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How Does the Strzok Text Dump Differ from Jim Comey’s July 5, 2016 Speech?

I’m a bit bemused by the response to DOJ’s release of the texts between Peter Strzok and Lisa Page. As Rod Rosenstein testified before HJC yesterday, the release came after notice to Strzok and Page through their lawyers. The release of the texts came with the approval of DOJ IG Michael Horowitz — who says the investigation into the underlying conduct may last through spring. And Rosenstein strongly implied he wanted them released, taking responsibility for it (while claiming not to know whether Jeff Sessions had a role in their release).

As he explained to Trey Gowdy — who, like a number of Republicans, claimed to be at a loss of what to say to constituents who asked “what in the hell is going on with DOJ and the FBI” — the release of the texts proves that any wrongdoing will be met with consequences.

Gowdy: What happens when people who are supposed to cure the conflict of interest have even greater conflicts of interests than those they replace? That’s not a rhetorical question. Neither you nor I nor anyone else would ever sit Peter Strzok on a jury, we wouldn’t have him objectively dispassionately investigate anything, knowing what we now know. Why didn’t we know it ahead of time, and my last question, my final question — and I appreciate the Chairman’s patience — how would you help me answer that question when I go back to South Carolina this weekend?

Rosenstein: Congressman, first of all, with regard to the Special Counsel, Mr. Strzok was already working on the investigation when the Special Counsel was appointed. The appointment I made was of Robert Mueller. So what I’d recommend you tell your constituents is that Robert Mueller and Rod Rosenstein and Chris Wray are accountable and that we will ensure that no bias is reflected in any actions taken by the Special Counsel or any matter within the jurisdiction of the Department of Justice. When we have evidence of any inappropriate conduct, we’re going to take action on it. And that’s what Mr. Mueller did here as soon as he learned about this issue — he took action — and that’s what I anticipate the rest of our prosecutors, the new group of US Attorneys, our Justice Department appointees. They understand the rules and they understand the responsibility to defend the integrity of the Department. If they find evidence of improper conduct, they’re going to take action.

So Congressman, that’s the best assurance I can give you. But actually, there’s one other point, which is you should tell your constituents that we exposed this issue because we’re ensuring that the Inspector General conducts a thorough and effective investigation, and if there is any evidence of impropriety, he’s going to surface it and report about it publicly.

I actually think Rosenstein did a much better job than others apparently do, yesterday, at distinguishing between the Strzok texts (which apparently were on DOJ issued cell phones and, in spite of having Hillary investigation subject lines may not have been logged into Sentinel) and the political views of Andrew Weissmann or the past representation of Jeannie Rhee. Furthermore, he repeatedly said he would only fire Mueller for cause, and made it clear there had been no cause. Several times he talked about how closely he has worked with Mueller, such as on the scope of what gets included in his investigation (even while defending the charges against Manafort as appropriately included).

That said, I wonder how Rosenstein distinguishes, in his own mind, what he did in approving the release of the texts from an ongoing investigation and what Jim Comey did on July 5, 2016, when he gave a press conference about why Hillary Clinton had not been charged. While Rosenstein’s biggest complaint in his letter supporting the firing of Comey was that he substituted his decision for that of prosecutors, he also argued that the Department shouldn’t release derogatory information gratuitously.

Compounding the error, the Director ignored another longstanding principle: we do not hold press conferences to release derogatory information about the subject of a declined criminal investigation. Derogatory information sometimes is disclosed in the course of criminal investigations and prosecutions, but we never release it gratuitously. The Director laid out his version of the facts for the news media as if it were a closing argument, but without a trial. It is a textbook example of what federal prosecutors and agents are taught not to do.

In response to skeptical question at a congressional hearing, the Director defended his remarks by saying that his “goal was to say what is true. What did we do, what did we find, what do we think about it.” But the goal of a federal criminal investigation is not to announce our thoughts at a press conference. The goal is to determine whether there is sufficient evidence to justify a federal criminal prosecution, then allow a federal prosecutor who exercises authority delegated by the Attorney General to make a prosecutorial decision, and then – if prosecution is warranted – let the judge and jury determine the facts. We sometimes release information about closed investigations in appropriate ways, but the FBI does not do it sua sponte.

In some ways this is worse because of the off chance that Inspector General Michael Horowitz finds that these texts don’t merit some kind of response; the investigation is not finished yet.

That said, I actually do think there’s a difference: Strzok and Page are department employees, rather than subjects of an external investigation. DOJ exercises awesome power, and usually DOJ is releasing the texts of private citizens in this kind of embarrassing way.

Even former clearance holders seem surprised that these texts were discovered. It is unbelievable to me how few people understand the great liberty that counterintelligence investigators like Strzok can have in obtaining the communications of investigative targets like he has now become, particularly during leak or insider threat investigations. That may not be a good thing, but it is what other targets have been subjected to. So I think it reasonable to have FBI’s own subject to the same scrutiny, for better and worse.

I do think it worthwhile for DOJ to show that it will hold people accountable for improper actions.

Plus, aside from one August comment — which we may obtain more context on when Horowitz does finish this investigation — about an “insurance” policy against Trump, the texts simply aren’t that damning (though they do raise questions about Strzok’s role in the investigation). Strzok agrees with Rex Tillerson, after all, that Trump is an idiot.

So as far as that goes, I’m actually okay with Rosenstein’s release of these texts.

Except I worry about something else.

I actually worry less about Mueller getting fired than just about every other Trump opponent on the planet. Rosenstein seems intent to let him do his work, and (notably at several times during the hearing) seems to agree with the gravity of the investigation. Trump can’t get to Mueller without taking out Rosenstein (and Rachel Brand). And I actually think Rosenstein has thus far balanced the position of a Republican protecting a Republican from Republican ire fairly well. I expect the next shoes Mueller drops — whenever that happens — will change the tone dramatically.

What bothers me most about the release of these texts, however, is that they are a response to the same pressure that Comey was responding to (and which he thought he was smart enough to manage, just as Rosenstein surely thinks he can handle it here).

They are a response — from the same people who ran the Benghazi investigation then ignored DOJ’s prosecution of the Benghazi mastermind — to a willingness to challenge the very core of DOJ functionality, all in a bid to politicize it.

Perhaps Rosenstein is right to bide his time — to create space for Mueller to drop the next few shoes — with the release of the Strzok texts.

But at some point, Republicans need to start calling out Republicans for the damage they’re doing to rule of law with this constant playing of the refs, this demand for proof that Democrats aren’t getting some advantage through the rule of law. If those next shoes don’t have the effect I imagine, it may be too late.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

National Enquirer’s Serial Spy Novel: Featuring Hillary, Flynn, Assange, Pence, and Ryan

The claim that “Trump catches Russia’s White House spy” — clearly an attempt to smear Mike Flynn — actually got me to drop the $4.99 for a copy of the National Enquirer to read the hit job. And it’s actually more than a contrived effort to claim Flynn is a Russian spy: it’s a four-page spread, implicating Hillary and Mike Pence, too.

The story about Flynn is, instead, mostly a story about Jack Barsky, the former Russian spy who has gotten a lot of press of late tied to the release of his book. Just Thursday, CNN published an interview with him claiming, “What is clear is that email accounts of Democrat operatives were hacked and those hacks originated in Russia. Anything beyond that is pure speculation.” But amid a two-page story of Barsky’s life (as if the details of his life — and Barsky himself — were newly discovered), NE includes two quotes. A “national security intelligence source” warns of other Russian spies:

Jack Barsky is a Russian spy that was caught. But what is really frightening is that there are others out there like him embedded deep into Washington D.C. … Barsky being tracked down will greatly help the president smoke out other rats in his ranks.

And amid a four paragraph discussion of Mike Flynn, NE quotes an “administration source.”

The revelations [about Barsky] come as still-unfolding details continue to worm their way into the public eye about Trump’s own White House “turncoat” — now-ousted national security adviser and retired Lt. Gen. Michael T. Flynn.

Flynn was booted from Trump’s cabinet after intercepted phone calls exposed how he had colluded with Russian officials — and then had the chutzpah to lie about it when questioned by Vice President Mike Pence.

“He was, in essence, the Russian spy in Trump’s midst,” said an administration source who spoke to The ENQUIRER on the condition of anonymity. “Trump was lucky to root him out when he did.”

The unfolding Russian spy drama will overshadow the House of Representatives Intelligence Committee hearing investigating alleged ties between Trump’s campaign and Putin, source said.

Of course, Trump transition official Devin Nunes has already canceled the next hearing into ties between Trump’s campaign and Putin, but perhaps Trump plans on magnifying this hit job in upcoming days, replete with spooky language — “embedded,” “smoke out other rats,” “worm their way,” “turncoat,” “root him out,” — to shift the focus on disloyalty within the Trump Administration.

Which brings us to the other main story in this four-page spread.

It describes how “Trump crushe[d] Clinton coup” designed to install Mike Pence, purportedly revealed by Julian Assange in these two tweets (and some follow-up):

It treats Assange’s claims about his arch enemy as credible because, as a “Beltway insider sniffed … Assange is plugged in and has deep connections to Russian intelligence, along with similar networks around the world.”

The story cites a “White House insider” describing Trump giving Pence a loyalty oath.

President Trump called Pence into the Oval Office and forced him to take a lie detecter test to prove his loyalty. Pence swore he had nothing to do with Hillary and was being moved around like a chess piece in evil Hillary’s game!

After alleging Baywatch’s Pamela Anderson might be a cut-out and/or love interest for Assange, the story then turns on Paul Ryan, citing a quote first published in October, the audio of which was released by Breitbart the same day as the Assange tweets, March 14. The NE claimed that Hillary leaked the call to sow dissent before the health care vote.

The timing of the leak is not a coincidence. The call took place in October and leaked now — just as Ryan and Trump are working to muster support for the health care bill to replace Obamacare. Hillary’s people leaked it to drive a wedge between Trump and Ryan, undermine their efforts to reform health care and destroy the president!

In short, the second article is even more fevered than the one implicating Flynn.

Finally, in addition to a short piece attacking Chris Matthews, the spread includes a non-denial denial of Christopher Steele’s dossier, claiming it showed “Trump orgies” and “graphic sex involving hookers,” which is not precisely what pee gate claimed. It then dismisses the claims because “Trump neither drinks nor uses drugs,” as if that would rule out orgies.

Undoubtedly, all this was placed with the cooperation of the White House, if not direct quotes from Trump (which is something he has a history of doing). While the Flynn story has been viewed — particularly alongside unsubstantiated claims that Flynn is cooperating with the FBI — as an attempt to damage him for snitching, it almost certainly dates to earlier than more recent attacks on Flynn, and in conjunction with stories of loyalty oaths from Pence appears tame by comparison.

Trump wants to justify a witch hunt among the National Enquirer set. And at least thus far, Flynn and warnings of replacement by Pence are no more than the excuse for launching it.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

US Indicts Hal Martin — But Offers No Hint He’s the Source for Shadow Brokers, Or Anyone Else

After David Petraeus shared notebooks full of code word intelligence with his girlfriend (and boxes of other classified information), then lied about it to the FBI, the government let Petraeus off with two years of probation.

DOJ just indicted Hal Martin — the Booz Allen contractor who allegedly stole terabytes of NSA information — with 20 charges each carrying up to 10 years of punishment. The indictment includes no hint that Martin did anything but hoard the files he stole. There’s no allegation he shared them with anyone (though, like Petraeus, he definitely kept very sensitive documents in highly insecure fashion).

Significantly, there’s no mention of the Shadow Brokers or even a description of the hacking tools Martin allegedly stole (though that’s likely because DOJ would draw up the indictment to avoid confirming that NSA even has hacking tools, much less the ones released to the public).

The only description of a document specifically targeting an adversary akin to the one described to the WaPo seems to target a terrorist organization, not Russia (meaning that they’re not presenting evidence Martin preferentially collected information on Russia, though again, if he were, they might hide that).

And the indictment alleges that Martin continued to steal documents up until 12 days before he was arrested, and significantly, three days after the first Shadow Brokers post on August 13.

It would be the height of folly for someone who knew he was the source for the Shadow Brokers to keep stealing documents after Shadow Brokers had gone public (though at that point, it wasn’t clear precisely what Shadow Brokers was going to release).

Certainly, the way in which DOJ has charged this — larding on 20 different charges — suggests they’re trying to coerce him into cooperating. The case against Chelsea Manning, which was partly an attempt to coerce Manning to testify against Julian Assange and Wikileaks, was very nearly parallel in the charging of many documents. In Manning’s case, there was no way for her to cooperate to implicate Assange except to lie; there’s nothing Assange did to elicit the files. That may be the case for Martin, too.

The big difference here is there’s absolutely no hint that Martin shared any of this. Given the Petraeus and Hillary precedents, the government will have a difficult time coercing Martin further, given that Petraeus didn’t even do prison time for hoarding and then sharing equally classified documents (albeit not as many of them).

Nevertheless, it appears that that DOJ is trying to coerce Martin to get information it offers no proof he even has.

Update: As it happens, DOJ indicted Hal Martin just over 4 hours before Jeff Sessions, who has refused to recuse himself in investigations of the Russian hack of the DNC, was confirmed as Attorney General. Again, there’s no evidence whatsoever that DOJ has any evidence Martin was a source for Shadow Brokers, who are presumed to have a tie to the DNC hack. But if they suspect it, indicting Martin with such extensive charges before Sessions comes in will make it hard for Sessions to reverse what seems to be an effort to coerce Martin to reveal any tie to the hack.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

The Self Serving Jill Stein Recount Scam

ap_514085205775-021470928390Jill Stein, admittedly, always struck me as a bit of a naive and somewhat unhinged candidate. But, Stein was the “Green Party” candidate and, once Bernie Sanders lost, became the go to darling for ill advised voters and activists that were far too willing to wreck the world with Donald Trump than consider the circumstances and vote for an eminently qualified, albeit terribly flawed, candidate in the form of Hillary Clinton. It is hard to argue with anarchist, blow it all up, demagogues when trying to protect a lame, and status quo, candidate. Even when the ultimate opponent is a raging racist, bigoted, misogynistic, female choice hating and torture loving shill like Donald Trump.

So many otherwise Democratic voters went off and voted for Stein and/or Gary Johnson. Did it make the “final difference”? I have no idea, but there is certainly an argument that could be made.

Was it the Jim Comey FBI factor from the stunningly inappropriate rogue actions by the FBI Director putting his self righteous thumb on the electoral scale in both the start of the critical summer elections season and, then, yet again in the last two weeks before the election? It is easy to make that argument, irrespective of any other factor.

Was it that Hillary did not expend personal and campaign time and dime in Wisconsin and other Rust Belt states when she did a lost, but very much growing, cause venue such as Arizona? Easy case for that argument as well.

The actual data and competent reportage seems to indicate that all of the above were significant factors. It strikes me that is right.

All of the above factors fed into the defeat of Clinton and the election loss by her, if only by the electoral college, at the tiny hands of Trump. So be it. That is what happened under the electoral laws and process (yes, let us not forget the pernicious meddling of Russia and/or Wikileaks, whether they are coupled or not) pertinent to the 2016 US Presidential election. But, like the result or not, that was all pursuant to the Constitution and election laws as are currently extant in the United States. There is not one competent piece of evidence that the actual vote itself was “hacked” or “rigged”. Just none.

Which brings us to the much ballyhooed action of Jill Stein to crowd fund and conduct audits and or recounts in the key states of Wisconsin, Michigan and Pennsylvania. The second she started her effort, I opined it was an attention grabbing craven play by Stein, and not a legitimate effort with any eye to any substantive results. On a more private forum I intoned:

But that is the thing: It IS bomb throwing, and stupidly so. There is NO evidentiary basis for fraud or mistake that I have seen. The guy who started it, [J. Alex] Halderman himself, admits as much legally when he says he thinks it is most likely poll inaccuracy, not anything nefarious.

I know all the beaten down, especially Clinton diehards, that cannot fathom how she blew this election, want to grasp for something. But it just isn’t there.

I stand by that completely. What Jill Stein is doing is blatant self promotion, list building, reputational repair where it is undeserved, and slush funding for an incoherent Green Party. It is detestable to the extreme. Stein has glommed onto this recount scam as a way to serve herself, she certainly is not serving anything else.

To quote a significant Democratic election law attorney, and longtime friend of this blog, Adam Bonin:

“If there were something to do here, there are a lot of us who would be jumping on it”

Early on the hashtag #AuditTheVote was attached to this chicanery. Here is the problem with that – two out of three of Stein’s target states already “audit the vote” as a regular matter of law without the need for Stein’s self serving injection into the matter. In fact, Stein’s primary target, Wisconsin, has a reasonably robust random audit provision in Wisconsin Revised Statute 7.08(6), which has been generally deigned to require:

The voting system audit procedures consist of two independent processes: an audit conducted by municipalities of reporting units randomly selected by the State Elections Board and an audit of reporting units conducted by the State Elections Board. Number of Reporting Units to Audit: Per the requirements of section 7.08(6), Wis. Stats., each type of electronic voting system in Wisconsin must be audited after the general election to ensure that each system does not exceed the error rate prescribed in the federal voting system guidelines. The State Elections Board will randomly select fifty (50) reporting units across Wisconsin which will be subject to municipal audit, including a minimum of five (5) reporting units for each voting system used in Wisconsin. If fewer than five (5) reporting units for any voting system are selected through the random selection process, then additional reporting units will be randomly selected by voting system until five reporting units per voting system have been selected. If there are fewer than 5 reporting units using a voting system the State Elections Board staff will audit those reporting units if the reporting units are not selected as part of the random draw. until five reporting units per voting system have been selected. If there are fewer than 5 reporting units using a voting system the State Elections Board staff will audit those reporting units if the reporting units are not selected as part of the random draw.

Well, that is actually pretty robust. And all of which would have been, and will be, performed without the preening self interjection of Jill Stein in her first state of concern, Wisconsin.

Just Wisconsin? Nope. Pennsylvania also has an inherent audit provision, though not quite as robust as Wisconsin. The bottom line is, though, there are already “audit the vote” provisions in two out of three of Jill Stein’s targets, even though she declined to say so in her propaganda seeking funding to stay in the spotlight and reconstruct her reputation. In fairness, Michigan has no such automatic audit provision, so there is that.

Next, you need to consider that there is a substantive difference between “audits” of the vote and flat out recounts. Stein has always been about recounts, despite the bogusly applied #AuditTheVote nomenclature applied by Stein and her glommers on. Recounts are expensive, labor intensive, and time consuming. And they are asinine where there is not a single shred of competent evidence to support fraud or mistake that could, even in the remotest possibility, change the outcome in a given state or states.

And, let us be crystal clear here, there is still NO competent evidence whatsoever of fraud, mistake or other irregularity that could change the result. None. And that is the thing, unless there is fraud, mistake or systematic error, recounts can do nothing to legally support a challenge to the election results. A challenge has to stand up in court. It cannot be thin and based upon rote supposition and suspicion. Even if Stein’s folly turns up a minor discrepancy here and there, that will not suffice.

The vote differential, again in Wisconsin for instance, between Clinton and Trump currently stands at 27,259 votes. Yes, that is less than the total of Stein, so despite the wild claim she threw the election that some Clinton supporters have thrown, I will not. Some Stein voters were never going to vote for Clinton; so while Stein’s vanity run deserves ridicule, it does not, in and of itself, “prove” Clinton would have won but for Stein. Close enough for ridicule given that Trump is the result? Sure. But, again that, too, holds for ridicule of Clinton’s own arrogant and detached campaign and the fatally pernicious effects of the completely rogue arbiter of his own justice, James Comey.

So, where does that leave us? With a Norma Desmond like self promoting grifter, dying to redeem her name and stay in some/any spotlight, in the form of Jill Stein. She was a cancer on the election (hey, her dinner with Putin and Mike Flynn was cool though!) that, at a minimum, helped elect Trump, and she is sticking around to create more hell now that said deed is done.

This is absurd. Jill Stein is a grifter and a fraud. And she is playing this opportunity to, first off, list build for herself and the Greens, secondly, resuscitate her and their name, thirdly, stay in the press, and lastly, create an amorphous slush fund to continue those things. Stein is succeeding beyond wildest expectations if your idea of the normal course of business is Donald Trumpian level grifting.

For a woman who raised only $3.5 million during her entire vanity run for President, Stein has now raised nearly $6 million dollars in far less than a week on this scam. That is NOT because Stein has dedicated Green Party followers wanting to bleed yet more money into their candidate after the election; no, it is because desperate Clintonians are seeking some way, any way, to stop Trump. And playing on that desperation is exactly the fraud of Jill Stein.

A common refrain I see is that, “golly, there is no harm, and much good, that can come from confirming the vote”. But that is just more self serving balderdash from the desperate and/or Stein acolytes. In fact, there is great harm that can come from Stein’s shenanigans. Here is Rick Hasen from the Election Law Blog, quoting the Wisconsin Journal Sentinel:

Wisconsin could be at risk of missing a Dec. 13 deadline to certify its 10 electoral votes if clerks can’t complete an expected recount by then.

Hitting the deadline could be particularly tricky if Green Party presidential nominee Jill Stein is able to force the recount to be conducted by hand, Wisconsin’s top election official said.

Stein — who received just 1% of the vote in Wisconsin — has promised to file for a recount by Friday’s 5 p.m. deadline in Wisconsin. She is also planning to ask for recounts in Michigan and Pennsylvania, which have deadlines next week.

A federal “safe harbor” law requires states to complete presidential recounts within 35 days of the election to ensure their electoral votes are counted. This year, that’s Dec. 13.

What is the upshot of this? Easy, Stein’s effort could easily place Wisconsin, in light of the December 13 deadline, of missing the deadline and disenfranchising all voters in Wisconsin. Yes, there are potential repercussions from actions like Stein is taking, especially when there is no known basis or grounds whatsoever evidentiary wise to support them. And that is just Wisconsin. Michigan and Pennsylvania are in even bigger jeopardy thanks to the self serving hubris of Jill Stein, should she actually continue on to file in those states as promised, without any rational basis for challenging the vote therein.

Lastly, while I have been writing the instant post, the attorney for the DNC and Clinton Campaign, Marc E. Elias, has weighed in on Medium with an official take for both himself and, by all appearances, the aforementioned campaign entities. The Reader’s Digest version, by my eyes, is that, while the DNC and Clinton camps are going to join into the Stein effort, they have never seen any basis for it, and are being dragged into a position of noticing their appearance and joinder simply in order to preserve their rights to be involved should Stein’s group go so far off the rails or, in the remotest of all potentialities, find anything. That is not joinder with enthusiasm, it is joinder to protect your legal voice. Trump is now doing the same for similar reasons. I do not blame either Clinton or Trump for doing so, in fact, Stein’s idiocy put both of said parties in that regrettable posture. Don’t cast your eye askew for one second at Elias and the Dems, nor even Trump and the Repubs, ….Stein and her idiotic self serving publicity play made them do it.

In short, this effort by Jill Stein is nothing more than a self promoting vanity play. If you want to donate to that grift, by all means, go ahead. But don’t blather about how it is going to help democracy or promote fair elections. That is absurd. In fact, just exactly as absurd as Jill Stein’s cynical grift on her current donors who are far different than her few and far between Green donors.

Stein is scamming the dispossessed. That is a Trumpian level fraud.

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.

What Becomes Of The Brokenhearted Dems And Clickbait Complicit Media Who Got Us Here?

Will Rogers very famously said:

“I am not a member of any organized political party. I am a Democrat.”

That was made sometime in the 1930’s I think, but it is enduringly true.

So, where will the Democratic party go now that they have had their ass handed to them by Trump? Who will lead the Democratic party going forward?

The calls are already ringing out. Liz Warren! Bernie Sanders! Keith Ellison (Sanders has even issued an email ask as to Ellison)! But there is a serious money people and Clintonian push for Howard Dean. Which is truly mind numbing.

Howard Dean is moldy cheese that needs to be taken out with the next non-recycle trash dump. He did neither himself, nor the party, any favors in the 2016 election clownshow cycle. Seriously, in the 2016 election cycle, Sarah Palin may have been more reserved and credible than Howard Dean.

Dean’s 50 state op got Obama elected in 2008, but he is smelly garbage now. Screw this always retread manure. Dean needs to dry up and go away.

And the Democratic Party needs to extricate their head from their ass and move to the future.

New blood. Dems CANNOT be the same old constantly revanchist assholes every time they lose bigly. And, boy did they lose bigly.

The Dem go to kleptomaniacs like Debbie Wasserman Schultz and Rahm Emanuel not only did not help the party expand but set it back in serious ways in places like MO, KS, AZ and the entire United States.

And, while we are at it, the high holy “Senator Professor Warren” ain’t immune either. She had a moment and a shot, and she cowardly whiffed. Maybe it is something she just truly did not want, and, if so, fine. But don’t tell me that someone that is little more than a year younger than Hillary, and who consciously forfeited both her, and Bernie’s, shot in 2016, will be the Democratic holy savior in 2020.

Don’t do that. This is the same ignorant reset idiocy that got Democrats here today. That time is done. If Democrats do one thing ever, it ought be to build the bridge for the young’s of the United States to clean up the shithole we left them. Liz Warren and Bernie Sanders can be a huge part in doing that. But only as bridge builders, not as the man or woman who will be the avatar in 2020. We need them terribly, but not themselves as the embodiment of the future. That kind of thinking is the idiocy of the past.

There is a future. Although CNN’s Jeff Zucker and Trump/Breitbartism’s Steve Bannon are brothers in clickbait cuck arms that birthed, literally, President Trump, and will not easily give up their money raking news cycles.

The “new normal” is that CNN, MSNBC, NBC, CBS, ABC, New York Times, Washington Post, and an endless roll call of dying, wimpering subservient media jackasses, who rode Trump’s clickbait train to a place in hell, will find it’s new Stockholm Syndromed place and start lecturing us how it is all good and just a “function of normal democracy”. It is already occurring, just watch any Wolf Blitzer on CNN or Chris Matthews on MSNBC moment. They are getting climax happy legs on Trump and Giuliani fascism as we speak.

That is one vision, and the early reality, of what the “press” will do in the coming Trump Presidency. The competing vision, which is what I hope and ascribe to, is that the media extricates their heads from their asses and brings real scrutiny to try to mitigate the hell they helped gestate. Are there enough Brian Stelters and Jay Rosens to get us there?

The brokenhearted Dems have some serious soul searching to engage in. So do the currently unapologetic and furiously rationalizing media and “pundits” who so helped get us here.

“Balanced” is NOT fair. Honest is fair. Accurate is fair. Truth is fair. Putting on panels of bickering loud mouthed bought and paid for political assholes as “news coverage” is NOT fair. Nor is it “balanced” news. Jeff Zucker makes Roger Goodell look like a piker in terms of the pantheon of American assholes.

While the media, especially cable, has a circle jerk field day congratulating themselves over their “wall to wall coverage”, and “looking forward to the transition”, just remember how the Trumpism and fascism germinated. Not shockingly, it germinated the same way it always has. When the gatekeepers of a rational society become more about themselves and their money than their jobs representing society.

There is a lesson here, too, for the Dems in media interaction. You got played and hosed royally. Don’t be the brokenhearted, be the, for once, party that learns from its mistakes and failures, and does better.

Just once, do this. If you can.

UPDATE: Commenter GK James posted something below that I think crystallizes much of what I was trying to say far better than I did, even if from a slightly different perspective.

Sure, but doesn’t that effectively absolve the demos that does the choosing? Aren’t Democrats up against a larger problem, one that they’ve had to wrestle with since Reagan? How do you advocate a progressive worldview when the majority of an aging, increasingly atomized, entertainment-addicted population doesn’t want that? It’s easy enough to say, after the fact, that Clinton should have focused more on those disadvantaged by globalization, or that, had they only chosen Sanders, the Democrats would have won. But recall that, without moving to the center, Bill Clinton would never have made it. A lousy bargain in retrospect, but not a crazy one at the time.

Yes, the DNC needs new blood. But assuming someone is found who can articulate a crisp clear message of what Democrats stand for—and who’s telegenic, personable, and entertaining to boot—how would that change the stranglehold that Republicans have on state governments, state legislatures, and the US Congress? The clear majority likes the status quo, having no problem with gerrymandered districts, voter suppression, or bought-and-paid-for legislators who enjoy an incumbency rate of 90%+. And the infotainment complex is likely to help keep it that way by making sure that its customers are never overtaxed by complicated thoughts. There will still be people, adults, who read, think, and have constructive ideas about matters of public import, which they’ll express in complete sentences. But they’ll be increasingly outnumbered and marginalized in a Twittered world.

Can’t argue with that, and don’t know the answers to the questions. But the Democratic party, if it is to continue (and I think it must), has to start finding those answers quickly.

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.

My Boob Clinic Is Part of an International Spying Plot … but Hillary’s on It!

By now you’ve likely read or at least heard about this Slate story, which uses a bunch of innuendo arising from some metadata to suggest that Trump has a secret exclusive communication method with Russia’s biggest bank.

A number of people have debunked the technical claims in the article.

Former GCHQ employee Matt Tait did so in a series of tweets here. Consultant Naadir Jaawa laid out how it’s a marketing server here. Consultant Robert Graham not only lays out the same spam email explanation that both Spectrum Health and Mandiant describe in the story, but notes that other malware researchers question the data in the story.

Indeed, one journalist did call one of the public resolvers, and found other people queried this domain than the two listed in the Slate story — debunking it. I’ve heard from other DNS malware researchers (names remain anonymous) who confirm they’ve seen lookups for “mail1.trump-email.com” from all over the world, especially from tools like FireEye that process lots of spam email. One person claimed that lookups started failing for them back in late June — and thus the claim of successful responses until September are false.

Krypt3ia, in a post written in steps weeks ago, couldn’t get answers from the “Tea Leaves” behind the story and judged that the incriminating files — which were just text files — could be recreated.

These are the key files in the new dump but the problem I have is that they are just text files. Anyone with the know how could re-create these to look legit enough but yet still be questioned. I see no actual login to the shell and queries being run here so really coulda just done a find/replace on another query on any server you have access to.

In short, contrary to what Slate suggests, there are innocent explanations for this, and there’s good reason to distrust the provenance of the data behind it.

Update: The Intercept has now explained why they passed on the story; they include spam sent to both Alfa and Spectrum from Trump, which corroborates the theory everyone else technical is settling on.

Boob Clinics usually stay out of international spy plots

Most of these debunkings have focused on the technical aspects. I want to start with this passage from Slate.

A small portion of the logs showed communication with a server belonging to Michigan-based Spectrum Health. (The company said in a statement: “Spectrum Health does not have a relationship with Alfa Bank or any of the Trump organizations. We have concluded a rigorous investigation with both our internal IT security specialists and expert cyber security firms. Our experts have conducted a detailed analysis of the alleged internet traffic and did not find any evidence that it included any actual communications (no emails, chat, text, etc.) between Spectrum Health and Alfa Bank or any of the Trump organizations. While we did find a small number of incoming spam marketing emails, they originated from a digital marketing company, Cendyn, advertising Trump Hotels.”)

Spectrum accounted for a relatively trivial portion of the traffic. Eighty-seven percent of the DNS lookups involved the two Alfa Bank servers.

The story, remember, is that Trump has a super spooky exclusive hotline directly to a corrupt Russian bank. But most people covering this completely ignore that it’s not completely exclusive: over 10% of the traffic reported by the anonymous researchers involves Spectrum Health.

Spectrum Health is the largest employer in Grand Rapids and West Michigan generally. It includes the Helen DeVos Children’s Hospital and a Betty Ford Breast Care clinic. Spectrum Health is where I go to the doctor and Betty Ford is where I got my still cancer-free boobs squished this year. So for this story to make sense, you’ve got to explain why a children’s hospital and a boob clinic are in cahoots with Trump and a big Russian bank.

The original version of the story tried to make much of the tie to Spectrum, finding in the children’s hospital named after Richard DeVos’s wife a tie to Erik Prince (Helen’s daughter-in-law Betsy’s brother) and the DeVos family’s multinational pyramid scheme, the wealth from which has always — not just this year — been funneled into conservative causes.

The other frequent connection to Trump’s hidden server with the same distinctive human pattern is Spectrum Health, a Michigan hospital with close ties to the DeVos family (http://www.spectrumhealth.org/locations/helen-devos-childrens-hospital). The Devos family founded Amway / Alticor which operates in Russia including transactions with Alfa Bank such as buying insurance for 800 Alticor employees from Alfa Bank’s insurance subsidiary. The Devos family has given millions of dollars in the past few months to conservative super PACs (www.fec.gov). One member of the Devos family was a founder of Blackwater.

None of that makes sense, though, especially since — while some of the DeVoses do seem to be funding Trump now and Prince has bizarrely backed the Donald (though that may stem from being shut out of State business while Hillary was in charge) — the biggest commonality between the DeVoses (who are hard core Republicans) and Trump is their multinational scheming and fondness for sports teams.

They may both be awful conservatives, but they are different kinds of awful conservatives, and there’s little reason to believe they’d be in cahoots outside of belated efforts, post-dating these files, to fund Republican turnout in the state (and even there, Prince’s sister Betsy is withholding direct funding).

More importantly, the DeVoses no more run this hospital than Betty Ford does.

But without the conspiracy theories implicating the DeVoses, then innocent explanations sure look a lot more plausible.

Tellingly, however, most other treatments of this story (this is an exception) have simply ignored this detail. Because once you have to calculate how a children’s hospital and a boob clinic — even one, or perhaps especially one, named after Gerald Ford’s wife — has a tie to this international spy plot, things start falling apart.

The reason why the boob clinic part of the story is important is it’s a detail that should have led even non-technical people to at least think twice before running with the story. Slate, however, simply included Spectrum’s explanation for the files, the one that matched Mandiant’s working hypothesis, and careened ahead.

The FBI has its own doubts

After Slate published, the NYT posted a story that generally reveals the FBI hasn’t been able to substantiate any tie between Trump himself and Russia and has backed off its claims that Russia was trying to decide the election (a judgment I hope to return to).

It also reveals that the FBI largely agreed with what security experts concluded when they saw this claim.

In classified sessions in August and September, intelligence officials also briefed congressional leaders on the possibility of financial ties between Russians and people connected to Mr. Trump. They focused particular attention on what cyberexperts said appeared to be a mysterious computer back channel between the Trump Organization and the Alfa Bank, which is one of Russia’s biggest banks and whose owners have longstanding ties to Mr. Putin.

F.B.I. officials spent weeks examining computer data showing an odd stream of activity to a Trump Organization server and Alfa Bank. Computer logs obtained by The New York Times show that two servers at Alfa Bank sent more than 2,700 “look-up” messages — a first step for one system’s computers to talk to another — to a Trump-connected server beginning in the spring. But the F.B.I. ultimately concluded that there could be an innocuous explanation, like a marketing email or spam, for the computer contacts.

Note, this means that the FBI was already looking into this story when it got shopped to reporters in early October. So in addition to the four or so other entities that reviewed this story and found it wanting (including me), the FBI had already had a crack at it.

Hillary Clinton and her likely National Security Advisor jump on this story

Now, as with the Kurt Eichenwald story claiming to have found a smoking gun tying Trump to Putin, people on the left didn’t read the story very critically. Sure, this one is technically hard — up until you think about the boob clinic connection alleged in the middle of the spy plot.  But for all its breathlessness, the Slate story simply insinuated. It proved nothing.

Which is why I’m so troubled that Hillary Clinton tweeted it four times in three hours, including a statement her likely National Security Advisor Jake Sullivan put together.

I mean, I get that it’s election season and all. I get that Jim Comey gave Hillary a whopping October surprise on Friday. But one of the reasons we’re supposed to elect Hillary over Trump is that she is more measured and fact-based than Donald is.

Here, she jumped on a story that at least should have given pause and created two campaign messaging pieces around it, asserting as fact that “Donald Trump has a secret server … set up to communicate privately with a Putin-tied Russian bank.”

I’ll repeat again: Jake Sullivan — the guy who wrote the longer statement on this — is widely assumed to be set to take on the job from which Condi Rice started a war by warning about fictional mushroom clouds.

Who are these secret researchers, anyway

Which leads me to a final question a few of the security folks are asking about this story.

In addition to his technical debunking, Robert Graham made an equally important point: researchers shouldn’t be accessing this data for ad-lib investigations into presidential candidates, and it’s not even clear who would have access to it all except the NSA.

The big story isn’t the conspiracy theory about Trump, but that these malware researchers exploited their privileged access for some purpose other than malware research.

[snip]

In short, of all the sources of “DNS malware information” I’ve heard about, none of it would deliver the information these researchers claim to have (well, except the NSA with their transatlantic undersea taps, of course).

And in a second post this morning, Krypt3ia started wondering who’s behind this story.

This was a non story and this was someone’s troll or an IC operation of some kind. I left it at that… That is until last night when this fallacy laden report came out of Slate.

Anonymous Security Professionals

So here is what I believe happened with Slate and Foer. Tea, not happy with my ignoring their bullshit, went on to pimp at least five venues looking for a way to get this wide and Foer was the gullible one to do so. Now, with a live one on the line Tea spun their tale and added the new twist that they are in fact a group of “security professionals” with insider knowledge and that this story is really real. Of course once again they provided no real proof of Trumps servers being configured for this purpose, no evidence of actual emails, and no real forensically sound information that proves any of what they say can be proven in a court of law. This is a key thing and Slate may not care but others do. Even in the previous dumps on the i2p site that tea set up their diagram said “this is what it would look like” would is not proof, that there is speculation and not evidence.

[snip]

Meanwhile, the story spun by Tea and now Camp et al on Slate makes me wonder just who Tea is. Obviously Camp knows Tea and the others and this is a small world so let’s work out the connections shall we?

Camp –>Vixie –> ??? let’s just assume that Camp knows these persons well and if one starts to dig you could come up with a few names of people who “would” (there’s that would again) have the kind of access to DNS data that is needed.

Just sayin.

Of course, we have since learned that before Tea Leaves started pushing this story to the press, the FBI had been investigating it for two months.

Which, to my mind, raises even more questions about the anonymous researchers’ identities, because (small world and all) the FBI likely knows them, in which case they may have known that the FBI wasn’t jumping on the story by the time they started pitching it.

Or the FBI doesn’t know them, which raises still more questions about the provenance of these files.

Ah well, if President Hillary starts a war with Russia based off Iraq-War style dodgy documents, at least I’ll have the satisfaction of knowing my boob clinic is right there on the front lines.

Update: I’ve added language to clarify that the DeVoses don’t run Spectrum.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

If Richard Burr Jokes about Assassination in Secret, What Else Does He Joke about in Secret?

A tracker caught Senate Intelligence Chair responding to a request for a picture with a guy with an NRA hat on by joking about “putting a bullseye” on Hillary Clinton at an event for volunteers this weekend (the quip is after 34:30).

Nothing made me feel any better than, uh, I walked into a gun shop I think yesterday in Oxford. And there was a copy of Rifleman on the, on the counter. It’s got a picture of Hillary Clinton on the front of it. I was a little bit shocked at that — it didn’t have a bullseye on it.

After the comments became public, Burr apologized for them.

Mind you, Burr has a history of making inappropriate jokes about violence, even about assassination, even in public. In 2013, Burr joked with Treasury Secretary Jack Lew that his relative Aaron Burr assassinated Treasury Secretaries. And in the same year, Burr joked with John Brennan that drinking four glasses of water

“I’ll be brief,” Burr told the nominee to lead the Central Intelligence Agency. “I see you’re on your fourth glass of water and I don’t want to be accused of waterboarding you.”

But this is different, because he laughed about violence from others against a public figure, rather than joking about his own hypothetical violence. And it did so in a fairly closed event.

Given that as SSCI Chair Burr spends so much time huddling in secret with the intelligence community, Burr’s persistent joking about assassination and related issues does raise questions about what else he jokes in his private sessions with spooks. That’s especially true given how far out of his way he has gone to protect CIA from any accountability for torture.

Burr is, to his credit, virtually alone among an recent Gang of Four members for actually keeping what he learns from briefings secret. That means that, unlike this meeting (hilariously, after 13:00 in the recording, Burr kicks out someone he believes to be a tracker, but the person recording the meeting remained inside recording), we would never learn about how funny Burr thinks assassination is when meeting with those who actually carry them out.

That sure makes him an inappropriate person to head oversight of the intelligence community.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

Anthony Weiner Creates a Virgin Birth for Evidence the Clinton Foundation Investigators Want

WSJ’s Devlin Barrett has a long story he describes as laying bare “tensions that have built for months inside the bureau and the Justice Department over how to investigate someone who could soon be elected president.” It might just as well be described as a catalogue of the ways FBI has gotten out of control.

To show the important background to the decision to get a warrant to access Huma Abedin’s email, I’m going to switch the order of the story from that Barrett uses. Looked at in this way, it becomes clear that by accessing Huma’s email, the FBI may not just have renewed the probably fruitless investigation into Hillary’s email server, but also found a way to access Huma’s emails for use in an investigation of the Clinton Foundation.

FBI ignores Public Integrity orders not to escalate the investigation of the Clinton Foundation

After laying out the recent decision to access Huma Abedin’s email (which I deal with below), Barrett confirms what Comey made obvious with a “neither confirm nor deny” response at his July testimony before the House Oversight Committee (though a flood of leaks had long claimed such an investigation existed).

The FBI has been investigating the Clinton Foundation for over a year.

As Barrett describes it, the case arose because Agents were seeing if a crime was committed, not because they had found evidence that it had:

Early this year, four FBI field offices—New York, Los Angeles, Washington and Little Rock, Ark.—were collecting information about the Clinton Foundation to see if there was evidence of financial crimes or influence-peddling, according to people familiar with the matter.

He describes that in February, when Andrew McCabe got promoted to Deputy Director, he took over oversight of this investigation. (In an earlier article Barrett insinuated that an earlier Terry McAuliffe donation to McCabe’s wife’s state senate campaign presented a conflict, but in this article Barrett provides McAuliffe’s explanation for the donation.) Also in February — Barrett doesn’t say whether McCabe was involved — investigative teams located in Los Angeles, DC, Little Rock, and New York (he doesn’t say whether they were in EDNY or SDNY or both, which is relevant to a later development in the story) presented their case to DOJ’s Public Integrity (PIN) section.

Here’s how Barrett describes that meeting:

Some said that is because the FBI didn’t present compelling evidence to justify more aggressive pursuit of the Clinton Foundation, and that the career anticorruption prosecutors in the room simply believed it wasn’t a very strong case. Others said that from the start, the Justice Department officials were stern, icy and dismissive of the case.

“That was one of the weirdest meetings I’ve ever been to,” one participant told others afterward, according to people familiar with the matter.

Anticorruption prosecutors at the Justice Department told the FBI at the meeting they wouldn’t authorize more aggressive investigative techniques, such as subpoenas, formal witness interviews, or grand-jury activity. But the FBI officials believed they were well within their authority to pursue the leads and methods already under way, these people said.

Mind you, seven paragraphs before describing PIN telling the FBI it would not authorize subpoenas, Barrett described the Los Angeles team having “issued some subpoenas for bank records related to the foundation.” So when he says FBI officials believed they could pursue leads and methods already under way, it may mean they decided they could use the fruit of subpoenas PIN subsequently judged weren’t merited by the evidence.

In July, after DOJ decided not to prosecute anyone on the email server and Comey started blabbing (including his non-denial of the existence of this investigation), FBI “sought to refocus the Clinton Foundation probe,” which sounds a lot like redoubling efforts to find something to investigate Hillary for. (Note, this entire article makes no mention of the June Supreme Court decision throwing out much of former VA governor Bob McDonnell’s conviction, which would have significantly raised the bar for any prosecution of the Clinton Foundation.) McCabe bracketed the DC work focusing on Terry McAuliffe, from which he was recused, and put NY in charge of the rest.

Barrett spends a paragraph airing both sides of a dispute about whether that was the right decision, then describes a (male, and therefore someone besides Loretta Lynch or Sally Yates) senior DOJ official bitching out McCabe for continuing to pursue the Clinton Foundation investigation, especially during the election.

According to a person familiar with the probes, on Aug. 12, a senior Justice Department official called Mr. McCabe to voice his displeasure at finding that New York FBI agents were still openly pursuing the Clinton Foundation probe during the election season. Mr. McCabe said agents still had the authority to pursue the issue as long as they didn’t use overt methods requiring Justice Department approvals.

The Justice Department official was “very pissed off,” according to one person close to Mr. McCabe, and pressed him to explain why the FBI was still chasing a matter the department considered dormant.

Barrett spends several paragraphs airing both sides of what happened next, whether FBI agents were ordered to stand down entirely or whether McCabe said they could continue to investigate within the existing guidelines.

FBI attempts to venue shop to get at Clinton server emails

Even after that order, the Clinton Foundation investigators tried to get more — specifically, all the emails turned over in the email server investigation. When EDNY (as a reminder, that’s where Loretta Lynch was until last year US Attorney) refused, the investigators asked to go get them in SDNY.

In September, agents on the foundation case asked to see the emails contained on nongovernment laptops that had been searched as part of the Clinton email case, but that request was rejected by prosecutors at the Eastern District of New York, in Brooklyn. Those emails were given to the FBI based on grants of partial immunity and limited-use agreements, meaning agents could only use them for the purpose of investigating possible mishandling of classified information.

Some FBI agents were dissatisfied with that answer, and asked for permission to make a similar request to federal prosecutors in Manhattan, according to people familiar with the matter. Mr. McCabe, these people said, told them no and added that they couldn’t “go prosecutor-shopping.”

Several comments on this: First, McCabe did the right thing here in refusing to let his agents venue shop until they got their way. I hope he would do the same in a less visible investigation where senior DOJ officials were chewing him out for conducting the investigation in the first place.

Second, consider how the timing of this coincides with both leaks about the immunity agreements, Jason Chaffetz’ inquiry into the same, and two sets of email server related materials. As one key example, on October 5, just weeks after McCabe told his Agents they couldn’t go “prosecutor-shopping” to get to the emails released in the email server probe, Republicans were releasing details of their in camera review of the terms of the immunity agreements used to deny the Clinton Foundation investigations access to the emails. We should assume that some entities within the FBI are using all angles, using Chaffetz’ investigations to publicize decisions that have thwarted their investigation.

Did FBI Agents review the content of Huma Abedin’s email without a warrant?

So sometime in September, the Clinton foundation team was told they couldn’t have emails associated with the server investigation that were tied to immunity agreements. On October 3 (per the NYT), FBI agents seized a number of devices, including a laptop used jointly by Anthony Weiner and Huma Abedin with a warrant permitting just the investigation of Weiner’s alleged sexting of an underaged woman (curiously, Barrett says they were permitted to look for child porn). Shortly thereafter, they found found emails from accounts, plural, of Huma Abedin on the laptop. Multiple reports suggest those emails may be duplicative of the ones that FBI had just been told they couldn’t access because of the immunity agreements tied to other devices.

There’s no reason to believe FBI found those potentially duplicative emails because they were prohibited from accessing the ones turned over voluntarily as part of the email server probe (in any case, they are presented as different investigative teams, although the description of this sprawling Clinton Foundation investigation may explain why earlier leaks said 147 people were part of the Clinton investigation); it’s just one of those coinkydinks that seem to plague the Clintons.

At that point, per Barrett, “Senior FBI officials decided to let the Weiner investigators proceed with a closer examination of the metadata on the computer, and report back to them.” Early last week (so two or three weeks later), some asked how that weeks-long review of the Huma emails (allegedly just the metadata) was going.

“At that point, officials realized that no one had acted to obtain a warrant, these people said.”

In other words, for several weeks, FBI has been nosing around those emails without court authorization to do so in conjunction with the email server investigation (which may or may not have been formally closed). If they really stuck to metadata, that’s no big deal under Third Party rules. If they did peek — even at subject lines — then that may be a bigger problem.

Only then did the Weiner investigators compare notes with the Hillary investigators and decide the emails were relevant. Barrett doesn’t answer the obvious question: how did the Weiner investigators determine these emails might be relevant and did they really just review only metadata? Given all the stories to FBI friendly sources claiming Comey — and implying no one — has seen the content of the email, I suspect the answer is Weiner investigators went beyond metadata.

The background Barrett provides gives more significance to FBI’s decision to (perhaps belatedly) obtain a warrant to get Huma’s email and to Comey’s highly inappropriate magnification of it. Not only have they reopened (or renewed — reports on this are still all over the map on this point) the email investigation, but they’ve also created a virgin birth for emails that the Clinton foundation investigators tried — and were willing to venue shop — but failed to get.

FBI leaking has neutralized DOJ’s control over the Bureau

This story shows that FBI has tried a number of methods to defy PIN advice to drop the investigation into the Clinton Foundation.

I don’t know whether the investigation into the Clinton Foundation has merit or not (though given Barrett’s explanation, it does seem that some in FBI were looking for a crime rather than looking to solve one).

But I do know that if FBI agents operate outside of bounds on their power, they constitute a grave threat to the rule of law.

And Barrett’s article suggests at least three ways they appear to have done just that:

  • Fiddling with investigative guidelines of the DIOG (by using subpoenas without the appropriate level of investigation and authority)
  • Attempting to venue shop to get permission to access evidence they were told they couldn’t have
  • Leaking promiscuously, in clear violation of the rules, to bring political pressure including on Comey to conduct an investigation their supervisors had told them to either limit or halt

That promiscuous leaking, of course, includes this article, which relied on a great number of sources, almost none of whom should be speaking about this investigation. Don’t get me wrong — it’s great reporting on Barrett’s part. But it also serves the purpose of airing the claim that McCabe, PIN, and DOJ generally have thwarted an investigation into the Clinton Foundation that some at FBI believe has merit.

In addition, I’ve got questions about whether they read Huma’s email when they were supposed to just be looking at metadata.

Whatever else Comey’s totally inappropriate behavior reflects, his justification for doing so because it otherwise might leak suggests he doesn’t have control over his agency. Though given his coy response to Chaffetz in July, I do wonder whether he isn’t rooting for the Clinton foundation investigation to proceed; whatever else he is, Comey is a master of using the press to win political fights.

And remember, the FBI (under Comey) has undermined one of the few irreproachable entities that might fix this sorry state of affairs. It has refused, now backed by an OLC opinion, to give DOJ’s Inspector General the unfettered right to investigate things like grand jury proceedings (though given that no grand jury was used in these cases, it might be harder to keep them out here). So if Patrick Leahy were to ask Michael Horowitz to investigate whether FBI acted inappropriately in these related investigations — and he should! — FBI might be able to withhold information from the IG.

A bunch of people who have unquestioned faith in the goodness of DOJ — now including Eric Holder, the guy who couldn’t prosecute a single criminal bank — have been, rightly, scolding Comey for his actions. But they have largely remained utterly silent about the runaway agents at the FBI, both about their obvious leaking and now about their efforts to sustain this investigation in defiance of at least some of the chain of command, including career prosecutors who should be fairly insulated from any political influence that someone like Lynch might respond to.

As I said, I’m agnostic about the investigation of the Clinton Foundation. I’m not agnostic on the importance of keeping FBI firmly within the bureaucratic bounds that prevents them from acting as an abusive force.

They seem to have surpassed those bounds.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

The Story About Judicial Dysfunction Behind the Comey Whiplash

I’ve been home from Europe for less than a day and already I’m thinking of sporting a neck collar for the whiplash I’ve gotten watching the wildly varying Jim Comey opinions.

I’m speaking, of course, of the response to Jim Comey’s highly unusual announcement to sixteen Chairs and Ranking Members of congressional committees (at least some of which Comey did not testify to) that the investigative team — presumably on the Clinton case — briefed him Thursday that FBI discovered additional emails in an unrelated case — now known to be the investigation into Anthony Weiner allegedly sexting a 15 year old — and he approved their request to take the steps necessary to be able to review those emails.

Effectively, the Weiner investigators, in reviewing the content from devices seized in that investigation, found emails from Huma Abedin, told the Hillary investigative team, and they’re now obtaining a warrant to be able to review those emails.

So of course the Republicans that had been claiming Comey had corruptly fixed the investigation for Hillary immediately started proclaiming his valor and Democrats that had been pointing confidently to his exoneration of Hillary immediately resumed their criticism of his highly unusual statements on this investigation. Make up your minds, people!

For the record, I think his initial, completely inappropriate statements made this inevitable. He excuses Friday’s statement as formally correcting the record of his testimony. The claim is undermined by the fact that not all recipients of the letter had him testify. But I think once you start the process of blabbing about investigations, more blabbing likely follows. I don’t mean to excuse this disclosure, but the real sin comes in the first one, which was totally inappropriate by any measure. I’m also very unsympathetic with the claim —  persistently offered by people who otherwise cheer Comey — that he released his initial statement to help Loretta Lynch out of the jam created by her inappropriate meeting with Bill Clinton; I think those explanations stem from a willful blindness about what a self-righteous moralist Comey is.

Of course I’ve been critical of Comey since long before it was cool (and our late great commenter Mary Perdue was critical years before that).

But I’d like to take a step back and talk about what this says about our judicial system.

Jim Comey doesn’t play by the rules

Jamie Gorelick (who worked with Comey when she was in DOJ) and Larry Thompson (who worked with Comey when Comey was US Attorney and he was Deputy Attorney General, until Comey replaced him) wrote a scathing piece attacking Comey for violating the long-standing prohibition on doing anything in an investigation pertaining to a political candidate in the 60 days leading up to an election. The op-ed insinuates that Comey is a “self-aggrandizing crusader[] on [a] high horse” before it goes on to slam him for making himself the judge on both the case and Hillary’s actions.

James B. Comey, put himself enthusiastically forward as the arbiter of not only whether to prosecute a criminal case — which is not the job of the FBI — but also best practices in the handling of email and other matters. Now, he has chosen personally to restrike the balance between transparency and fairness, departing from the department’s traditions. As former deputy attorney general George Terwilliger aptly put it, “There’s a difference between being independent and flying solo.”

But the real meat is that there’s a rule against statements like the one Comey made, and Comey broke it.

Decades ago, the department decided that in the 60-day period before an election, the balance should be struck against even returning indictments involving individuals running for office, as well as against the disclosure of any investigative steps. The reasoning was that, however important it might be for Justice to do its job, and however important it might be for the public to know what Justice knows, because such allegations could not be adjudicated, such actions or disclosures risked undermining the political process. A memorandum reflecting this choice has been issued every four years by multiple attorneys general for a very long time, including in 2016.

If Comey is willing to break this rule in such a high profile case, then what other rules is he breaking? What other judgements has Comey made himself arbiter of? Particularly given Comey’s persistent discussion of FBI’s work in terms of “good guys” and “bad guys” — as opposed to criminal behavior — that seems a really pertinent question.

As with James Clapper, Loretta Lynch can’t control Comey

Gorelick (who has been suggested among potential Clinton appointees) and Thompson go easier on Lynch, however, noting that she didn’t order him to stand down here, but ultimately blaming Comey for needing to be ordered.

Attorney General Loretta E. Lynch — nominally Comey’s boss — has apparently been satisfied with advising Comey but not ordering him to abide by the rules. She, no doubt, did not want to override the FBI director in such a highly political matter, but she should not have needed to. He should have abided by the policy on his own.

But since John Cornyn confronted Lynch in March about who would make decisions in this case — “Everyone in the Department of Justice works for me, including the FBI, sir,” Lynch forcefully reminded Cornyn — it has been clear that there’s a lot more tension than the org chart would suggest there should be.

The NYT provides more details on how much tension there is.

The day before the F.B.I. director, James B. Comey, sent a letter to Congress announcing that new evidence had been discovered that might be related to the completed Hillary Clinton email investigation, the Justice Department strongly discouraged the step and told him that he would be breaking with longstanding policy, three law enforcement officials said on Saturday.

Senior Justice Department officials did not move to stop him from sending the letter, officials said, but they did everything short of it, pointing to policies against talking about current criminal investigations or being seen as meddling in elections.

And it’s not just Lynch that has problems managing FBI.

In a response to a question from me in 2014 (after 56:00), Bob Litt explained that FBI’s dual role creates “a whole lot of complications” and went on to admit that the office of Director of National Intelligence — which is supposed to oversee the intelligence community — doesn’t oversee the FBI as directly.

Because FBI is part of the Department of Justice, I don’t have the same visibility into oversight there than I do with respect to the NSA, but the problems are much more complicated because of the dual functions of the FBI.

Litt said something similar to me in May when we discussed why FBI can continue to present bogus numbers in its legally mandated NSL reporting.

Now these are separate issues (though the Clinton investigation is, after all, a national security investigation into whether she or her aides mishandled classified information). But if neither the DNI nor the AG really has control over the FBI Director, it creates a real void of accountability that has repercussions for a whole lot of issues and, more importantly, people who don’t have the visibility or power of Hillary Clinton.

The FBI breaks the rules all the time by leaking like a sieve

Underlying this entire controversy is another rule that DOJ and FBI claim to abide by but don’t, at all: FBI is not supposed to reveal details of ongoing investigations.

Indeed, according to the NYT, Comey pointed to the certainty that this would leak to justify his Friday letter.

But although Mr. Comey told Congress this summer that the Clinton investigation was complete, he believed that if word of the new emails leaked out — and it was sure to leak out, he concluded — he risked being accused of misleading Congress and the public ahead of an election, colleagues said.

Yet the US Attorney’s Manual, starting with this language on prejudicial information and continuing into several more clauses, makes it clear that these kinds of leaks are impermissible.

At no time shall any component or personnel of the Department of Justice furnish any statement or information that he or she knows or reasonably should know will have a substantial likelihood of materially prejudicing an adjudicative proceeding.

Comey, the boss of all the FBI Agents investigating this case, had another alternative, one he should have exercised months ago when it was clear those investigating this case were leaking promiscuously: demand that they shut up, conduct investigations of who was leaking, and discipline those who were doing so. Those leaks were already affecting election year concerns, but there has been little commentary about how they, too, break DOJ rules.

But instead of trying to get FBI Agents to follow DOJ guidelines, Comey instead decided to violate them himself.

Again, that’s absolutely toxic when discussing an investigation that might affect the presidential election, but FBI’s habitual blabbing is equally toxic for a bunch of less powerful people whose investigative details get leaked by the FBI all the time.

[Update: Jeffrey Toobin addresses the role of leaks more generally here, though he seems to forget that the Hillary investigation is technically a national security investigation. I think it’s important to remember that, especially given Hillary’s campaign focus on why FBI isn’t leaking about the investigation into Trump’s ties to Russia, which would also be a national security investigation.]

Warrantless back door searches do tremendous amounts of damage

Finally, think about the circumstances of the emails behind this latest disclosure.

Reports are currently unclear how much the FBI knows about these emails. The NYT describes that the FBI seized multiple devices in conjunction with the Weiner investigation, including the laptop on which they found these emails.

On Oct. 3, F.B.I. agents seized several electronic devices from Mr. Weiner: a laptop, his iPhone and an iPad that was in large measure used by his 4-year-old son to watch cartoons, a person with knowledge of the matter said. Days later, F.B.I. agents also confiscated a Wi-Fi router that could identify any other devices that had been used, the person said.

While searching the laptop, the agents discovered the existence of tens of thousands of emails, some of them sent between Ms. Abedin and other Clinton aides, according to senior law enforcement officials. It is not clear if Ms. Abedin downloaded the emails to the laptop or if they were automatically backed up there. The emails dated back years, the officials said. Ms. Abedin has testified that she did not routinely delete her emails.

Presumably, the warrant to seize those devices permits the FBI agents to go find any evidence of Weiner sexting women (or perhaps just the young woman in question).

And admittedly, the details NYT’s sources describe involve just metadata: addressing information and dates.

But then, Comey told Congress these emails were “pertinent” to the Clinton investigation, and other details in reports, such as they might be duplicates of emails already reviewed by the FBI, suggest the Weiner investigators may have seen enough to believe they might pertain to the inquiry into whether Clinton and her aides (including Huma) mishandled classified information. Moreover, the FBI at least thinks they will be able to prove there is probable cause to believe these emails may show the mishandling of classified information.

Similarly, there are conflicting stories about whether the Hillary investigation was ever closed, which may arise from the fact that if it were (as Comey had suggested in his first blabby statements), seeking these emails would require further approval to continue the investigation.

The point, though, is that FBI would have had no idea these emails existed were it not for FBI investigators who were aware of the other investigation alerting their colleagues to these emails. This has been an issue of intense litigation in recent years, and I’d love for Huma, after the election, to submit a serious legal challenge if any warrant is issued.

But then, in this case, Huma is being provided far more protection than people swept up in FISA searches, where any content with a target can be searched years into the future without any probable cause or even evidence of wrong-doing. Here, Huma’s emails won’t be accessible for investigative purpose without a warrant (in part because of recent prior litigation in the 2nd Circuit), whereas in the case of emails acquired via FISA, FBI can access the information — pulling it up not just by metadata but by content — with no warrant at all.

[Update: Orin Kerr shares my concerns on this point — with the added benefit that he discusses all the recent legal precedents that may prohibit accessing these emails.]

This is a good example of the cost of such investigations. Because the FBI can and does sweep so widely in searches of electronic communications, evidence from one set of data collection can be used to taint others unrelated to the crime under investigation.

All the people writing scathing emails about Comey’s behavior in this particular matter would like you to believe that this issue doesn’t reflect on larger issues at DOJ. They would like you to believe that DOJ was all pure and good and FBI was well-controlled except for this particular investigation. But that’s simply not the case, and some of these issues go well beyond Comey.

Update: Minor changes were made to this post after it was initially posted.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

Third Presidential Debate — Open Thread

This is an open thread for the third presidential debate between major party candidates. It’s open to topics related to the debate topics and questions; let’s avoid other topics like sports or food, etc., unless they relate directly to the candidates.

Debate location: University of Nevada-Las Vegas, Las Vegas, Nevada

Time: 9:00 p.m. to 10:30 p.m. EDT (Nevada, however, is in MDT.)

Debate moderators: Chris Wallace, Fox News

Participants: Hillary Clinton and Donald Trump (Gary Johnson and Jill Stein did not qualify per Commission on Presidential Debates which organizes these events.)

The format for this debate is the same as the first presidential debate. A 15-minute segment will be dedicated to each of six questions posited by the moderator. Each candidate will have two minutes to respond to each question, with a short rebuttal allotted to each candidate. The moderator will use the balance of time to flesh out additional discussion on the topics.

It’s rumored Trump will try another ‘nuclear winter’ move by inviting guests whose presence may ruffle Clinton. His effort last debate — bringing women who accused Bill Clinton of sexual assault to a panel before and outside of the debate — didn’t appear as effective as he would like. Will he indulge in other threatening body language as he did during the second debate?

Other rumors suggest Clinton may invite members of the Central Park Five to rattle Trump, but this is probably unnecessary as 1) Trump has doubled down on his stupidity about the CP5’s guilt (they were exonerated by DNA evidence), and 2) he’s easy to rattle without any third parties’ assistance.

I don’t know about you but I think I need to stock up on tequila to get through this last gasp.

Blogger since 2002, political activist since 2003, geek since birth. Opinions informed by mixed-race, multi-ethnic, cis-female condition, further shaped by kind friends of all persuasions. Sci-tech frenemy, wannabe artist, decent cook, determined author, successful troublemaker. Mother of invention and two excessively smart-assed young adult kids. Attended School of Hard Knocks; Rather Unfortunate Smallish Private Business School in Midwest; Affordable Mid-State Community College w/evening classes. Self-employed at Tiny Consulting Business; previously at Large-ish Chemical Company with HQ in Midwest in multiple marginalizing corporate drone roles, and at Rather Big IT Service Provider as a project manager, preceded by a motley assortment of gigs before the gig economy was a thing. Blogging experience includes a personal blog at the original blogs.salon.com, managing editor for a state-based news site, and a stint at Firedoglake before landing here at emptywheel as technology’s less-virginal-but-still-accursed Cassandra.