, you know, Christopher Steele and [redacted] were never individuals who were going to be on a witness stand.

In other words, while it appears that DOJ cleaned up many of the errors identified by DOJ IG by finding the documentation to back it over the course of months, the public record makes it clear that Crossfire Hurricane would have been able to clear up even more of the Page Woods file.

The exceptions prove the rule. There are, as my table notes, two or three claims that do not accurately describe what the underlying document says, claiming:

That Page never refuted the claims against him (he had, and in many cases, was telling the truth in his refutations)
That Steele told the FBI he never shared information with anyone outside his “business associate” [Fusion] and the FBI (he also shared it with State, as other parts of FBI had been told)
That in his first FBI interviews Papadopoulos admitted he had met with Australian officials but not that he discussed Russia during those meetings (it’s unclear how accurate this claim is)

Assume the last bullet (used just once) reflects the redacted parts of Papadopoulos’ 302s even though it does match his current statements, that nevertheless leaves you with an error rate on arguably the worst category — misrepresenting your evidence — of 2 or 3 per application. The first two of these are the Woods file errors that turned out to have a tie (a significant one in the first bullet) with the material reasons why some of the files were withdrawn. They’re the two errors in the Woods file that most directly tied to omitted evidence in the application that would lead to their withdrawal.

Of the 29 applications reviewed by DOJ, 12 of them have 3 or more “deviations from the source” material. One has 14 and another has 15.

So on the worst measure that this review actually did measure, the one that on Page’s application tied most directly to reasons to withdraw the application, Page’s application actually was within the norm.

It may well be that when all the reviews are done, DOJ will have proof that Carter Page’s application was an exceptionally bad application. Certainly, the material misstatements may end up being worse.

But the only thing this apples to oranges comparison of the Page methodology and the traditional DOJ methodology has proven is that — as a matter of the Woods file reviews — Bill Barr has used a different standard for Bill Barr’s DOJ than he has with Crossfire Hurricane. And that if the Page file had been treated as all the others were, from a Woods file perspective, it actually wouldn’t look that bad.

It also shows that when Bill Barr’s DOJ wants to continue spying on Americans who don’t happen to be associated with Donald Trump, he’s happy to argue that Michael Horowitz’s very legalistic reviews of the sort that did Andrew McCabe in are wrong.

Updated for clarity.

George Papadopoulos Tied the Utility of Russian Dirt to the Campaign’s Plan to Use Dirt to Win

May 22, 2020/20 Comments/in 2016 Presidential Election, Russian hacks /by emptywheel

Judicial Watch has once again liberated documents from DOJ that undermine their narrative about the Russian investigation (and, in this case, provides yet another reason to question the fidelity of the DOJ IG Report on Carter Page).

In the DOJ IG Report, it provides a description of the tip Australia provided to State which got passed on to the FBI. The most complete description of that (pages 51 to 52) introduces a block quote describing the tip by explaining the Australian tip “stated, in part, that Papadopoulos”

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.

The IG Report never quotes what the other part of the memo is, but it does quote a long excerpt from a Bill Priestap transcript describing that Papadopoulos expressed confidence (in April!) that Trump would win, in part because of how much dirt the campaign had on Hillary.

In fact, the information we received indicated that Papadopoulos told the [FFG] he felt confident Mr. Trump would win the election, and Papadopoulos commented that the Clintons had a lot of baggage and that the Trump team had plenty of material to use in its campaign.

Priestap understood that the campaign planned to win by using the dirt it had on Hillary Clinton.

Judicial Watch just liberated the FBI document memorializing on the tip. It too, redacts that other part of what Australia passed on (bizarrely, under source and law enforcement exemptions, not privacy, which seem like easily challenged exemptions).

But laid out like this (particularly given the length of the redaction as compared to Priestap’s description), it makes the context more clear.

Papadopoulos said Trump would win because they had dirt on Hillary and then suggested Russia could “assist this process” — that is, using dirt to win the election — by anonymously releasing information damaging to Hillary.

The “this process” hidden behind the redaction is “using dirt to win the election.” The antecedent of “this process” must be (because that description does not and could not appear anywhere else), using dirt to win the election.

It is, perhaps, a subtle thing. But in context as the FBI received it, Papadopoulos tied Russia anonymously dropping dirt on Hillary to the centrality of dirt on Hillary in the Trump campaign’s plan to win. It is true that the tip does not describe Papadopoulos confirming that the campaign would use the Russian dirt or had entered into a relationship to do so.

But particularly given the way Roger Stone claimed WikiLeaks was going to release Clinton Foundation documents while he was boasting of ties to WikiLeaks — that is, the dirt Trump had treated as the Holy Grail all along — the way Papadopoulos tied anonymously released damaging information from Russia to the utility of using dirt to win the election explains the FBI reaction.

Papadopoulos didn’t just raise Russia offering dirt to help win. It raised it in the context of the Trump plan to win by using dirt.

Steve Bannon’s Bas-Relief Confession that Trump Told Him to Deny Discussing Sanction Relief

May 16, 2020/26 Comments/in 2016 Presidential Election, emptywheel, Mueller Probe /by emptywheel

After a week of writing about Mike Flynn and more Mike Flynn, I’m finally getting around to the transcripts the House Intelligence Committee wrote last week. A bunch of frothy right wingers have pointed to the transcripts as PROOF OF NO COLLUSION, which is hilarious. I’ve barely begun reviewing them, but some glaring holes in the investigation include:

The key players — Mike Flynn and Paul Manafort, but also Rick Gates — did not testify
Two witnesses (Michael Cohen and Roger Stone) were convicted for the lies they told to the committee and a third (Erik Prince) is reportedly under investigation, even if Billy Barr’s DOJ doesn’t prosecute Trump flunkies
Multiple witnesses (Michael Caputo, Steve Bannon, and Jared Kushner, for starters) denied knowing people or having evidence their Mueller materials show they had

Republicans mostly asked each witness, “did you collude?” which predictably elicited the “no” answers the frothers are now pointing to as PROOF. Democrats spent most of their time trying to get recalcitrant witnesses to answer questions they refused to answer rather than trying to corner them into something useful.

The investigation was a shit-show.

The craziest thing (thus far, anyway), is Steve Bannon’s two appearances. Bannon testified in January 2018 and invoked White House guidance to refuse to answer questions from both the transition and post-inauguration periods, periods others had addressed. He also claimed any communications of interest would have been turned over by the campaign, thereby hiding emails he had with Roger Stone using his personal email where they explicitly discussed Julian Assange.

When Bannon went back a month later, having consulted with Devin Nunes in the interim and after Nunes appears to have shared a transcript of Bannon’s first appearance with the White House, he provided the committee a bunch of questions he would answer — all “no” answers.

Here’s how just some of those questions parroted back (for the second time in the hearing) looked:

MR. CONAWAY: After November 8th, 2016, did you meet with Ambassador Kislyak?

MR. BANNON: No.

MR. CONAWAY: On March 27, 2017, The New York Times reported that in mid-December of 2016 Kushner met with Sergei Gorkov of the VEB. Were you aware of this meeting?

MR. BANNON: No.

MR. CONAWAY: Did you attend a December 2016 meeting with Kushner that Kushner had with Gorkov?

MR. BANNON: No.

MR. CONAWAY: Did Mr. Prince have any role in the current administration?

MR. BANNON: No.

MR. CONAWAY: Was there any discussion on January 27th, 2017, at the White House regarding Mr. Papadopoulos, who was contacted by the FBI that day?

MR. BANNON: No.

MR. CONAWAY: Has Mr. Papadopoulos had any contact with anyone at the White House concerning the fact that the FBI had approached him?

MR. BANNON: Not to my knowledge.

MR. CONAWAY: Was the fact that the FBI approached Mr. Papadopoulos on January 27th communicated to President Trump?

MR. BANNON: Not to my knowledge.

MR. CONAWAY: Did Mr. Trump ever discuss with you any conversations between Donald Trump Jr. and WikiLeaks after the election?

MR. BANNON: No.

MR. CONAWAY: Did you ever meet with Devin Nunes about the Russia investigation?

MR. BANNON: No.

MR. CONAWAY: While at the White House, were you ever instructed to take any action that you believe could hinder the Russian investigation in any way?

MR. BANNON: No.

MR. CONAWAY: Were you ever given any instruction at the White House that you felt might amount to an effort to obstruct justice?

MR. BANNON: No.

MR. CONAWAY: Did you have any conversations with Director Comey after the election about whether he would remain the head of the FBI?

MR. BANNON: No.

MR. CONAWAY: Once you were part of the administration, were you a part of any discussions about how to approach the Russian, vis-à-vis the sanctions, whether to do away with them or in any way minimize the effects of the sanctions?

MR. BANNON: No.

Here’s how Adam Schiff got Bannon to admit that he was literally reading from a script the White House gave him (remember that Bannon’s lawyer, William Burck, also represented White House Counsel Don McGahn).

MR. SCHIFF: Mr. Bannon, who wrote these questions?

[Discussion off the record.]

MR. BANNON: My understanding, Mr. Schiff, is that these came from the transcript.

MR. SCHIFF: No, no, no. The questions that Mr. Conaway just asked you the questions. I asked you earlier if you had been authorized by the White House to answer all in the negative. Who wrote these questions?

MR. BANNON: Same answer.

MR. SCHIFF: What’s the same answer? Who wrote the questions?

MR. BANNON: My understanding is they came from the transcript.

MR. SCHIFF: What transcript are you talking about?

MR. BANNON: This transcript of my first interview.

[snip]

MR. SCHIFF: Well, how were they produced? How do you know that the White House has authorized you to answer them? [Discussion off the record.]

MR. BANNON: My counsel informed me that these were the questions the White House authorized me to answer.

MR. SCHIFF: But you didn’t write these questions?

MR. BANNON: No.

MR. SCHIFF: And your counsel didn’t write these questions?

MR. BANNON: No.

MR. SCHIFF: So these questions were supplied to you by the White House?

[Discussion off the record.]

MR. BANNON: As far as I know.

The thing is, most of these are now recognizably misdirection from some known damning detail. For example, Bannon did not attend the November 30, 2016 meeting with Sergey Kislyak at Trump Tower, but he was invited. Bannon’s lack of knowledge of Jared Kushner’s December meeting with Sergei Gorkov doesn’t make the meeting itself less damning — arguably, it suggests Kushner kept it on a close hold — and it doesn’t rule out Bannon being involved in a meeting with Gorkov sometime after that. Bannon’s narrow denial that Erik Prince had a role in the administration distracts from Prince’s role as a go-between with Russia during the transition, something Bannon was personally involved with (and covered up by deleting his relevant text messages). There was a discussion among senior campaign officials of the link that WikiLeaks sent Don Jr in September 2016, but it was during the election, not after it. Bannon didn’t have conversations with Jim Comey about firing him, but he had a ton of conversations about firing Comey, eight times on May 3 and 4, 2017 alone. Even the questions about obstruction of justice are consistent with explicit requests that Bannon obstruct, but that took place somewhere else, like Mar-a-Lago or Bedminster (and it’s notable that Bannon’s initial testimony dramatically backed off some of the claims Bannon made to Michael Wolff that had just been published in Fire and Fury).

As Adam Schiff begins to figure out what happened, he asks questions that make it clear that Bannon did not meet — in person — with Nunes, but did speak to him on the phone.

MR. SCHIFF: Now, I see there’s a question on here, did you ever meet with Devin Nunes about the Russia investigation, and you’ve answered that “no.” But you’ve also answered, when my colleague asked you, that you have discussed — you had discussions with Mr. Nunes and you refused to answer the question about whether it was about the Russian investigation. Is that correct?

[Discussion off the record.]

MR. BANNON: However I answered, it’s in the transcript.

MR. SCHIFF: Let me just ask you again. Did you ever meet with Devin Nunes about the Russian investigation?

MR. BANNON: No.

MR. SCHIFF: Did you ever discuss the Russia investigation with Devin Nunes?

[Discussion off the record.]

MR. BANNON: That’s not a question I’m authorized to answer.

Even before that, Schiff cops on to Bannon’s denial about something — whether George Papadopoulos alerted the White House after he was first questioned about the FBI — that Bannon knows nothing about.

MR. SCHIFF: So one of the questions that you were supplied by the White House was, has Mr. Papadopoulos had any contact with anyone at the White House concerning the fact that he had been — that the FBI had approached him? How do you know the answer to that, Mr. Bannon?

[Discussion off the record.]

MR. BANNON: Can you just ask the question again?

MR. SCHIFF: Yes. One of the questions that the White House gave you to answer to our committee was, has Mr. Papadopoulos had any contact with anyone at the White House concerning the fact that the FBI had approached him?

MR. BANNON: I think I said, “Not to my knowledge.”

MR. SCHIFF: So you really did don’t know, do you?

MR. BANNON: That’s — not to my knowledge.

MR. SCHIFF: Why did the White House propose a question to you that you couldn’t answer within your knowledge?

[Discussion off the record.]

MR. BANNON: You have to ask the White House that.

In Papadopoulos’ Congressional testimony (which took place in October 2018, so six months after Bannon’s second HPSCI interview), the coffee boy would admit that he emailed Marc Kasowitz, who was then Trump’s personal attorney, sometime after his FBI interview.

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.

This post writes up what we know about Papadopoulos’ testimony.

This makes it clear, then, that the script Bannon was given was a ham-handed attempt to get a bunch of denials in the record, denials of things that actually did happen.

Among the questions the White House included was one designed to get him to deny he had discussed eliminating sanctions on Russia.

MR. CONAWAY: Once you were part of the administration, were you a part of any discussions about how to approach the Russian, vis-à-vis the sanctions, whether to do away with them or in any way minimize the effects of the sanctions?

MR. BANNON: No.

Of course, this “no” answer only says Bannon didn’t continue to discuss ending sanctions on Russia after inauguration, but he did beforehand.

There is testimony on the Mueller Report about Bannon’s personal involvement in discussions about the Russian sanctions imposed on December 28, 2016. But Bannon — in testimony on February 12, 2018, so three days before he read this script before HPSCI — claimed to have forgotten those conversations.

Shortly thereafter, McFarland and Bannon discussed the sanctions. 1235 According to McFarland, Bannon remarked that the sanctions would hurt their ability to have good relations with Russia, and that Russian escalation would make things more difficult. 1236 McFarland believed she told Bannon that Flynn was scheduled to talk to Kislyak later that night. 1237

[snip]

In addition to her conversations with Bannon and Reince Priebus, at 4:43 p.m., McFarland sent an email to Transition Team members about the sanctions, informing the group that “Gen [F]lynn is talking to russian ambassador this evening.” 1251 Less than an hour later, McFarland briefed President-Elect Trump. Bannon, Priebus, Sean Spicer, and other Transition Team members were present. 1252

[snip]

Flynn recalled discussing the sanctions with Bannon the next day and that Bannon appeared to know about Flynn’s conversation with Kislyak. 1274 Bannon, for his part, recalled meeting with Flynn that day, but said that he did not remember discussing sanctions with him. 1275

[snip]

Flynn recalled discussing the sanctions issue with incoming Administration official Stephen Bannon the next day. 100 Flynn said that Bannon appeared to know about Flynn’s conversations with Kislyak, and he and Bannon agreed that they had “stopped the train on Russia’s response” to the sanctions. 101

1275 Bannon 2/12/18 302, at 9.

101 Flynn 1/19/18 302, at 4-5. Bannon recalled meeting with Flynn that day, but said he did not remember discussing sanctions with him. Bannon 2/12/18 302, at 9.

The White House gave Bannon a script, telling him to deny his involvement in reaching out to Russia on sanctions. And the specific form of the question — which asks about doing away with them — suggests those conversations on December 28, 2016 went further than the Mueller Report describes.

Which explains why Trump is trying to ensure Flynn avoids prison time for hiding that detail.

Ric Grenell Declassified George Papadopoulos’ Brags about Fucking Older Women, but Not about Befriending Sergey Millian

May 7, 2020/11 Comments/in 2016 Presidential Election, emptywheel, Mueller Probe /by emptywheel

In the name of exposing “FISA abuse,” Lindsey Graham got Ric Grenell to declassify details of George Papadopoulos bragging about fucking a woman who was 42.

CT: I was banging a 42-year-old. That’s the oldest I ever went. And she was the best sex I ever had in my life.

CHS: You know you can’t, uh, knock down them…

CT: But 42, that’s like borderline old, you know.

But Grenell left what DOJ IG treated as a reference to Sergey Millian living in Brooklyn classified (see page 66).

Grenell did so even though this reference to “Sergey” has already been formally declassified, for the DOJ IG Report (though I would argue that in places DOJ IG’s transcriptions are not always fair descriptions of what the transcripts show).

Papadopoulos did not say much about Russia during the first conversation with Source 3, other than to mention a “friend Sergey … [who] lives in … Brooklyn,” and invite Source 3 to travel with Papadopoulos to Russia in the summertime.

Perhaps this just stems from bureaucratic incompetence. But the Trump Administration made a fairly aggressive decision to declassify details about Sergey Millian for the DOJ IG Report because it served their narrative about Christopher Steele. But when it came time to claim–abundant evidence in the transcripts to the contrary–that George Papadopoulos wasn’t an obvious subject for a counterintelligence investigation, the Trump Administration treated one of the most damning details as classified.

This matters, because the frothy right has been ginning up a scandal over the delayed release of the House Intelligence transcripts, and the fact that, having been told everything is ready, Adam Schiff is taking a few days to review what Grenell has done to ensure the integrity of the redactions. They’re doing so even as both Mark Warner and Richard Burr spent the beginning of John Ratcliffe’s confirmation making sure the declassification of their report on the Russian operation would be quick and non-partisan.

But we’ve already got hints that Grenell is politicizing the declassification process. In a 90-page transcript, he redacted the detail that most undermined the frothy right narrative.

The Nuances of the Carter Page Application

April 21, 2020/8 Comments/in 2016 Presidential Election, FISA, Mueller Probe /by emptywheel

I’ve now finished a close read of the last Carter Page FISA application. I think the contents bring a lot more nuance to the discussion of it over the last three years. This post will try to lay out some of that nuance.

Hot and cold running Carter Page descriptions

In most ways, the declassified application tracks the DOJ IG Report and shows how the problems with the application in practice. One newly declassified example conservatives have pointed to shows that FBI Agents believed that Page’s media appearances in spring 2017 were just an attempt to get a book contract.

The FBI also notes that Page continues to be active in meeting with media outlets to promote his theories of how U.S. foreign policy should be adjusted with regard to Russia and also to refute claims of his involvement with Russian Government efforts to influence the 2016 U.S. Presidential election. [redacted–sensitive information] The believes this approach is important because, from the Russian Government’s point-of-view, it continues to keep the controversy of the election in the front of the American and world media, which has the effect of undermining the integrity of the U.S. electoral process and weakening the effectiveness of the current U.S. Administration. The FBI believes Page also may be seeking media attention in order to maintain momentum for potential book contracts. (57)

Even if Page were doing media to get a book contract, short of being charged and put under a court authorized gag, there’s nothing that prevents him from telling his story. He’s perfectly entitled to overtly criticize US foreign policy. And as so often happens when intelligence analysis sees any denials as a formal Denial and Deception strategy, the FBI allowed no consideration to the possibility that some of his denials were true.

Julian Sanchez argued when the IG Report came out that FBI’s biases were probably confirmation bias, not anti-Trump bias, and this is one of the many examples that supports that.

One specific Page denial that turned out to be true — that he was not involved in the Ukraine platform issue — is even more infuriating reading in declassified form. As the IG Report noted, by the time FBI filed this last application, there were several piece of evidence that JD Gordan was responsible for preventing any platform change.

An FBI March 20, 2017 Intelligence Memorandum titled “Overview of Trump Campaign Advisor Jeff D. [J.D.] Gordon” again attributed the change in the Republican Platform Committee’s Ukraine provision to Gordon and an unnamed campaign staffer. The updated memorandum did not include any reference to Carter Page working with Gordon or communicating with the Republican Platform Committee. On May 5, 2017, the Counterintelligence Division updated this Intelligence Memorandum to include open source reporting on the intervention of Trump campaign members during the Republican platform discussions at the Convention to include Gordon’s public comments on his role. This memorandum still made no reference to involvement by Carter Page with the Republican Platform Committee or with the provision on Ukraine.

On June 7, 2017, the FBI interviewed a Republican Platform Committee member. This interview occurred three weeks before Renewal Application No. 3 was filed. According to the FBI FD-302 documenting the interview, this individual told the FBI that J.D. Gordon was the Trump campaign official that flagged the Ukrainian amendment, and that another person (not Carter Page) was the second campaign staffer present at the July 11 meeting of the National Security and Defense Platform Subcommittee meeting when the issue was tabled.

Although the FBI did not develop any information that Carter Page was involved in the Republican Platform Committee’s change regarding assistance to Ukraine, and the FBI developed evidence that Gordon and another campaign official were responsible for the change, the FBI did not alter its assessment of Page’s involvement in the FISA applications. Case Agent 6 told us that when Carter Page denied any involvement with the Republican Platform Committee’s provision on Ukraine, Case Agent 6 “did not take that statement at face value.” He told us that at the time of the renewals, he did not believe Carter Page’s denial and it was the team’s “belief” that Carter Page had been involved with the platform change.

But the application’s treatment of this issue doesn’t just leave out that information. The utterly illogical explanation of why the FBI believed he had a role in the platform — which was quoted in the IG Report — appears worse in context.

During these March 2017 interviews, the FBI also questioned Page about the above-referenced reports from August 2016 that Candidate #1’s campaign worked to make sure Political Party #1’s platform would not call for giving weapons to Ukraine to fight Russian and rebel forces [this matter is discussed on pgs. 25-26]. According to Page, he had no part in the campaign’s decision. Page stated that an identified individual (who previously served as manager of Candidate #1’s campaign) more likely than not recommended the “pro-Russian” changes. As the FBI believes that Page also holds pro-Russian views and appears to still have been a member of Candidate #1’s campaign in August 2016, the FBI assesses that Page may have been downplaying his role in advocating for the change to Political Party #1’s platform. (55)

(Here’s the March 16, 2017 interview.)

It’s not just that the FBI had about five other pieces of evidence that suggested Page was not involved, but for the FBI, it was enough that he was pro-Russian to suggest Page would have had the influence and bureaucratic chops to make it happen, even in the absence of any evidence to the fact. Add in the fact that FBI obtained a pen register on Page as part of this application (as reflected by notations in the margin of redacted material), and the fact that FBI didn’t track what communications he did or did not have at any time is particularly inexcusable.

So there’s abundant evidence in the Page applications that FBI acted like they normally do, seeing in every denial yet more evidence of guilt.

That said, the application does show more to explain why the FBI suspected Page in the first place and continued to have questions about his veracity until the end. For example, here’s the full explanation of how Page came to tell a Russian minister he had been the guy that Viktor Podobnyy was recruiting.

Based on information provided by Page during this [March 2016] interview, the FBI determined that Page’s relationship with Podobnyy was primarily unidirectional, with Page largely providing Podobnyy open source information and contact introductions. During one interview, Page told the FBI that he approached a Russian Minister, who was surrounded by Russian officials/diplomats, and “in the spirit of openness,” Page informed the group that he was “Male-1” in the Buryakov complaint. (16-17)

The FBI took this both as Page’s own confirmation that he was the person in the complaint, which in turn meant that Page knew he was being recruited, and, having learned that, sought ought well-connected Russians to identify himself as such.

As the application laid out later, Page at first denied what he had previously told the FBI about this incident and the Russians who had previously tried to recruit him in his March 2017 interviews. (This occurred in his March 16, 2017 interview.)

In a reference to the Buryakov complaint, Page stated that “nobody knows that I’m Male-1 in this report,” and also added that he never told anyone about this. As discussed above, however, during a March 2016 interview with the FBI regarding his relationship with Podobnyy, Page told the FBI he informed a group of Russian officials that he (Page) was “Male-1” in the Buryakov complaint. Thus, during the March 2017 interview, the FBI specifically asked Page if he told any colleague that he (Page) was “Male-1.” In response, Page stated that there was a conversation with a Russian Government official at the United Nations General Assembly The FBI again asked Page if he had told anyone that he was “Male-1.” Page responded that he “forgot the exact statement.”

Note, Page’s 302 quotes Page as telling the Minister, “I didn’t do anything [redacted],” but it’s unclear (given the b3 redaction) whether that relays what Page said in March 2017 or if the b3 suggests FBI learned this via other means. But the redacted bit remains one of the sketchier parts of this.

The application also describes how Page denied having a business relationship with Aleksandr Bulatov, the first presumed time Russia tried to recruit him, claiming he may have had lunch with him in New York. That Page claimed only to have had lunch with him is all the more absurd since this was the basis for his supposed cooperation with the CIA.

Having seen how Page handled his HPSCI interview and TV interviews, it’s not surprising to see he denied ties he earlier bragged about (which, in any case, undermines any claim he was operating clandestinely). But at best, Page didn’t deny the key thing he could have to avert suspicion: to admit (as George Papadopoulos readily did) that he was overselling his access in Russia to the Trump campaign, in emails the FBI presumably obtained using FISA. Nothing in the IG Report rebuts the claim that Page claimed things in communications that provided basis to believe he was lying (the actual communications are redacted in the applications because all of the FISA collection targeted at Page has been sequestered). So while the FBI did a bunch of inexcusable things with Page, there were things that Page did — and never explained — that explain the FBI’s sustained suspicion of him.

An explanation for some of the GOP’s core beliefs about the dossier and the investigation

The release of the full application also helps to explain how Republicans came to have certain beliefs about the Steele dossier and the Russian investigation. Take this passage:

Source #1 reported the information contained herein to the FBI over the course of several meetings with the FBI from in or about June 2016 through August 2016.

The passage is slightly inaccurate: Mike Gaeta first got reports from Christopher Steele in early July.

Shortly before the Fourth of July 2016, Handling Agent 1 told the OIG that he received a call from Steele requesting an in-person meeting as soon as possible. Handling Agent 1 said he departed his duty station in Europe on July 5 and met with Steele in Steele’s office that day. During their meeting, Steele provided Handling Agent 1 with a copy of Report 80 and explained that he had been hired by Fusion GPS to collect information on the relationship between candidate Trump’s businesses and Russia.

Since initial details of Steele’s reporting have been made public, the frothy right has been unable to understand that information doesn’t necessarily flow instantaneously inside of or between large bureaucracies. And having read this line, I assume Kash Patel would have told Devin Nunes and Trey Gowdy that it was proof that the FBI predicated the investigation on the Steele dossier, because “the FBI” had Steele’s reports a month before opening the investigation into Trump’s aides (though, in fact, that was months after NYFO had opened an investigation into Page). The IG Report, however, explains in detail about how there was a bit of a delay before Steele’s handler sent his reports to the NY Field Office, a delay there for a while, and a further delay after a member of the Crossfire Hurricane team asked NYFO to forward anything they had. As a result, the CH team didn’t receive the first set of Steele reports until September 19, over a month after the investigation started.

On August 25, 2016, according to a Supervisory Special Agent 1 (SSA 1) who was assigned to the Crossfire Hurricane investigation, during a briefing for then Deputy Director Andrew McCabe on the investigation, McCabe asked SSA 1 to contact NYFO about information that potentially could assist the Crossfire Hurricane investigation. 225 SSA 1 said he reached out to counterintelligence agents and analysts in NYFO within approximately 24 hours following the meeting. Instant messages show that on September 1, SSA 1 spoke with a NYFO counterintelligence supervisor, and that the counterintelligence supervisor was attempting to set up a call between SSA 1 and the ADC. On September 2, 2016, Handling Agent 1, who had been waiting for NYFO to inform him where to forward Steele’s reports, sent the following email to the ADC and counterintelligence supervisor: “Do we have a name yet? The stuff is burning a hole.” The ADC responded the same day explaining that SSA 1 had created an electronic sub-file for Handling Agent 1 in the Crossfire Hurricane case and that he

In any other world, this delay — as well as a delay in sharing derogatory information freely offered by Bruce Ohr and Kathleen Kavalec — would be a scandal about not sharing enough information. But instead, this passage about when FBI received the files likely plays a key part of an unshakeable belief that the dossier played a key role in predicating the investigation, which it does not.

Similarly, declassification of the application helps to explain why the frothy right believes that claims George Papadopoulos made to Stefan Halper and another informant in fall 2016 should have undermined the claims FBI made.

To be clear: the frothy right is claiming Papadopoulos’s denials should be treated as credible even after he admitted to a second informant that he told the story he did to Halper about Trump campaign involvement in the leaked emails because he believed if he had said anything else, Halper would have gone to the CIA about it. The FBI, however, believed the claims to be lies in real time, and on that (unlike Carter Page’s denials) the record backs them. There’s even a footnote (on page 11) that explicitly said, “the FBI believes that Papadopoulos provided misleading or incomplete information to the FBI” in his later FBI interviews.

That said, the way Papadopoulos is used in this application is totally upside down. A newly declassified part of the footnote describing Steele’s partisan funding claims that Papadopoulos corroborates Steele’s reporting (the italicized text is newly declassified).

Notwithstanding Source #1’s reason for conducting the research into Candidate #1’s ties to Russia, based on Source #1’s previous reporting history with the FBI, whereby Source #1 provided reliable information to the FBI, the FBI believes Source #1’s herein to be credible. Moreover, because of outside corroborating circumstances discussed herein, such as the reporting from a friendly foreign government that a member of Candidate #1’s team received a suggestion from Russia that Russia could assist with the release of information damaging to Candidate #2 and Russia’s believed hack and subsequent leak of the DNC e-amils, the FBI assesses that Source #1’s reporting contained herein is credible.

This is the reverse of how the IG Report describes things, which explains that the DNC emails came out, Australia decided to alert the US Embassy in London about what Papadopoulos had said three months earlier, which led the FBI to predicate four different investigations (Page, Papadopoulos, Mike Flynn, and Paul Manafort; though remember that NYFO had opened an investigation into Page in April) to see if any of the most obvious Trump campaign members could explain why Russia thought it could help the Trump campaign beat Hillary by releasing emails. The Steele dossier certainly seemed to confirm questions raised by the Australia report (which explains why the FBI was so susceptible, to the extent this was disinformation, to believing it, and why, to the extent it was disinformation, it was incredibly well-crafted). The Steele dossier seemingly confirmed the fears raised by the Australia report, not vice versa. It seems like circular logic to then use Papadopoulos to “corroborate” the Steele dossier. That has, in turn, led the right to think undermining the original Australian report does anything to undermine the investigation itself, even though by the end of October Papadopoulos had sketched out the outlines of what happened with Joseph Mifsud and discussed wanting to cash in on it, and Papadopoulos continued to pursue this Russian relationship, including a secret back channel meeting in London, well into the summer.

Finally, I’m more sympathetic, having read this full application, to complaints about the way FBI uses media accounts — though for an entirely different reason than the frothy right. The original complaint on this point misread the way the FBI used the September 23 Michael Isikoff article reporting on Page, suggesting it was included for the facts about the meeting rather than the denials from Page and the campaign presented in it. The discussion appears in a section on “Page’s denial of cooperation.” And — as I’ve noted before — the FBI always sourced that story to the Fusion GPS effort, even if they inexcusably believed that Glenn Simpson, and not Steele, was the “well-placed Western intelligence source” cited in the article.

But with further declassification, the way the application relied on two articles about the Ukraine platform to establish what the campaign had actually done (see page 25), rather than refer to the platform itself — or, more importantly, Trump’s own comments about policy, which I’ll return to — appears more problematic (not least because FBI confused the timing of one of those reports with the actual policy change.

Steele and Sergei Millian as uniquely correct about WikiLeaks

There’s another thing about sourcing in this application (which carries over to what I’ve often seen in FBI affidavits). While there are passages discussing the larger investigation into Russia’s 2016 operation that remain redacted (and indeed, there’s a substitution of a redaction with “FBI” on page 7 which probably hides that the IC as a whole continued to investigate Russian hacking), key discussions of that investigation cite to unclassified materials, even in a FISA application that would have under normal circumstances never been shared publicly. For example, the discussion describing attribution of the operation to Russia from pages 6 to 10 largely relies on the October 7 joint statement and Obama’s sanctions statement, not even the January 2017 Intelligence Community Assessment, much less (with the exception of two redacted passages) anything more detailed.

Even ignoring secret government sources, there was a whole lot more attributing Russia and WikiLeaks’s role in the hack-and-leak, especially by June 2017. Yet the Page application doesn’t touch any of that.

And that makes the way the application uses the allegations — attributed to Sergei Millian — to make knowable information about the WikiLeaks dump tie to unsupported information in the dossier all the more problematic. As parroted in the application, this passage interlaces true, public, but not very interesting details with totally unsupported allegations:

According to information provided by Sub-Source [redacted] there was a well-developed conspiracy of co-operation between them [assessed to be individuals involved in Candidate #1’s campaign] and the Russian leadership.” Sub-Source [redacted] reported that the conspiracy was being managed by Candidate #1’s then campaign manager, who was using, among others, foreign policy advisor Carter Page as an intermediary. Sub-Source [redacted] further reported that the Russian regime had been behind the above-described disclosure of DNC e-mail messages to WikiLeaks. Sub-Source [redacted] reported that WikiLeaks was used to create “plausible deniability,” and that the operation had been conducted with the full knowledge and support of Candidate #1’s team, which the FBI assessed to include at least Page. In return, according to Sub-Source [redacted], Candidate #1’s team, which the FBI assessed to include at least Page, agreed to sideline Russian intervention in Ukraine as a campaign issue and to raise U.S.NATO defense commitments in the Baltics and Eastern Europe to deflect attention away from Ukraine.

The DOJ IG report describes how FBI responded to this report by (purportedly) examining the reliability of Steele and his sources closely.

The FISA application stated that, according to this sub-source, Carter Page was an intermediary between Russian leadership and an individual associated with the Trump campaign (Manafort) in a “well-developed conspiracy of co-operation” that led to the disclosure of hacked DNC emails by Wikileaks in exchange for the Trump campaign team’s agreement, which the FBI assessed included at least Carter Page, to sideline Russian intervention in Ukraine as a campaign issue. The application also stated that this same sub-source provided information contained in Steele’s Report 80 that the Kremlin had been feeding information to Trump’s campaign for an extended period of time and that the information had reportedly been “very helpful,” as well as information contained in Report 102 that the DNC email leak had been done, at least in part, to swing supporters from Hillary Clinton to Donald Trump. 300 Because the FBI had no independent corroboration for this information, as witnesses have mentioned, the reliability of Steele and his source network was important to the inclusion of these allegations in the FISA application.

Except there would seem to be another necessary step: to first identify how much of this report cobbled together stuff that was already public — which included Russia’s role, the purpose of using WikiLeaks, Carter Page’s trip to Russia (but not specifics of his meetings there), and — though the application got details of what happened with Ukraine in the platform wrong — the prevention of a change to the platform. On these details, Steele was not only not predictive, he was derivative. Putting aside the problems with the three different levels of unreliable narrators (Steele, his Primary Subsource, and Millian), all of whom had motives to to package this information in a certain way, the fact that these claims clearly included stuff that had been made available weeks earlier should have raised real questions (and always did for me, when I was reading this dossier). Had the FBI separated out what was unique and timely in these allegations, they would have looked significantly different (not least because they would have shown Steele’s network was following public disclosures on key issues).

This is not the kompromat you’re looking for

Which brings me to perhaps the most frustrating part of this application.

As I started arguing at least by September 2017 (and argued again and again and again), to the extent the dossier got filled with disinformation, it would have had the effect of leading Hillary’s campaign to be complacent after learning they had been hacked, because according to the dossier, the Russians planned to leak years old FSB intercepts from when Hillary visited Russia, not contemporaneous emails pertaining to her campaign and recent history. It might even have led the Democrats to dismiss the possibility that the files Guccifer 2.0 was releasing were John Podesta files, delaying any response to the leak that would eventually come in October.

To the extent the dossier was disinformation, it gave the Russian operation cover to regain surprise for their hack-and-leak operation. At least with respect to the Democrats, that largely worked.

And, even though the Australians apparently believed the DNC release may have confirmed Papadopoulos prediction that Russia would dump emails, it appears to have partly worked with the FBI, as well. This passage should never appear in an application that derived from a process leading from the DNC emails to the shared tip about Papadopoulos to a request to wiretap Page:

According to reporting from Sub-Source [redacted] this dossier had been compiled by the RIS over many years, dating back to the 1990s. Further, according to Sub-Source [redacted] his dossier was, by the direct instructions of Russian President Putin, controlled exclusively by Senior Kremlin Spokesman Dmitriy Peskov. Accordingly, the FBI assesses that Divyekin received direction by the Russian Government to disclose the nature and existence of the dossier to Page. In or about June 2016, Sub-Source [redacted] reported that the Kremlin had been feeding information to Candidate #1’s campaign for an extended period of time. Sub-Source [redacted] also reported that the Kremlin had been feeding information to Candidate #1’s campaign for an extended period of time and added that the information had reportedly been “very helpful.” The FBI assesses the information funneled by the Russians to Page was likely part of Russia’s efforts to influence the 2016 U.S. Presidential election.

Note, the FBI contemporaneously — though not after December 9, 2016 — would not have had something Hillary’s team did, the July Steele report on Russia’s claimed lack of hacking success that the FBI should have recognized as utterly wrong. Still, the earliest Steele reports they did have said the kompromat the Russians were offering was stale intercepts. At the very least, one would hope that would raise questions about why someone with purported access to top Kremlin officials didn’t know about the hack-and-leak operation. But the FBI seems to have expected there might be something more.

Trump clearly was not, but should have been, the target earlier than he was

There’s an irony about the complaints I lay out here: they suggest that Trump should have been targeted far earlier than he was.

The Page application rests on the following logic: One of the notably underqualified foreign policy advisors that Trump rolled out to great fanfare in March 2016 told someone, days later, that Russia had offered to help Trump by releasing damaging information on Hillary. The July dump of DNC emails suggested that Papadopoulos’ knowledge foreknowledge may have been real (and given Mifsud’s ties to someone with links to both the IRA and GRU people behind the operation, it probably was). The temporal coincidence of his appointment and that knowledge seemed to tie his selection as an advisor and that knowledge (and in his case, because Joseph Mifsud only showed an interest in Papadopoulos after learning he was a Trump advisor, that turned out to be true). That made the trip to Russia by another of these notably underqualified foreign policy advisors to give a speech he was even more underqualified to give, all the more interesting, especially the way the Trump people very notably reversed GOP hawkishness on Ukraine days after Page’s return.

In other words, the FBI had evidence — some of it now understood to be likely disinformation, and was trying to understand, how, after Trump shifted his focus to foreign policy, he shifted to a more pro-Russian stance in seeming conjunction with Russia delivering on their promise (shared with foreign policy advisor Papadopoulos) to help Trump by releasing the DNC emails.

It turns out the change in policy was real. And JD Gordan attributed his intervention on the RNC platform, in contravention of direction from policy director John Mashburn, to Trump’s own views.

Gordon reviewed the proposed platform changes, including Denman’s.796 Gordon stated that he flagged this amendment because of Trump’s stated position on Ukraine, which Gordon personally heard the candidate say at the March 31 foreign policy meeting-namely, that the Europeans should take primary responsibility for any assistance to Ukraine, that there should be improved U.S.-Russia relations, and that he did not want to start World War III over that region.797 Gordon told the Office that Trump’s statements on the campaign trail following the March meeting underscored those positions to the point where Gordon felt obliged to object to the proposed platform change and seek its dilution.798

[snip]

According to Denman, she spoke with Gordon and Matt Miller, and they told her that they had to clear the language and that Gordon was “talking to New York.”803 Denman told others that she was asked by the two Trump Campaign staffers to strike “lethal defense weapons” from the proposal but that she refused. 804 Demnan recalled Gordon saying that he was on the phone with candidate Trump, but she was skeptical whether that was true.805 Gordon denied having told Denman that he was on the phone with Trump, although he acknowledged it was possible that he mentioned having previously spoken to the candidate about the subject matter.806 Gordon’s phone records reveal a call to Sessions’s office in Washington that afternoon, but do not include calls directly to a number associated with Trump.807 And according to the President’s written answers to the Office’s questions, he does not recall being involved in the change in language of the platform amendment. 808

Gordon stated that he tried to reach Rick Dearborn, a senior foreign policy advisor, and Mashburn, the Campaign policy director. Gordon stated that he connected with both of them (he could not recall if by phone or in person) and apprised them of the language he took issue with in the proposed amendment. Gordon recalled no objection by either Dearborn or Mashburn and that all three Campaign advisors supported the alternative formulation (“appropriate assistance”).809 Dearborn recalled Gordon warning them about the amendment, but not weighing in because Gordon was more familiar with the Campaign’s foreign policy stance.810 Mashburn stated that Gordon reached him, and he told Gordon that Trump had not taken a stance on the issue and that the Campaign should not intervene.811

[snip]

Sam Clovis, the Campaign’s national co-chair and chief policy advisor, stated he was surprised by the change and did not believe it was in line with Trump’s stance.816 Mashburn stated that when he saw the word “appropriate assistance,” he believed that Gordon had violated Mashburn’s directive not to intervene.817

Sam Clovis would ultimately testify there had been a policy change around the time of the March 31 meeting (though Clovis’ testimony changed wildly over the course of a day and conflicted with what he told Stefan Halper).

Clovis perceived a shift in the Campaign’s approach toward Russia-from one of engaging with Russia through the NATO framework and taking a strong stance on Russian aggression in Ukraine.

But (as noted above), to lay this out in the Page application, the FBI sourced to secondary reporting of the policy change rather than to the platform itself. More notably, in spite of all this happening after late July 2016, there’s no mention of Trump’s press conference on July 27, 2016, where he asked Russia to go find more Hillary emails (and they almost immediately started hacking Hillary’s personal accounts), said he’d consider recognizing Russia’s annexation of Crimea and lifting sanctions, and lied about his ongoing efforts to build a tower in Russia.

Trump directed Mueller to a transcript of the press conference, I’ve put excerpts below. They’re a good reminder that at the same press conference where Trump asked Russia to find Hillary’s emails (and in seeming response to which, GRU officers targeted Hillary’s personal office just five hours later), Trump suggested any efforts to build a Trump Tower in Moscow were years in the past, not ongoing. After the press conference, Michael Cohen asked about that false denial, and Trump “told Cohen that Trump Tower Moscow was not a deal yet and said, ‘Why mention it if it is not a deal?’” He also said they’d consider recognizing Russia’s seizure of Crimea, which makes Konstantin Kilimnik’s travel — to Moscow the next day, then to New York for the August 2 meeting at which he and Paul Manafort discussed carving up Ukraine at the same meeting where they discussed how to win Michigan — all the more striking. Trump’s odd answer to whether his campaign “had any conversations with foreign leaders” to “hit the ground running” may reflect Mike Flynn’s meetings with Sergei Kislyak to do just that.

In other words, rather than citing Trump’s language itself, which in one appearance tied ongoing hacking to an even more dramatic policy change than reflected in the platform, the Carter Page application cited secondary reporting, some of it post-dating this appearance.

Mueller asked Trump directly about two of the things he said in this speech (the Russia if you’re listening comment and the assertion they’d look at recognizing Crimea) and obliquely about a third (his public disavowals of Russian business ties). Trump refused to answer part of one of these questions entirely, and demonstrably lied about another. Publicly, Mueller stated that Trump’s answers were totally inadequate. And these statements happened even as his campaign manager and Konstantin Kilimnik were plotting a clandestine meeting to talk about carving up Ukraine.

The FBI may have done this to stay way-the-fuck away from politics — though, to be clear, Trump’s call on Russia to find more Hillary emails in no way fits the bounds of normal political speech.

But by doing do, they ended up using far inferior sourcing, and distracting themselves from actions more closely implicating Trump directly — actions that remain unresolved.

The Carter Page application certainly backs the conclusions of the DOJ IG Report (though it also shows I was correct that DOJ IG did not know what crimes Page was being investigated for, and as such likely got the First Amendment analysis wrong). But it also shows that the Steele dossier, which fed the FBI’s inexcusable confirmation biases, undermined the FBI investigation into questions that have not yet been fully answered.

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

March 6, 2020/6 Comments/in 2016 Presidential Election, emptywheel, Mueller Probe /by emptywheel

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.

August 29, 2017: Almost entirely unredacted
September 7, 2017: Not yet released
February 24, 2019: Almost entirely 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.

October 3, 2017 (1): Lightly redacted under b3 exemptions
October 3, 2017 (2): More heavily redacted under b3 exemptions
October 26, 2017: Entirely redacted under b5 exemptions

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.

The Kinds and Significance of Russian Interference — 2016 and 2020

February 24, 2020/81 Comments/in 2016 Presidential Election, 2020 Presidential Election, emptywheel, Russian hacks /by emptywheel

Trump’s meltdown last week — in which he purged top staffers at the Director of National Intelligence after a briefing on Russian interference in the 2020 election, followed by National Security Advisor Robert O’Brien making shit up on Meet the Press — has created a firestorm about Russian interference in the 2020 election. That firestorm, however, has spun free of what ways Russia interfered in 2016 and what effect it had.

Five ways Russia interfered in 2016

First, remember that there were at least five ways Russia interfered in 2016:

Stealing information then releasing it in a way that treats it as dirt
Creating on-going security challenges for Hillary
Using trolls to magnify divisions and feed disinformation
Tampering with the voting infrastructure
Influence peddling and/or attempting to recruit Trump aides for policy benefits

Stealing information then releasing it in a way that treats it as dirt

The most obvious way Russia interfered in 2016 was by hacking the DNC, DCCC, and John Podesta (it also hacked some Republicans it did not like). It released both the DNC and Podesta data in such a way as to exaggerate any derogatory information in the releases, successfully distracting the press for much of the campaign and focusing attention on Hillary rather than Trump. It released DCCC information that was of some use for Republican candidates.

Roger Stone took steps — not all of which are public yet — to optimize this effort. In the wake of Stone’s efforts, he moved to pay off one participant in this effort by trying to get a pardon for Julian Assange.

Creating on-going security challenges for Hillary

In addition to creating a messaging problem, the hack-and-leak campaign created ongoing security challenges for Hillary. Someone who played a key role in InfoSec on the campaign has described the Russian effort as a series of waves of attacks. The GRU indictment describes one of those waves — the efforts to hack Hillary’s personal server — which came in seeming response to Trump’s “Russia are you listening” comment. An attack that is often forgotten, and from a data perspective was likely one of the most dangerous, involved a month-long effort to obtain Hillary’s analytics from the campaign’s AWS server.

Whatever happened with this data, the persistence of these attacks created additional problems for Hillary, as her staff had to spend time playing whack-a-mole with Russian hackers rather than optimizing their campaign efforts.

Using trolls to magnify divisions and feed disinformation

Putin’s “chef,” Yevgeniy Prigozhin, also had staffers from his troll factory in St. Petersburg shift an ongoing campaign that attempted to sow division in the US to adopt a specific campaign focus, pushing Trump and attacking Hillary. Importantly, Prigozhin’s US-based troll effort was part of a larger multinational effort. And it was in no way the only disinformation and trolling entity involved in the election. Both parties did some of this, other countries did some, and mercenaries trying to exploit social media algorithms for profit did some as well.

Tampering with the voting infrastructure

Russia also tampered with US voting infrastructure. In 2016, this consisted of probing most states and accessing voter rolls in at least two, though there’s no evidence that Russian hackers made any changes. In addition, Russian hackers targeted a vendor that provided polling books, with uncertain results. The most substantive evidence of possible success affecting the vote in 2016 involved failures of polling books in Durham County, NC, which created a real slowdown in voting in one of the state’s most Democratic areas.

In recent days, there have been reports of a ransomware attack hitting Palm Beach County in September 2016, but it is unclear whether this was part of the Russian effort.

Because there’s no certainty whether the Russian hack of VR Systems was behind the Durham County problems, there’s no proof that any of these efforts affected the outcome. But they point to the easiest way to use hacking to do so: by making it harder for voters in particular areas to vote and harder for specific localities to count the vote.

Some of what Russia did in 2016 — such as probes of a particularly conservative county in FL — may have been part of Russia’s effort to discredit the outcome. They didn’t fully deploy this effort because Trump won.

Influence peddling and/or attempting to recruit Trump aides for policy benefits

Finally, Russia accompanied its other efforts with various kinds of influence peddling targeting Trump’s aides. It was not the only country that did so: Saudi Arabia, Egypt, Turkey, UAE, and Israel were some of the others. Foreign countries were similarly trying to target Hillary’s campaign — and the UAE effort, at least, targeted both campaigns at once, through George Nader.

Importantly, however, these efforts intersected with Russia’s other efforts to interfere in the election in ways that tied specific policy outcomes to Russia’s interference:

An unrealistically lucrative Trump Tower deal involved a former GRU officer and sanctioned banks
At a meeting convened to offer Trump dirt about Hillary, Don Jr agreed in principle to revisit ending Magnitsky sanctions if Trump won
George Papadopoulos pitched ending sanctions to Joseph Mifsud, who had alerted him that Russia had emails they intended to drop to help Trump
Paul Manafort had a meeting that tied winning the Rust Belt, carving up Ukraine, and getting paid personally together; the meeting took place against the background of sharing internal polling data throughout the campaign

As I’ll note in a follow-up, information coming out in FOIAed 302s makes it clear that Mike Flynn’s effort to undercut Obama’s December 2016 sanctions was more systematic than the Mueller Report concludes. So not only did Russia make it clear it wanted sanctions relief, Trump moved to give it to them even before he got elected (and his Administration found a way to exempt Oleg Deripaska from some of these sanctions).

Manafort continued to pursue efforts to carve up Ukraine until he went to jail. In addition, Trump continues to take actions that undercut Ukraine’s efforts to fight Russia and corruption. Neither of these have been tied to a specific quid pro quo (though the investigation into Manafort’s actions, especially, remained inconclusive at the time of the Mueller Report).

So while none of these was charged as a quid pro quo or a conspiracy (and the reasons why they weren’t vary; Manafort lied about what he was doing, and why, whereas Mueller couldn’t prove Don Jr had the mens rea of entering into a quid pro quo), Russia tied certain policy outcomes to its interference.

Trump’s narcissism and legal exposure exacerbated the effects

The Russian attack was more effective than it otherwise would have been for two reasons. First, because he’s a narcissist and because Russia built in plausible deniability, Trump refused to admit that Russia did try to help him. Indeed, he clings more and more to Russian disinformation about what happened, leading the IC to refuse to brief him on the threat, leading to last week’s meltdown.

In addition, rather than let FBI investigate the people who had entered into discussions of a quid pro quo, Trump obstructed the investigation. Trump has spent years now attacking the rule of law and institutions of government rather than admit what DOJ IG found — there was reason to open the investigation, or admit what DOJ found — there was reason to prosecute six of his aides for lying about what happened.

The Russian effort was just one of the reasons Hillary lost

It’s also important to remember that Russia’s interference was just one of the many things that contributed to Hillary’s loss.

Other aspects were probably more important. For example, Republican voter suppression, particularly in Wisconsin and North Carolina, was far more important than any effect the VR Systems hack may have had in Durham County. Jim Comey’s public statements about the email investigation had at least as much effect as the Russian hack-and-leak campaign did on press focus. Hillary made some boneheaded choices — like barely campaigning in WI and MI; while I had worried that she made those choices because Russia tampered with her analytics (with the AWS hack), that doesn’t seem to have happened. Disinformation sent by the Trump campaign and associates was more significant than Russian disinformation. It didn’t help that the Obama Administration announced a sharp spike in ObamaCare prices right before the election.

The response matters

As noted, Trump’s narcissism dramatically increased the effect of the Russian efforts in 2016, because he has always refused to admit it happened.

Compare that to Bernie’s response to learning that Russia was trying to help his campaign, which accepted that it is happening and rejected the help.

“I don’t care, frankly, who [Russian President Vladimir] Putin wants to be president,” Sanders said in a statement. “My message to Putin is clear: Stay out of American elections, and as president I will make sure that you do.

“In 2016, Russia used Internet propaganda to sow division in our country, and my understanding is that they are doing it again in 2020. Some of the ugly stuff on the Internet attributed to our campaign may well not be coming from real supporters.”

This was not perfect — Bernie could have revealed this briefing himself weeks ago, Bernie blamed the WaPo for reporting it when it seems like the story was seeded by O’Brien. But it was very good, in that it highlighted the point of Russian interference — sowing divisions — and it reaffirmed the import of Americans selecting who wins. Plus, contrary to Trump, there’s no reason to believe Bernie would pursue policies that specifically advantaged Russia.

Other factors remain more important than Russian interference

There’s very serious reason to be concerned that Russia will hack the outcome of 2020. After all, it would need only to affect the outcome in a small number of precincts to tip the result, and the prospect of power outages or ransomware doing so in urgent fashion have grown since 2016.

That said, as with 2016, there are far more urgent concerns, and those concerns are entirely American.

Republicans continue to seek out new ways to suppress the vote, including by throwing large swaths of voters off the rolls without adequate vetting. There are real concerns about voting machines, particularly in Georgia (and there are credible concerns about the reliability of GA’s tally in past elections). Republicans have continued to make polling locations less accessible in Democratic precincts than in Republican ones.

Facebook refuses to police the accuracy of political ads, and Trump has flooded Facebook with disinformation.

And Bloomberg’s efforts this year — which include a good deal of trolling and disinformation — are unprecedented in recent memory. His ad spending has undercut the ability to weigh candidates. And his personnel spending is increasing the costs for other candidates.

Russian efforts to sway the vote are real. Denying them — as some of Bernie’s supporters are doing in ways that hurt the candidate — does not help. But, assuming DHS continues to work with localities to ensure the integrity of voting infrastructure, neither does overplaying them. Between now and November there’s far more reason to be concerned about American-funded disinformation and American money distorting our democratic process.

Why Hasn’t George Papadopoulos Outed “Source 3”?

February 7, 2020/11 Comments/in 2016 Presidential Election, Informants, Mueller Probe /by emptywheel

There’s something I’ve been wondering about the DOJ IG Report into Carter Page.

The report revealed details (though not all details) about Stefan Halper’s interactions with George Papadopoulos, Carter Page, and Sam Clovis, which had been previously reported. It debunked Papadopoulos’ claims that some other people — some US defense personnel in the UK, Alexander Downer, Joseph Mifsud, and Israelis offering cash — were FBI informants attempting to entrap him.

But it also revealed that another informant, described as Source 3 in the report, had multiple meetings with Papadopoulos. The person is described as someone with access to Papadopoulos that they recruited — in accelerated fashion — for this purpose.

Case Agent 3 and an Intelligence Analyst identified Source 3 as an individual with a connection to Papadopoulos who may be willing to act as a CHS, based on statements Source 3 had made to the FBI several years prior, during an interview in an unrelated investigation. Source 3 had never previously worked for the FBI as a CHS, and the Delta records for Source 3 state that the opening of this CHS “was accelerated due to operational necessity.”

Case Agent 3 said that he considered Source 3 to be a reliable CHS because Source 3 was always available when the FBI needed Source 3, provided good descriptions of the conversations with Papadopoulos, and the summaries that Source 3 provided to the FBI were corroborated by the consensual monitoring. The FBI performed a human source validation review on Source 3 in 2017, and recommended Source 3 for continued operation.

Papadopoulos and Source 3 met multiple times between October 2016 and June 2017, all of which occurred after the FBI understood that Papadopoulos had ceased working on the Trump campaign. 471 All but one of their meetings were consensually monitored by the FBI; however, not all of them were transcribed by the FBI. Instead, Case Agent 3 said that he and the Intelligence Analyst would review the recordings to find portions that were of investigative interest, and those portions were written up or reviewed.

Papadopoulos clearly trusted this person more than Halper. He told Source 3 that he told Halper the story he had about ties to WIkiLeaks because he expected Halper would, “tell the CIA or something if I’d have told him something else. I assume that’s why he was asking.” He told Source 3 about Sergei Millian (whose ties to Papadopoulos the FBI had already identified). He told Source 3 a version of the Joseph Mifsud story and admitted he was going to try to monetize that relationship.

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?

For years, Papadopoulos has been trying to dismiss his guilty plea by saying he was set up by a network of nefarious informants.

And yet he hasn’t revealed who Source 3 — someone he obviously met on multiple occasions — is.

The claims of Marcus DiPaola — someone who claimed to be an informant for the FBI until he recently got exposed by Fox News, before leaking a damning internal Fox report about its own susceptibility to propaganda — got me thinking about this question again. While my own interactions with the FBI make me very skeptical that FBI would work with someone acting as a journalist as an informant, which is what he claims happened. And the timing — DiPaola claims he approached the FBI in January 2016, not earlier as the IG Report describes Source 3 did — doesn’t line up.

So I don’t think DiPaola is Source 3.

But it made me all the more cognizant that Papadopoulos, who never met a real or suspected informant he didn’t burn, has been silent about this person.

Which may hint that Papadopoulos suspects Source 3 could tell a whole lot of truths if he or she were identified that would blow his current schtick.

Update: I just realized that the date of a Fox Report that seems to have come from DiPaola is December 9, the date of the IG Report. So that might support the possibility that he was Source 3.

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

February 7, 2020/150 Comments/in 2016 Presidential Election, 2020 Presidential Election, Mueller Probe /by emptywheel

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.