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William Barr Ratchets Up the “Witch Hunt” over an Investigation He Judges to be “Anemic” Given the Threat

Bill Barr hit the right wing news circuit today to make vague claims designed to feed the hoax about inappropriate spying on the Trump campaign. With both the WSJ and Fox, he obfuscated about what led him to ask John Durham to conduct what amounts to at least the third review of the origins of the Russia investigation.

“Government power was used to spy on American citizens,” Mr. Barr told The Wall Street Journal, in his first interview since taking office in February. “I can’t imagine any world where we wouldn’t take a look and make sure that was done properly.”

He added: “Just like we need to ensure that foreign actors don’t influence the outcome of our elections, we need to ensure that the government doesn’t use its powers to put a thumb on the scale.”

[snip]

In his Wednesday interview, he declined to elaborate or offer any details on what prompted his concerns about the genesis of the Russia probe.

[snip]

Mr. Barr wouldn’t specify what pre-election activities he found troubling, nor would he say what information he has reviewed thus far or what it has shown. He said he was surprised that officials have been so far unable to answer many of his questions.

“I have more questions now than when I came in,” he said, but declined to detail them.

Given his inability to point to a reason to start this (aside from Trump’s direct orders), it’s worth looking back at something Barr said in his May 1 Senate Judiciary Committee hearing. Mike Lee attempted to get the Attorney General to substantiate his claim — made on April 10 — that the Trump campaign had been inappropriately spied on. In response, Barr explained his spying comment by suggesting that if the “only intelligence collection that occurred” were the FISA warrant on Carter Page and the use of Stefan Halper to question George Papadopoulos, it would amount to an “anemic” effort given the counterintelligence threat posed.

One of the things I want to look — there are people — many people seem to assume that the only intelligence collection that occurred was a single confidential informant and a FISA warrant. I’d like to find out whether that is, in fact, true. It strikes me as a fairly anemic effort if that was the counterintelligence effort designed to stop the threat as it’s being represented.

Over the course of this exchange, Barr admits he doesn’t know or remember what the Mueller Report says about Carter Page, and Lee displays that he’s unfamiliar with several points about Page in the Mueller Report:

  • The report shows that Page had had two earlier ties to Russian intelligence before joining the Trump campaign, not just the one in 2013
  • After Page’s conversations with Viktor Podobnyy were quoted in the latter’s criminal complaint, Page went to a Russian official at the UN General Assembly and told him he “didn’t do anything” with the FBI
  • Page defended sharing intelligence with people he knew were Russian spies by explaining, “the more immaterial non-public information I give them, the better for this country”
  • Dmitry Peskov was Page’s trip to Moscow in July 2016 and Deputy Prime Minister Arkady Dvorkovich spoke about working with Page in the future
  • Mueller ultimately concluded that “Page’s activities in Russia — as described in his emails with the Campaign — were not fully explained”
  • According to Konstantin Kilimnik, on December 8, 2016 “Carter Page is in Moscow today, sending messages he is authorized to talk to Russia on behalf of DT on a range of issues of mutual interest, including Ukraine”
  • The declinations discussion appears to say Page could have been charged as a foreign agent, but was not

Even with all the details about Page Lee appears to be unfamiliar with, there are more that he cannot know, because they’re protected as grand jury materials.

Which is to say neither of these men knew enough about the investigation on May 1 to be able to explain why Barr needed to do an investigation except that Barr thought not enough spying occurred so he was sure there must be more. Had Barr read the IG Report laying out some of these issues, he would know that the investigation was anemic, in part because on August 15, Peter Strzok lost an argument about how aggressively they should pursue the investigation.

In a text message exchange on August 15, 2016, Strzok told Page, “I want to believe the path you threw out for consideration in Andy’s office—that there’s no way he gets elected—but I’m afraid we can’t take that risk. It’s like an insurance policy in the unlikely event you die before you’re 40….” The “Andy” referred to in the text message appears to be FBI Deputy Director Andrew McCabe. McCabe was not a party to this text message, and we did not find evidence that he received it.

In an interview with the OIG, McCabe was shown the text message and he told us that he did not know what Strzok was referring to in the message and recalled no such conversation. Page likewise told us she did not know what that text message meant, but that the team had discussions about whether the FBI would have the authority to continue the Russia investigation if Trump was elected. Page testified that she did not find a reference in her notes to a meeting in McCabe’s office at that time.

Strzok provided a lengthy explanation for this text message. In substance, Strzok told us that he did not remember the specific conversation, but that it likely was part of a discussion about how to handle a variety of allegations of “collusion between members of the Trump campaign and the government of Russia.” As part of this discussion, the team debated how aggressive to be and whether to use overt investigative methods. Given that Clinton was the “prohibitive favorite” to win,

Strzok said that they discussed whether it made sense to compromise sensitive sources and methods to “bring things to some sort of precipitative conclusion and understanding.” Strzok said the reference in his text message to an “insurance policy” reflected his conclusion that the FBI should investigate the allegations thoroughly right away, as if Trump were going to win. Strzok stated that Clinton’s position in the polls did not ultimately impact the investigative decisions that were made in the Russia matter.

So the investigation was anemic, and it was anemic because the guy Lee blames for unfairly targeting Trump wasn’t permitted to investigate as aggressively as he believed it should be investigated.

In the exchange, Barr also says he doesn’t want to get into the “FISA issue,” on account of the IG investigation into it — which would seem to leave just the Halper-Papadopoulos exchange to investigate.

DOJ’s IG has probably given the initial results of its investigation into FISA to FBI. I say that because of Chris Wray’s objection to the use of the word “spying” to describe predicated surveillance, Trump’s attack on Wray because of it, and the unsealing of the names of additional people at the FBI involved in interviewing Mike Flynn — Mike Steinbach, Bill Priestap, James Baker — as well as Principal Associate Deputy Attorney General Matt Axelrod in two of the documents tied to his sentencing released last night. That would suggest there’s nothing substantive there (which is not surprising, given how much more damning the information about Page is than we previously knew).

Which would mean the biggest reason Barr is starting this witch hunt is that the investigation was so anemic to begin with.

The Dossier Is Not the Measure of the Trump-Russia Conspiracy

It seems like the whole world has decided to measure Trump’s conspiracy with Russia not from the available evidence, but based on whether the Steele dossier correctly predicted all the incriminating evidence we now have before us.

The trend started with NPR. According to them (or, at least, NPR’s Phillip Ewing doing a summary without first getting command of the facts), if Michael Cohen didn’t coordinate a Tower-for-sanctions-relief deal from Prague, then such a deal didn’t happen. That’s the logic of a column dismissing the implications of the recent Cohen allocution showing that when Don Jr took a meeting offering dirt on Hillary as “part of Russia and its government’s support for Mr. Trump,” he knew his family stood to make hundreds of millions if they stayed on Vladimir Putin’s good side.

Item: Cohen ostensibly played a key role in the version of events told by the infamous, partly unverified Russia dossier. He denied that strongly to Congress. He also has admitted lying to Congress and submitted an important new version of other events.

But that new story didn’t include a trip to Prague, as described in the dossier. Nor did Cohen discuss that in his interview on Friday on ABC News. Could the trip, or a trip, still be substantiated? Yes, maybe — but if it happened, would a man go to prison for three years without anyone having mentioned it?

As I noted, Mueller laid out the following in the unredacted summary of Cohen’s cooperation.

Consider this passage in the Mueller Cohen sentencing memo.

The defendant’s false statements obscured the fact that the Moscow Project was a lucrative business opportunity that sought, and likely required, the assistance of the Russian government. If the project was completed, the Company could have received hundreds of millions of dollars from Russian sources in licensing fees and other revenues. The fact that Cohen continued to work on the project and discuss it with Individual 1 well into the campaign was material to the ongoing congressional and SCO investigations, particularly because it occurred at a time of sustained efforts by the Russian government to interfere with the U.S. presidential election. Similarly, it was material that Cohen, during the campaign, had a substantive telephone call about the project with an assistant to the press secretary for the President of Russia.

Cohen’s lies, aside from attempting to short circuit the parallel Russian investigations, hid the following facts:

  • Trump Organization stood to earn “hundreds of millions of dollars from Russian sources” if the Trump Tower deal went through.
  • Cohen’s work on the deal continued “well into the campaign” even as the Russian government made “sustained efforts … to interfere in the U.S. presidential election.”
  • The project “likely required[] the assistance of the Russian government.”
  • “Cohen [during May 2016] had a substantive telephone call about the project with an assistant to the press secretary for the President of Russia [Dmitri Peskov].”

But because the new Cohen details (along with the fact that he booked tickets for St. Petersburg the day of the June 9 meeting, only to cancel after the Russian hack of the DNC became public) didn’t happen in Prague, it’s proof, according to NPR, that there is no collusion. [Note, NPR has revised this lead and added an editors note labeling this piece as analysis, not news.]

Political and legal danger for President Trump may be sharpening by the day, but the case that his campaign might have conspired with the Russian attack on the 2016 election looks weaker than ever.

There are other errors in the piece. It claims “Manafort’s lawyers say he gave the government valuable information,” but they actually claimed he didn’t lie (and it doesn’t note that the two sides may have gone back to the drawing board after that public claim). Moreover, the column seems to entirely misunderstand that Manafort’s plea (would have) excused him from the crimes in chief, which is why they weren’t charged. Nor does it acknowledge the details from prosecutors list of lies that implicate alleged GRU associate Konstantin Kilimnik in an ongoing role throughout Trump’s campaign.

Then there’s the NPR complaint that Mike Flynn, after a year of cooperation, is likely to get no prison time. It uses that to debunk a straw man that Flynn was a Russian foreign agent.

Does that sound like the attitude they would take with someone who had been serving as a Russian factotum and who had been serving as a foreign agent from inside the White House as national security adviser, steps away from the Oval Office?

That’s never been the claim (though the Russians sure seemed like they were cultivating it). Rather, the claim was that Flynn hid details of Trump’s plans to ease sanctions, an easing of sanctions Russians had asked Don Jr to do six months earlier in a meeting when they offered him dirt. The 302 from his FBI interview released last night makes it clear that indeed he did.

Finally, NPR is sad that Carter Page hasn’t been charged.

Will the feds ever charge Trump’s sometime foreign policy adviser, Carter Page, whom they called a Russian agent in the partly declassified application they made to surveil him?

This is not a checklist, where Trump will be implicated in a conspiracy only if the hapless Page is indicted (any case against whom has likely been spoiled anyway given all the leaking). The question, instead, is whether Trump and his spawn and campaign manager and longtime political advisor (the piece names neither Don Jr nor Roger Stone, both of whom have been saying they’ll be indicted) entered into a conspiracy with Russians.

In short, this piece aims to measure whether there was “collusion” not by looking at the evidence, but by looking instead at the Steele dossier to see if it’s a mirror of the known facts.

But NPR isn’t the only outlet measuring reality by how it matches up to the Steele dossier. This piece describes that Michael Isikoff thinks, “All the signs to me are, Mueller is reaching his end game, and we may see less than what many people want him to find,” in part because of the same three points made in the NPR piece (Cohen didn’t go to Prague, no pee tape has been released, and Flynn will get no prison time), but also because Maria Butina — whose investigation was not tied to the Trump one, but whom Isikoff himself had claimed might be — will mostly implicate her former boyfriend, Paul Erickson. In the interview, Isikoff notes that because the dossier has not been corroborated, calling it a “mixed record, at best … most of the specific allegations have not been borne out” and notes his own past predictions have not been fulfilled.  Perhaps Isikoff’s reliance on the dossier arises from his own central role in it, but Isikoff misstates some of what has come out in legal filings to back his claim that less will come of the Mueller investigation than he thought.

Then there is Chuck Ross. Like Isikoff, Ross has invested much of his investigative focus into the dossier, and thus is no better able than Isikoff to see a reality but for the false mirror of the dossier. His tweet linking a story laying out more evidence that Michael Cohen did not go to Prague claims that that news is “a huge blow for the collusion narrative.”

Even when Ross wrote a post pretending to assess whether the Michael Cohen plea allocution shows “collusion,” Ross ultimately fell back on assessing whether the documents instead proved the dossier was true.

Notably absent from the Mueller filing is any indication that Cohen provided information that matches the allegations laid out in the Steele dossier, the infamous document that Democrats tout as the roadmap to collusion between the Trump campaign and Russian government.

The most prominent allegation against Cohen in the 35-page report is that he traveled to Prague in August 2016 to meet with Kremlin insiders to discuss paying off hackers who stole Democrats’ emails.

The Isikoff comments appear to have traveled via Ross to Trump’s Twitter thumbs, all without assessing the evidence in plain sight.

Meanwhile, Lawfare is erring in a parallel direction, checking on the dossier to see “whether information made public as a result of the Mueller investigation—and the passage of two years—has tended to buttress or diminish the crux of Steele’s original reporting.”

Such an exercise is worthwhile, if conducted as a measure of whether Christopher Steele obtained accurate intelligence before it otherwise got reported by credible, public sources. But much of what Lawfare does does the opposite — assessing reports (it even gets the number of reports wrong, saying there are 16, not 17, which might be excusable if precisely that issue hadn’t been the subject of litigation) out of context of when they were published. Even still, aside from Steele’s reports on stuff that was already public (Carter Page’s trip to Moscow, Viktor Yanukovych’s close ties to Paul Manafort), the post reaches one after another conclusion that the dossier actually hasn’t been confirmed.

There’s the 8-year conspiracy of cooperation, including Trump providing Russia intelligence. [my emphasis throughout here]

Most significantly, the dossier reports a “well-developed conspiracy of co-operation between [Trump and his associates] and the Russian leadership,” including an “intelligence exchange [that] had been running between them for at least 8 years.” There has been significant investigative reporting about long-standing connections between Trump, his associates and Kremlin-affiliated individuals, and Trump himself acknowledged that the purpose of a June 2016 meeting between his son, Donald Trump Jr. and a Kremlin-connected lawyer was to obtain “dirt” on Hillary Clinton. But there is, at present, no evidence in the official record that confirms other direct ties or their relevance to the 2016 presidential campaign.

There’s the knowing support for the hack-and-leak among Trump and his top lackeys.

It does not, however, corroborate the statement in the dossier that the Russian intelligence “operation had been conducted with the full knowledge and support of Trump and senior members of his campaign team.”

There’s Cohen’s Trump Tower deal.

These documents relate to Cohen’s false statements to Congress regarding attempted Trump Organization business dealings in Russia. The details buttress Steele’s reporting to some extent, but mostly run parallel, neither corroborating nor disproving information in the dossier.

There’s Cohen’s role in the hack-and-leak, including his trip to Prague.

Even with the additional detail from the Cohen documents, certain core allegations in the dossier related to Cohen—which, if true, would be of utmost relevance to Mueller’s investigation—remain largely unconfirmed, at least from the unredacted material. Specifically, the dossier reports that there was well-established, continuing cooperation between the Trump campaign and the Kremlin; that Cohen played a central role in the coordination of joint efforts; and that he traveled to Prague to meet with Russian officials and cut-outs.

There’s Papadopoulos, who (as Lawfare admits) doesn’t show up in the dossier; here they argue he could have, without asking why Steele missed him running around London talking to people who traveled in Steele’s circles.

We revisit his case because it resonates with one of the themes of the dossier, which is the extensive Russian outreach effort to an array of individuals connected to the Trump campaign. Steele’s sources reported on alleged interactions between Carter Page and Russian officials, but Papadopoulos’s conduct would have fit right in.

Again, except for the stuff that was publicly known, Lawfare assesses one after another claim from the dossier and finds that Mueller’s investigation has not corroborated the specific claims, even while Mueller has provided ample evidence of something else going on. But that doesn’t stop Lawfare from claiming that Mueller has “confirm[ed] pieces of the dossier.”

The Mueller investigation has clearly produced public records that confirm pieces of the dossier. And even where the details are not exact, the general thrust of Steele’s reporting seems credible in light of what we now know about extensive contacts between numerous individuals associated with the Trump campaign and Russian government officials.

However, there is also a good deal in the dossier that has not been corroborated in the official record and perhaps never will be—whether because it’s untrue, unimportant or too sensitive. As a raw intelligence document, the Steele dossier, we believe, holds up well so far. But surely there is more to come from Mueller’s team. We will return to it as the public record develops.

In the end, I actually think Mueller may show that Trump, Stone, and Manafort did abet the hack-and-leak campaign, certainly the later parts of it, and that the Trump Tower deal was a key part of the quid pro quo. That’s aside from anything that Trump did with analytics data made available, if it was. But Mueller has just shown the outlines of where a case in chief might fit thus far. And where has has, those outlines raise one after another question of why Steele missed evidence (like the June 9 meeting) that was literally sitting in front of him. No one is answering those questions in these retrospectives.

One reason this effort, coming from Lawfare, is particularly unfortunate is because of a detail recently disclosed in Comey’s recent testimony to Congress. As you read, remember that this exchange involves Mark Meadows, who is the source of many of the most misleading allegations pertaining to the Russian investigation. In Comey’s first appearance this month (given Comey’s comments after testifying yesterday, I expect we’ll see more of the same today when his transcript is released), Meadows seemed to make much of the fact that Michael Sussman, who works with Marc Elias at Perkins Coie, provided information directly to Lawfare contributor James Baker.

Mr. Meadows. So are you saying that James Baker, your general counsel, who received direct information from Perkins Coie, did so and conveyed that to your team without your knowledge?

Mr. Comey. I don’t know.

Mr. Meadows. What do you mean you don’t know? I mean, did he tell you or not?

Mr. Comey. Oh, I — well —

Mr. Meadows. James Baker, we have testimony that would indicate that he received information directly from Perkins Coie; he had knowledge that they were representing the Democrat National Committee and, indeed, collected that information and conveyed it to the investigative team. Did he tell you that he received that information from them? And I can give you a name if you want to know who he received it from.

Mr. Comey. I don’t remember the name Perkins Coie at all.

Mr. Meadows. What about Michael Sussmann?

Mr. Comey. I think I’ve read that name since then. I don’t remember learning that name when I was FBI Director. I was going to ask you a followup, though. When you say “that information,” what do you mean?

Mr. Meadows. Well, it was cyber information as it relates to the investigation.

Mr. Comey. Yeah, I have some recollection of Baker interacting with — you said the DNC, which sparked my recollection — with the DNC about our effort to get information about the Russian hack of them —

Mr. Meadows. Yeah, that’s — that’s not — that’s not what I’m referring to.

Mr. Comey. — but I don’t — I don’t remember anything beyond that.

Mr. Meadows. And so I can give you something so that you — your counsel can look at it and refresh your memory, perhaps, as we look at that, but I guess my concern is your earlier testimony acted like this was news to you that Perkins Coie represented the Democratic National Committee, and yet your general counsel not only knew that but received information from them that was transmitted to other people in the investigative team. [my emphasis]

I have long wondered how the Perkins Coie meeting with the FBI on the hack timed up with the hiring, by Fusion GPS working for Perkins Coie, of Christopher Steele lined up, and that appears to be where Meadows is going to make his final, desperate stand. An earlier version of this hoax revealed that it pertained to materials on hacking, but did not specify that Steele had anything to do with it (indeed, Steele was always behind public reporting on the hack-and-leak).

Still, it would be of more public utility for Lawfare to clarify this detail than engage in yet another exercise in rehabilitating the dossier.

Instead, they — just like everyone else choosing not to look for evidence (or lack thereof) in the actual evidence before us — instead look back to see whether Steele’s dossier was a mirror of reality or something else entirely. If it’s the latter — and it increasingly looks like it is — then it’s time to figure out how and what it is.

Update: Cheryl Rofer did a line by line assessment of Steele’s dossier which is worthwhile. I would dispute a number of her claims (and insist that Steele’s reporting on the hacks be read in the temporal context in which he always lagged public reporting) and wish she’d note where the public record shows facts that actually conflict with the dosser. But it is a decent read.

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

James Baker Channels a Road Map He and Comey and Andrew McCabe Might Navigate

Some weeks ago, I used Leon Jaworski’s Road Map to imagine what an equivalent Robert Mueller Road Map, packaging grand jury information to share with the House Judiciary Committee, might look like.

Among other things I showed the close parallel between John Dean’s attempt to craft a cover story and Don McGahn’s attempts to do the same. That section included how Nixon worked Henry Petersen, then Assistant Attorney General for Criminal Division, to try to influence the investigation.

After substantiating what would have been the indictment against Nixon, the Watergate Road Map showed how Nixon had John Dean and others manufacture a false exonerating story. The Road Map cited things like:

  • Nixon’s public claims to have total confidence in John Dean
  • Nixon’s efforts to falsely claim to the Attorney General, Richard Kleindienst, that former AG John Mitchell might be the most culpable person among Nixon’s close aides
  • Nixon’s instructions to his top domestic political advisor, John Ehrlichman, to get involved in John Dean’s attempts to create an exculpatory story
  • Press Secretary Ron Ziegler’s public lies that no one knew about the crime
  • Nixon’s efforts to learn about what prosecutors had obtained from his close aides
  • Nixon’s private comments to his White House Counsel to try to explain away an incriminating comment
  • Nixon’s ongoing conversations with his White House Counsel about what he should say publicly to avoid admitting to the crime
  • Nixon’s multiple conversations with top DOJ official Henry Petersen, including his request that Petersen not investigate some crimes implicating the Plumbers
  • Nixon’s orders to his Chief of Staff, HR Haldeman, to research the evidence implicating himself in a crime

This is an area where there are multiple almost exact parallels with the investigation into Trump, particularly in Don McGahn’s assistance to the President to provide bogus explanations for both the Mike Flynn and Jim Comey firings — the former of which involved Press Secretary Sean Spicer and Chief of Staff Reince Priebus, the latter of which involved Trump’s top domestic political advisor Stephen Miller. There are also obvious parallels between the Petersen comments and the Comey ones. Finally, Trump has made great efforts to learn via Devin Nunes and other House allies what DOJ has investigated, including specifically regarding the Flynn firing.

One key point about all this: the parallels here are almost uncanny. But so is the larger structural point. These details did not make the draft Nixon indictment. There were just additional proof of his cover-up and abuse of power. The scope of what HJC might investigate regarding presidential abuse is actually broader than what might be charged in an indictment.

The equivalent details in the Mueller investigation — particularly the Comey firing — have gotten the bulk of the press coverage (and at one point formed a plurality of the questions Jay Sekulow imagined Mueller might ask). But the obstruction was never what the case in chief is, the obstruction started when Trump found firing Flynn to be preferable to explaining why he instructed Flynn, on December 29, to tell the Russians not to worry about Obama’s sanctions. In the case of the Russia investigation, there has yet to be an adequate public explanation for Flynn’s firing, and the Trump team’s efforts to do so continue to hint at the real exposure the President faces on conspiracy charges. [my emphasis]

Another section showed how Nixon was commenting on what he had said to Petersen and Attorney General Kleindienst was like Trump’s comments on Jim Comey and other DOJ officials.

That was all written from the outside.

Today, former FBI General Counsel James Baker performs the same task. He doesn’t describe the effort as such. Rather, he just says he finds certain things — particularly those having to do with Henry Petersen — attracted his (and Sarah Grant’s, with whom he wrote this) attention.

One of the aspects of the recently released Watergate “road map” and related documents that attracted our attention is the set of materials pertaining to interactions, direct and indirect, between President Richard M. Nixon and two senior Department of Justice officials.

The whole post starts with a description of how Petersen told Nixon that Haldeman and Ehrlichman were implicated in the break-in and advised him to fire them, only to have the President respond that he would not.

One of the officials later testified: “He said he couldn’t believe it. You know, just these are fine upstanding guys. Just couldn’t be, you know.” He impressed on the president, “We are here to alert you. We think we’ve got something. We could be wrong, but we are telling you it’s time for you to move to protect yourself and the presidency.” And he urged the president to “get rid” of the staffers in question; the president responded, “‘Yeah, and I don’t think I should. I’ve got to think about this and that and a thousand other things.’”

The parallel here, of course, is Mike Flynn, whom Sally Yates recommended Trump fire, but whom Trump kept on for almost two weeks because he had ordered him to engage in the suspect behavior in question.

The post goes on to describe how Nixon got that top DOJ figure to provide information on a DOJ investigation investigating him personally.

In addition, on two occasions President Nixon asked Petersen for written summaries of aspects of the Justice Department’s investigation, including information regarding Haldeman and Ehrlichman: “[H]e asked for a full exposition. Having got into it this far, he felt he needed all the information, and I said I would undertake to . . . try to do that.” The president asked Petersen “to be kept informed of these things” but did not expect Petersen to divulge grand jury material. Petersen said that he ultimately determined that he could not provide any additional information at that time because it would have involved disclosing grand jury material; the president accepted that conclusion. In the following two weeks, however, Petersen did provide the president with “very general” information about the investigation, and the president on one occasion asked him, “‘Well, what else is new?’”

According to the president’s logs, between March 13, 1973, and April 30, 1973, President Nixon had seven meetings and initiated 19 phone calls with Petersen. These calls included four on April 15, 1973, after Kleindienst and Petersen met with the president to recommend that he fire Haldeman and Ehrlichman, including one call from 11:45 p.m. to 11:53 p.m. It is difficult to recount concisely the details of all of these communications to the extent that they are reflected in the information that we reviewed. Suffice it to say that these communications and other information in the attachments to the road map indicate that the Justice Department provided the White House with certain information about the course of the investigation on an ongoing basis.

The president, in short, was using a senior Justice Department official to gather intelligence about an ongoing criminal investigation in which he was personally implicated.

The post also explains how Nixon tried to influence Petersen to speed up the investigation and by offering promotions.

On at least one occasion, President Nixon commented to Petersen on the pace of the investigation. Petersen testified: “Well, there was some discussion about the need for, you know—‘Hurry up and get this over with.’ ‘Yes. We’ll make haste as reasonably as we can.’”

President Nixon also discussed Petersen’s future role with him, as they concurrently discussed a live investigative matter. Petersen testified: “there were statements, during the course of the President’s conversations with me, ‘Now, you’ll have to serve as White House counsel,’ or, ‘You’re the adviser to the President now,’ which I, frankly, thought was a little heavy handed.”

It lays out how Nixon asked the top DOJ official whether he, personally, was under investigation.

Similarly, the Watergate Task Force report referenced above states that on April 27, 1973, “the President asked Petersen if he had any information implicating the President himself. Petersen said he did not.” The president, in other words, was asking the head of the Criminal Division whether he was personally under investigation.

And then it shows how HJC included such abuses in its articles of impeachment.

How was all of this presidential contact with the Justice Department understood in the context of Watergate? Pretty harshly. For example, Article II, paragraph 5, of the House Judiciary Committee’s July 27, 1974, Articles of Impeachment states in part that President Nixon:

In disregard of the rule of law, . . . knowingly misused the executive power by interfering with agencies of the executive branch, including the Federal Bureau of Investigation, the Criminal Division, and the Office of Watergate Special Prosecution Force, of the Department of Justice, and the Central Intelligence Agency, in violation of his duty to take care that the laws be faithfully executed.

President Nixon resigned on Aug. 9, 1974, and was pardoned by President Gerald Ford on Sept. 8, 1974.

As I noted in the post where I drew these parallels, we’re not in 1974 anymore, and there are a lot of reasons to doubt Trump will be impeached for acting in a similar manner as Nixon did.

But James Baker definitely seems to think the parallels are there.

Homeland Security Chair Ron Johnson Thinks It Scandalous that Lawyer of Hacking Victim Talks to FBI about Hack

In the never-ending scandal industry of Republican members of Congress trying to make a huge deal out of the fucking Steele dossier, Senate Homeland Security Chair Ron Johnson is demanding that Christopher Wray provide more information (including on the John Doe investigations into Scott Walker’s corruption in WI). Johnson never went to such lengths to obtain information from the FBI during the investigation of the Boston Marathon bombing, but I guess he has different priorities.

Among the things he’s demanding are details of a conversation that Perkins Coie attorney Michael Sussmann had with then FBI General Counsel James Baker.

According to public reports, former FBI General Counsel James Baker met with Michael Sussman, [sic] an attorney with the Perkins Coie law firm, which retained Fusion GPS in 2016 to research allegations about then-candidate Donald Trump. Fusion GPS hired Christopher Steele, author of the Steele dossier–and Mr. Sussman allegedly provided the FBI with information “related to Russian interference in the election, hacking and possible Trump connections.”

The John Solomon piece that has gotten Ron Johnson all hot and bothered about this contact says that Sussmann gave Baker some materials on Russian hacking and possible Trump connections with it.

Baker identified lawyer Michael Sussman, [sic] a former DOJ lawyer, as the Perkins Coie attorney who reached out to him and said the firm gave him documents and a thumb drive related to Russian interference in the election, hacking and possible Trump connections.

Michael Sussmann has been publicly identified as the person that helped the DNC respond to the Russian hack since June 14, 2016, the day the hack first became public.

Chief executive Amy Dacey got a call from her operations chief saying that their information technology team had noticed some unusual network activity.

“It’s never a call any executive wants to get, but the IT team knew something was awry,” ­Dacey said. And they knew it was serious enough that they wanted experts to investigate.

That evening, she spoke with Michael Sussmann, a DNC lawyer who is a partner with Perkins Coie in Washington. Soon after, Sussmann, a former federal prosecutor who handled computer crime cases, called Henry, whom he has known for many years.

His role in helping the DNC help respond to the hack was further described by the NYT’s magnum opus on it.

No one knew just how bad the breach was — but it was clear that a lot more than a single filing cabinet worth of materials might have been taken. A secret committee was immediately created, including Ms. Dacey, Ms. Wasserman Schultz, Mr. Brown and Michael Sussmann, a former cybercrimes prosecutor at the Department of Justice who now works at Perkins Coie, the Washington law firm that handles D.N.C. political matters.

“Three most important questions,” Mr. Sussmann wrote to his clients the night the break-in was confirmed. “1) What data was accessed? 2) How was it done? 3) How do we stop it?”

Mr. Sussmann instructed his clients not to use D.N.C. email because they had just one opportunity to lock the hackers out — an effort that could be foiled if the hackers knew that the D.N.C. was on to them.

“You only get one chance to raise the drawbridge,” Mr. Sussmann said. “If the adversaries know you are aware of their presence, they will take steps to burrow in, or erase the logs that show they were present.”

The D.N.C. immediately hired CrowdStrike, a cybersecurity firm, to scan its computers, identify the intruders and build a new computer and telephone system from scratch. Within a day, CrowdStrike confirmed that the intrusion had originated in Russia, Mr. Sussmann said.

The NYT even describes Sussmann and DNC executives meeting with “senior F.B.I. officials” — a description that would fit the FBI’s General Counsel, Baker, whom Sussman would have known from when they worked on national security cases at DOJ together.

The D.N.C. executives and their lawyer had their first formal meeting with senior F.B.I. officials in mid-June, nine months after the bureau’s first call to the tech-support contractor. Among the early requests at that meeting, according to participants: that the federal government make a quick “attribution” formally blaming actors with ties to Russian government for the attack to make clear that it was not routine hacking but foreign espionage.

“You have a presidential election underway here and you know that the Russians have hacked into the D.N.C.,” Mr. Sussmann said, recalling the message to the F.B.I. “We need to tell the American public that. And soon.”

In other words, there has been public reporting for years that Sussmann spoke to the FBI, reporting that even explains why he was involved — because he was the guy with experience working on cybersecurity. But in spite of that, the Chair of one of the committees most centrally involved in cybersecurity is now suggesting that victims of nation-state hacking and their lawyers should not talk to the FBI about that hacking.

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

Did the FBI Have a Chance to Fix Their Lies about Encryption in 2016?

The WaPo reports that the FBI has been presenting grossly inflated numbers describing how many devices it can’t open because of encryption. The error stems, the FBI claims, to a “programming” error that actually sounds like an analytical error: the double or triple counting of the same encrypted phones.

Over a period of seven months, FBI Director Christopher A. Wray cited the inflated figure as the most compelling evidence for the need to address what the FBI calls “Going Dark” — the spread of encrypted software that can block investigators’ access to digital data even with a court order.

The FBI first became aware of the miscount about a month ago and still does not have an accurate count of how many encrypted phones they received as part of criminal investigationslast year, officials said. Last week, one internal estimate put the correct number of locked phones at 1,200, though officials expect that number to change as they launch a new audit, which could take weeks to complete, according to people familiar with the work.

“The FBI’s initial assessment is that programming errors resulted in significant over-counting of mobile devices reported,’’ the FBI said in a statement Tuesday. The bureau said the problem stemmed from the use of three distinct databases that led to repeated counting of phones. Tests of the methodology conducted in April 2016 failed to detect the flaw, according to people familiar with the work.

I find the April 2016 failed test suspicious.

To know why, consider this bit of history. Back in 2015, in the wake of Apple making encryption standard, Jim Comey and Sally Yates made a big pitch for back doors. But when Al Franken asked them, they admitted the FBI didn’t actually know how big the problem is.

Over an hour and a quarter into the SJC hearing, Al Franken asked for actual data demonstrating how big of a problem encryption really is. Yates replied that the government doesn’t track this data because once an agency discovers they’re targeting a device with unbreakable encryption, they use other means of targeting. (Which seems to suggest the agencies have other means to pursue the targets, but Yates didn’t acknowledge that.) So the agencies simply don’t count how many times they run into encryption problems. “I don’t have good enough numbers yet,” Comey admitted when asked again at the later hearing about why FBI can’t demonstrate this need with real data.

Nevertheless, in spite of Congress’ request for real numbers in July 2015, in January 2016 — just as some at FBI were trying to create an excuse to force Apple to open Syen Rizwan Farook’s phone — Comey and Yates admitted they still hadn’t started tracking numbers.

Around January 26, 2016 (that’s the date shown for document creation in the PDF) — significantly, right as FBI was prepping to go after Syed Rizwan Farook’s phone, but before it had done so — Comey and Yates finally answered the Questions for the Record submitted after the hearing. After claiming, in a response to a Grassley question on smart phones, “the data on the majority of the devices seized in the United States may no longer be accessible to law enforcement even with a court order or search warrant,” Comey then explained that they do not have the kind of statistical information Cy Vance claims to keep on phones they can’t access, explaining (over five months after promising to track such things),

As with the “data-in-motion” problem, the FBI is working on improving enterprise-wide quantitative data collection to better explain the “data-at-rest” problem.”

[snip]

As noted above, the FBI is currently working on improving enterprise-wide quantitative data collection to better understand and explain the “data at rest” problem. This process includes adopting new business processes to help track when devices are encountered that cannot be decrypted, and when we believe leads have been lost or investigations impeded because of our inability to obtain data.

[snip]

We agree that the FBI must institute better methods to measure these challenges when they occur.

[snip]

The FBI is working to identify new mechanisms to better capture and convey the challenges encountered with lawful access to both data-in-motion and data-at =-rest.

Grassley specifically asked Yates about the Wiretap report. She admitted that DOJ was still not collecting the information it promised to back in July.

The Wiretap Report only reflects the number of criminal applications that are sought, and not the many instances in which an investigator is dissuaded from pursuing a court order by the knowledge that the information obtained will be encrypted and unreadable. That is, the Wiretap Report does not include statistics on cases in which the investigator does not pursue an interception order because the provider has asserted that an intercept solution does not exist. Obtaining a wiretap order in criminal investigations is extremely resource-intensive as it requires a huge investment in agent and attorney time, and the review process is extensive. It is not prudent for agents and prosecutors to devote resources to this task if they know in advance the targeted communications cannot be intercepted. The Wiretap Report, which applies solely to approved wiretaps, records only those extremely rare instances where agents and prosecutors obtain a wiretap order and are surprised when encryption prevents the court-ordered interception. It is also important to note that the Wiretap Report does not include data for wiretaps authorized as part of national security investigations.

These two answers lay out why the numbers in the Wiretap Report are of limited value in assessing how big a problem encryption is.

Significantly, Comey and Yates offered these answers in response to a Chuck Grassley question about whether they believed, as the corrupt Cy Vance had claimed in Senate testimony, that “71% of all mobile devices examined…may be outside the reach of a warrant.”

The number FBI is now trying to correct was “more than half,” inching right up towards that 71% Vance floated years ago. In other words, this faulty methodology got them to where they needed to go.

I find that all the more suspicious given something that happened later in 2016. As soon as Jim Comey started providing numbers in August 2016, back when they showed 13% of phones could not be accessed, I asked how FBI came up with the number. At the time, a spox admitted that the number included more than encrypted phones — it also included deleted or destroyed phones.

It is a reflection of data on the number of times over the course of each quarter this year that the FBI or one of our law enforcement partners (federal, state, local, or tribal) has sought assistance from FBI digital forensic examiners with respect to accessing data on various mobile devices where the device is locked, data was deleted or encrypted, the hardware was damaged, or there were other challenges with accessing the data. I am not able to break that down by crime type.

That is, in September 2016, five months after FBI failed to find their flawed methodology, an FBI spox told me the number used was not an accurate count of how many phones couldn’t be accessed because of encryption.

When then FBI General Counsel James Baker used the same 13% a few months later, claiming all were encrypted, I checked back. The same spox said the number at that point was just encrypted phones.

It is true that damaged devices are provided to CART and RCFL for FBI assistance, but the 886 devices in FY16 that the FBI was not able to access (which is the number that GC Baker provided last week), does not include those damaged devices. It includes only those devices for which we encountered a password we were not able to bypass.

Now, it’s possible that the methodological problem I identified in 2016 — that their “Going Dark” number actually included phones they couldn’t access for entirely different reasons — was a different problem than the one just identified a month ago (just before Baker retired). Certainly, it doesn’t sound like the same problem (though as I reminded someone from DOJ’s IG some time ago, the forensics labs sending in these numbers have a history of unreliable numbers). That said, given the proliferation of chat apps with disappearing messages that amount to “destroyed” evidence — which under the flawed methodology used in 2016 would be counted as an encryption problem — it could be.

Still, what I identified in September 2016 was a methodological problem. It should have triggered a closer look at the time.

Instead, the FBI has been lying about how bad the Going Dark problem is for another year and a half.

On McCabe’s Firing

I’m going to refrain from making any conclusions about Andy McCabe’s firing until we have the Inspector General Report that underlies it. For now (update: I’ve now cleaned this up post-Yoga class), keep the following details in mind:

Michael Horowitz is a very good Inspector General

The allegations that McCabe lacked candor in discussions about his communications with Devlin Barrett all arise out of an investigation Democrats demanded in response to FBI’s treatment of the investigation into Hillary Clinton. It is being led by DOJ’s Inspector General, Michael Horowitz. Horowitz was nominated by Barack Obama and confirmed while Democrats still had the majority, in 2012.

I’ve never seen anything in Horowitz’ work that suggests he is influenced by politics, though he has shown an ability to protect his own department’s authority, in part by cultivating Congress. Of significant note, he fought with FBI to get the information his investigators needed to do the job, but was thwarted, extending into Jim Comey’s tenure (as I laid out in a fucking prescient post written on November 3, 2016).

As I’ve long covered, in 2010, the FBI started balking at the Inspector General’s proper investigative demands. Among other things, the FBI refused to provide information on grand jury investigations unless some top official in FBI said that it would help the FBI if the IG obtained it. In addition, the FBI (and DEA) have responded to requests very selectively, pulling investigations they don’t want to be reviewed. In 2014, the IG asked OLC for a memo on whether it should be able to get the information it needs to do its job. Last year, OLC basically responded, Nope, can’t have the stuff you need to exercise proper oversight of the FBI.

DOJ’s Inspector General, Michael Horowitz, has been trying for some time to get Congress to affirmatively authorize his office (and IGs generally, because the problem exists at other agencies) to receive the information he needs to do his job. But thus far — probably because Jim Comey used to be known as the world’s biggest Boy Scout — Congress has failed to do so.

I care about how FBI’s misconduct affects the election (thus far, polling suggests it hasn’t done so, though polls are getting closer as Republican Gary Johnson supporters move back to supporting the GOP nominee, as almost always happens with third party candidates). But I care even more about how fucked up the FBI is. Even if Comey is ousted, I can’t think of a likely candidate that could actually fix the problems at FBI. One of the few entities that I think might be able to do something about the stench at FBI is the IG.

Except the FBI has spent 6 years making sure the IG can’t fully review its conduct.

So while I don’t think he’d be motivated by politics, he has had a running fight with top FBI officials about their willingness to subject FBI to scrutiny for the entirety of the Comey tenure.

McCabe has suggested that the investigation into him was “accelerated” only after he testified to the House Intelligence Committee that he would corroborate Jim Comey’s version of his firing.

I am being singled out and treated this way because of the role I played, the actions I took, and the events I witnessed in the aftermath of the firing of James Comey. The release of this report was accelerated only after my testimony to the House Intelligence Committee revealed that I would corroborate former Director Comey’s accounts of his discussions with the President. The OIG’s focus on me and this report became a part of an unprecedented effort by the Administration, driven by the President himself, to remove me from my position, destroy my reputation, and possibly strip me of a pension that I worked 21 years to earn. The accelerated release of the report, and the punitive actions taken in response, make sense only when viewed through this lens.

I’m not sure this timeline bears out (the investigation was supposed to be done last year, but actually got extended into this year). The statement stops short of saying that he was targeted because his testimony — presumably already delivered to Robert Mueller by the time of his HPSCI testimony — corroborated Comey’s.

What we’ve seen of the other personnel moves as a result of this investigation — the reassignment of Peter Strzok and Lisa Page for texts that really did raise conflict issues (to say nothing of operational security problems), and the reassignment of James Baker — seem reasonable. McCabe’s firing was reviewed by a whole bunch of people who have been around DOJ a long time.

So it’s possible the underlying claim has merit. It’s also possible that McCabe is getting the same punishment that a line agent would get if he did not answer the IG honestly.

Trump’s comments matter

Obviously, all that cannot be taken out of context of Trump’s own statements and Jeff Sessions’ efforts to keep his job.

We will get these details in upcoming days, and almost all the details will come from people who’ve got a big stake in the process.

Michael Bromwich — McCabe’s lawyer — says they didn’t get a review of the allegations against McCabe until very recently, and were still trying to contest the firing two days ago (as was publicly reported). I find his claim that this was “cleaved off” from the larger investigation unconvincing: so were Strzok and Page, but that was done to preserve the integrity of the Mueller investigation, and Chris Wray had said publicly that he wanted to act on problems as they found them. Bromwich curiously is not saying that McCabe’s firing violates any agreement McCabe made when he took leave to await retirement.

Undoubtedly, Jeff Sessions did this in the most cowardly way possible. While I think it’s likely, I’m not 100% convinced that the timing was anything other than trying to make a real decision rather than let the retirement make it.

There’s no evidence, yet, that McCabe will lose all his pension

It has been said for over a month that McCabe was just waiting out his birthday so he could “get” his pension. That was so he could start drawing on it immediately. Josh Gerstein laid out the best thing I’ve seen on the implications (as well as what limited legal recourse McCabe has).

The financial stakes for McCabe could be significant. If he had made it to his 50th birthday on Sunday while still in federal service, he would have been eligible to begin drawing a full pension immediately under provisions that apply to federal law enforcement officers, said Kimberly Berry, a lawyer in Arlington, Virginia, who specializes in federal retirement issues.

Berry disputed reports, however, that McCabe would lose his pension altogether.

“He doesn’t lose his retirement,” she said. “It’s not all thrown out in the garbage.“

Even after his dismissal, McCabe will probably be eligible to begin collecting his pension at about age 57, although he would likely lose access to federal health coverage and would probably get a smaller pension than if he stayed on the federal payroll, experts said.

There have been claims McCabe could get hired by a member of Congress for a week so he can start drawing on it. But I’ve heard the finances aren’t even the issue, it’s the principle, which if you want to be a martyr, being fired works better.

This will have a far smaller impact on the Mueller probe than Comey-McCabe loyalists and John Dowd lay out

McCabe and others have suggested that there has been a successful effort to retaliate against Comey’s three corroborating witnesses, though that is least convincing with regards to Jim Rybicki, who was replaced as happens as a matter of course every time a new FBI Director comes in.

But the Comey-McCabe loyalists make far too much of their role in the Mueller probe, making themselves the central actors in the drama. Yes, if their credibility is hurt it does do some damage to any obstruction charges against Trump, which, as I keep repeating, will not be the primary thrust of any charges against Trump. Mueller is investigating Trump for a conspiracy with Russians; the obstruction is just the act that led to his appointment as Special Counsel and with that, a much more thorough investigation. Contrary to what you’re hearing, little we’ve seen thus far is fruit of the decisions Comey and his people made. While all were involved in the decision to charge Mike Flynn, he has already pled guilty and started spilling his guts to Mueller. There’s no reason to believe McCabe or Comey are direct witnesses in the conspiracy charges that will be filed against people close to Trump, if not against Trump himself.

For all those reasons, John Dowd’s claim that McCabe’s firing should end the investigation is equally unavailing.

I pray that Acting Attorney General Rosenstein will follow the brilliant and courageous example of the FBI Office of Professional Responsibility and Attorney General Jeff Sessions and bring an end to alleged Russia Collusion investigation manufactured by McCabe’s boss James Comey based upon a fraudulent and corrupt Dossier.

I mean, if this really is Dowd’s impression of why his client is being investigated, I almost feel sorry for Trump.

But the truth is the dossier has always been a distraction. The obstruction charge was probably used to distract Trump (and his NYT stenographers) while Mueller’s team collected the far more serious evidence on the conspiracy charges, though events of this week may well add to the conspiracy charges. And Comey didn’t manufacture any investigation; if anything, his people were not aggressive enough in the months he oversaw the investigation, particularly as it pertains to George Papadopoulos.

So if Dowd thinks McCabe’s firing will affect the core of the evidence Mueller has already developed (and, I suspect, started hanging on a sealed magnet indictment), he is likely to be very disappointed.

Regardless of the merits of the McCabe firing, it (and the related shit storm) may give Rosenstein and Mueller more time to work. It’s not clear they need that much more time to put together the conspiracy charges that are sitting right beneath the surface.

Finally — and I’m about to do a post on this — the far more important news from yesterday is that Facebook is cutting off Cambridge Analytica for violating its agreements about data use. That may well lead to some far more important changes, changes that Trump has less ability to politicize.

On Jim Baker’s Non-Prosecution for Leaking

The WaPo provides details on something that right wing propagandists had used to slam FBI General Counsel Jim Baker (who, the article notes, is being reassigned within FBI). The leak investigation into Baker must pertain to the Yahoo scan.

For months, Baker had become caught up in what some law enforcement officials considered a particularly frustrating probe of a leak involving the FBI, the National Security Agency and stories that appeared about a year ago involving surveillance techniques for a particular email provider, according to people familiar with the matter.

Some NSA officials were concerned that too much had been revealed about a classified program in an effort to correct a prior report, these people said.

“Jim was distressed about it but was confident he hadn’t leaked anything’’ and would be cleared, one U.S. official said.

A respected veteran prosecutor was assigned to the case, but people close to the matter said the investigation had petered out recently and charges were not expected to be filed.

The leak probe frustrated some law enforcement officials, who said officials were caught up in it only because they had tried to prevent misinformation about surveillance capabilities from spreading among the public and lawmakers. Others said the very existence of the investigation was mostly due to a disagreement between two agencies, according to people familiar with the matter.

The story that the government had obtained authority to scan all of Yahoo’s emails for some signature tied to either a foreign government or a terrorist organization (or most likely, Iran, which the US considers both) was first broken by Reuters, which claimed the scan happened under Section 702. But as I laid out here, Charlie Savage (who has written an entire billion page book on such matters) reported, more plausibly, that it was done under a targeted FISA order. Not only did the discrepancy in stories raise concerns about how Section 702 was being applied, but it led a lot of surveillance critics who had heretofore not understood things they were lobbying about to newly examine what the term “facility” meant.

From the context, it seems likely that Baker was trying to correct initial reports that the scan occurred under Section 702, which probably had a salutary effect on this year’s debate; no one has raised questions about that Yahoo scan (though surveillance critics have proven that they didn’t internalize the lesson  of the exchange to learn that the government has long interpreted facility more broadly than they understood).

If all that’s right, the spooks should be happy that Baker corrected the record. Heck, Baker could probably point to my work for proof that the definition of “facility” was actually known to people he hasn’t ever spoken with.

[S]tarting in 2004 and expanded in 2010, “facility” — the things targeted under FISA — no longer were required to tie to an individual user or even a location exclusively used by targeted users.

When Kollar-Kotelly authorized the Internet dragnet, she distinguished what she was approving, which did not require probable cause, from content surveillance, where probable cause was required. That is, she tried to imagine that the differing standards of surveillance would prevent her order from being expanded to the collection of content. But in 2007, when FISC was looking for a way to authorize Stellar Wind collection — which was the collection on accounts identified through metadata analysis — Roger Vinson, piggybacking Kollar-Kotelly’s decision on top of the Roving Wiretap provision, did just that. That’s where “upstream” content collection got approved. From this point forward, the probable cause tied to a wiretap target was freed from a known identity, and instead could be tied to probable cause that the facility itself was used by a target.

There are several steps between how we got from there to the Yahoo order that we don’t have full visibility on (which is why PCLOB should have insisted on having that discussion publicly). There’s nothing in the public record that shows John Bates knew NSA was searching on non-email or Internet messaging strings by the time he wrote his 2011 opinion deeming any collection of a communication with a given selector in it to be intentional collection. But he — or FISC institutionally — would have learned that fact within the next year, when NSA and FBI tried to obtain a cyber certificate. (That may be what the 2012 upstream violation pertained to; see this post and this post for some of what Congress may have learned in 2012.) Nor is there anything in the 2012 Congressional debate that shows Congress was told about that fact.

One thing is clear from NSA’s internal cyber certificate discussions: by 2011, NSA was already relying on this broader sense of “facility” to refer to a signature of any kind that could be associated with a targeted user.

The point, however, is that sometime in the wake of the 2011 John Bates opinion on upstream, FISC must have learned more about how NSA was really using the term. It’s not clear how much of Congress has been told.

The leap from that — scanning on telephone switches for a given target’s known “facility” — to the Yahoo scan is not that far. In his 2010 opinion reauthorizing the Internet dragnet, Bates watered down the distinction between content and metadata by stripping protection for content-as-metadata that is also used for routing purposes. There may be some legal language authorizing the progression from packets to actual emails (though there’s nothing that is unredacted in any Bates opinion that leads me to believe he fully understood the distinction). In any case, FISCR has already been blowing up the distinction between content and metadata, so it’s not clear that the Yahoo request was that far out of the norm for what FISC has approved.

Which is not to say that the Yahoo scan would withstand scrutiny in a real court unaware of the FISC precedents (including the ones we haven’t yet seen). It’s just to say we started down this path 12 years ago, and the concept of “facilities” has evolved such that a search for a non-email signature counts as acceptable to the FISC.

Of course, the better option is to stop playing word games and explain to everyone what facility actually means, and point out that that interpretation has been in place since 2007.

All that said, this is yet another example where a cherished government official can engage in behavior that others go to prison for. As I’ve pointed out, for example, the Jeffrey Sterling case codified the precedent that someone can go to prison for four minutes and 11 seconds of phone conversations during which you provide unclassified tips about classified information they know.

The Fourth Circuit just codified the principle that you can go to prison for four minutes and 11 seconds of phone calls during which you tell a reporter to go find out classified details you know about.

That’s probably pretty close to what Baker got investigated for. Obviously, doing so as a General Counsel is a different function than as a whistleblower. And whatever conversations Baker had probably took place in DC, so outside of the Fourth Circuit where that precedent stands.

I have no doubt that non-prosecution, if I’ve gotten the facts of the case correct, is the correct decision. But so should it be for others in similar situations, others treated differently because they’re not part of the FBI.

More importantly, the government’s so-called transparency should be such that experts like the surveillance critics who didn’t know how facility is used don’t have to get leaks to understand basic facts about the surveillance they discuss.

Is FBI Still Fluffing Its Encryption Numbers?

Note: All the big civil liberties groups are fundraising “bigly” off of the election of Trump. If you are donating to them and are able, please consider supporting this work as well.  

Update: I went back to the FBI spox who originally told me that the 13% number cited in August included damaged phones, to clarify that this more recent one did. It does not. Here’s what he said:

It is true that damaged devices are provided to CART and RCFL for FBI assistance, but the 886 devices in FY16 that the FBI was not able to access (which is the number that GC Baker provided last week), does not include those damaged devices. It includes only those devices for which we encountered a password we were not able to bypass.


“[T]he data on the vast majority of the devices seized in the United States may no longer be accessible to law enforcement even with a court order or search warrant,” FBI Director Jim Comey wrote in a response to a question from Senate Judiciary Committee Chair Chuck Grassley in January. Grassley had asked whether Comey agreed with New York District Attorney’s Cy Vance’s estimate — made in Senate testimony the previous July — that “when smartphone encryption is fully deployed by Apple and Google, 71% of all mobile devices examined…may be outside the reach of a warrant.”

In Comey’s very next answer, however, he admitted the FBI was still trying to quantify the problem. “FBI is currently working on improving enterprise-wide quantitative data collection to better understand and explain the ‘data at rest’ problem.” Comey and Deputy Attorney General Sally Yates had promised to come up with real data at the July 2015 hearing.

Since that time, FBI has publicly created the impression they had real numbers on encryption.

In a speech at the end of August, Jim Comey claimed that the FBI had been unable to open 650 of the 5,000 devices it got in its forensics centers (remember, the fiscal year starts on October 1).

We believe in the FBI that we need a conversation. If at the end of the day the American people say, “You know what, we’re okay with that portion of the room being dark. We’re okay with”—to use one example—“the FBI, in the first 10 months of this year, getting 5,000 devices from state and local law enforcement and asked for assistance in opening them, and in 650 of those devices being unable to open those devices.” That’s criminals not caught, that’s evidence not found, that’s sentences that are far, far shorter for pedophiles and others because judges can’t see the true scope of their activity.

That left the impression that encryption thwarted the FBI in 13% of all cases.

According to Kevin Bankston, FBI General Counsel just provided an equivalent number at a National Academy of the Sciences working group on encryption (Baker only said these were inaccessible — he did not claim that was because of encryption, though that was the context of the number).

Interesting data point: Baker says over FY 2016, of 6814 mobile devices submitted by fed/state/local to FBI’s [Computer Analysis Response Teams and Regional Computer Forensic Laboratories for analysis 2095 of them req’d passcodes, defeated passcodes in 1210 cases, unable to (presumably due to crypto?) in 886 (885?) cases.

That reflects the same 13% failure rate.

I asked the FBI in September where they got this number. And at least at that point, the 13% was not a measure of how often encryption thwarted the FBI. A spokesperson told me,

It is a reflection of data on the number of times over the course of each quarter this year that the FBI or one of our law enforcement partners (federal, state, local, or tribal) has sought assistance from FBI digital forensic examiners with respect to accessing data on various mobile devices where the device is locked, data was deleted or encrypted, the hardware was damaged, or there were other challenges with accessing the data. I am not able to break that down by crime type.

In the San Bernardino case, for example, the FBI may not have been able to access 66% of the phones it seized from the culprits (there are actually varying reports on this). But in the end, encryption accounted for none of those phones being inaccessible: physical destruction accounted for all of it.

So unless the FBI, after I asked in early September, went back and recalculated their quarterly numbers (I’ve got a question in to clarify this point), then the FBI is presenting a false claim about encryption.

There’s More to the SPCMA Document

Long time readers likely know I’ve been obsessed with the decision, which as far as we currently know started in 2007 after Alberto Gonzales and (since returned as FBI General Counsel) James Baker left DOJ, to let DOD chain through US person identifiers on metadata collected under EO 12333, what gets described as Special Procedures Governing Communications Metadata Analysis, or SPCMA. Here’s a post that describes it at more length.

We first learned about SPCMA in June 2013, when the Guardian published a 16-page document pertaining to the approval process that had been leaked by Edward Snowden. That document consisted of:

  • A ten page memo dated November 20, 2007, from Assistant Attorney General for National Security Ken Wainstein and Acting OLC Head Steve Bradbury, analyzing the legality of SPCMA and recommending approval of the change.
  • Appendix A, consisting of a cover sheet and a two-page approval memo signed by Robert Gates on October 19, 2007 and Michael Mukasey on January 3, 2008. As I noted in this post, the signature line had to be altered after the fact to indicate Mukasey was signing it, suggesting that then Acting Attorney General Peter Keisler had refused.
  • Appendix B, a September 28, 2006 memo written to Office of Intelligence and Policy head James Baker (this was the predecessor to the NSD at DOJ) by NSA’s General Counsel Vito Potenza requesting he approve what became SPCMA (Baker did not approve it).

Though it is not included in what Snowden leaked, the memo describes a third Appendix, Appendix C:

On July 20, 2004, the General Counsel of CIA wrote to the General Counsel of NSA and to the Counsel for Intelligence Policy asking that CIA receive from NSA United States communications metadata that NSA does not currently provide to CIA. The letter from CIA is attached at Tab C.

The government has not released an official version of the packet such as it got leaked by Snowden. However, it did release Appendix A, the approval memo, in Fall 2014 as part of the declassification of the Yahoo challenge to the Protect America Act. As I laid out in this post, the government not only got this document approved after the passage of PAA and while Yahoo was challenging orders received under it, but DOJ tried to hide it from FISC Judge Reggie Walton. They only handed it over — though without the context of the approval memo that made it clear it was about contact chaining including Americans — after he had scolded DOJ several times about not handing over all the documentation related to PAA.

DOJ did not submit the procedures to FISC in a February 20, 2008 collection of documents they submitted after being ordered to by Judge Walton after he caught them hiding other materials; they did not submit them until March 14, 2008.

So to sum up: We have 16 pages (the memo and two of three appendices) thanks to Edward Snowden, and we have an official copy of just the 2-page approval memo, released on the context of the Yahoo declassification.

I lay all this out because this entry, in the National Security Division Vaughn Index provided to ACLU last month, is undoubtedly this same memo.

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The date is the same, the description is almost the same. The only difference is that the withheld document has 20 pages, as compared to the 16 pages that Snowden gave us.

From that I conclude that the 2004 CIA memo is four pages long (three, plus a cover sheet). Note the date: squarely during the period when spooks were trying to put discontinued parts of Stellar Wind under some kind of legal authority.

Here’s how the NSA declared Exemptions 1 and 3 over this document.

56. NSD fully withheld Document 4 on its Vaughn index in part because the release of any portion of that document would disclose classified information about functions or activities of NSA. The document is a 20-page document dated 20 November 2007 and is described as NSD Legal Memo on Amending DoD Procedures and Accompanying Documentation.” This document. including its full title, was withheld in full under Exemption 1 and Exemption 3. I have reviewed the information withheld and determined that the information is currently and properly classified at the SECRET level in accordance with EO 13526 because the release of this information could reasonably be expected to cause serious damage to the national security. The information withheld pertains to intelligence activities, intelligence sources or methods, or cryptology. or the vulnerabilities or capabilities of systems or projects relating to the national security and therefore meets the criteria for classification set for in Sections 1.4(c) and 1.4(g) of EO 13526. The harm to national security of releasing any portion of this document and the reasons that no portion of this document can be released without disclosing classified information cannot be fully described on the public record. As a result my ex parte. in camera classified declaration more fully explains why this document was withheld in full.

57. The information withheld in N 0 Document 4 also relates to a “function of the National Security Agency” 50 U.S.C. § 3605. Indeed. this information relates to one of NSA’s primary functions, its SIGINT mission. Any disclosure of the withheld information would reveal NSA ·s capabilities and the tradecraft used to carry out this vital mission. Further. revealing these details would disclose “information with respect to lNSA ‘s] activities” in furtherance of its SIGINT mission. 50 U .. C. § 3605. Therefore. the information withheld is also protected from release by statute and is exempt from release based on FOIA Exemption 3. 5 U.S.C. § 552(b)(3).

The government asserted secrecy over the title of an already (and officially) released document in a recent EFF challenge, so this would not be the first time the government claimed the title of an already released document was secret to prevent nasty civil liberties groups from confirming that a FOIAed document was the same as a previously known one.

In NSD’s declaration, Bradley Weigmann indicated that “the vast majority” of the document pertained to attorney-client privilege.

NSD Document 17, the vast majority of a certain memorandum in NSD Document 4, and an email message in NSD Document 31 are protected by the attorney-client privilege. These documents discuss legal issues pertaining to an NSA program, set forth legal advice prepared by NSD lawyers for other attorneys to assist those other attorneys in representing the Government, and were sought by a decision-maker for the Government to obtain legal advice on questions of law and indeed reflect such advice. As such, NSD Document 17, the vast majority of a certain memorandum in NSD Document 4, and an email message in NSD Document 31 are protected from disclosure under the attorney-client privilege.

More interestingly, by referring to “an NSA program” it seemed to tie this document with this 2003 OIPR memo.

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And this November 12, 2013 email (written during a period in the aftermath of the Snowden releases as the government was trying to decide how to respond to various FOIAs as well as Yahoo’s request to unseal its challenge, not to mention after ACLU submitted this FOIA, which was actually submitted before the first Snowden leaks).

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Note, NSD won’t tell us what date in 2003 someone at OIPR (already headed by James Baker, one of the few people briefed on Stellar Wind) wrote about “an NSA program” that appears to be tied the chaining on US person metadata.

I have long believed one of the known but still as yet undescribed modifications to Stellar Wind (there is still at least one, though I believe there are two) enacted after the hospital confrontation in 2004 has to have been either at CIA or DOD, because it doesn’t appear in the unredacted NSA IG Report Snowden gave us. Here, we see CIA unsuccessfully asking for US person metadata at the time everyone was re-establishing Stellar Wind under more legal cover. Assuming NSA document 4 is this memo, the only thing the government is withholding that we haven’t seen yet is the CIA memo. I have a lot more suspicions about this program, too, that I still need to write up.

But I suspect they’re hiding these documents from us — and just as importantly, from the FISA Court — to prevent us from putting the various details of how US person metadata has been used over time. Or rather, to prevent us from laying out how the point of these foreign-targeted surveillance programs is to spy on Americans.

ACLU has already told the government they’re challenging the withholding of these documents.

Silencing Whistleblowers, 12 Years Later

As reported by Zoe Tillman, Thomas Tamm, the first whistleblower to go to Eric Lichtblau with reports of Stellar Wind, is being investigated for ethical violations by the DC Bar. The complaint alleges he failed to report that people within DOJ were violating their legal obligations to superiors, up to and including the Attorney General, and that he took confidences of his client (which the complaint defines as DOJ) to the press.

The question, of course, is why the Bar is pursuing this now, years after Tamm’s actions became public. Tillman describes the complaint as having had some kind of virgin birth, from Bar members reading the news accounts rather than someone complaining.

D.C. Disciplinary Counsel Wallace Shipp Jr. declined to comment on the charges against Tamm. The ethics case was opened in 2009, but the charges weren’t filed until late December. The disciplinary counsel’s office has working in recent years to clear a backlog of old cases.

Shipp said the disciplinary counsel’s office launched the investigation after reading about Tamm’s case in news reports. It was opened under the office’s name, which generally means there is no outside complainant.

That’s a funny explanation, given that the complaint doesn’t reference the press reports, most notably Michael Isikoff’s 2008 report on Tamm’s whistleblowing, which describes Tamm going to two of his superiors (though not, admittedly, all the way to Attorney General Ashcroft).

It’s unclear to what extent Tamm’s office was aware of the origins of some of the information it was getting. But Tamm was puzzled by the unusual procedures—which sidestepped the normal FISA process—for requesting wiretaps on cases that involved program intelligence. He began pushing his supervisors to explain what was going on. Tamm says he found the whole thing especially curious since there was nothing in the special “program” wiretap requests that seemed any different from all the others. They looked and read the same. It seemed to Tamm there was a reason for this: the intelligence that came from the program was being disguised. He didn’t understand why. But whenever Tamm would ask questions about this within OIPR, “nobody wanted to talk about it.”

At one point, Tamm says, he approached Lisa Farabee, a senior counsel in OIPR who reviewed his work, and asked her directly, “Do you know what the program is?” According to Tamm, she replied: “Don’t even go there,” and then added, “I assume what they are doing is illegal.” Tamm says his immediate thought was, “I’m a law-enforcement officer and I’m participating in something that is illegal?” A few weeks later Tamm bumped into Mark Bradley, the deputy OIPR counsel, who told him the office had run into trouble with Colleen Kollar-Kotelly, the chief judge on the FISA court. Bradley seemed nervous, Tamm says. Kollar-Kotelly had raised objections to the special program wiretaps, and “the A.G.-only cases are being shut down,” Bradley told Tamm. He then added, “This may be [a time] the attorney general gets indicted,” according to Tamm. (Told of Tamm’s account, Justice spokesman Boyd said that Farabee and Bradley “have no comment for your story.”)

Compare that version with how the complaint describes Tamm doing precisely what the complaint says he failed to do.

Respondent learned that these applications involved special intelligence obtained from something referred to as “the program.” When he inquired about “the program” of other members of the Office of Intelligence Policy and Review, he was told by his colleagues that it was probably illegal.

Isikoff describes Tamm going to two of his superiors, “a senior counsel in OIPR who reviewed his work,” and “the deputy OIPR counsel,” the former of one of whom is the one who told him “I assume what they are doing is illegal.” The complaint rewrites that story — what ostensibly is the source of the complaint — and turns these superiors into “colleagues.”

Mind you, according to this story, there is one superior within OIPR to whom Tamm didn’t go: Counsel James Baker. He was the guy who was laundering applications to the FISC in ways Colleen Kollar-Kotelly found unacceptable.

Baker, of course, is currently the General Counsel of FBI, someone who reviews a slew of applications for larger programs, including those that go to FISC.

So 12 years after Tamm leaked DOJ’s secrets to the NYT, he is being investigated by the Bar because he didn’t go to the right superiors with his complaints, one of who just happens to be the FBI General Counsel.