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“Fill the Silence:” On Obstruction, Listen to DOJ and Merrick Garland

Happy Valentines Day, the day on which TV lawyers proclaim that DOJ has let the statutes of limitation on Trump crimes expire, in this case, Trump’s request of Jim Comey that he let the Mike Flynn investigation go.

As I noted in a relevant post last week, Randall Eliason wrote a column last week demanding that the “Biden Justice Department [] issue a report on the Mueller report.”

Today, Ben Wittes and Quinta Juercic wrote a worthwhile piece positing five different possibilities for how Garland dealt with the Mueller Report. Those five are:

  1. “Garland considers the matter closed as a result of Barr’s having closed it.”
  2. DOJ “review[ed] Barr’s judgment but agrees with him on any of a number of legal positions that would make a prosecution of the former president nearly impossible.”
  3. DOJ “quietly reopened the matter, at least for paper review—that is, not for investigation but to review the conclusions based on the collected evidence—and agreed with Barr’s judgments on the facts.”
  4. DOJ “quietly began reviewing Barr’s judgment and is letting certain statutes of limitations lapse because it considers the later fact patterns more plausible criminal cases than the earlier ones.”
  5. “The Garland-run Justice Department never even considered the question of whether to, well, consider the question.”

It’s a worthwhile piece because it gets inside the brain of a DOJ institutionalist and attempts to game out how they might think.

But their discussion is absolutely silent about several pieces of public evidence showing Garland’s DOJ taking action, even while demanding that Garland, himself, “fill the silence.”

That is, they make the mistake of claiming DOJ has been entirely silent. It has not been. They simply haven’t listened to what DOJ has already said.

“The matter” was not closed as of November 2020

Jurecic and Wittes treat “this matter” as a self-evident whole, without defining what they mean by it. I assume when they use the term, “this matter,” they’re referring to Trump’s obstructive actions described in the second Volume of the Mueller Report.

Such shorthand is why, in my own post, I pointed out that most people engaging in this discussion (and I include Jurecic and Wittes in this group), account for the fact not all of Trump’s criminal exposure was in the second Volume. Materials unsealed in September 2020, for example, confirm that DOJ continued to investigate Trump for a big infusion of cash from an Egyptian bank in September 2016 until that summer (CNN’s reporting on it confirmed that timing).

A footnote unsealed (and therefore buried and still all-but unreported) the day before the 2020 election revealed that the investigation into whether Roger Stone conspired with Russia continued after Mueller shut down. Redactions that (in an earlier release) were identified as relating to the Stone matter treated that matter as an ongoing investigation in November 2020.

Similarly, in October 2020, DOJ treated the investigation into a pardon dangle for Julian Assange as an ongoing investigation. In fact, one of the issues that Lawfare treats as exclusively a matter of obstruction –Trump’s direction to Corey Lewandowski to order Jeff Sessions to shut down the entire Russian investigation — likely relates closely to the pardon dangle to Assange, because it came days after Stone told Assange he was intervening with the highest level of government to alleviate Assange’s woes.

We don’t know how many of the ten referrals still redacted in November 2020 remain ongoing; when DOJ released information to Jason Leopold last week, they just chose to release the four pages covered by a DC Circuit order and not a full reissued report. But we do know that “the matter” of the Mueller investigation was not closed as recently as November 2020.

DOJ IG was investigating follow-on obstruction

Both before Trump was ousted by voters and since, reports confirmed that DOJ’s Inspector General was investigating things that should be treated as follow-on obstruction, most explicitly Billy Barr’s efforts to undercut the Roger Stone prosecution but also Barr’s preferential treatment of Paul Manafort as compared to Michael Cohen (the latter will be part of Michael Horowitz’s review of BOP COVID response). Given DOJ IG’s past work, it’s not clear that this will be very critical of Barr’s own role.

One way or another, though, we have weeks-old confirmation that some of it remains under review. Depending on what DOJ IG finds, it’s possible (though unlikely) that might provide predicate to reopen past decisions.

But such a review also means that, because DOJ IG reviews add years to any investigative process, there will be a significant delay before we hear about such matters.

Merrick Garland has told you what he thinks about the OLC memo on prosecuting a President (and, to a lesser extent, OLC memos generally)

Two of Lawfare’s possibilities, especially the second, rely on a deference to OLC, including the declination memo that Amy Berman Jackson partially unsealed (and about which further unsealing the DC Circuit is currently considering).

We know that Garland’s DOJ will defer to most previous OLC memos, in part because his DOJ did so in fighting further unsealing of this memo. But we know even more about what Garland thinks of the memo prohibiting charging a president from an exchange on the topic Garland had with Eric Swalwell in October.

Garland: Well, Office of Legal Counsel memoranda, particularly when they’ve been reviewed and affirmed by Attorneys General and Assistant Attorneys General of both parties, it’s extremely rare to reverse them, and we have the same kind of respect for our precedents as the courts do. I think it’s also would not normally be under consideration unless there was an actual issue arising and I’m not aware of that issue arising now. So I don’t want to make a commitment on this question.

Swalwell: I don’t want to talk about any specific case but, just, in general, should a former President’s suspected crimes, once they’re out of office, be investigated by the Department of Justice?

Garland: Again, without, I don’t want to make any discussion about any particular former President or anything else. The memorandum that you’re talking about is limited to acts while the person was in office, and that’s all I can say.

Swalwell: And should that decision be made only after an investigation takes place before deciding beforehand a general principle of we’re not going to investigate a former President at all? Would you agree that if there are facts, those should be looked at?

Garland: Again, you’re pushing me very close to a line that I do not intend to cross. We always look at the facts and we always look at the law in any matter before making a determination.

In the exchange, Garland makes quite clear that, “it’s extremely rare to reverse” OLC memos because, “we have the same kind of respect for our precedents as the courts do.” Garland also explained that memo and any others (including Barr’s declination memo), “would not normally be under consideration unless there was an actual issue arising and I’m not aware of that issue arising now.”

One reason the memo is not at issue right now is because, “The memorandum that you’re talking about is limited to acts while the person was in office.” But as has often been ignored (though I pointed it out last month), the most recent known version of an OLC memo prohibiting the indictment of a sitting president is significantly premised on the constitutionality of a President being prosecuted after he leaves office even if he was acquitted by the Senate for the same conduct in an impeachment trial.

Randolph Moss, serving as Assistant Attorney General for OLC in 2000, famously wrote the following:

Our view remains that a sitting President is constitutionally immune from indictment and criminal prosecution.

Less famously, however, the first 11 pages of that more famous memo rely on this earlier OLC memo from Moss:

We conclude that the Constitution permits a former President to be criminally prosecuted for the same offenses for which he was impeached by the House and acquitted by the Senate while in office.

By stating that those odious OLC memos remain valid — that is, by deferring to OLC precedent — Garland was in the same breath saying that a former President can be indicted, including for things he was acquitted of in the Senate.

Obviously, Mueller’s findings never made it to the Senate. But Trump’s attempt to coerce Ukraine did and Trump’s attempted coup did.

There are four relevant investigations that tell you how Garland’s DOJ has approached this

In their piece and podcast, Jurecic and Wittes speak as if what Garland would do is entirely hypothetical, as if we don’t know what DOJ would consider palatable regarding earlier criminal exposure.

Except we do know, a bit, because four of the eight investigations into Trump flunkies that have been publicly confirmed provide some insight. For example:

  • Tom Barrack: Barrack confirmed in a recent filing what prior reporting had laid out: this investigation arose out of the Mueller investigation. “As early as December 2017, Mr. Barrack voluntarily produced documents and met with prosecutors in the Special Counsel’s Office investigation, which was led by Robert Mueller and included prosecutors from the Eastern District of New York.” It’s possible it was the first of those ten referrals that remained sealed in November 2020. If it was, it is an indication DOJ would pursue a prosecution arising out of the Mueller investigation that was substantially complete before Trump left, though even in that case it took four months after Garland was sworn in.
  • Erik Prince: It’s not clear whether the investigation into Erik Prince that Billy Barr shut down in 2019-2020 arose out of the Mueller investigation (though it is clear that any Mueller investigation into Prince had been closed by September 2020). I first alluded to a renewed investigation into Prince in this post, and NYT has since publicly confirmed it. I’m no more certain about the scope of the renewed investigation than the NYT, but I do know it is in a different District and it does overlap with the prior investigation, at least somewhat. That doesn’t tell you what DOJ would require to reopen a closed Mueller investigation, but it does show that Lisa Monaco would permit a prior, closed investigation to be reopened, perhaps with a new hook or newly acquired evidence.
  • Rudy Giuliani: The confirmed investigation into Rudy pertains to his Ukraine influence-peddling with a scope from May 2018 through November 2019. As such, except insofar as those actions were a continuation of efforts Paul Manafort had started in 2016, they say nothing about how Garland would treat a continuing Mueller investigation. But we do know one utterly critical fact and another key detail: First, the warrants to seize Rudy’s phones were approved on Monaco’s first day in office. That’s a pretty compelling piece of proof that Garland’s DOJ is not going to shy away from Trump’s closest flunkies. Significantly, SDNY successfully fought to get a privilege waiver spanning from January 1, 2018 (so before Rudy started Trump obstruct the Mueller investigation) through the date of seizure, April 28, 2021 (so through the attempted coup). This tells you that Garland’s DOJ could investigate Rudy for any of his suspected criminal actions, and no one would know about it.
  • Robert Costello: Costello is the lawyer through whom, the Mueller Report describes, Rudy was dangling a pardon for Michael Cohen for back in April 2018 (so within the scope of the privilege review). Currently, he is both Rudy’s lawyer overseeing that privilege review and Steve Bannon’s lawyer. After getting Bannon out of his Build the Wall fraud indictment with a pardon (sound familiar?), Costello helped Bannon walk into a contempt indictment based off non-cooperation with the January 6 investigation. All that background establishes that Costello is just tangential to the Mueller Report (though where he appears, he appears as part of the efforts to obstruct the investigation). But the details of DOJ’s seizure of Costello’s toll records after he made some contradictory claims in FBI interviews on the Bannon contempt case are worth examining closely. That’s because DOJ’s interest in the toll records cannot pertain solely to the January 6 subpoena to Bannon; the scope of the seizure not only predates the subpoena, but predates the establishment of the committee entirely (and happens to cover the entirety of the privilege review Costello oversaw). It’s tough to know what to make of this, but it is indication, like the approval of warrants targeting Rudy, that Garland’s DOJ will take fairly aggressive action pursuing obstruction and other crimes.

Trump is likely on the hook for other obstructive actions

The Lawfare piece claims that, aside from the pardons of Manafort, Stone, and Flynn, there’s no new evidence pertaining to Mueller-related obstruction (and other crimes).

And it’s not like new evidence has emerged since Mueller issued his reports—save the 2020 pardons of Manafort, Stone and Flynn.

But that’s not true. On top of whatever evidence DC USAO obtained on Stone after Mueller shut down (one of which was Andrew Miller’s long-awaited testimony), the government appears to have obtained more evidence on the other example of direct conspiracy with Russia. In the years since Mueller finished, the government has apparently developed new certainty about two details Mueller expressed uncertainty about: Konstantin Kilimnik is a “known Russian Intelligence Services agent,” and he, “provided the Russian Intelligence Services with sensitive information on polling and campaign strategy” in 2016. That suggests DOJ obtained new evidence (and may be why FBI put a $250,000 reward out for Kilimnik’s arrest in summer 2020). Whatever new details are behind this increased certainty, it could change DOJ’s understanding of Manafort’s actions as well. Add in the fact that Treasury accuses Kilimnik of continuing such information operations into the 2020 election — when Rudy was the pivot point — and Trump’s three big scandals may be converging.

But there may well be other obstructive acts, pertaining to the Mueller crimes, as well. Amid all the discussion of Trump’s destruction or removal of classified Presidential Records when he left the White House, for example, there has been little consideration about whether any of those documents pertain to Mueller or the other two investigations Trump obstructed. The January 6 Commission has already confirmed, for example, that some of the Trump documents they obtained were ripped up, and since the investigation into January 6 started immediately, it is highly likely the attempted document destruction happened while the investigation was pending. CNN’s most recent update on Trump’s stand-off with the Archives (in which someone who sounds like Impeachment One Defense Attorney Pat Philbin refused to turn over a document NARA knew to come looking for) is consistent with obstruction, possibly tied to the original Perfect Transcript.

None of this is proof of discrete new evidence on obstruction. Rather, it looks more like the never-ending wave of obstruction all runs together, with the pardons for Stone and Flynn (either, like Stone, known to be under investigation or closely tied to someone, Sidney Powell, known to be)  linking the obstruction of Mueller with the implementation of the coup attempt.

I can’t explain what, precisely, Garland’s DOJ is doing with the Mueller Report (besides prosecuting Trump’s top donor as a foreign agent on a referral from it). But it is simply false that DOJ has been silent about it.

Where DOJ has been speaking, however, is in active dockets and not in a three year old report.

Andrew McCabe Got His Pension and His Cufflinks — But Is that Adequate Recourse for the Country?

As part of a settlement DOJ entered into yesterday to avoid giving Andrew McCabe discovery on the full extent of the politicized campaign against him, DOJ agreed to give him his retirement — and the cufflinks he would normally have gotten upon retiring from Senior Executive Service.

The more substantive parts of the agreement reflect a total capitulation by DOJ: restoration of McCabe’s pension backdated to the time he was fired and partial award of his legal fees for representation from Arnold & Porter.

Defendants will complete all actions necessary to ensure that Plaintiff will be recorded as having entered the federal retirement system effective March 19, 2018, with an annuity commencement date of April 1, 2018, see 5 U.S.C. § 8464(a)(1)(A), 5 C.F.R. § 842.208(b), and will receive:

a. a payment of a lump sum representing all retirement annuity payments, including annuity supplement payments, that he would otherwise have received from the April 1, 2018 annuity commencement date until the day before he is paid his first regular monthly payment, which will be computed in accordance with all relevant statutory and regulatory provisions, and which will not deduct or withhold any amounts for benefits not received or for taxes not owed during the time period specified above, unless such deductions and/or withholdings are required by relevant statutory or regulatory provisions;

b. prospectively from the date of his first regular monthly payment, through the federal retirement system, all periodic annuity payments, including annuity supplement payments, consistent with his March 19, 2018 retirement date;

[snip]

Defendants agree to pay $539,348.15 to Plaintiff, pursuant to the Equal Access to Justice Act, and in full settlement and satisfaction of all attorney’s fees, costs, and expenses. Payment shall be made to Plaintiff via electronic funds transfer to Arnold & Porter Kaye Scholer LLP, as promptly as practicable, consistent with the normal processing procedures followed by the Department of Justice and the Department of the Treasury, following the dismissal of the above-captioned civil action. This provision does not constitute an admission that Defendants’ position was not substantially justified under 28 U.S.C. § 2412(d)(1)(A).

McCabe will get also an admission that “Executive Branch officials outside the Department” — otherwise known as The President —  “should not comment publicly on ongoing career civil service employee disciplinary matters.” [my emphasis]

WHEREAS, the Parties agree that Executive Branch officials outside the Department of Justice and its components should not comment publicly on ongoing career civil service employee disciplinary matters, except as provided by statute or regulation, so as not to create any appearance of improper political influence;

But McCabe won’t get a concession that numerous people within the chain of command at DOJ and FBI, including prosecutors who pursued a false statements charge against McCabe, bowed to that improper political influence. Nor, as noted, will McCabe get discovery to learn what documents — besides proof that Bill Barr’s DOJ altered McCabe’s notes in an effort to undermine the Mike Flynn prosecution —  DOJ was so determined to avoid disclosing that they settled this case.

All this is being accomplished, legally, by a kind of reset. McCabe’s personnel records will be altered such that there’s no record of his firing.

1. Within 30 days of the execution of this Settlement Agreement, Defendants will rescind their removal of Plaintiff from the FBI and the civil service, and will rescind and vacate former Attorney General Jefferson B. Sessions’s March 16, 2018 removal decision (“DOJ Removal Decision”), and the March 16, 2018 removal recommendation that was submitted to Attorney General Sessions (“DOJ Removal Recommendation”).

2. The Parties agree that Plaintiff’s electronic Official Personnel Folder will reflect that he was employed continuously by the FBI from July 1996 until his retirement on March 19, 2018, as the FBI Deputy Director and a member of the Senior Executive Service (“SES”), after becoming 50 years of age and completing over 20 years of service.

3. Within 30 days of the execution of this Settlement Agreement, the government will remove from Plaintiff’s electronic Official Personnel Folder all documents that reflect or reference his removal, and replace them with documents reflecting that Plaintiff was continuously employed by the FBI until his retirement on March 19, 2018. Defendants will then provide to Plaintiff a copy of his revised electronic Official Personnel Folder.

4. Plaintiff will be deemed to have retired from the FBI on March 19, 2018.

5. Plaintiff will be deemed to have separated from the FBI in good standing for the purposes of 18 U.S.C. § 926C(c)(1).

By my reading, this doesn’t force DOJ Inspector General to revise its report on McCabe to incorporate Michael Kortan’s testimony, one of the problems in the report identified in McCabe’s suit. It doesn’t negate the conflicting Office of Professional Responsibility review results. But it does legally remove the final effect of over a year of retaliation and public badgering by the President, eliminating all trace of Sessions’ last minute firing of McCabe.

I have no doubt this settlement makes a lot of sense for McCabe. He gets the money he earned over two decades of chasing terrorists, spies, and organized crime and the ability to be treated with the respect a former Deputy Director is normally accorded.

But this country is still fighting the aftereffects of a coup attempt that almost succeeded, in part, because the FBI backed off investigating those close to the President, including Proud Boys who played a key leadership role in the attack. We never got fully visibility into the President’s relationship with Russia because Trump throttled that investigation with firings and pardons. And an unrelenting flood of disinformation masks both of these facts.

We know, from the fact that DOJ entered into this settlement (among other things), that Trump badly politicized DOJ. But this settlement allows DOJ to avoid coming clean about all that happened.

Why Did DOJ Delay Seven Months before Letting Jeffrey Rosen Testify?

On January 22 — after Jeffrey Rosen was no longer Acting Attorney General but before Trump’s second impeachment trial — Katie Benner published a story describing Trump’s efforts to get Jeffrey Bossert Clark to undermine those at DOJ, including Rosen and Acting Deputy Attorney General Richard Donoghue, who refused to endorse Trump’s lies about the election.

As I noted the other day, that story included all the details that have been dribbling out from the House Oversight Committee in recent weeks: Trump’s efforts to get DOJ to intervene in Georgia, Rosen and Donoghue’s refusal, followed by Trump’s effort to put Clark in charge at DOJ on January 3. Benner had all that nailed in January.

The day after Benner’s January 22 story, the holdover members of the Senate Judiciary Committee sent a letter to DOJ citing the story and asking for documents behind it.

On January 22, The New York Times reported astonishing details about an alleged plot between then-President Donald Trump and then-Acting Assistant Attorney General of the Civil Division Jeffrey Bossert Clark to use the Department of Justice to further Trump’s efforts to subvert the results of the 2020 presidential election.[1]  These efforts culminated on January 6, when Trump incited a violent mob that attacked Congress as it counted the electoral votes and prepared to affirm President Biden’s victory.  The information revealed by this story raises deeply troubling questions regarding the Justice Department’s role in Trump’s scheme to overturn the election.

The Senate Judiciary Committee will conduct vigorous oversight of these matters.  As a first step, we seek your immediate assurance that the Department will preserve all relevant materials in its possession, custody, or control.  Please also produce the following materials as soon as possible, but no later than February 8, 2021:

  • All documents and communications, including emails, text messages, and calendar entries, referring or related to the reported December 15 meeting between then-President Trump and then-Acting Attorney General Jeffrey Rosen and reported follow-up calls and meetings between President Trump and Mr. Rosen;
  • All documents and communications, including emails, text messages, and calendar entries, referring or related to reported complaints President Trump made to Justice Department leaders regarding then-U.S. Attorney Byung J. Pak prior to Pak’s resignation;
  • All documents and communications, including emails, text messages, and calendar entries, regarding a reported draft letter that Mr. Clark prepared and requested be sent to Georgia state legislators; and
  • All documents and communications, including emails, text messages, and calendar entries, involving the reported January 3 White House meeting involving Mr. Clark and Mr. Rosen.

That letter set a deadline of February 8, over a month before Merrick Garland was confirmed and over 70 days before Lisa Monaco was confirmed.

In May, House Oversight Chair Carolyn Maloney sent Rosen a request (which hasn’t been made public) for a transcribed interview.

Seemingly in response to that — though the letter cites both the January request and the May one — DOJ (in the guise of Bradley Weinsheimer, who was elevated from NSD to DOJ’s institutional accountability role at Associate Deputy Attorney General by Jeff Sessions, and so was a colleague of those DOJ officials), wrote Rosen and five other former top DOJ officials permitting them to testify about a carefully defined set of events. The testimony is basically limited to, “any efforts by President Trump or any DOJ officials to advance unsubstantiated allegations of voter fraud, challenge the 2020 election results, stop Congress’s count of the Electoral College vote, or overturn President Biden’s certified victory.” It is limited to events that happened after Attorney General Barr resigned on December 14. The letter specifically prohibits discussing any prosecutorial decisions the men made, or discussing investigations that were ongoing when they left.

Discussion of any pending criminal cases and possible charges also could violate court rules and potentially implicate rules of professional conduct governing extra-judicial statements.

But within that scope, the letter permits these former DOJ officials to answer questions that would otherwise be covered by executive privilege.

[T]he Department authorizes you to provide unrestricted testimony to the Committees, irrespective of potential privilege, so long as the testimony is confined to the scope of the interviews as set forth by the Committees and as limited in the penultimate paragraph below.

Of particular note, DOJ asked President Biden — via the White House Counsel — whether he wanted to invoke privilege; he chose not to.

Because of the nature of the privilege, the Department has consulted with the White House Counsel’s Office in considering whether to authorize you to provide information that may implicate the presidential communications privilege. The Counsel’s Office conveyed to the Department that President Biden has decided that it would not be appropriate to assert executive privilege with respect to communications with former President Trump and his advisors and staff on matters related to the scope of the Committees’ proposed interviews, notwithstanding the view of former President Trump’s counsel that executive privilege should be asserted to prevent testimony regarding these communications. See Nixon v. Administrator of General Servs., 433 U.S. 425, 449 (1977) (“[I]t must be presumed that the incumbent President is vitally concerned with and in the best position to assess the present and future needs of the Executive Branch, and to support invocation of the privilege accordingly.” see also id. (explaining that the presidential communications privilege “is not for the benefit of the President as an individual, but for the benefit of the Republic”) (internal citation omitted).

As Benner wrote in a story offering details of Jeffrey Rosen’s testimony, Rosen has been trying to get permission to testify for “much of the year.” As soon as DOJ gave it, he rushed to testify before Trump could intervene.

Mr. Rosen has spent much of the year in discussions with the Justice Department over what information he could provide to investigators, given that decision-making conversations between administration officials are usually kept confidential.

Douglas A. Collins, a lawyer for Mr. Trump, said last week that the former president would not seek to bar former Justice Department officials from speaking with investigators. But Mr. Collins said he might take some undisclosed legal action if congressional investigators sought “privileged information.”

Mr. Rosen quickly scheduled interviews with congressional investigators to get as much of his version of events on the record before any players could ask the courts to block the proceedings, according to two people familiar with those discussions who are not authorized to speak about continuing investigations.

He also reached out directly to Michael E. Horowitz, the Justice Department’s inspector general, and pledged to cooperate with his investigation, according to a person briefed on those talks.

The question is why. After all, these events were knowable to DOJ since they happened, and for the entirety of that time, DOJ has been conducting an investigation into efforts to obstruct the vote count. For some of that period, in fact, Rosen himself was in ultimate charge of the investigation, and he could have ordered or authorized himself to testify.

Benner didn’t specify whether Rosen might have been interviewed by the FBI, though the implication is he has not been asked.

Similarly, DOJ IG has been investigating related issues since then as part of a specific investigation into the BJ Pak firing and a general investigation into January 6. While Michael Horowitz could not subpoena Rosen, he could simply have asked Rosen to provide testimony. But Benner is quite clear that Rosen has not yet testified even to Horowitz.

During that period, too, there was an instance where DOJ IG asked someone for an interview, but the person quit to avoid the testimony.

During the course of an ongoing administrative misconduct investigation, the Department of Justice (DOJ) Office of the Inspector General (OIG) informed a then senior DOJ official, who was a non-career member of the Senior Executive Service, that the senior DOJ official was a subject in the investigation and that the OIG sought to interview the senior DOJ official in connection with the investigation. After several unsuccessful attempts to schedule a voluntary interview with the senior DOJ official, the OIG instructed the senior DOJ official to appear for a compelled interview and informed the senior DOJ official that neither the answers the senior DOJ official provided nor any evidence gained by reason of those answers could be used against the senior DOJ official in a criminal proceeding. The senior DOJ official failed to appear for the compelled interview and resigned from Department employment shortly thereafter.

The OIG concluded that the senior DOJ official violated both federal regulations and DOJ policy by failing to appear for a compelled OIG interview while still a DOJ employee. The OIG offered the senior DOJ official the opportunity to cure that violation by participating in a voluntary interview after leaving the Department, but the senior DOJ official, through counsel, declined to do so. The OIG has the authority to compel testimony from current Department employees upon informing them that their statements will not be used to incriminate them in a criminal proceeding. The OIG does not have the authority to compel or subpoena testimony from former Department employees, including those who retire or resign during the course of an OIG investigation.

Those events were reported on April 19.

There are two more dates of interest. First, DOJ only released its new contact policy — under which the request for a privilege determination may have been passed — on July 21. I’m curious whether the request for a  waiver of executive privilege waiver came after that. Executive privilege considerations were a key limitation on the Mueller investigation overseen in its final days partly by Rosen himself.

At least as interesting, however, is that DOJ sent the letter just one day before DOJ submitted a court filing in the Eric Swalwell lawsuit — speaking of members of Congress but using more generalized language — arguing that no federal officials can campaign in their official capacity and further noting that attacking one’s employer is not within the scope of someone’s job description.

The record indicates that the January 6 rally was an electioneering or campaign activity that Brooks would ordinarily be presumed to have undertaken in an unofficial capacity. Activities specifically directed toward the success of a candidate for a partisan political office in a campaign context—electioneering or campaign activities—are not within the scope of the office or employment of a Member of the House of Representatives. Like other elected officials, Members run for reelection themselves and routinely campaign for other political candidates. But they do so in their private, rather than official, capacities.

This understanding that the scope of federal office excludes campaign activity is broadly reflected in numerous authorities. This Court, for example, emphasized “the basic principle that government funds should not be spent to help incumbents gain reelection” in holding that House or Senate mailings aimed at that purpose are “unofficial communication[s].” Common Cause v. Bolger, 574 F. Supp. 672, 683 (D.D.C. 1982) (upholding statute that provided franking privileges for official communications but not unofficial communications).

[snip]

Second, the Complaint alleges that Brooks engaged in a conspiracy and incited the attack on the Capitol on January 6. That alleged conduct plainly would not qualify as within the scope of employment for an officer or employee of the United States, because attacking one’s employer is different in kind from any authorized conduct and not “actuated . . . by a purpose to serve” the employer. Id. § 228(1)(c). Brooks does not argue otherwise. Instead, he denies the Complaint’s allegations of conspiracy and incitement. The Department does not address that issue here because the campaign-related nature of the rally independently warrants denial of certification, and because the Department is engaged in ongoing investigations into the events of January 6 more generally. But if the Court were to reject our argument that the campaign nature of the January 6 rally resolves the certification question, the Court should not certify that Brooks was acting within the scope of his office or employment unless it concludes that Brooks did not engage in the sort of conduct alleged in the Complaint. [my emphasis]

It’s possible that this seven month delay is inexcusable.

It’s also possible that it reflects the time DOJ took to come to other determinations about whether privileged information could be used to investigate a former President and if so how to obtain it.

Update: On both June 24,

I assure the American people that the Department of Justice will continue to follow the facts in this case and charge what the evidence supports to hold all January 6th perpetrators accountable.

And July 6,

The Attorney General and Deputy Attorney General encouraged the team to continue to follow the facts in this case and charge what the evidence supports to hold all January 6th perpetrators accountable.

Garland made statements reiterating his commitment to charge all perpetrators against whom the evidence supported charges.

Charlie Savage Plays with His Magic Time Machine To Avoid Doing Journalism

Charlie Savage just did something astonishing in the name of press freedom. He said that the truth doesn’t matter now, in 2021, because he reported a different truth eleven years ago.

He took issue with my headline to this piece, noting that he was obfuscating the facts about the Julian Assange prosecution so as to shoehorn it into a story about actual journalists.

Charlie made several obfuscations or clear errors in that piece:

  • He didn’t explain (as he hasn’t, to misleading effect, in past stories on Assange) the nature of the 2nd superseding indictment and the way it added to the most problematic first superseding one
  • He said the 2019 superseding indictment (again, he was silent about the 2020 superseding indictment) raised the “specter of prosecuting reporters;” this line is how Charlie shoehorned Assange into a story about actual journalists
  • He claimed that the decision to charge Assange for “his journalistic-style acts” arose from the change in Administrations, Obama to Trump (and specifically to Bill Barr), not the evidence DOJ had obtained about Assange’s actions over time

Charlie presented all this as actual journalism about the Assange prosecution, but along the way, he made claims that were either inflammatory and inexact — a veritable specter haunting journalism — or, worse, what I believe to be false statements, false statements that parrot the propaganda that Wikileaks is spreading to obscure the facts.

The “specter” comment, I take to be a figure of speech, melodramatic and cynical, but mostly rhetorical.

The silence about the 2020 superseding indictment is a habit I have called Charlie on before, but one that is an error of omission, rather than of fact.

It’s this passage that I objected to at length:

But the specter of prosecuting reporters returned in 2019, when the department under Attorney General William P. Barr expanded a hacking conspiracy indictment of Julian Assange, the WikiLeaks founder, to treat his journalistic-style acts of soliciting and publishing classified information as crimes.

Obama-era officials had weighed charging Mr. Assange for publishing leaked military and diplomatic files, but worried about establishing a precedent that could damage mainstream news outlets that sometimes publish government secrets, like The Times. The Trump administration, however, was undeterred by that prospect.

As presented, this passage made several claims:

  1. “Obama-era officials” had considered charging Assange for publishing activities, but “Obama-era officials” did not do so because it might damage “mainstream news outlets” like the NYT
  2. The reason that the Trump administration was willing to charge Assange for publishing was because they were “undeterred” from the prospect of doing damage to the NYT
  3. DOJ under Billy Barr expanded a hacking conspiracy “to treat his journalistic-style acts of soliciting and publishing classified information as crimes”

I believe the last claim is largely factual but misleading, as if the operative issue were Barr’s involvement or as if Barr deliberately treated Assange’s “journalistic-style acts” — as distinct from that of actual journalists — as a crime. There may be evidence that Barr specifically had it in for WikiLeaks or that Barr (as distinct from Trump’s other Attorneys General) treated Assange as he did out of the same contempt with which he treated actual journalists. There may be evidence that Barr — whose tenure as AG exhibited great respect for some of the journalists he had known since his first term as AG — was trying to burn down journalism, as an institution. But Charlie provides no evidence of that, nor has anyone else I know. (Indeed, Charlie’s larger argument presents evidence that Barr’s attacks on journalism, including subpoenas that may or may not have been obtained under Barr in defiance of guidelines adopted under Eric Holder, may only differ from Obama’s in their political tilt.)

Of course, one of the worst things that the Trump Administration did to a journalist, obtaining years of Ali Watkins’ email records, happened under Jeff Sessions, not Barr.

The first and second claims together set up a clear contrast. Obama-era officials — and by context, this means the entirety of the Obama Administration — did not prosecute Assange for publication because of what became known — based off a description that DOJ’s spox Matthew Miller gave publicly in 2013 — as the NYT problem, the risk that prosecuting WikiLeaks would endanger NYT. But the Trump Administration was willing to charge Assange for publication because they didn’t think the risk that such charges posed to the NYT were all that grave or damaging or important.

There’s no way to understand these two points except as a contrast of Administrations, to suggest that Obama’s Administration — which was epically shitty on leak investigations — wouldn’t do what the Trump Administration did do. It further involves treating the Department of Justice as an organization entirely subject to the whims of a President and an Attorney General, rather than as the enormous bureaucracy full of career professionals who guard their independence jealously, who even did so, with varying degrees of success, in the face of Barr’s unprecedented politicization of the department.

It’s certainly possible that’s true. It’s possible that Evan Perez and three other CNN journalists who reported in 2017 that what actually changed pertained to Snowden simply made that report up out of thin air. It’s certainly possible that under a President who attempted to shut down the Russian hacking investigation to protect Assange even after his CIA Director declared war on Assange, who almost blew up the investigation into Joshua Schulte, who entertained pardoning Assange in 2016, in 2017, in 2018, and in 2020, at the same time viewed the Assange prosecution as a unique opportunity to set up future prosecutions of journalists. It’s certainly possible that Billy Barr, who sabotaged the Mike Flynn and Roger Stone prosecutions to serve Trump’s interests, went rogue on the Assange case.

But given the abundant evidence that this prosecution happened in spite of Trump’s feelings about WikiLeaks rather than because of them, you would need to do actual reporting to make that claim.

And, as noted, I asked Charlie whether he had done the reporting to sustain that claim before I wrote the post…

… just as I — months earlier — asked Charlie why he was falsely claiming Assange was charged in 2018 rather than within a day of a Russian exfiltration attempt in 2017, something that probably has far more to do with why DOJ charged Assange when and how they did than who was Attorney General at the time.

After his bullshit attempt to explain that date error away, Charlie removed the date, though without notice of correction, must less credit to me for having to fact check the NYT.

Anyway, Charlie apparently didn’t read the post when I first wrote it, but instead only read it yesterday when I excused Icelandic journalists for making the same error — attributing the decision to prosecute Assange to Billy Barr’s animus rather than newly discovered evidence — that Charlie had earlier made. And Charlie went off on a typically thin-skinned tirade. He accused me (the person who keeps having to correct his errors) of being confused. He claimed that the thrust of my piece — that he was misrepresenting the facts about Assange — was “false.” He claimed the charges against and extradition of Assange was a precedent not already set by Minh Quang Pham’s extradition and prosecution. He accused me of not grasping that this was a First Amendment argument and not the journalism argument he had shoehorned it into. He suggested my insistence on accurate reporting about the CFAA overt acts against Assange (including the significance of Edward Snowden to them) was a “hobbyhorse,” and that I only insisted on accurate reporting on the topic in an effort to, “us[e] something [Charlie] said as a peg to artificially sex it up (dumb NYT!) even though it doesn’t actually fit.” He then made a comment that still treats the prosecution of Assange as binary — the original indictment on a single CFAA charge or the first superseding indictment that added the dangerous Espionage Act charges — rather than tertiary, the second superseding indictment that, at least per Vanessa Baraitser, clearly distinguished what Assange did from what journalists do.

That’s when things went absolutely haywire. Pulitzer prize winning journalist Charlie Savage said that his repeated claim that the charges against Assange arose from a change in Administration rather than a changed understanding of Assange did not rely on what Miller said, because he had “been writing since 2010 about deliberations inside DOJ re wanting to charge Assange/WL,” linking to this story.

 

That is, Charlie presented as a defense to my complaint that he was misrepresenting what happened in 2016 and 2017 by pointing to reporting he did in 2010, which — I pointed out — is actually before 2013 and so useless in offering a better reason to cling to that 2013 detail rather than rely on more recent reporting. Because DOJ did not have the same understanding of WikiLeaks in 2010 as they got after Julian Assange played a key role in a Russian intelligence operation against the United States, obtained files from a CIA SysAdmin after explicitly calling on CIA SysAdmins to steal such things (in a speech invoking Snowden), attempted to extort the US with those CIA files, and then implicitly threatened the President’s son with them, Charlie Savage says, it’s okay to misrepresent what happened in 2016 and 2017. Charlie’s reporting in 2010 excuses his refusal to do reporting in 2021.

Given his snotty condescension, it seems clear that Charlie hasn’t considered that, better than most journalists in the United States, I understand the grave risks of what DOJ did with Assange. I’ve thought about it in a visceral way that a recipient of official leaks backed by an entire legal department probably can’t even fathom. But that hasn’t stopped me from trying to understand — and write accurately about — what DOJ claims to be doing with Assange. Indeed, as someone whose career has intersected with WikiLeaks far more closely than Charlie’s has and as someone who knows what people very close to Assange claim to believe, I feel I have an obligation to try to unpack what really happened and what the real legal implications of it are, not least because that’s the only way to assess where DOJ is telling the truth and whether they’re simply making shit up to take out Assange. DOJ is acting ruthlessly. But at the same time, at least one person very close to Assange told me explicitly she wanted me to misrepresent the truth in his defense, and WikiLeaks has been telling outrageous lies in Assange’s defense with little pushback by people like Charlie because, I guess, he thinks he’s defending journalism.

As I understand it, the entire point of journalism is to try to write the truth, rather than obfuscate it in an attempt to protect an institution called journalism. It does no good to the institution — either its integrity or the ability to demonstrate the risks of the Assange prosecution — to blame it all on Billy Barr rather than explore how and why DOJ’s institutional approach to Assange has changed over time.

How Don McGahn Distracted the NYTimes from the Subpoenas Known To Be Problematic

The NYT just published a story that buried incredibly important details about the HPSCI subpoena in paragraphs 18 and 19.

In that case, the leak investigation appeared to have been primarily focused on Michael Bahar, then a staffer on the House Intelligence Committee. People close to Jeff Sessions and Rod J. Rosenstein, the top two Justice Department officials at the time, have said that neither knew that prosecutors had sought data about the accounts of lawmakers for that investigation.

It remains murky whether agents were pursuing a theory that Mr. Bahar had leaked on his own or whether they suspected him of talking to reporters with the approval of the lawmakers. Either way, it appears they were unable to prove their suspicions that he was the source of any unauthorized disclosures; the case has been closed and no charges were brought.

The details back a hypothesis that I and others have raised about the 2018 subpoena that obtained Adam Schiff’s call records: that Schiff wasn’t targeted at all, but instead someone else — here, Michael Bahar — was the target.

That means that the initial subpoena may have been more stupid — not adequately targeted given the scope of the investigation — than scandalous. It also means that the focus should remain on Bill Barr’s renewed focus on those records in 2020, particularly whether or not he used Schiff records that should have been sealed to investigate a key member of Congress.

But that’s not how the NYT is spending its time. Instead, they are spending 17 paragraphs admitting that they have no idea whether a subpoena obtained by an EDVA grand jury for Don McGahn’s records on February 23, 2018 is newsworthy or not.

They report that Apple got the subpoena for McGahn, implying but not reporting clearly that all Apple provided was subscriber information.

Apple told Donald F. McGahn II, the White House counsel to former President Donald J. Trump, last month that the Justice Department had subpoenaed information about an account that belonged to him in February 2018, and that the government barred the company from telling him at the time, according to two people briefed on the matter.

Mr. McGahn’s wife received a similar notice from Apple, said one of the people, who spoke on the condition of anonymity to discuss a sensitive matter.

It is not clear what F.B.I. agents were scrutinizing, nor whether Mr. McGahn was their specific focus. In investigations, agents sometimes compile a large list of phone numbers and email addresses that were in contact with a subject, and seek to identify all those people by using subpoenas to communications companies for any account information like names, computer addresses and credit card numbers associated with them.

They assume, with no evidence, that the subpoena was obtained because McGahn was Trump’s White House counsel.

Still, the disclosure that agents secretly collected data of a sitting White House counsel is striking as it comes amid a political backlash to revelations about Trump-era seizures of data of reporters and Democrats in Congress for leak investigations. The president’s top lawyer is also a chief point of contact between the White House and the Justice Department.

They then go tick off one after another possible explanation:

  • The Manafort tax investigation, which was conducted in DC, and was completed in, and therefore would have been disclosed in, 2018
  • A tirade Trump launched about McGahn involving a potential leak that would have been investigated in DC
  • The totally unrelated HPSCI subpoena, which also was investigated in DC

They don’t consider a much more likely explanation, especially since Mueller is known to have identified at least three SuperPACs that were coordinating with the Trump campaign, including at least two that were headquartered in VA, but did not pursue charges relating to potential illegal coordination himself. That possibility is that prosecutors were appropriately investigating why the former FEC chairman was letting Trump’s 2016 campaign coordinate with so many supposedly independent PACs, particularly given his knowledge that Trump and Michael Cohen had been investigated for campaign finance laws in 2011, before then FEC Chair Don McGahn bailed them out for it. There’s no evidence Mueller’s investigators asked McGahn about this, even though Roger Stone’s coordination with Steve Bannon and Rick Gates was a subject of considerable interest to Mueller (in part because it implicated the Mercers).

That’s just one possible explanation, but unlike all the speculation included in the NYT story not focusing on Barr’s resuscitation of the HPSCI leak, might actually involve a grand jury in VA.

Until there’s some sense of what this subpoena was, there’s zero reason to assume it’s newsworthy or in any way focused on something McGahn had done as White House Counsel.

One of the only pieces of genuine “news” that came out of McGahn’s testimony the other day is he confessed to being a source for a story that was obviously sourced to someone close to him that nevertheless claimed he, personally, had not responded to requests for comment. “McGahn did not respond to requests for comment.” The man knows how to make journalists run around like puppies chasing his shiny objects.

And what the NYT just did was take their focus away from subpoenas there’s good reason to believe are newsworthy to instead speculate wildly about one that may not be.

“Target:” A Vocabulary Lesson for Adam Schiff

Most of the people in top DOJ positions under Trump have issued statements claiming they did not know of any subpoena “targeting” Adam Schiff.

Billy Barr told Politico that “while he was Attorney General,” he was not aware of any congressperson’s records, “being sought” “in a leak case.”

Barr said that while he was attorney general, he was “not aware of any congressman’s records being sought in a leak case.” He added that Trump never encouraged him to zero in on the Democratic lawmakers who reportedly became targets of the former president’s push to unmask leakers of classified information.

Trump “was not aware of who we were looking at in any of the cases,” Barr said. “I never discussed the leak cases with Trump. He didn’t really ask me any of the specifics.”

That in no way serves as a denial that he’s aware of the previously collected congressperson’s records being used in an investigation, possibly one not defined as a leak case. Given that the records in question were collected over a year before he became Attorney General, it is, frankly, not a denial in the least.

WaPo includes purported denials from all three potential Attorneys General.

In February 2018, Jeff Sessions was attorney general, though a person familiar with the matter said he has told people he did not recall approving a subpoena for lawmakers’ data in a leak case. Sessions was recused from many Russia-related matters, including special counsel Robert S. Mueller III’s investigation of the Kremlin’s interference in the 2016 election. A person close to Rod J. Rosenstein, Sessions’s deputy attorney general, said he, too, has told people he did not recall hearing about the subpoena until news of it broke publicly.

Two other people said William P. Barr — Trump’s second attorney general — also has told people he did not remember being informed of any subpoenas for lawmakers’ data during his time leading the department.

Barr says he does not remember being informed of “subpoenas for lawmakers’ data.” Jeff Sessions, who may have been recused from the investigation in question (though I’m virtually certain the recusal is not as broad as it is being treated), says “he did not recall approving a subpoena for lawmakers’ leak data.” And Rod Rosenstein, the leak hawk who served as Attorney General for Russia related investigations, says “he did not recall hearing about the subpoena” until it was just revealed.

Every single one of these denials is premised on this being a subpoena for Members of Congress. These denials are denials about targeting Members of Congress.

But Apple’s description of what happened makes it virtually certain none of these denials are relevant to the subpoena in question.

On Feb. 6, 2018, Apple received a grand jury subpoena for the names and phone records connected to 109 email addresses and phone numbers. It was one of the more than 250 data requests that the company received on average from U.S. law enforcement each week at the time. An Apple paralegal complied and provided the information.

[snip]

Without knowing it, Apple said, it had handed over the data of congressional staff members, their families and at least two members of Congress, including Representative Adam B. Schiff of California, then the House Intelligence Committee’s top Democrat and now its chairman. It turned out the subpoena was part of a wide-ranging investigation by the Trump administration into leaks of classified information.

Apple was asked for the names and toll records connected with 109 accounts. That means that investigators didn’t know — or could claim not to know — whose records they were collecting, and didn’t discover until they got the subpoena returns that Adam Schiff, Eric Swalwell, and a child with no conceivable access to classified information had been included. Chances are good that none of these people were the target. Chances are good that a staffer was the target — perhaps the one for whose records Microsoft was subpoenaed in 2017. This sounds like a Community of Interest subpoena — something that gets the calling circle of a target. It was a key part of Stellar Wind and the phone dragnet that Adam Schiff championed over and over again, a request that shows (in this case) two hops removed from a target to figure out whom he called and whom those people called.

The danger of using such requests in leak investigations has been known since a 2010 IG Report revealed that a journalist’s records had been collected as part of a community of interest grand jury subpoena. One plausible explanation for what happened in that instance is that the government targeted a known source for Stellar Wind — perhaps Thomas Tamm — knowing full well that one of the journalists on the story had been in contact with him. By getting two hops of records, though, the known contact with the journalist would (and did) return all the journalists’ contacts as well. The journalist in that case wasn’t the “target” but he may as well have been.

Still, as the phone dragnet championed by Adam Schiff reveals, the government never gave up their interest in such two-hop subpoenas.

All of the descriptions of what happened are consistent with this explanation. It would explain why:

  • Apple didn’t know the identity of the account holders but returned both the identity and the call records in response to the subpoena
  • Apple is now limiting the number of records they’ll return with one subpoena
  • Sessions, Rosenstein, and Barr are all denying knowing that Members of Congress were “targeted”

What it doesn’t explain — though no one has been asked to explain — whether investigators on this case alerted their superiors that they had ended up subpoenaing Adam Schiff’s records, whether or not they [claim they] intended to. Oops, boss, I just subpoenaed the Ranking Member of HPSCI, what do I do now?

In the case of the journalist whose records were seized in a community of interest subpoena in 2006, after it was discovered the FBI sealed the records and they were purged from at least some of the FBI’s investigative databases. That’s what should have happened after a prosecutor discovered they had obtained a Member of Congress’ call records unintentionally: the records should have been sealed.

But by description, that didn’t happen here. Barr never denied having focused on Members of Congress when he resuscitated his investigation in 2020 (nor has he said for sure that it remained a “leak” investigation rather than a “why does this person hate Trump” investigation, like so many others of his investigations. Barr denied telling Trump about it. But he didn’t deny that Members of Congress were investigated in 2020.

That’s why Adam Schiff’s reassurances that Section 702 of FISA doesn’t “target” Americans have always been meaningless. Because once FBI ingests the records, they can go back to those records years later, in an entirely different investigation. And no one has denied such a thing happened here.

Update: Fixed the description of Barr’s denial to WaPo.

Some Perspective on the Politicized Leak Investigation Targeting Adam Schiff

The NYT reported the other day that DOJ obtained phone records of Adam Schiff, Eric Swalwell, and a bunch of House Intelligence Committee staffers in the guise of what it reports is a leak investigation (though given the specific form of Bill Barr’s prevarications about his knowledge, may have been repackaged as something else when the investigation was resuscitated in 2020).

Prosecutors subpoenaed Apple for data from the accounts of at least two Democrats on the House Intelligence Committee, aides and family members. One was a minor.

All told, the records of at least a dozen people tied to the committee were seized in 2017 and early 2018, including those of Representative Adam B. Schiff of California, then the panel’s top Democrat and now its chairman, according to committee officials and two other people briefed on the inquiry. Representative Eric Swalwell of California said in an interview Thursday night that he had also been notified that his data had subpoenaed.

Prosecutors, under the beleaguered attorney general, Jeff Sessions, were hunting for the sources behind news media reports about contacts between Trump associates and Russia. Ultimately, the data and other evidence did not tie the committee to the leaks, and investigators debated whether they had hit a dead end and some even discussed closing the inquiry.

But William P. Barr revived languishing leak investigations after he became attorney general a year later. He moved a trusted prosecutor from New Jersey with little relevant experience to the main Justice Department to work on the Schiff-related case and about a half-dozen others, according to three people with knowledge of his work who did not want to be identified discussing federal investigations.

The initial collection and especially the subsequent treatment were clearly politicized — and more importantly, stupid, from an investigative standpoint. But, especially because this involves Adam Schiff, some exactitude about what went on really is required.

This is not spying

First, this is not “spying.” If the use of informants to investigate members of the Trump campaign and Hillary Clinton’s Foundation during a political campaign is not spying, if the use of a lawful FISA to conduct both physical and electronic surveillance on recently departed campaign volunteer Carter Page is not spying — and Adam Schiff said they were not, and I agree — then neither is the use of a subpoena to collect the phone records of Democrats who had knowledge of information that subsequently leaked in a fully predicated (and very serious) leak investigation.

This is “just” metadata

According to all reports, the government obtained the iPhone metadata records of 73 phone numbers and 36 email addresses. Apple suggests other tech companies probably got subpoenas, too, which means that some of those email addresses probably weren’t Apple emails.

But it was — as Adam Schiff said many times when defending a program that aspired to collect “all” the phone records in the United States — “just” metadata.

I don’t mean to belittle the impact of that. As I and others argued (against Schiff), metadata is actually profoundly revealing.

But if this is a problem (it is!), then people like Adam Schiff should lead a conversation about whether the standard on collection of metadata — currently, it only needs to be “relevant to” an investigation — is what it should be, as well as the rules imposed on future access to the data once collected prevent abuse.

Apple (and other tech companies) wouldn’t have known this was Adam Schiff

Even people who understand surveillance seem to believe that Apple would have known these requests targeted Adam Schiff in a leak investigation and therefore should have done more to fight it, as if the actual subpoena would be accompanied with an affidavit with shiny flags saying “HPSCI Ranking Member.”

They wouldn’t have. They would have gotten a list of selectors (some of which, by its description, it probably did not service), a description of the crime being investigated (a leak), and a gag order. The one thing that should have triggered closer review from Apple was the number of selectors. But apparently it did not, and once Apple complied, the data was swept up into the FBI’s servers where it presumably remains.

The subpoena was overly broad and not tailored to limit damage to Schiff

All that said, there were aspects of the subpoena that suggest it was written without any consideration for limiting the damage to Congressional equities or reasonable investigative targets. Focusing on these details are important because they distinguish what is really problematic about this (and who is to blame). According to reports, the subpoena:

  • Obtained information from a minor, who would have had no access to classified information
  • Included a series of year-long gags
  • Obtained all the toll records from date of creation
  • May have focused exclusively on Democratic members and staffers

It’s conceivable that, after years of investigation, DOJ would have reason to believe someone was laundering leaks through a child. But given how broad this subpoena is, it’s virtually impossible the affidavit included that kind of specific knowledge.

With journalists, DOJ is supposed to use shorter gags–three months. The series of year-long gags suggests that DOJ was trying to hide the existence of these subpoenas not just to hide an investigation, but to delay the political embarrassment of it.

There’s no reason to believe that Adam Schiff leaked a FISA application targeting Carter Page first obtained in 2016 in 2009 (or whenever the Californian lawmaker first set up his Apple account). It’s a physical impossibility. So it is completely unreasonable to imagine that years-old toll records would be “relevant to” a leak investigation predicated off a leak in 2017. Mind you, obtaining all records since the inception of the account is totally normal! It’s what DOJ did, for example, with Antionne Brodnax, a January 6 defendant who got notice of subpoenas served on him, but whose attempt to limit the subpoena failed because those whose records are subpoenaed have no authority to do that. There are two appropriate responses to the unreasonable breadth of this request: both a focus on the failure to use special caution with Congressional targets, but also some discussion about how such broad requests are unreasonable regardless of the target.

Given the number of these selectors, it seems unlikely DOJ did more than ID the people who had access to the leaked information in question. Except if they only obtained selectors for Democrats, it would suggest investigators went into the investigation with the assumption that the leak was political, and that such a political leak would necessarily be partisan. That’s simply not backed by exhibited reality, and if that’s what happened, it should force some scrutiny on who made those assumptions. That’s all the more true given hints that Republicans like Paul Ryan may have tipped Page off that he had been targeted.

These kinds of limiting factors are where the most good can come out of this shit-show, because they would have a real impact and if applied broadly would help not just Schiff.

Barr continued to appoint unqualified prosecutors to do his political dirty work

I think it would be useful to separate the initial records request — after all, the leak of a FISA intercept and the target of a FISA order are virtually unprecedented — from the continued use of the records in 2020, under Billy Barr.

The NYT explains that the initial investigators believed that charges were unlikely, but Barr redoubled efforts in 2020.

As the years wore on, some officials argued in meetings that charges were becoming less realistic, former Justice Department officials said: They lacked strong evidence, and a jury might not care about information reported years earlier.

[snip]

Mr. Barr directed prosecutors to continue investigating, contending that the Justice Department’s National Security Division had allowed the cases to languish, according to three people briefed on the cases. Some cases had nothing to do with leaks about Mr. Trump and involved sensitive national security information, one of the people said. But Mr. Barr’s overall view of leaks led some people in the department to eventually see the inquiries as politically motivated.

[snip]

After the records provided no proof of leaks, prosecutors in the U.S. attorney’s office in Washington discussed ending that piece of their investigation. But Mr. Barr’s decision to bring in an outside prosecutor helped keep the case alive.

[snip]

In February 2020, Mr. Barr placed the prosecutor from New Jersey, Osmar Benvenuto, into the National Security Division. His background was in gang and health care fraud prosecutions.

Barr used this ploy — finding AUSAs who were unqualified to work on a case that others had found no merit to — on at least three different occasions. Every document John Durham’s team submitted in conjunction with the Kevin Clinesmith prosecution, for example, betrayed that investigators running it didn’t understand the scope of the Crossfire Hurricane investigation (and thereby also strongly suggested investigators had no business scrutinizing a counterintelligence investigation at all). The questions that Jeffrey Jensen’s team, appointed by Barr to review the DOJ IG investigation and the John Durham investigation to find conclusions they didn’t draw, asked Bill Barnett betrayed that the gun crimes prosecutors running it didn’t know fuckall about what they were doing (why Barnett answered as he did is another thing, one that DOJ IG should investigate). And now here, he appointed a health care fraud prosecutor to conduct a leak investigation after unbelievably aggressive leak investigators found nothing.

DOJ IG should include all of those investigations in its investigation, because they all reflect Barr’s efforts to force prosecutors to come to conclusions that the evidence did not merit (and because the Jensen investigation, at least, appears to have altered records intentionally).

FBI never deletes evidence

In an attempt to disclaim responsibility for yet more political abuse, Billy Barr issued a very interestingly worded disavowal.

Barr said that while he was attorney general, he was “not aware of any congressman’s records being sought in a leak case.” He added that Trump never encouraged him to zero in on the Democratic lawmakers who reportedly became targets of the former president’s push to unmask leakers of classified information.

There are two parts to this: One, that “while he was attorney general,” Congresspersons’ records were not sought, and two, sought in a leak case. The original subpoena for these records was in February 2018, so not during Barr’s tenure as Attorney General. He doesn’t deny asking for those previously-sought records to be reviewed anew while Attorney General.

But he also limits his disavowal to leak cases. Under Barr’s fervent imagination, however, these investigations may well have morphed into something else, what he may have imagined were political abuse or spying violation cases. DOJ can and often does obtain new legal process for already obtained records (which would be unnecessary anyway for toll records), so it is not outside the realm of possibility that Barr directed his unqualified prosecutor to use those already-seized records to snoop into some other question.

It’s a pity for Adam Schiff that no one in charge of surveillance in Congress imposed better trackability requirements on FBI’s access of its investigative collections.

Both an IG investigation and a Special Counsel are inadequate to this investigation

Lisa Monaco asked Michael Horowitz to investigate this investigation. And that’s fine: he can access the records of the investigation, and the affidavits. He can interview the line prosecutors who were tasked with this investigation.

But he can’t require Barr or Jeff Sessions or any of the other Trump appointees who ordered up this investigation to sit for an interview (he could move quickly and ask John Demers to sit for an interview).

Because of that, a lot of people are asking for a Special Counsel to be appointed. That would be nice, except thus far, there’s no evidence that a crime was committed, so there is no regulatory basis to appoint a Special Counsel. The standard for accessing records is very low, any special treatment accorded journalists or members of Congress are not written into law, and prosecutorial discretion at DOJ is nearly sacrosanct. The scandal is that this may all be entirely legal.

Mind you, there’s good reason to believe there was a crime committed in the Jeffrey Jensen investigation, the same crime (altering documents) that Barr used to predicate the Durham Special Counsel appointment. So maybe people should revisit that?

Luckily, Swalwell and Schiff know some members of Congress who can limit such abuses

If I learned that DOJ engaged in unreasonable surveillance on me [wink], I’d have no recourse, largely because of laws that Adam Schiff has championed for years.

But as it happens, Schiff and Swalwell both know some members of Congress who could pass some laws limiting the ability to do some of the things used against them that affect thousands of Americans investigated by the FBI.

Now that Adam Schiff has discovered, years after we tried to reason with him on this point, that “it’s just metadata” doesn’t fly in this day and age, maybe we can talk about how the FBI should be using metadata given how powerful it has become?

The renewed focus on Schiff’s metadata would have come after Schiff disclosed Nunes’ ties to Rudy Giuliani’s grift

Another factor of timing hasn’t gotten enough attention. In late December, Schiff released the Democrats’ impeachment report. Because Schiff obtained subpoenas (almost certainly targeting Lev Parnas and Rudy Giuliani), he included call records of calls implicating Devin Nunes and his staffer Derek

Over the course of the four days following the April 7 article, phone records show contacts between Mr. Giuliani, Mr. Parnas, Representative Devin Nunes, and Mr. Solomon. Specifically, Mr. Giuliani and Mr. Parnas were in contact with one another, as well as with Mr. Solomon.76 Phone records also show contacts on April 10 between Mr. Giuliani and Rep. Nunes, consisting of three short calls in rapid succession, followed by a text message, and ending with a nearly three minute call.77 Later that same day, Mr. Parnas and Mr. Solomon had a four minute, 39 second call.78

[snip]

On the morning of May 8, Mr. Giuliani called the White House Switchboard and connected for six minutes and 26 seconds with someone at the White House.158 That same day, Mr. Giuliani also connected with Mr. Solomon for almost six minutes, with Mr. Parnas, and with Derek Harvey, a member of Representative Nunes’ staff on the Intelligence Committee.159

69 AT&T Document Production, Bates ATTHPSCI _20190930_00848-ATTHPSCI_20190930_00884. Mr. Parnas also had an aborted call that lasted 5 seconds on April 5, 2019 with an aide to Rep. Devin Nunes on the Intelligence Committee, Derek Harvey. AT&T Document Production, Bates ATTHPSCI_20190930_00876. Call records obtained by the Committees show that Mr. Parnas and Mr. Harvey had connected previously, including a four minute 42 second call on February 1, 2019, a one minute 7 second call on February 4, and a one minute 37 second call on February 7, 2019. AT&T Document Production, Bates ATTHPSCI_20190930_00617, ATTHPSCI_20190930_00630, ATTHPSCI_20190930_00641. As explained later in this Chapter, Rep. Nunes would connect separately by phone on April 10, 11, and 12 with Mr. Parnas and Mr. Giuliani. AT&T Document Production, Bates ATTHPSCI_20190930_00913- ATTHPSCI_20190930_00914; ATTHPSCI_20190930-02125.

76 Specifically, between April 8 and April 11, phone records show the following phone contacts:

  • six calls between Mr. Giuliani and Mr. Parnas (longest duration approximately five minutes), AT&T Document Production, Bates ATTHPSCI_20190930-02115-ATTHPSCI_20190930-02131;
  • four calls between Mr. Giuliani and Mr. Solomon (all on April 8, longest duration approximately one minute, 30 seconds) AT&T Document Production, Bates ATTHPSCI_20190930-02114- ATTHPSCI_20190930-02115;
  • nine calls between Mr. Parnas and Mr. Solomon (longest duration four minutes, 39 seconds) AT&T Document Production, Bates ATTHPSCI_20190930-00885- ATTHPSCI_20190930- 00906; and
  • three calls between Mr. Parnas and Ms. Toensing (longest duration approximately six minutes), AT&T Document Production, Bates ATTHPSCI_20190930-00885- ATTHPSCI_20190930- 00905.

77 AT&T Document Production, Bates ATTHPSCI_20190930-02125, ATTHPSCI_20190930-03236.

78 AT&T Document Production, Bates ATTHPSCI_20190930-00902.

[snip]

158 AT&T Document Production, Bates ATTHPSCI_20190930_02313.

159 AT&T Document Production, Bates ATTHPSCI_20190930_02314; ATTHPSCI_20190930_02316; ATTHPSCI_20190930_02318; ATTHPSCI 20190930 01000.

Because Nunes doesn’t understand how phone records work, he — and most other Republicans in Congress — accused Schiff of subpoenaing the record of his colleagues. That’s not what happened. Instead, Nunes and a key staffer got involved in with Rudy’s efforts to solicit dirt from Russian assets and as a result they showed up in Rudy’s phone records.

But it’s the kind of thing that might lead Barr to intensify his focus on Schiff.

The last section of this was an update.

DOJ’s Failures to Follow Media Guidelines on the WaPo Seizure

I wanted to add a few data points regarding the report that DOJ subpoenaed records from three WaPo journalists.

This post is premised on three pieces of well-justified speculation: that John Durham, after having been appointed Special Counsel, obtained these records, that Microsoft challenged a gag, and that Microsoft’s challenge was upheld in some way. I’m doing this post to lay out some questions that others should be asking about what happened.

An enterprise host (probably Microsoft) likely challenged a gag order

The report notes that DOJ did obtain the reporters’ phone records, and tried, but did not succeed, in obtaining their email records.

The Trump Justice Department secretly obtained Washington Post journalists’ phone records and tried to obtain their email records over reporting they did in the early months of the Trump administration on Russia’s role in the 2016 election, according to government letters and officials.

In three separate letters dated May 3 and addressed to Post reporters Ellen Nakashima and Greg Miller, and former Post reporter Adam Entous, the Justice Department wrote they were “hereby notified that pursuant to legal process the United States Department of Justice received toll records associated with the following telephone numbers for the period from April 15, 2017 to July 31, 2017.” The letters listed work, home or cellphone numbers covering that three-and-a-half-month period.

[snip]

The letters to the three reporters also noted that prosecutors got a court order to obtain “non content communication records” for the reporters’ work email accounts, but did not obtain such records. The email records sought would have indicated who emailed whom and when, but would not have included the contents of the emails. [my emphasis]

What likely happened is that DOJ tried to obtain a subpoena on Microsoft or Google (almost certainly the former, because the latter doesn’t care about privacy) as the enterprise host for the newspaper’s email service, and someone challenged or refused a request for a gag, which led DOJ to withdraw the request.

There’s important background to this.

Up until October 2017, when the government served a subpoena on a cloud company that hosts records for another, the cloud company was often gagged indefinitely from telling the companies whose email (or files) it hosted. By going to a cloud company, the government was effectively taking away businesses’ ability to challenge subpoenas themselves, which posed a problem for Microsoft’s ability to convince businesses to move everything to their cloud.

That’s actually how Robert Mueller obtained Michael Cohen’s Trump Organization emails — by first preserving, then obtaining them from Microsoft rather than asking Trump Organization (which was, at the same time, withholding the most damning materials when asked for the same materials by Congress). Given what we know about Trump Organization’s incomplete response to Congress, we can be certain that had Mueller gone to Trump Organization, he might never have learned about the Trump Tower Moscow deal.

In October 2017, in conjunction with a lawsuit settlement, Microsoft forced DOJ to adopt a new policy that gave it the right to inform customers when DOJ came to them for emails unless DOJ had a really good reason to prevent Microsoft from telling their enterprise customer.

Today marks another important step in ensuring that people’s privacy rights are protected when they store their personal information in the cloud. In response to concerns that Microsoft raised in a lawsuit we brought against the U.S. government in April 2016, and after months advocating for the United States Department of Justice to change its practices, the Department of Justice (DOJ) today established a new policy to address these issues. This new policy limits the overused practice of requiring providers to stay silent when the government accesses personal data stored in the cloud. It helps ensure that secrecy orders are used only when necessary and for defined periods of time. This is an important step for both privacy and free expression. It is an unequivocal win for our customers, and we’re pleased the DOJ has taken these steps to protect the constitutional rights of all Americans.

Until now, the government routinely sought and obtained orders requiring email providers to not tell our customers when the government takes their personal email or records. Sometimes these orders don’t include a fixed end date, effectively prohibiting us forever from telling our customers that the government has obtained their data.

[snip]

Until today, vague legal standards have allowed the government to get indefinite secrecy orders routinely, regardless of whether they were even based on the specifics of the investigation at hand. That will no longer be true. The binding policy issued today by the Deputy U.S. Attorney General should diminish the number of orders that have a secrecy order attached, end the practice of indefinite secrecy orders, and make sure that every application for a secrecy order is carefully and specifically tailored to the facts in the case.

Rod Rosenstein, then overseeing the Mueller investigation, approved the new policy on October 19, 2017.

The effect was clear. When various entities at DOJ wanted records from Trump Organization after that, DOJ did not approve the equivalent request approved just months earlier.

If DOJ withdrew a subpoena rather than have it disclosed, it was probably inconsistent with media guidelines

If I’m right that DOJ asked Microsoft for the reporters’ email records, but then withdrew the request rather than have Microsoft disclose the subpoena to WaPo, then the request itself likely violated DOJ’s media guidelines — at least as they were rewritten in 2015 after a series of similar incidents, including DOJ’s request for the phone records of 20 AP journalists in 2013.

DOJ’s media guidelines require the following:

  • Attorney General approval of any subpoena for call or email records
  • That the information be essential to the investigation
  • DOJ has taken reasonable attempts to obtain the information from alternate sources

Most importantly, DOJ’s media guidelines require notice and negotiation with the affected journalist, unless the Attorney General determines that doing so would “pose a clear and substantial threat to the integrity of the investigation.”

after negotiations with the affected member of the news media have been pursued and appropriate notice to the affected member of the news media has been provided, unless the Attorney General determines that, for compelling reasons, such negotiations or notice would pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm.

But a judge can review the justifications for gags before issuing them (for all subpoenas, not just media ones).

Just as an example, the government obtained a gag on Twitter, Facebook, Instagram and Google when obtaining Reality Winner’s cloud-based communications a week after they had arrested her (at a time when she was in no position to delete her own content). After a few weeks, Twitter challenged the gag. A judge gave DOJ 180 days to sustain the gag, but in August 2017, DOJ lifted it.

That was a case where DOJ obtained the communications of an accused leaker, with possible unknown co-conspirators, so the gag at least made some sense.

Here, by contrast, the government would have been asking for records from journalists who were not alleged to have committed any crime. The ultimate subject of the investigation would have no ability to destroy WaPo’s records. The records — and the investigation — were over three years old. Whatever justification DOJ gave was likely obviously bullshit.

Hypothetical scenario: DOJ obtains cell phone records only to have a judge rule a gag inappropriate

Let me lay out how this might have worked to show why this might mean DOJ violated the media guidelines. Here’s one possible scenario for what could have happened:

  • In the wake of the election, John Durham subpoenaed the WaPo cell providers and Microsoft, asking for a gag
  • The cell provider turned over the records with no questions — neither AT&T nor Verizon care about their clients’ privacy
  • Microsoft challenged the gag and in response, a judge ruled against DOJ’s gag, meaning Microsoft would have been able to inform WaPo

That would mean that after DOJ, internally — Billy Barr and John Durham, in this speculative scenario — decided that warning journalists would create the same media stink we’re seeing today and make the records request untenable, a judge ruled that that a media stink over an investigation into a 3-year old leak wasn’t a good enough reason for a gag. If this happened, it would mean some judge ruled that Barr and Durham (if Durham is the one who made the request) invented a grave risk to the integrity of their investigation that a judge subsequently found implausible.

It would mean the request itself was dubious, to say nothing of the gag.

Once again, DOJ failed to meet its own notice requirements

And with respect to the gag, this request broke another one of the rules on obtaining records from reporters: that they get notice no later than 90 days after the subpoena. The Justice Manual says this about journalists whose records are seized:

  • Except as provided in 28 C.F.R. 50.10(e)(1), when the Attorney General has authorized the use of a subpoena, court order, or warrant to obtain from a third party communications records or business records of a member of the news media, the affected member of the news media shall be given reasonable and timely notice of the Attorney General’s determination before the use of the subpoena, court order, or warrant, unless the Attorney General determines that, for compelling reasons, such notice would pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm. 28 C.F.R. 50.10(e)(2). The mere possibility that notice to the affected member of the news media, and potential judicial review, might delay the investigation is not, on its own, a compelling reason to delay notice. Id.
  • When the Attorney General has authorized the use of a subpoena, court order, or warrant to obtain communications records or business records of a member of the news media, and the affected member of the news media has not been given notice, pursuant to 28 C.F.R. 50.10(e)(2), of the Attorney General’s determination before the use of the subpoena, court order, or warrant, the United States Attorney or Assistant Attorney General responsible for the matter shall provide to the affected member of the news media notice of the subpoena, court order, or warrant as soon as it is determined that such notice will no longer pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm. 28 C.F.R. 50.10(e)(3). In any event, such notice shall occur within 45 days of the government’s receipt of any return made pursuant to the subpoena, court order, or warrant, except that the Attorney General may authorize delay of notice for an additional 45 days if he or she determines that for compelling reasons, such notice would pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm. Id. No further delays may be sought beyond the 90‐day period. Id. [emphasis original]

Journalists are supposed to get notice if their records are seized. They’re supposed to get notice no later than 90 days after the records were obtained. AT&T and Verizon would have provided records almost immediately and this happened in 2020, meaning the notice should have come by the end of March. But WaPo didn’t get notice until after Lisa Monaco was confirmed as Deputy Attorney General and, even then, it took several weeks.

DOJ’s silence about an Office of Public Affairs review

While it’s not required by guidelines, in general DOJ has involved the Office of Public Affairs in such matters, so someone who has to deal with the press can tell the Attorney General and the prosecutor that their balance of journalist equities is out of whack. At the time, this would have been Kerri Kupec, who was always instrumental in Billy Barr’s obstruction and politicization.

But it’s not clear whether that happened. I asked Acting Director of OPA Marc Raimondi (the guy who has defended what happened in the press; he was in National Security Division at the time of the request), twice, whether someone from OPA was involved. Both times he ignored my question.

The history of Special Counsels accessing sensitive records and testimony

There’s a history of DOJ obtaining things under Special Counsels they might not have obtained without the Special Counsel:

  • Pat Fitzgerald coerced multiple reporters’ testimony, going so far as to jail Judy Miller, in 2004
  • Robert Mueller obtained Michael Cohen’s records from Microsoft rather than Trump Organization
  • This case probably represents John Durham, having been made Special Counsel, obtaining records that DOJ did not obtain in 2017

There’s an irony here: Durham has long sought ways to incriminate Jim Comey, who is represented by Pat Fitzgerald and others. In 2004, as Acting Attorney General, Comey approved the subpoenas for Miller and others. That said, given the time frame on the records request, it is highly unlikely that he’s the target of this request.

Whoever sought these records, it is virtually certain that the prosecutor only obtained them after making decisions that DOJ chose not to make when these leaks were first investigated in 2017, after Jeff Sessions announced a war on media leaks in the wake of having his hidden meeting with Sergey Kislyak exposed.

That suggests that DOJ decided these records, and the investigation itself, were more important in 2020 than Jeff Sessions had considered them in 2017, when his behavior was probably one of the things disclosed in the leak.

The dubious claim that these records could have been necessary or uniquely valuable

Finally, consider one more detail of DOJ’s decision to obtain these records: their claims, necessary under the media policy, that 3-year old phone and email records were necessary to a leak investigation.

When these leaks were first investigated in 2017, DOJ undoubtedly identified everyone who had access to the Kislyak intercepts and used available means — including reviewing the government call records of the potential sources — to try to find the leakers. If they had a solid lead on someone who might be the leaker, the government would have obtained the person’s private communication records as well, as DOJ did do during the contemporaneous investigation into the leak of the Carter Page FISA warrant that ultimately led to SSCI security official James Wolfe’s prosecution.

Jeff Sessions had literally declared war within days of one of the likely leaks under investigation here, and would approve a long-term records request from Ali Watkins in the Wolfe investigation and a WhatsApp Pen Register implicating Jason Leopold in the Natalie Edwards case. After Bill Barr came in, he approved the use of a Title III wiretap to record calls involving journalists in the Henry Frese case.

For the two and a half years between the time Sessions first declared war on leaks and the time DOJ decided these records were critical to an investigation, DOJ had not previously considered them necessary, even at a time when Sessions was approving pretty aggressive tactics against leaks.

Worse still, DOJ would have had to claim they might be useful. These records, unlike the coerced testimony of Judy Miller, would not have revealed an actual source for the stories. These records, unlike the Michael Cohen records obtained via Microsoft would not be direct evidence of a crime.

All they would be would be leads — a list of all the phone numbers and email addresses these journalists communicated with via WaPo email or telephony calls or texts — for the period in question. It might return records of people (such as Andy McCabe) who could be sources but also had legal authority to communicate with journalists. It would probably return a bunch of records of inquiries the journalists made that were never returned. It would undoubtedly return records of people who were sources for other stories.

But it would return nothing for other means of communication, such as Signal texts or calls.

In other words, the most likely outcome from this request is that it would have a grave impact on the reporting equities of the journalists involved, with no certainty it would help in the investigation (and an equally high likelihood of returning a false positive, someone who was contacted but didn’t return the call).

And if it was Durham who made the request, he would have done so after having chased a series of claims — many of them outright conspiracy theories — around the globe, only to have all of those theories to come up empty. Given that after years of investigation Durham has literally found nothing new, there’s no reason to believe he had any new basis to think he could solve this leak investigation after DOJ had tried but failed in 2017. Likely, what made the difference is that his previous efforts to substantiate something had failed, and Barr needed to empower him to keep looking to placate Trump, and so Durham got to seize WaPo’s records.

Billy Barr has been hiding other legal process against journalists

Given the disclosure that Barr approved a request targeting the WaPo about five months ago and that under Barr DOJ used a Title III wiretap in a leak investigation (albeit targeting the known leaker), it’s worth noting one other piece of oversight that has lapsed under Barr.

In the wake of Jeff Sessions declaring war on leaks in 2017 (and, probably, the leak in question here), Ron Wyden asked Jeff Sessions whether the war on leaks reflected a change in the new media guidelines adopted in 2015.

Wyden asked Sessions to answer the following questions by November 10:

  1. For each of the past five years, how many times has DOJ used subpoenas, search warrants, national security letters, or any other form of legal process authorized by a court to target members of the news media in the United States and American journalists abroad to seek their (a) communications records, (b) geo-location information, or (c) the content of their communications? Please provide statistics for each form of legal process.
  2. Has DOJ revised the 2015 regulations, or made any other changes to internal procedures governing investigations of journalists since January 20, 2017? If yes, please provide me with a copy.

In response, DOJ started doing a summary of the use of legal process against journalists for each calendar year. For example, the 2016 report described the legal process used against Malheur propagandist Pete Santilli. The 2017 report shows that, in the year of my substantive interview with FBI, DOJ obtained approval for a voluntary interview with a journalist before the interview because they, “suspected the journalist may have committed an offense in the course of newsgathering activities” (while I have no idea if this is my interview, during the interview, the lead FBI agent also claimed to know the subject of a surveillance-related story I was working on that was unrelated to the subject of the interview, though neither he nor I disclosed what the story was about). The 2017 report also describes obtaining Ali Watkins’ phone records and DOJ’s belated notice to her. The 2018 report describes getting retroactive approval for the arrest of someone for harassing Ryan Zinke but who claimed to be media (I assume that precedent will be important for the many January 6 defendants who claimed to be media).

While I am virtually certain the reports — at least the 2018 one — are not comprehensive, the reports nevertheless are useful guidelines for the kinds of decision DOJ deems reasonable in a given year.

But as far as anyone knows, DOJ stopped issuing them under Barr. Indeed, when I asked Raimondi about them, he didn’t know they existed (he is checking if they were issued for 2019 and 2020).

So we don’t know what other investigative tactics Barr approved as Attorney General, even though we should.

Bill Barr’s DOJ Protecting Sean Hannity the Cut-Out

Today, DOJ will have to release a less-classified version of the Mueller Report and another batch of 302s in the BuzzFeed FOIA. Then, after the election, Jason Leopold’s lawyers and DOJ start fighting over all the things DOJ withheld, including Mike Flynn’s 302 (which DOJ withheld because DOJ is trying to blow up his prosecution and releasing them publicly would make it clear his lies were material).

While we’re waiting, I wanted to point to a paragraph from an October 11, 2018 Paul Manafort interview that was wrongly withheld.

DOJ redacted Sean Hannity’s name, perhaps to make it harder to demonstrate that Manafort’s claim was a lie.

This is a reference to text messages Manafort had with Sean Hannity. Judge Amy Berman Jackson unsealed them during Manafort’s sentencing, making them a public official DOJ document. The texts show Manafort acknowledging the gag ABJ imposed.

Less than a week later, Manafort says they’ll have to hold off on talking until he gets bail, and Hannity passes on what appears to be word from Trump, that unless Jeff Sessions appoints a special prosecutor to investigate Uranium One, he’ll be gone.

In December, after Mueller’s team busts Manafort for working with Konstantin Kilimnik to edit an oped to run in Kyiv, Manafort tells Hannity he has to delay talking to him until they get past a hearing on that violation of ABJ’s gag order.

In early January, Manafort talks about having his lawyer (probably Kevin Downing) do an interview with Hannity about a civil suit he filed against Mueller as a way around the gag.

Again in January, Manafort says he needs to have his lawyer meeting with Gregg Jarrett to talk about their plans to try to get Andrew Weissmann thrown off the team.

On January 24 and 25, 2018, Manafort tells Hannity that Kevin Downing will be calling him.

On the 25th, Hannity confirms that he did speak with Downing and insists that Downing feed him “everyday.” Manafort says he will.

In May 2018, Manafort tells Hannity to look for his filing claiming the Mueller team was illegally leaking.

In May, Manafort asks Hannity if he’ll pitch his defense fund. Hannity says he will when Manafort and his lawyer are on.

Manafort insists to Hannity that his leaks filing exposes Weissmann misconduct. Hannity explains that Jarrett did not share the filing with him, so asks Manafort to sent it to his (!!!) AOL.Com address.

After Manafort gets busted for witness tampering, Manafort texts Hannity and insists it was bullshit.

And then Paulie goes to prison and the texts end.

Throughout the exchanges — particularly with that meeting between Downing and Hannity on January 24, 2018 — it’s clear Manafort is feeding Hannity.

And, as Weissmann got permission to include include in his book, the Muller team analyzed the texts and mapped how comments Manafort shared showed up in Hannity’s broadcasts.

At the same time the Manafort allies were working Gates over, dangling the prospect of money and a White House pardon, they were also fomenting a press strategy to undermine our office’s work, and Team M’s case against him in particular. In the spring of 2018, we discovered a new Manafort account he was using after his indictment in October 2017. As we had done countless times before, we obtained a court order from Chief Judge Howell, served it on the carrier, and soon unexpectedly had in our hands hundreds of texts between Manafort and the Fox News host Sean Hannity.

In one text exchange, during the weeks in which we were working to flip Gates, Manafort assured Hannity that Gates would stay strong and never cooperate. In others, he supplied Hannity with a cache of right-wing conspiracy-laden ammunition with which to attack Mueller, me, and the Special Counsel’s Office as a whole—some of it, Manafort claimed, had been passed on from sources within the Justice Department. Manafort, who was under house arrest at the time, assured Hannity that Manafort’s counsel would be in touch with him. Hannity worked this information into the tirades against us that he performed almost nightly on the air.

At the time, remember, Manafort was under indictment for the same charges as Gates; both were out on bail with strict pretrial conditions. Communicating with Hannity about the case was a violation of the gag order Judge Jackson had put in place on both sides so as not to taint the jury. But Manafort was undeterred by such legal niceties as a court order; he was doing what he did best: surreptitiously cooking up a smear campaign, then using Hannity to disseminate it, thereby contaminating the political discourse.

A Team M analyst correlated the texts to the Hannity Fox News programs that then aired in support of Manafort. The texts revealed a media plan that was just like the work he’d done in Ukraine, targeting President Yanukovych’s enemies. Now, however, Manafort was working on his own behalf, launching an assault on a government investigation poised to undo him.

I had wanted to submit the Hannity texts to the court as they revealed a continued flagrant violation of the court’s order, and it was something I believed the judge needed to know as it could well change her view on whether Manafort should remain on bail, or at least whether the conditions of his bail should be tightened up. When I told Aaron this, he had his usual reaction: No one could see these texts. “They are too explosive,” he said. He did not want the inevitable shit storm that would result on Fox and other media outlets, but that was no excuse for not alerting the court to the violation of her order. (I made clear that the court would have to see them at least in connection with sentencing Manafort as it was our obligation not to hide this from the court, which is how these ended up seeing the light of day.) Soon this latest Grant-McClellan standoff would be largely moot when we discovered Manafort’s breach of his bail conditions in a manner that made the gag order violation pale in comparison.

The fact that Weissmann was able to include this detail in his book makes it clear this is not sensitive and, indeed, DOJ considers it public.

And yet DOJ hid the identity of one of the most public men in America to hide the way Fox was running interference for Trump’s criminals.

Trump’s Slow-Motion Cover-Up of Erdogan Corruption and Jeff Sessions’ Meeting with Mike Flynn’s Clients

The NYT has a thoroughly damning story about Donald Trump’s serial effort to undermine the sanctions violation case against Halkbank. It describes how after Trump fired Preet Bharara, two of his Attorneys General intervened to limit what Geoffrey Berman’s Southern District of New York could do against the bank. Ultimately, that contributed to Berman’s firing.

These three paragraphs describe the epic corruption laid out in the story.

The president was discussing an active criminal case with the authoritarian leader of a nation in which Mr. Trump does business; he reported receiving at least $2.6 million in net income from operations in Turkey from 2015 through 2018, according to tax records obtained by The New York Times.

And Mr. Trump’s sympathetic response to Mr. Erdogan was especially jarring because it involved accusations that the bank had undercut Mr. Trump’s policy of economically isolating Iran, a centerpiece of his Middle East plan.

Former White House officials said they came to fear that the president was open to swaying the criminal justice system to advance a transactional and ill-defined agenda of his own.

And while the story mentions that Mike Flynn was among those lobbying the President on this topic, along with Rudy Giuliani and Brian Ballard, that’s the only mention of Flynn.

There’s just one mention of Jeff Sessions.

In 2018, Mr. Mnuchin reached out about the scale of a potential fine to Jeff Sessions, the attorney general at the time. Justice Department officials then asked Southern District prosecutors whether the size of the fine they were demanding was negotiable, one lawyer involved in the effort said. The response was affirmative: The amount was less important than securing an admission of wrongdoing.

Both references are rather curious given something that has come out in the Mike Flynn case — ironically, in the documents that DOJ altered and, apparently packaged up for circulation. In a set of Peter Strzok notes describing a meeting talking about the FARA investigation into Flynn, it describes that Attorney General Jeff Sessions met with Flynn’s lobbying clients, including the Turkish Foreign Minister, about Flynn’s case.

Flynn’s supporters take these notes to suggest that DOJ believed that Flynn had complied with the necessary paperwork and didn’t seem to have intentionally represented under the wrong lobbying category.

But the notes make it clear that DOJ still treated Ekim Alptekin as Flynn’s ultimate customer, and not at least one of the ministers the Attorney General had just met with.

It sure seems curious for the Attorney General to chase down a FARA violators’ clients like this.