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Sidney Powell Accuses William Barnett of Committing “Outrageous, Deliberate Misconduct” and Kenneth Kohl Hides Evidence that Brandon Van Grack Did Not

I want to pause for a moment and look at the maneuvers that Billy Barr pulled last night to try to substantiate a reason to blow up the Mike Flynn case.

First, on Wednesday, the less crazy attorneys on Mike Flynn’s team, William Hodes and Lindsay McKesson, moved to withdraw. It’s an awfully weird time for lawyers to withdraw from a case, unless they’re trying to leave town before the shit starts hitting the fan.

Unless I’m missing something, Sullivan has not approved their motion.

Then, last night, Sidney Powell submitted a memo with a bunch of exhibits, every single one of which have Bates stamps reflecting these are SCO documents:

Exhibit A:

Exhibit B:

Exhibit C:

Exhibit D:

Exhibit E:

That means that Mueller team members involved in Flynn’s case would have had access to these documents.

In her memo, Powell argues that the exhibits “establish[] misconduct” and are proof of Brady violations. She emphasizes that these documents were “long concealed by the Special Counsel and FBI.”

On May 7, 2020, the Government moved to dismiss with prejudice the prosecution of General Flynn. ECF No. 198. Until this case is dismissed with prejudice, the Government has a continuing obligation to provide to the defense all evidence that is exculpatory of General Flynn, establishes misconduct by the Government in its many capacities that contributed to this wrongful prosecution, or otherwise is favorable to the defense. Brady v. Maryland, 373 U.S. 83 (1963). The defense has a continuing obligation to make a record that mandates this dismissal— especially in view of this court’s unprecedented procedures and position.

[snip]

These documents provide information long known to the agents and others at the highest levels of the Department of Justice and the FBI; information long concealed by the Special Counsel and FBI. This evidence shows outrageous, deliberate misconduct by FBI and DOJ—playing games with the life of a national hero.

Then, later in the night, DOJ released a 302 memorializing a recent interview with William Barnett which I showed  was a self-contradictory shitshow. In the accompanying memo, Kenneth Kohl, Acting Principal Assistant US Attorney in DC, noted that Barnett, “handled the counterintelligence investigation of Mr. Flynn, and was thereafter assigned to the Special Counsel’s Office.”

Pursuant to that continuing review, an interview was recently conducted of the former case agent, SA William Barnett, who handled the counterintelligence investigation of Mr. Flynn, and was thereafter assigned to the Special Counsel’s Office investigating Russian interference in the 2016 Presidential Election.

Which is to say that yesterday, Sidney Powell submitted a brief arguing that William Barnett — her new star witness — engaged in “outrageous, deliberate misconduct,” and then later in the day, DOJ submitted a contradiction-riddled interview with that Agent that Powell had earlier accused of engaging in “outrageous, deliberate misconduct.”

Things get stranger.

In her filing, Powell claims that she has included Exhibits D and C as proof that Flynn satisfied the registration obligation.

Newly produced notes of Peter Strzok show: Strzok met with Bruce Schwartz, Lisa, and George at DOJ on March 28, 2017, where he noted Flynn Intel Group “satisfied the registration obligation” and “no evidence of any willfulness.” Nonetheless, “Bruce” decided to issue subpoenas to Flynn Intel Group “and more.” Exhibits C, D.

Exhibit D seems to show something dramatically different. It seems to show that the AG (that is, Jeff Sessions) met with Turkish Ministers and tried to vouch for Flynn about the secret work that Turkey was doing.

It seems odd to go to the guys who were hoping to keep their relationship with Flynn secret to ask them whether it was secret. Moreover, if they’re the ones vouching for it — and not Flynn’s cut-out, Ekim Alptekin — it would seem to suggest Flynn was working for Turkey, which is what he testified to under oath but not what he wrote on his delayed FARA filing. If so, this doesn’t help Flynn at all. It only serves to hurt him.

Things get stranger still.

Contrary to Powell’s claim, Exhibit C has nothing to do with Turkey. Instead, it’s a set of Peter Strzok’s notes from Jim Comey’s debrief of a meeting at the White House on January 5, 2017.

 

We’ve seen these notes before. They are a copy of notes submitted in June (which also have a — different — SCO Bates stamp on them, indicating that Barnett, the man Powell has accused of “outrageous, deliberate misconduct,” had access to those too).

 

The primary difference, aside from DOJ’s decision to newly release notes indicating that President Obama said to put the right people on this, is that the version submitted last night, the version that Powell claims to be about a March 28, 2017 meeting on Turkey is dated, “1/4-5/17.”

When Powell submitted the notes in June, she said they were proof that Vice President Biden “personally raised the idea of the Logan Act.”

Strzok’s notes believed to be of January 4, 2017, reveal that former President Obama, James Comey, Sally Yates, Joe Biden, and apparently Susan Rice discussed the transcripts of Flynn’s calls and how to proceed against him. Mr. Obama himself directed that “the right people” investigate General Flynn. This caused former FBI Director Comey to acknowledge the obvious: General Flynn’s phone calls with Ambassador Kislyak “appear legit.” According to Strzok’s notes, it appears that Vice President Biden personally raised the idea of the Logan Act.

I noted then that there was no question about date the notes were written, because they obviously describe a meeting that multiple documents (including one that has been public since February 2018, long before Flynn allocuted his guilt a second time) make clear happened on January 5, 2017. Nevertheless, Powell claimed (and set off a predictable resulting frenzy, which was probably the point) that they were proof that Biden had it in for Mike Flynn.

Now, normally, when you make an accusation to a court that later gets debunked, you make a filing with the court admitting you were wrong. In this case, Powell would have also had to admit that anyone who believed these notes were from January 3 — as Jeffrey Jensen had suggested they might be — provably knew fuckall about what he was looking at.

But if Powell were to do that, she’d be admitting that Jensen doesn’t know fuckall about what he is investigating on the same day she accused Barnett to have engaged in “outrageous, deliberate misconduct.” So instead, Powell just slipped the exhibit in with her filing without calling attention to her prior false claims.

But wait. Things get still stranger.

Finally, Kohl submitted the 302 with redactions of the name of an “SCO Atty 1.” Now, it has been the standing rule in DOJ that the AUSAs who worked for Mueller are public. That way Trump can rant about their political leanings at rallies.

Last night, for the first time ever, DOJ has decided that these attorneys are not senior enough to have their names released.

Several of those redactions of “SCO Atty 1’s” name, however, make it clear that the person has a two part last name, one that wraps at the end of a line.

Just one of Mueller’s attorneys has such a name (Adam Jed is the only one whose last name is short enough to fit in the first part of those redactions). That attorney is Brandon Van Grack. Indeed, the 302 from an interview that Barnett discussed in his interview makes it clear that Van Grack was the one Barnett is working with. So along with submitting proof that Barnett engaged in “outrageous, deliberate misconduct” as well as providing proof that Jensen led others to make a material misrepresentation to Emmet Sullivan, Kohl just submitted proof that Van Grack routinely took the side of Barnett. And that he, Kohl, was hiding that.

Call me crazy, but John Gleeson can just look at yesterday’s filings to show that Sidney Powell and Kenneth Kohl are accusing each other and Jeffrey Jensen of misconduct, at the same time that they’re hiding evidence that Van Grack did not engage in misconduct. That’s the the kind of misconduct that Emmet Sullivan might use to justify refusing to dismiss the prosecution.

Update: It’s not really clear whether the Bates reflects documents obtained by SCO or those investigating SCO. If it’s the latter, it raises real questions about whether Strzok’s notes are one or two copies.

The Minh Quang Pham Precedent to the Julian Assange Extradition

WikiLeaks supporters say that extradition of Julian Assange to the United States threatens journalism. That is true.

They also say that his extradition would be unprecedented. I believe that’s true too, with respect to the Espionage Act.

But it’s not entirely without precedent. I believe the case of Minh Quang Pham, who was extradited to the US in 2015 for activities related to AQAP — the most substantive of which involve providing his graphic design expertise for two releases of AQAP’s magazine, Inspire — provides a precedent that might crystalize some of the legal issues at play.

The Minh Quang Pham case

Minh Quang Pham was born in 1983 in Vietnam. He and his parents emigrated to the UK in 1989 and got asylum. In 1995, he got UK citizenship. He partied a lot, at a young age, until his conversion to Islam in 2004, after which he was drawn to further Islamic study and ultimately to Anwar al-Awlaki’s propaganda. Pham was married in 2010 but then, at the end of that year, traveled to Yemen. After some delays, he connected with AQAP and swore bayat in early 2011. While he claimed not to engage in serious training, testimony from high level AQAP/al-Shabaab operative Ahmed Warsame, who — after a two month interrogation by non-law enforcement personnel on a ship — got witness protection for himself and his family in exchange for cooperation, described seeing Pham holding a gun, forming one basis for his firearms and terrorist training charges (though the government also relied on a photo taken with Pham’s own camera).

On my arrival, Amin had a Kalashnikov with him and a pouch of ammunition. I am not certain if he had purchased the gun himself but he did say he had been trained by Abu Anais TAIS on how to use it, I can say from my knowledge of firearms that this weapon was capable of automatic and single fire.

Warsame’s role as informant not only raised questions about the proportionality of US treatment (he was a leader of al-Shabaab, and yet may get witness protection), but also whether his 2-month floating interrogation met European human rights standards for interrogation.

Pham reportedly sucked at anything military, and by all descriptions, the bulk of what Pham did in Yemen involved helping Samir Khan produce Inspire. After some time and a falling out with Khan — and after telling Anwar al-Awlaki he would accept a mission to bomb Heathrow — he returned to the UK. He was interrogated in Bahrain and at the airport on return, and again on arrival back home, then lived in London for six months before his arrest. At first, then-Home Secretary Theresa May tried to strip him of his UK citizenship in a secret proceeding so he could be deported (and possibly drone killed like other UK immigrants), but since — as a refugee — he no longer had Vietnamese citizenship, her first attempt failed.

The moment it became clear the British effort to strip him of citizenship would fail, the US indicted Pham in SDNY on Material Support (covering the graphic design work), training with a foreign terrorist organization, and carrying a firearm. Even before he ultimately did get stripped of his citizenship, he was flown to the US, in February 2015. The FBI questioned him, with no lawyer, during four days of interviews that were not recorded (in spite of a recently instituted FBI requirement that all custodial interviews be recorded). On day four, he admitted that Anwar al-Awlaki had ordered him to conduct an attack on Heathrow (which made the 302), but claimed he had made it clear he only did so as an excuse to be able to leave and return to the UK (a claim that didn’t make the 302; here’s Pham’s own statement which claims he didn’t want to carry out an attack). While Pham willingly pled guilty to the training and arms charges, at sentencing, the government and defense disputed whether Pham really planned to conduct a terrorist attack in the UK, or whether he had — as he claimed — renounced AQAP and resumed normal life with his wife. He failed to convince the judge and got a 40 year sentence.

The question of whether Pham really did plan to attack Heathrow may all be aired publicly given that — after Pham tried to get a recent SCOTUS case on weapon possession enhancements applied to his case — the government has stated that it wants to try Pham on the original charges along with one for the terrorist attack they claim Pham planned based on subsequently collected evidence.

The parallels between the Assange and Pham cases

Let me be clear: I’m not saying that Assange is a terrorist (though if the US government tries him, they will write at length describing about the damage he did, and it’ll amount to more than Pham did). I’m arguing, however, that the US has already gotten extradition of someone who, at the time of his extradition, claimed to have injured the US primarily through his media skills (and claimed to have subsequently recanted his commitment to AQAP).

Consider the similarities:

  • Both legal accusations involve suspect informants (Ahmad Warsame in Pham’s case, and Siggi and Sabu in Assange’s)
  • Both Pham and Assange were charged for speech — publishing Inspire and publishing the names of US and Coalition informants — that is more explicitly prohibited in the UK than the US
  • Both got charged with a substantive crime — terrorism training and possession of a gun in the case of Pham, and hacking in the case of Assange — in addition to speech-based crimes, charges that would (and did, in Pham’s case) greatly enhance any sentence on the speech-related charges
  • Pham got sentenced and Assange faces a sentence and imprisonment in SuperMax in the US that is far more draconian than a sentence for the same crimes would be in the UK, which is probably a big part of the shared Anglo-American interest in extraditing them from the UK
  • Whatever you think about the irregularity and undue secrecy of the Assange extradition, Pham’s extradition was far worse, particularly considering the way Theresa May was treating his UK citizenship

Unlike the Pham charges — all premised on Pham’s willing ties to a Foreign Terrorist Organization, AQAP — the US government has not included allegations that it believes Julian Assange conspired with Russia, though prosecutors involved in his case trying unsuccessfully to coerce Jeremy Hammond’s testimony reportedly told Hammond they believe him to be a Russian spy, and multiple other reports describe that the government changed its understanding of WikiLeaks as it investigated the 2016 election interference (and, probably, the Vault 7 release). Even if it’s true and even if they plan to air the basis for their belief, that’s a claimed intelligence tie, not a terrorism one.

This distinction is important. Holder v. Humanitarian Law clearly criminalizes First Amendment protected activity if done in service of a designated Foreign Terrorist Organization, so Pham’s graphic design by itself made him fair game for charges under US precedent.

The government may be moving to make a similar exception for foreign intelligence assets. As the Congressional Research Service notes, if the government believes Assange to be a Foreign Agent of Russia, it may mean the Attorney General (Jeff Sessions for the original charge, and Bill Barr for all the indictments) deemed guidelines prohibiting the arrest of members of the media not to apply.

The news media policy also provides that it does not apply when there are reasonable grounds to believe that a person is a foreign power, agent of a foreign power, or is aiding, abetting, or conspiring in illegal activities with a foreign power or its agent. The U.S. Intelligence Community’s assessment that Russian state-controlled actors coordinated with Wikileaks in 2016 may have implicated this exclusion and other portions of the news media policy, although that conduct occurred years after the events for which Assange was indicted. The fact that Ecuador conferred diplomatic status on Assange, and that this diplomatic status was in place at the time DOJ filed its criminal complaint, may also have been relevant. Finally, even if the Attorney General concluded that the news media policy applied to Assange, the Attorney General may have decided that intervening events since the end of the Obama Administration shifted the balance of interests to favor prosecution. Whether the Attorney General or DOJ will publicly describe the impact of the news media policy is unclear.

There’s a filing from the prosecutor in the case, Gordon Kromberg, that seems to address the First Amendment in more aggressive terms than Mike Pompeo’s previous statement on the topic.But it may rely, as the terrorism precedent does, on a national security exception (one even more dangerous given the absence of any State Department FTO list, but that hardly makes a difference for a foreigner like Pham).

Ultimately, though, the Assange extradition, like the Pham prosecution, is an instance where the UK is willing to let the US serve as its willing life imprisoner to take immigrants to the UK off its hands. Assange’s extradition builds off past practice, and Pham’s case is a directly relevant precedent.

The human rights case for Julian Assange comes at an awkward time

While human rights lawyers fought hard, at times under a strict gag, on Pham’s immigration case, Assange’s extradition has focused more public attention to UK’s willingness to serve up people to America’s draconian judicial system.

Last Thursday, Paul Arnell wrote a thoughtful piece about the challenge Assange will face to beat this extradition request, concluding that Assange’s extradition might (or might have, in different times) demonstrate that UK extradition law has traded subverted cooperation to a defendant’s protection too far.

We need to reappraise the balance between the conflicting functions of UK extradition law.

Among the UK’s most powerful weapons are its adherence to the rule of law, democracy and human rights. Assange’s extradition arguably challenges those fundamental principles. His case could well add to the evidence that the co-operative versus protective pendulum has swung too far.

He describes how legal challenges probably won’t work, but an appeal to human rights might.

British extradition law presumptively favours rendition. Extradition treaties are concluded to address transnational criminality. They provide that transfer will occur unless certain requirements are met. The co-operative purpose of extradition more often than not trumps the protection of the requested person.

The protective purpose of extradition is served by grounds that bar a request if they are satisfied. Those particularly applicable in Assange’s case are double criminality, human rights and oppression.

There are several offenses within the Official Secrets Acts 1911/1989 and the Computer Misuse Act 1990 that seemingly correspond to those in the US request. However, human rights arguments offer Assange hope.

Three are relevant: to be free from inhuman and degrading punishment, fair trial rights and freedom of expression. Previous decisions have held that life-terms in supermaximum-security prisons do not contravene the “punishment” provision, while the right to freedom of expression as a bar to extradition is untested.

Assange’s best prospect is possibly the oppression bar. Under it, a request can be refused on grounds of mental or physical health and the passage of time. To be satisfied, however, grievous ill health or an extraordinary delay are required.

It’s a good point, and maybe should have been raised after some of the terrorism extraditions, like Pham’s. But it may be outdated.

As I noted, Arnell’s column, titled, “Assange’s extradition would undermine the rule of law,” came out on Thursday. Throughout the same week that he made those very thoughtful points, of course, the UK publicly disavowed the rule of law generally and international law specifically in Boris Johnson’s latest effort to find a way to implement Brexit with no limits on how the UK deals with Northern Ireland.

The highlight – something so extraordinary and constitutionally spectacular that its implications are still sinking in – was a cabinet minister telling the House of Commons that the government of the United Kingdom was deliberately intending to break the law.

This was not a slip of the tongue.

Nor was it a rattle of a sabre, some insincere appeal to some political or media constituency.

No: law-breaking was now a considered government policy.

[snip]

[T]he government published a Bill which explicitly provides for a power for ministers to make regulations that would breach international and domestic law.

[snip]

Draft legislation also does not appear from nowhere, and a published Bill is itself the result of a detailed and lengthy internal process, before it is ever presented to Parliament.

This proposal has been a long time in the making.

We all only got to know about it this week.

[snip]

No other country will take the United Kingdom seriously in any international agreements again.

No other country will care if the United Kingdom ever avers that international laws are breached.

One of the new disclosures in a bunch of Roger Stone warrants released earlier this year is that, in one of the first Dms between the persona Guccifer 2.0, the WikiLeaks Twitter account explained, “we’ve been busy celebrating Brexit.” That same Brexit makes any bid for a human rights argument agains extradition outdated.

Julian Assange’s First Witness, Journalism Professor Mark Feldstein, Professes to Be Unfamiliar with the Public Record on Assange

The first day of the Julian Assange extradition hearing was a predictable circus.

Assange’s lawyers tried two legal tactics.

First, they tried to get parts of the second superseding indictment excluded from the proceedings. They claimed they hadn’t had time to review it with Assange. While I’m sympathetic to the difficulties imposed by Assange’s imprisonment amid COVID measures, WikiLeaks supporters have at the same time been (correctly) complaining that the documents on which the new allegations are based have been public for some time.

In any case, it didn’t work. Judge Vanessa Baraister said that she had offered Assange the opportunity to raise this complaint in the last hearing.

Judge Baraister similarly rejected a bid to delay the hearing until January (not incidentally the period when, if a Trump pardon for Assange would be forthcoming, it would take place), on largely the same basis.

Next, Professor Mark Feldstein — a journalism professor at University of Maryland — tried to present his testimony. Technical problems forced Baraister to delay proceedings until tomorrow.

That has left the public with copies of Feldstein’s prepared testimony and a supplement before he has the opportunity to present it and lawyers for the US to grill him in response. That may be unfortunate, because Feldstein’s original testimony has some key errors and omissions, and in his supplement he professes a lack of familiarity with the public record in this case.

Let me be clear: I wholeheartedly agree with large swaths of Professor Feldstein’s testimony. Donald Trump has waged unprecedented attacks on members of the news media, both verbally and through policy. I agree, too, that the First Amendment is not limited to journalists, and that political advocacy like Assange’s has a storied place in the history of journalism. I agree that some of the stories based off Chelsea Manning’s leaks were blockbusters (Feldstein predictably starts by listing Collateral Murder, which is not charged, and his effort to include all the files that were charged strays much further from the ones that have been most important.) His history of classified leaks is useful, though in some places he seems to misunderstand what was new and what wasn’t revealed until the release of declassified documents. His statement speaks at length about the dire problem with overclassification (though in one case, he cites a John McCain accusation about Obama’s motive for leaking as fact, a claim that hasn’t held up to subsequent events; he later cites McCain as a classification villain). I even agree with some, though not all, of his analysis of how the charges against WikiLeaks threaten normal journalistic activities like soliciting, receiving, and publishing documents, and protecting confidential sources. (Feldstein never goes so far as to defend helping a source hack something.) His testimony is valuable for the background on journalism it offers.

But Feldstein’s account of how the Assange prosecution arose out of Donald Trump’s election — which occurred with Assange’s help!!! — not only invents claims he doesn’t support, but makes several telling errors in citation.

Donald Trump’s election changed the calculus. The month after his inauguration, the president met with FBI director James Comey and brought up the issue of plugging leaks. Comey suggested “putting a head on a pike as a message” and Trump recommended “putting reporters in jail.”83 Three days later, he instructed his attorney general to investigate “criminal leaks” of “fake” news reports that had embarrassed the White House.84 According to press accounts, the new administration soon “unleashed an aggressive campaign” against Assange. CIA director Mike Pompeo publicly attacked WikiLeaks as a “hostile intelligence service” that uses the First Amendment to “shield” himself from “justice.” In private, he briefed members of Congress on a bold counterintelligence operation the agency was conducting that included the possible use of informants, penetrating overseas computers, and even trying to directly “disrupt” WiliLeaks, a move that made some lawmakers uncomfortable.85 A week later, Attorney General Jeff Sessions said at a news conference that journalists “cannot place lives at risk with impunity,” that prosecuting Assange was a “priority” for the new administration, and that if “a case can be made, we will seek to put some people in jail.” 86 The new leaders at the Justice Department dismissed their predecessors’ interpretation that Assange was legally indistinguishable from a journalist and reportedly began “pressuring” their prosecutors to outline an array of potential criminal charges against him, including espionage. Once again, career professionals were said to be “skeptical” because of the First Amendment issues involved and a “vigorous debate” ensued. 87 Two prosecutors involved in the case, James Trump and Daniel Grooms, reportedly argued against charging Assange.88 But in April of 2019, Assange was arrested in London—even though “the Justice Department did not have significant evidence or facts beyond what the Obama-era officials had when they reviewed the case.”89

83 Abramson, “Comey’s wish for a leaker’s ‘head on a pike.’”

84 “Remarks by President Trump in Press Conference,” WH.gov (Feb. 16, 2017); Charlie Savage and Eric Lichtblau, “Trump Directs Justice Department to Investigate ‘Criminal Leaks,’” New York Times (Feb. 16, 2017); Barnes, et al, “How the Trump Administration Stepped up Pursuit of WikiLeaks’ Assange.”

85 CIA, “Director Pompeo Delivers Remarks at CSIS” (April 13, 2017): www.cia.gov/news-information/speechestestimony/2017-speeches-testimony/pompeo-delivers-remarks-at-csis.html.

86 “Sessions Delivers Remarks,” Justice.gov. [sic]

87 Matt Zapotosky and Ellen Nakashima, “Justice Department debating charges against WikiLeaks members,” Washington Post (April 20, 2017); Adam Goldman, “Justice Department Weighs Charges Against Julian Assange,” New York Times (April 20, 2017).

88 Devlin Barrett, Matt Zapotosky and Rachel Weiner, “Some federal prosecutors disagreed with decision to charge Assange under Espionage Act,” Washington Post (May 24, 2019). 89 Barrett, et al, “Prosecutors Disagreed.”

The first citation (83) is to a 2018 story on Jim Comey’s memos memorializing conversations about leaks damaging to Trump, not WikiLeaks. The second (84) refers to an effort to go after those who damaged Trump. The next three sentences are attributed to Mike Pompeo’s designation of WikiLeaks as a non-state hostile actor in April 2017 (85), in the wake of the Vault 7 leaks, but two of those sentences (bolded) are not actually sourced to Pompeo’s comments, but instead to news accounts not specified in the relevant footnote. The next sentence combines what Jeff Sessions said on April 20, 2017 and what he said on August 4, 2017; perhaps Feldstein aims to cover that up by not including a date or a citation in the remarks in question (see footnote 86; Sessions’ April 20 comments don’t appear to be on the DOJ website), but suggesting Sessions’ August comments were about Assange is a move that WikiLeaks has made elsewhere. Importantly, Feldstein does not footnote one of the most widely cited reports of that April 20 speech, a CNN report that describes what changed, already in 2017, since DOJ had earlier decided not to prosecute Assange.

The US view of WikiLeaks and Assange began to change after investigators found what they believe was proof that WikiLeaks played an active role in helping Edward Snowden, a former NSA analyst, disclose a massive cache of classified documents.

[snip]

US intelligence agencies have also determined that Russian intelligence used WikiLeaks to publish emails aimed at undermining the campaign of Hillary Clinton, as part of a broader operation to meddle in the US 2016 presidential election. Hackers working for Russian intelligence agencies stole thousands of emails from the Democratic National Committee and officials in the Clinton campaign and used intermediaries to pass along the documents to WikiLeaks, according to a public assessment by US intelligence agencies.

That is, if Feldstein had reviewed the press coverage more broadly, he would have a ready explanation for why DOJ began to rethink its earlier decision not to charge Assange.

Assange’s own filing may attempt to cover for Feldstein’s citation inaccuracy, claiming that Feldstein cited that April WaPo story rather than ““Sessions Delivers Remarks,” Justice.gov”.

Then came the political statement of Attorney General Sessions on 20 April 2017 that the arrest of Julian Assange was now a priority and that ‘if a case can be made, we will seek to put some people in jail’ [Feldstein quoting Washington Post article of Ellen Nakashima, tab 18, p.19].

But even that April 20, 2017 WaPo article he claims to rely on doesn’t help him. In fact, it disputes Feldstein’s account of Trump’s animus towards WikiLeaks.

Trump has had a fluid relationship with WikiLeaks, depending largely on how the group’s actions benefited or harmed him. On the campaign trail, when WikiLeaks released Podesta’s hacked emails, Trump told a crowd in Pennsylvania, “I love WikiLeaks!” But when it came to the release of the CIA tools, he did not seem so pleased.

“In one case, you’re talking about highly classified information,” Trump said at a news conference earlier this year. “In the other case, you’re talking about John Podesta saying bad things about the boss.”

The actual words cited in part to the WaPo in Feldstein’s testimony (naming Ellen Nakashima, not Matt Zapotosky) don’t appear in the April story but in the NYT story cited. The rest relies on a [Devlin Barret and] Zapotosky story fairly obviously sourced to prosecutor James Trump, whom Zapotosky covered in the Jeffrey Sterling case and other EDVA cases but who — the story admits — wasn’t on the team anymore even when Assange was originally charged (presumably meaning December 2017 on just a CFAA charge that would accord with AUSA Trump’s concerns about an Espionage charge), and who would therefore have no visibility into what went into the May 2018 superseding indictment of Assange, much less the one on the table now.

In short, a key paragraph in Feldstein’s testimony, which is cited repeatedly in both Assange’s briefs on the case (one, two), is a scholarly shit-show.

And that’s before you consider the chronology of it, omitting as it does the Vault 7 leak which all the Assange-specific comments were responding to, which started on March 7, 2017.

That’s not the only problem with Feldstein’s citations. Feldstein also footnotes a claim that Assistant Attorney General for DOJ’s National Security Division John Demers, “declared that ‘Julian Assange is no journalist’ and thus not protected under the free press clause of the US Constitution’s First Amendment” with a citation to news reports on the indictment, rather than the remarks as prepared rolling out the indictment. While the story from Charlie Savage that Feldstein cites responsibly quotes Demers in context, the full statement makes it clear that it’s not only not a comment directly about the First Amendment, but that Demers never mentions the First Amendment.

The Department takes seriously the role of journalists in our democracy and we thank you for it. It is not and has never been the Department’s policy to target them for their reporting.

Julian Assange is no journalist. This made plain by the totality of his conduct as alleged in the indictment—i.e., his conspiring with and assisting a security clearance holder to acquire classified information, and his publishing the names of human sources.

Indeed, no responsible actor—journalist or otherwise—would purposely publish the names of individuals he or she knew to be confidential human sources in war zones, exposing them to the gravest of dangers.

This continues WikiLeaks’ longstanding effort to suggest the government has made First Amendment claims about Assange that obscure what they have actually said. (AUSA Gordon Kromberg does appear to have addressed the First Amendment in ways WikiLeaks has claimed that others have, but his affidavit is not yet public.)

While Kromberg’s testimony is not yet public, in one of the government’s filings made public today, the government hints at what Kromberg may have said at more length, noting that Feldstein only cites part of — but not the entirety — of a news report on Assange.

The principal evidence upon which the defence relies to demonstrate the existence of a such a decision is a newspaper article dated 25 November 2013 [Sari Horowitz, “Julian Assange is unlikely to face US Charges over publishing classified documents”, Washington Post]; Cited by Professor Feldstein at §9 page 18. 39.

Professor Feldstein omits important sections of the report upon which he relies to demonstrate a “decision” not to prosecute:

“The officials stressed that a formal decision has not been made, and a grand jury investigating WikiLeaks remains impaneled, but they said there is little possibility of bringing a case against Assange, unless he is implicated in criminal activity other than releasing online top-secret military and diplomatic documents.

And:

“WikiLeaks spokesman Kristinn Hrafnsson said last week that the anti-secrecy organization is skeptical “short of an open, official, formal confirmation that the U.S. government is not going to prosecute WikiLeaks.” Justice Department officials said it is unclear whether there will be a formal announcement should the grand jury investigation be formally closed”.

So, in response to Kromberg, Feldstein dug himself a very much deeper hole.

In a supplemental filing, Assange expert witness Mark Feldstein claimed and exhibited that he’s not familiar with the public record (though he cleaned up some of his prior citation errors). In it, he claimed the only way to know the truth about the Assange prosecution would be from leaks of grand jury or White House documents. “[T]he reporting I cited by the New York Times and Washington Post is to date the only public source of information about the behind-the-scenes maneuvering to prosecute Assange,” he claimed in a filing submitted on July 5, 2020.

The government insists that the Trump administration’s prosecution of Assange is not politically motivated. It dismisses my contrary conclusion—and that of other expert witnesses—by saying that we “primarily rely on a select number of news articles…and the hearsay within them.”

Indeed, my declaration relied on news accounts that the Obama administration decided not to prosecute Assange because of concerns that doing so would violate the First Amendment. 2 In particular, I cited comments that Matthew Miller, the former spokesman for the Obama Justice Department, made in an interview with the Washington Post: “The problem the department has always had in investigating Julian Assange is there is no way to prosecute him for publishing information without the same theory being applied to journalists. And if you’re not going to prosecute journalists for publishing classified information, which the department is not, then there is no way to prosecute Assange.” The Post reported that prosecutors called this the “New York Times problem”—that if they indicted Assange for publishing the documents leaked by Chelsea Manning, then they would also have to also indict the New York Times for doing the same.3

I also noted that the Trump administration decide to reject this interpretation and cited a New York Times report that its new appointees running the Justice Department began “pressuring” prosecutors to indict Assange, although two career prosecutors argued against doing so on First Amendment grounds. I also cited the article’s finding that “the Justice Department did not have significant evidence or facts beyond what the Obama-era officials had when they reviewed the case”4 and concluded that the decision to indict Assange was not an evidentiary decision but a political one.5

As the government knows, internal prosecutorial deliberations are not a matter of public record. White House and Justice Department documents that would shed further light on the political dimensions of the case—emails, internal memos, grand jury transcripts, and other records—are kept secret by the government. Thus, the reporting I cited by the New York Times and Washington Post is to date the only public source of information about the behind-the-scenes maneuvering to prosecute Assange.

Like so much other questionable conduct by the Trump administration, revelations about the unorthodox nature of this prosecution came to light only because of the vigilance of a free and vigorous press.

1 Gordon D. Kromberg, “Declaration in Support of Assange Extradition,” US v. Assange (Jan. 17, 2020), ¶18-19, pp. 8- 9.

You have got to be fucking kidding me!!

I invite Professor Feldstein to assign his undergraduate journalism students with the task of trying to discover any Trump, White House, and National Security views about WikiLeaks and Julian Assange that might explain why DOJ decided not to prosecute in 2013 but did prosecute in 2017, 2019, and 2020.

His first year undergraduate students might note the proximity between the April 2017 Assange-related announcements (the Jeff Sessions of which he obscures with his dodgy citation) and the release of the Vault 7 files in March 2017, which burned the CIA hacking ability to the ground.

They also might point to Trump’s tweets celebrating WikiLeaks to suggest that while Trump might hate the traditional press, he spent most of the 2016 campaign celebrating WikiLeaks.

Feldstein’s second year undergraduate students might look to the obvious places — like the Mueller Report — for some views about how Trump ordered campaign staff to go chase down WikiLeaks’ releases. Not only do the descriptions completely undermine Feldstein’s claim that Trump treats WikiLeaks like he does traditional media outlets, but it shows that the Department of Justice conducted an extensive investigation implicating WikiLeaks after the 2013 Matthew Miller quote he relies on. Indeed, exceptional sophomores might note that a redaction error in the Mueller Report makes it clear that a Mueller prosecutorial decision about foreign donations pertains to WikiLeaks, a detail released in 2019 that James Trump would not have been privy to.

Junior year journalism students might refer to the Stone trial testimony to see what it said about Trump’s relationship with WikiLeaks. Really astute journalism students would note that Randy Credico testified that Donald Trump’s rat-fucker Roger Stone actually reached out to Randy Credico in an effort to broker a pardon for Assange.

Q. Had you put Mr. Stone directly in touch with Ms. Kunstler after the election?

A. Yes, I did.

Q. And why had you done that?

A. Well, sometime after the election, he wanted me to contact Mrs. Kunstler. He called me up and said that he had spoken to Judge Napolitano about getting Julian Assange a pardon and needed to talk to Mrs. Kunstler about it. So I said, Okay. And I sat on it. And I told her–I told her–she didn’t act on it. And then, eventually, she did, and they had a conversation.

The same astute budding journalists might look at the trial record and discover how long those pardon discussions lasted — continuing well past the time Mike Pompeo and Jeff Sessions were discussing prosecuting journalists and/or Assange.

Senior journalism students might even tie that testimony to a question Robert Mueller asked — but didn’t really get an answer about — regarding whether Trump had considered an Assange pardon.

Donald Trump refused to answer a question under oath about whether he considered pardoning Julian Assange during the transition period between when WikiLeaks releases helped get him elected and his inauguration, something that makes it pretty clear the President treats WikiLeaks and Assange, which helped him get elected, differently than he does journalists who did not.

Professor Feldstein says he’d need a leak to discover that.

There’s a slew more that graduate students might discover but that Feldstein professed to be helpless to discover himself, such as the warrant that makes it clear Stone reached out to WikiLeaks lawyer Margaret Kunstler — to discuss an Assange pardon, WikiLeaks supporter Randy Credico testified to under oath — seven days after Trump got elected.

Or the other Stone warrant making it clear that after several of the media reports Feldstein relies on, Mueller’s team was just beginning to obtain warrants implicating Assange, in part for election-related crimes that have nothing to do with the Espionage Act. Or yet another that suggests DOJ was investigating WikiLeaks, in part, for conspiracy and Foreign Agent charges in August 2018.

Diligent journalism students — budding journalists not intimidated by redaction marks — might even look to the multiple SSCI Reports that address the government’s evolving understanding of WikiLeaks, particularly those that show how the many conflicting views in 2016 came to change to believe that WikiLeaks had been coopted by Russia.

Despite Moscow’s history of leaking politically damaging information, and the increasingly significant publication of illicitly obtained information by coopted third parties, such as WikiLeaks, which historically had published information harmful to the United States. previous use of weaponized information alone was not sufficient for the administration to take immediate action on the DNC breach. The administration was not fully engaged until some key intelligence insights were provided by the IC, which shifted how the administration viewed the issue.

Here, in public view, is indication that not just DOJ but the entire Intelligence Community came to shift their view of WikiLeaks and Assange as they investigated how Russia had attacked US democracy in 2016. But Mark Feldstein testified in his supplemental testimony that he could only discover that if someone leaked it to him.

Finally, Feldstein’s students might seek to understand the workings of a grand jury from the same place journalists always have, from those called to testify before them. Had they done so, they would at a minimum discover the Jeremy Hammond description of how he refused to testify for what would be the last superseding indictment against Assange, in which he described prosecutors twice claiming (without evidence) that Assange is “a Russian spy.”

“What could the United States government do that could get you to change your mind and obey the law here? Cause you know” — he basically says — “I know you think you’re doing the honorable thing here, you’re very smart, but Julian Assange, he’s not worth it for you, he’s not worth your sacrifice, you know he’s a Russian spy, you know.”

[snip]

He implied that all options are on the table, they could press for — he didn’t say it directly, but he said they could press for criminal contempt. … Then he implies that you could still look like you disobeyed but we could keep it a secret — “nobody has to know I just want to know about Julian Assange … I don’t know why you’re defending this guy, he’s a Russian spy. He fucking helped Trump win the election.”

The claims of a prosecutor as he’s trying to coerce testimony don’t affirm the veracity of the claim. Hammond’s claims in no way prove that Assange is a Russian spy or even that DOJ believes he is. But it does indicate what DOJ’s then-current claims were, in March 2020, before the most recent superseding indictment against Assange. They would indicate that the prosecutors asking for the extradition of Julian Assange claim to believe he is a Russian spy.

There is an embarrassment of public documents describing how the US government’s view of Assange changed between 2013 and 2020, as well as plenty that show DOJ was obtaining new legal process well after DOJ decided not to prosecute Assange. That doesn’t mean their view is correct or that it in any way mitigates the risk to journalism. But it does mean their view is discoverable by anyone who wants to check the public record.

And yet journalism Professor Mark Feldstein professes to be helpless to explain why DOJ charged Assange in 2017 and 2019 and 2020 but not in 2013, not unless someone leaks to him what DOJ and Trump and the rest of the US government were really thinking. And so instead, he offered a paragraph that falls apart completely if you simply read his source material, to say nothing of the public record.

Feldstein gives himself a bit of an excuse by claiming that his scholarly statement doesn’t address what happened after 2011 (a focus that may come from WikiLeaks’ lawyers — recall that someone close to Assange scolded me for reporting accurately on what WikiLeaks had done in 2016 and afterwards).

It should be noted that this report addresses only WikiLeaks disclosures in 2010-2011, the time period when Assange is accused of violating the Espionage Act; it does not discuss the website’s previous or subsequent document releases.

But you can’t claim to provide expert testimony about what DOJ was doing in 2017 without considering what WikiLeaks had done in the interim, and how that might change investigative tactics and conclusions (and did, in fact, lead DOJ to reconsider the evidence they had).

The record shows that — far from treating Assange with the disdain Trump harbored towards traditional journalists — Trump’s close associates entertained numerous discussions about pardons, and Trump himself refused to deny that under oath to Mueller. It further shows that the targeting of Wikileaks immediately followed the Vault 7 leaks burned the CIA’s hacking capacity to the ground (a prosecution that Trump himself almost blew up hours before the FBI confiscated Schulte’s passports). Finally, there is an abundance of evidence discoverable in the public record by any diligent journalism student that the understanding of WikiLeaks significantly evolved after the decisions not to charge Assange in 2013, in part because a national security investigation sought to figure out how badly Russians had tampered in our election, and in part because Trump got all kinds of help in the election from foreigners (including Assange).

Mark Feldstein claims in his expert testimony that what is happening to Julian Assange is just part of Trump’s larger assault on the press.

Seen in this light, the administration’s prosecution of Julian Assange is part and parcel of its campaign against the news media as a whole. Indeed, Assange’s criminal indictment under the US Espionage Act is arguably its most important action yet against the press, with potentially the most far-reaching consequences.

But he makes that claim while also admitting zero familiarity about the public record concerning Assange which shows the opposite.

The Julian Assange prosecution presents serious risks to journalism. But none of those excuse shoddy journalism — a failure to even consult the public, official record — in support of his case. That’s what Assange’s first witness is planning to do.

Update: Cleaned up the post and fixed a date.

Treasury Threatens to Prosecute Reporters Trying to Reveal What Rod Rosenstein and Richard Burr Would Not

WikiLeaks supporters like to claim the May 2019 superseding indictment against Assange uniquely threatens journalism by treating routine journalistic activities — such as requesting sensitive information — as part of a conspiracy to leak.* That’s not entirely true.

As I’ve noted, well before Assange’s superseding indictment, in October 2018, DOJ charged Natalie Sours Edwards — one of several presumed sources for a series of BuzzFeed stories on Suspicious Activities Reports pertaining to those investigated for their ties to Russia — in such a way to treat Jason Leopold as a co-conspirator. Both the complaint justifying her arrest and the indictment include a conspiracy charge that describes how Edwards (and another unindicted co-conspirator) worked with Reporter-1, including one request pertaining to Prevezon captured on Signal.

c. As noted above, the October 2018 Article regarded, among other things, Prevezon and the Investment Company. As recently as September 2018, EDWARDS and Reporter-1 engaged in the following conversation, via the Encrypted Application, in relevant part:

EDWARDS: I am not getting any hits on [the CEO of the Investment Company] do you have any idea what the association is if I had more information i could search in different areas

Reporter-1: If not on his name it would be [the Investment Company]. That’s the only other one [The CEO] is associated with Prevezon Well not associated His company is [the Investment Company]

On January 13, Edwards pled guilty to one charge, the conspiracy one, though without any sign of cooperation.

In fact, Edwards is not the only case charged like this. While he was charged after Assange’s superseding indictment, Henry Frese, a DIA analyst who leaked reports on China to some NBC reporters, was not just charged in a similar conspiracy charge, but was wiretapped to collect evidence implicating the reporters. Because he cooperated, there’s little to prevent Trump’s DOJ from charging the journalists after the election except Trump’s well-established support for an adversarial press.

The way in which DOJ charged Edwards has become newly critical given an announcement Treasury made yesterday, in the wake of reports about how Donald Trump was never investigated for his financial vulnerability to Russia. The unit of Treasury that collects and analyzes Suspicious Activity Reports released a statement threatening “various media outlets” who were planning to publish stories on SARs.

The Financial Crimes Enforcement Network (FinCEN) is aware that various media outlets intend to publish a series of articles based on unlawfully disclosed Suspicious Activity Reports (SARs), as well as other sensitive government documents, from several years ago.  As FinCEN has stated previously, the unauthorized disclosure of SARs is a crime that can impact the national security of the United States, compromise law enforcement investigations, and threaten the safety and security of the institutions and individuals who file such reports.  FinCEN has referred this matter to the U.S. Department of Justice and the U.S. Department of the Treasury’s Office of Inspector General.

BuzzFeed has always treated their source for the Treasury story as a whistleblower, reporting not just a dispute over access to reports for intelligence reports, but also on the damning Russian information that got ignored.

As Edwards has moved closer to sentencing, she developed irreconcilable differences with her original attorneys over what she called a coerced guilty plea. And documents filed in the case provide some explanation why.

While the substance of her appeal is not entirely clear, it’s clear that she claimed legal access to certain documents — presumably SARs — as a whistleblower.

In the appellants “official capacity” as a government employee from 2015-Jan 2020 and as a whistleblower from 2015 to current, the specific documents were used during the Congressional Request Inquires & Letters from 2015-2018, the Office of Special Counsel’s investigations from 2017-2020 and the appellants legal access to the exculpatory material from 2018 to current per 31 C.F.R. § 103 “official disclosures responsive to a request from an appropriate Congressional committee or subcommittees; and prosecutorial disclosures mandated by statute or the Constitution, in connection with the statement of a government witness to be called at trial, the impeachment of a government witness, or as material exculpatory of a criminal defendant.1

As a government employee I could disclose any information in a SAR (including information in supporting documentation) to anyone, up to and including the person who is the subject of the SAR, so long as the disclosure was “necessary to fulfill the official duties of such officer or employee”2 which I did as a whistleblower and as an employee; however, once I medically resigned, 31 C.F.R. § 103 provided the legal exculpatory material as a whistleblower, administrative appellate and criminal defendant to disclose the information in court proceedings. Furthermore, the appellant was adhering to the courts upholding that disclosures must be specific and detailed, not vague allegations of wrongdoing regarding broad or imprecise matters. Linder v. Department of Justice, 122 M.S.P.R. 14, 14 (2014); Keefer v. Department of Agriculture, 82 M.S.P.R. 687, 10 (1999); Padilla v. Department of the Air Force, 55 M.S.P.R. 540, 543– 44 (1992).

After she tried to use the documents in her appeal of a whistleblower complaint, the Treasury Department Inspector General shared them with the prosecutors in her case, who in turn cited them in her presentencing report.

The agency has argued throughout the appellant no longer is an employee of the agency, the pro se appellant agrees. The agency Inspector General should not have been notified of the administrative proceedings of the court because the appellant is not an employee of the agency. There is no statue or policy that gives the agency the right to notify the agency IG of the “procedural motion” prior “to notify the other party”. Regulation 5 C.F.R. § 1201.55(a) does not state “notify Inspector General” rather it does state “to notify the other party”. The pro se appellant argues notifying the Inspector General prior to “the other party” is a violation of the pro se appellants fifth amendment.

[snip]

[T]he agency/agency IG notified the appellants criminal prosecutors of the disclosures in the IRA case. As explained above, the disclosures are permissible per 31 C.F.R. § 103. Due to the agency/agency IG notification to the government prosecutors, the prosecution requested increased sentencing in the sentencing report for the appellant/defendant thus violating the defendants fifth amendment in the criminal proceeding.

Edwards further claimed that the government withheld her original complaint to coerce her to plead guilty.

The Federal Judge found merit and significant concerns in the “letter and substantial documentation” the whistleblower defendant/appellant provided to the court concerning violation of fifth amendment, conflict of interests pertaining to the prosecution/counsel, coercion of the plea deal, criminal referral submitted against agency IG, the letter defendant sent to Attorney General Sessions and Special Counsel Mueller, etc., all elements withheld from the Federal court by both the prosecution and defense counsel.

Edwards has been assigned a new attorney (who may have convinced her not to submit this complaint as part of sentencing), and her sentencing has been pushed out to October.

There’s no way to assess the validity of her complaint or even her representation of what happened with the judge in her case, Gregory Woods. What her complaint shows, however, is that there’s a packet of information she sent to Mueller and Sessions (possibly implicating and/or also sent to Congress), summarizing some reports she believes got ignored.

If those reports show what Rod Rosenstein and Richard Burr worked so hard not to investigate, it might explain why Treasury is threatening legal consequences for reporting on them. And given how DOJ already structured this prosecution, they might well be threatening to treat reporting on the President’s vulnerabilities as a conspiracy to leak SARs protected by statute.


*WikiLeaks supporters also cite the risk of Assange being subjected to US Espionage Act prosecution. While that risk is real, in his case, the most dangerous charges (for leaking the names of US and Coalition informants) would likely be far easier to prosecute under the UK’s Official Secrets Act, which still could happen if he’s not extradited. The actions described in his indictment are arguably more explicitly criminalized in the UK than the US, even if their sentences are not as draconian.

Hot and Cold Running Mike Pompeo and Other Ridiculous WikiLeaks Defense Claims

Today is the first day of Julian Assange’s fight to avoid extradition. In addition to legitimate First Amendment concerns about extraditing Assange on the charges as written, Assange is challenging the extradition with some very selective story-telling to pretend that he’s being prosecuted for political reasons.

For example, WikiLeaks is pointing to the Dana Rohrabacher pardon discussion in August 2017 to suggest that Trump was extorting Assange, demanding he provide certain details about the 2016 hack (details that are consistent with the lies that Assange told consistently about Russia’s role in the hack-and-leak) or else he would prosecute him. Unsurprisingly, WikiLeaks did not mention that discussions of a pardon started at least as early as December 2016 as payback for his role in the election, and continued in February 2017 as Assange tried to use the Vault 7 files to extort a pardon. If you can believe Roger Stone, pardon discussions continued even after DOJ first charged Assange in December 2017until early January 2018 (though that may have been an attempt to silence Randy Credico and thereby keep details of what really happened in 2016 secret).

WikiLeaks is also misrepresenting the timing of the increased surveillance by UC Global in December 2017 to suggest Assange was always being surveilled that heavily.

I will pass over the intervening period during which Julian Assange continued to have his conversations with his lawyers and family constantly monitored and recorded by a private agency acting on the instructions of US intelligence and for their benefit.

As slides from Andrew Müller-Maguhn make clear, the surveillance only began to really ratchet up in December 2017, after Assange had helped Joshua Schulte burn CIA to the ground (and at a time when WikiLeaks remained in communication with Schulte).

Assange’s team then mis-states when Trump’s war on journalists began, suggesting it preceded the April 2017 targeting of Assange, rather than came in August 2017.

That temporal slight is necessary because Assange’s team is claiming that Mike Pompeo decided to attack WikiLeaks in April 2017 out of the blue, out of some kind of retaliation.

That is why the prosecution of Mr. Assange, based on no new evidence, was now pursued and advocated by the Trump administration, led by spokesman such as Mike Pompeo of the CIA and Attorney General Sessions. They began by denouncing him in April 2017. I refer you to the following:

i. Firstly, the statements of Mr. Pompeo, as director of the CIA, on 13 April 2017, denouncing Julian Assange and WikiLeaks as “a non-state hostile intelligence agency“. [Feldstein, tab 18, p19 and K10] On the same occasion, Pompeo also stated that Julian Assange as a foreigner had no First Amendment rights (See Guardian article, bundle K)

ii. Then there was the political statement of Attorney General Sessions on 20 April 2017 that the arrest of Julian Assange was now a priority and that ‘if a case can be made, we will seek to put some people in jail‘ [Feldstein quoting Washington Post article of Ellen Nakashima, tab 18, at page 19]

That’s thoroughly absurd. Pompeo’s speech was entirely about CIA’s response to have been burned to the ground by WikiLeaks. This passage makes clear that, in his prepared speech at least, Pompeo’s comments about the First Amendment don’t pertain to him being a foreigner at all (I’m going to pull the video).

No, Julian Assange and his kind are not the slightest bit interested in improving civil liberties or enhancing personal freedom. They have pretended that America’s First Amendment freedoms shield them from justice. They may have believed that, but they are wrong.

[snip]

Third, we have to recognize that we can no longer allow Assange and his colleagues the latitude to use free speech values against us. To give them the space to crush us with misappropriated secrets is a perversion of what our great Constitution stands for. It ends now.

Here’s what he said in questions:

DIRECTOR POMPEO: Yeah, First Amendment freedoms. What I was speaking to there was, as – was a little less constitutional law and a lot more of a philosophical understanding. Julian Assange has no First Amendment freedoms. He’s sitting in an embassy in London. He’s not a U.S. citizen. So I wasn’t speaking to our Constitution.

What I was speaking to is an understanding that these are not reporters don’t good work to try to keep you – the American government honest. These are people who are actively recruiting agents to steal American secrets with the sole intent of destroying the American way of life. That is fundamentally different than a First Amendment activity, as I understand them, and I think as most Americans understand them. So that’s what I was really getting to.

We’ve had administrations before that have been squeamish about going after these folks under some concept of this right-to-publish. No one has the right to actively engage in the threat of secrets from America with the intent to do harm to it.

Mike Pompeo is and always will be a problematic figure to make this argument.

But all the evidence shows that Assange’s surveillance and prosecution arose in response to the Vault 7 leaks, not Trump innate hatred for journalists.

Update: Here are the Prosecution’s Opening Statement and Skeleton Argument.

The Stakes and Misinformation about the Andrew McCabe Declination

Amid the other crazy events of the week, DOJ informed Andrew McCabe he would not be prosecuted as a result of the criminal referral arising from DOJ IG’s finding that he lacked candor when asked about an October 30, 2016 Devlin Barrett story.

While it’s possible the Tuesday Afternoon Massacre and Jessie Liu’s removal had some role in the timing of this notice, one thing is clear: McCabe got notice primarily because Judge Reggie Walton had imposed a deadline in a CREW FOIA to release some transcripts about the stalled decision-making process. Probably, DOJ made the decision last fall after a grand jury refused to charge McCabe, but stalled on giving McCabe notice because DOJ knew it would piss off Trump. But since the court transcripts would reveal some of that, the FOIA deadline finally forced DOJ’s hand.

In the aftermath of the McCabe news, a bunch of frothy Republicans, including Chuck Grassley, have analogized the investigation into McCabe with the investigations into Roger Stone (for conducting a two year cover-up, including making threats against a witness and a judge) and Mike Flynn (for lying multiple times to the FBI, continuing to fudge the truth in the ongoing investigation, and lying to hide that he was on Turkey’s payroll at a time when he was Trump’s top national security advisor). Even taken on their face, that’s a ridiculous comparison, one that dismisses the import of threatening judges and secretly serving as agents for frenemy governments while receiving intelligence briefings. The accusations against the men are different, with a lack of candor allegation against McCabe versus lying against the others, and egregious mitigating factors implicating national security with the others. Whereas grand jury reportedly refused to even charge McCabe, a jury found Stone guilty of every count with which he was charged.

More importantly, the comparison has treated the allegation against McCabe with a seriousness that the underlying record — as laid out in McCabe’s lawsuit against DOJ — does not merit.

And McCabe’s lawsuit may provide a partial explanation for why DOJ stalled so long before declining to prosecute the case. That’s because a key part of DOJ’s defense against McCabe’s lawsuit is that they could or even had to move so quickly to fire McCabe because there was reasonable reason to believe that McCabe had committed a crime for which he could be imprisoned.

Mr. McCabe was given seven days to provide oral and written responses to the notice of proposed removal to ADAG Schools. That response period was a departure from the 30-day response period more frequently provided for a proposed removal. But FBI policy governing the removal of Senior Executive Service (SES) employees provides that “if there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment can be imposed, the advance notice may be curtailed to as little as seven days.” FBI SES Policy at 16 (attached as Ex. 2). Given the Inspector General’s findings that Mr. McCabe lacked candor under oath, findings which Assistant Director Will seconded after her independent assessment, there was reasonable cause to believe that Mr. McCabe had committed a crime for which a sentence could be imposed—and, therefore, a sound basis for affording Mr. McCabe seven days to respond.

DOJ has excused their rush to fire McCabe based on having reasonable grounds to believe he could be prosecuted for lies, but the rush to fire McCabe resulted in DOJ ignoring clear evidence that the IG Report was fundamentally flawed in a way that easily explains why a grand jury would refuse to indict. So the lawsuit, if McCabe gets discovery, is likely to show that he was rushed out the door to prevent him from building the case that he was being rushed out the door based on a case riddled with problems.

When the IG Report came out, I found it pretty compelling and therefore the criminal referral understandable (though I did not believe criminal charges would be upheld), even while noting the big push to make that happen before McCabe retired delegitimized it. But now it’s clear that the report didn’t get the normal level of pre- and post-publication review, McCabe’s OPR process was rushed to beat his retirement deadline, and had either of those processes been conducted in the normal fashion, they would have likely caught significant problems with the report.

Indeed, McCabe presented compelling evidence — even in a very rushed written response submitted to OPR hours before Jeff Sessions fired him — that he had at least colorable explanations to rebut the IG Report allegations.

As laid out, the IG Report accused McCabe of lacking candor about two kinds of things: first, whether he had told Comey he was a source for the WSJ story, and what role he and Lisa Page had in the story. Both the middle meetings — May 9, 2017, hours before Comey’s firing and his ascension to Acting Director, and July 28, 2017, in the context of a meeting about the discovery of the Page-Strzok texts — were on two of the most momentous days of McCabe’s career. The other two pertain to whether or not McCabe told Comey about his involvement in the WSJ story, which the IG Report portrayed as a difference of opinion about a casual meeting the two had, about which the IG sided with Comey’s version.

Thus, to a significant degree, the question of McCabe’s candor pivoted on whether he had really told Comey he was involved in the WSJ story.

And, as McCabe alerted OPR before he got fired, the IG Report included no mention of one of the most central players in the October 2016 WSJ story, FBI’s Assistant Director of Public Affairs Michael Kortan, with whom McCabe worked closely on the WSJ story. In other words, the IG Report suffers from the kind of egregious failure to include exculpatory information that it just took FBI to task about in the Carter Page IG Report (which also happens to be true of the Carter Page IG Report generally and its treatment of Bruce Ohr specifically). So when the IG Report sides with Comey’s version of the story because,

no other senior FBI official corroborated McCabe’s testimony that, among FBI executive leadership, “people knew generally” he had authorized the disclosure,

The Report can only make such a claim because it entirely left out the testimony of one of the most central players, Kortan. And as McCabe has made clear, in the OPR adjudication, his team did not get the exculpatory information involving Kortan until two days before the final decision.

Reports of why the grand jury refused to indict have pointed to Kortan’s testimony, and it’s clear why: because his testimony totally undermines the conclusions of the IG Report and therefore any basis to indict him.

Most importantly, McCabe submitted an email showing that he informed Comey (and some of the other senior FBI people whom the IG Report claimed didn’t know he was involved) that he was involved in the WSJ story.

With the declination of McCabe, DOJ has admitted that a key reason they claim to have relied on (a claim McCabe disputes) on rushing McCabe’s firing is false: he’s not likely to face prison time, because a grand jury won’t even indict him. And that may increase the chances that McCabe will get to prove precisely why he was rushed out the door with Trump screaming about him all the way.

The Slow Firing of Robert Mueller[‘s Replacement]

On December 5, I suggested that Speaker Pelosi delay the full House vote on impeachment until early February. I intimated there were public reasons — the possibility of a ruling on the Don McGahn subpoena and superseding charges for Lev Parnas — I thought so and private ones. One of the ones I did not share was the Stone sentencing, which at that point was scheduled for February 6. Had Pelosi listened to me (!!!) and had events proceeded as scheduled, Stone would have been sentenced before the final vote on Trump’s impeachment.

But things didn’t work out that way. Not only didn’t Pelosi heed my suggestion (unsurprisingly), but two things happened in the interim.

First, Stone invented a bullshit reason for delay on December 19, the day after the full House voted on impeachment. The prosecutors who all resigned from the case yesterday objected to the delay, to no avail, which is how sentencing got scheduled for February 20 rather than the day after the Senate voted to acquit.

Then, on January 6, Trump nominated Jessie Liu, then the US Attorney for DC, to be Undersecretary for Terrorism and Financial Crimes, basically the person who oversees the process of tracking criminal flows of finance. She won’t get that position — her nomination was pulled yesterday in advance of a Thursday confirmation hearing. But her nomination gave Barr the excuse to install a trusted aide, Timothy Shea, at US Attorney for DC last Thursday, the day after the impeachment vote and in advance of the now-delayed Stone sentencing.

Liu, who is very conservative and a true Trump supporter, had been nominated for a more obvious promotion before. On March 5, Trump nominated her to be Associate Attorney General, the number 3 ranking person at DOJ. But then she pulled her nomination on March 28 because Senators objected to her views on choice.

But let’s go back, to late August 2018. Michael Cohen and Sam Patten had just pled guilty, and Cohen was trying to find a way to sort of cooperate. Rudy Giuliani was talking about how Robert Mueller would need to shut down his investigation starting on September 1, because of the election. I wrote a post noting that, while Randy Credico’s imminent grand jury appearance suggested Mueller might be close to finishing an indictment of Stone, they still had to wait for Andrew Miller’s testimony.

Even as a I wrote it, Jay Sekulow was reaching out to Jerome Corsi to include him in the Joint Defense Agreement.

During the entire election season, both Paul Manafort and Jerome Corsi were stalling, lying to prosecutors while reporting back to Trump what they were doing.

Then, the day after the election, Trump fired Jeff Sessions and installed Matt Whitaker. Whitaker, not Rosenstein, became the nominal supervisor of the Mueller investigation. Not long after, both Manafort and Corsi made their game clear. They hadn’t been cooperating, they had been stalling to get past the time when Trump could start the process of ending the Mueller investigation.

But Whitaker only reactively kept Mueller in check. After Michael Cohen’s December sentencing made it clear that Trump was an unindicted co-conspirator in a plot to cheat to win, Whitaker started policing any statement that implicated Trump. By the time Roger Stone was indicted on January 24, 2019 — after Trump’s plan to replace Whitaker with the expert in cover ups, Bill Barr — Mueller no longer noted when Trump was personally involved, as he was in Stone’s efforts to optimize the WikiLeaks releases.

But then, when Barr came in, everything started to shut down. Mueller moved ongoing prosecutions to other offices, largely to DC, under Jessie Liu’s supervision. As Barr came to understand where the investigation might head, he tried to promote Liu out of that position, only to have GOP ideology prevent it.

Barr successfully dampened the impeach of the Mueller Report, pretending that it didn’t provide clear basis for impeaching the President. It was immediately clear, when he did that, that Barr was spinning the Stone charges to minimize the damage on Trump. But Barr did not remove Mueller right away, and the Special Counsel remained up until literally the moment when he secured Andrew Miller’s testimony on May 29.

The next day, I noted the import of raising the stakes for Trump on any Roger Stone pardon, because Stone implicated him personally. That was more important, I argued, than impeaching Trump for past actions to try to fire Mueller, which Democrats were focused on with their attempt to obtain Don McGahn’s testimony.

Still, those ongoing investigations continued under Jessie Liu, and Stone inched along towards trial, even as Trump leveraged taxpayer dollars to try to establish an excuse to pardon Manafort (and, possibly, to pay off the debts Manafort incurred during the 2016 election). As Stone’s trial laid out evidence that the President was personally involved in optimizing the release of emails Russia had stolen from Trump’s opponent, attention was instead focused on impeachment, his more recent effort to cheat.

In Stone’s trial, he invented a new lie: both Randy Credico and Jerome Corsi had falsely led him to believe they had a tie to WikiLeaks. That didn’t help Stone avoid conviction: Stone was found guilty on all counts. But it gave Stone yet another cover story to avoid revealing what his ties to WikiLeaks actually were and what he did — probably with Trump’s assent — to get it. For some reason, prosecutors decided not to reveal what they were otherwise prepared to: what Stone had really done.

Immediately after his conviction, Stone spent the weekend lobbying for a pardon. His wife appeared on Tucker Carlson’s show and someone got inside White House gates to make the case.

But, as impeachment proceeded, nothing happened, as the Probation Office started collecting information to argue that Stone should go to prison for a long while. The day Democrats finished their case against Donald Trump, though, Bill Barr made his move, replacing Liu before she was confirmed, removing a very conservative Senate confirmed US Attorney to install his flunkie, Timothy Shea. But even that wasn’t enough. Prosecutors successfully convinced Shea that they should stick to the probation office guidelines recommending a stiff sentence. When Timothy Shea didn’t do what Barr expected him to, Barr intervened and very publicly ordered up the cover up he had promised.

Effectively, Bill Barr is micro-managing the DC US Attorney’s office now, overseeing the sentencing of the man who could explain just how involved Trump was in the effort to maximize the advantage Trump got from Russia’s interference in 2016, as well as all the other prosecutions that we don’t know about.

Trump has, finally, succeeded in firing the person who oversaw the investigations into his role in the Russian operation in 2016. Just as Stone was about to have reason to explain what that role was.

Timeline

August 21, 2018: Michael Cohen pleads guilty

August 31, 2018: Sam Patten pleads guilty

September 5, 2018: Jay Sekulow reaches out to Corsi lawyer to enter into Joint Defense Agreement

September 6, 2018: In first Mueller interview, Corsi lies

September 17, 2018: In second interview, Corsi invents story about how he learned of Podesta emails

September 21, 2018: In third interview, Corsi confesses to establishing a cover story about Podesta’s emails with Roger Stone starting on August 30, 2016; NYT publishes irresponsible story that almost leads to Rod Rosenstein’s firing

October 25, 2018: Rick Gates interviewed about the campaign knowledge of Podesta emails

October 26, 2018: Steve Bannon admits he spoke with Stone about WikiLeaks

October 31, 2018: Prosecutors probably show Corsi evidence proving he lied about source of knowledge on Podesta emails

November 1 and 2, 2018: Corsi continues to spew bullshit in interviews

November 6, 2018: Election day

November 7, 2018: Jeff Sessions is fired; Matt Whitaker named Acting Attorney General

November 9, 2018: Corsi appears before grand jury but gives a false story about how he learned of Podesta emails; Mueller threatens to charge him with perjury

November 15, 2018: Trump tweets bullshit about Corsi’s testimony being coerced

November 23, 2018: Corsi tells the world he is in plea negotiations

November 26, 2018: Corsi rejects plea

December 7, 2018: Trump nominates Bill Barr Attorney General

January 18, 2019: Steve Bannon testifies to the grand jury (and for the first time enters into a proffer)

January 24, 2019: Roger Stone indicted for covering up what really happened with WikiLeaks

February 14, 2019: Bill Barr confirmed as Attorney General

March 5, 2019: Jessie Liu nominated to AAG; Bill Barr briefed on Mueller investigation

March 22, 2019: Mueller announces the end of his investigation

March 24, 2019: Bill Barr releases totally misleading version of Mueller results, downplaying Stone role

March 28, 2019: Liu pulls her nomination from AAG

April 19, 2019: Mueller Report released with Stone details redacted

May 29, 2019: As Mueller gives final press conference, Andrew Miller testifies before grand jury

November 12, 2019: Prosecutors apparently change Stone trial strategy, withhold details of Stone’s actual back channel

November 15, 2019: Roger Stone convicted on all counts

January 6, 2020: Jessie Liu nominated to Treasury

January 16, 2020: Probation Office issues Presentence Report calling for 7-9 years

January 30, 2020: Bill Barr replaces Liu with Timothy Barr, effective February 3; DOJ submits objection to Presentence Report

February 3, 2020: Timothy Shea becomes acting US Attorney

February 5, 2020 : Senate votes to acquit Trump

February 6, 2020: Initial sentencing date for Roger Stone

February 10, 2020: Stone sentencing memoranda submitted

February 11, 2020: DOJ overrules DC on Stone sentencing memorandum, all four prosecutors resign from case

February 20, 2020: Current sentencing date for Roger Stone

Beware the Deep State Bearing Granola Bars: George Papadopoulos’ 302s

The government released another bunch of 302s in response to BuzzFeed’s FOIA last night. They include a bunch (but not all, and not the most important) of the reports from George Papadopoulos. This post will lay out what they show.

As background, however, remember what FBI knew about some of his interactions with Joseph Mifsud before interviewing Papadopoulos.

Interactions with informants

First, there was the tip FBI received from Australia on July 27, 2016, after the release of the WikiLeaks emails made it seem like Papadopoulos had had advance knowledge they would be released. As laid out in the DOJ IG Report, after telling Alexander Downer and Erica Thompson that,

he felt confident Mr. Trump would win the election, and … the Clintons had a lot of baggage and that the Trump team had plenty of material to use in its campaign.

Papadopoulos then,

suggested the Trump team had received some kind of suggestion from Russia that it could assist this process with the anonymous release of information during the campaign that would be damaging to Mrs. Clinton (and President Obama). It was unclear whether he or the Russians were referring to material acquired publicly of [sic] through other means. It was also unclear how Mr. Trump’s team reacted to the offer. We note the Trump team’s reaction could, in the end, have little bearing of what Russia decides to do, with or without Mr. Trump’s cooperation.

In at least one (late October 2016) interview with the informant identified as “Source 3” in the IG Report, Papadopoulos had laid out the outlines of his conversations with Mifsud in direct connection with the possibility he might meet Putin.

In the second consensually monitored conversation, at the end of October 2016, Papadopoulos told Source 3 that Papadopoulos had been “on the front page of Russia’s biggest newspaper” for an interview he had given 2 to 3 weeks earlier. Papadopoulos said that he was asked “[w]hat’s Mr. Trump going to do about Russia if he wins, what are your thoughts on ISIS, what are your thoughts on this?” and stated that he did not “understand why the U.S. has such a problem with Russia.” Papadopoulos also said that he thinks Putin “exudes power, confidence.” When Source 3 asked Papadopoulos if he had ever met Putin, Papadopoulos said that he was invited “to go and thank God I didn’t go though.” Papadopoulos said that it was a “weird story” from when he “was working at … this law firm in London” that involved a guy who was “well connected to the Russian government.” Papadopoulos also said that he was introduced to “Putin’s niece” and the Russian  Ambassador in London. 472 Papadopoulos did not elaborate on the story, but he added that he needed to figure out

how I’m going monetize it, but I have to be an idiot not to monetize it, get it? Even if [Trump] loses. If anything, I feel like if he loses probably could be better for my personal business because if he wins I’m going to be in some bureaucracy I can’t do jack … , you know?

That said, with both Stefan Halper and this source, Papadopoulos had denied that the campaign had any foreknowledge of the WikiLeaks releases, likening optimizing them (in the way that Roger Stone did) to treason. Papadopoulos had told Source 3 that he gave that story to Halper, in part, because he thought Halper might tell CIA what he had said, so he was already crafting a story to tell authorities.

The FBI also knew Papadopoulos was spending a lot of time with Sergei Millian, whom they also had under a counterintelligence investigation.

January 27, 2017

The government didn’t release the substantive 302 from Papadopoulos’ first interview, there’s just the 302 recounting what happened on the way to the FBI and that Papadopoulos sent the FBI agent two emails after the interview. There are 12 pages withheld for a referral right before that 302 — which makes me wonder whether they’ve referred Papadopoulos’ original 302 to John Durham (which would be really corrupt, because there’s nothing classified in there, and hiding would make it harder to assess the legitimacy of the Durham investigation). The 302 that got released does make it clear the FBI told Papadopoulos, “the nature of the interview was to discuss a contact of his, who currently resides in New York,” meaning Millian, who had just been reported as a source for Christopher Steele. That is consistent with what Papadopoulos has said about the interview; he has complained he accepted the interview thinking it would only be about Millian.

Excerpts of this interview described in the government’s sentencing memo make it clear that Papadopoulos only raised Mifsud after pressed by agents.

the defendant identified the Professor only after being prompted by a series of specific questions about when the defendant first learned about Russia’s disclosure of information related to the campaign and whether the defendant had ever “received any information or anything like that from a [] Russian government official.” In response, while denying he received any information from a Russian government official, the defendant identified the Professor by name – while also falsely claiming he interacted with the Professor “before I was with Trump though.” Over the next several minutes in the interview, the defendant repeatedly and falsely claimed that his interactions with the Professor occurred before he was working for the Trump campaign, and he did not mention his discussion with the Professor about the Russians possessing “dirt” on Clinton. That fact only came up after additional specific questioning from the agents. The agents asked the defendant: “going back to the WikiLeaks and maybe the Russian hacking and all that, were you ever made aware that the Russians had intent to disclose information [] ahead of time? So before it became public? Did anyone ever tell you that the Russian government plans to release some information[,] like tell the Trump team ahead of time[,] that that was going to happen?” The defendant responded, “No.” The agents then skeptically asked, “No?” The defendant responded: “No, not on, no not the Trump [campaign], but I will tell you something and – and this is . . . actually very good that we’re, that you just brought this up because I wasn’t working with Trump at the time[.] I was working in London . . . with that guy [the Professor].” Only then, after acknowledging that the agents had “brought this up” and lying about when he received the information, did the defendant admit that the Professor had told him “the Russians had emails of Clinton.”

February 1, 2017

On February 1, the FBI agent called Papadopoulos directly to set up a meeting at George’s Ice Cream & Sweets shop for another interview (the call was recorded in a 302).

The substantive 302 makes it clear that, in the previous one, Papadopoulos had agreed to help the FBI, because he “stated that he wished to hear more about how he could potentially help the FBI.” The agent explained that he wanted Papadopoulos’ cooperation “specifically in an attempt to obtain further information about his London-based contact, JOSEPH MIFSUD.” Papadopoulos revealed what he had learned from Googling Mifsud subsequent to his first interview. He revealed that Mifsud was “an associate of a Russian discussion club of some sort” — a reference to the Valdai Discussion Club, which Mifsud had attended between the time he first met Papadopoulos and started cultivating him in London.

It’s clear that Papadopoulos had provided more information about Olga Polonskaya (possibly her email), because the agent asked about her, and Papadopoulos explained he was first introduced as one of Mifsud’s students (which was true), but then Nagi Idris told him she was Putin’s niece.

The agent also asked Papadopoulos whether he had ever met the Russian Ambassador, which he had told Source 3 he had the previous October. Papadopoulos said he had not met any Russian government officials, the meeting with the Ambassador never happened.

The agent asked Papadopoulos (who, remember, said he learned about the emails before he joined the campaign) if he had told the campaign about the emails. He responded by saying he had raised Mifsud’s name, though appears to have dodged whether he raised the emails.

Papadopoulos told the FBI that Mifsud had recently reached out and would be in DC in February, and also offered to go meet with him in the UK.

Papadopoulos was asked about Millian; his responses appear defensive, affirmatively raising both whether Millian knew about the emails and his role in the dossier.

The agent then told Papadopoulos he may have been recruited and asked if there was anyone else who might be doing so.

The agent then asked Papadopoulos if he still wanted the FBI to analyze his phone for malware; Papadopoulos said he had replaced it, but would still like to have the FBI analyze his old phone (nothing in the record suggests that happened, and the statement of the offense reveals he got a new phone on February 23, so it’s possible he just decided he didn’t want to hand over the phone and afterwards got a new one).

Papadopoulos said he wanted to speak to an attorney before committing to help the FBI, said he did not yet have one, but would be getting one the following day.

Note: From this interview, I can understand why Republicans think Papadopoulos got a bad deal, because he clearly kept saying he wanted to cooperate.

February 2, 2017

As he said he would do, the agent tried to call Papadopoulos the next day, only to find his voicemail box was full. Instead, he texted Papadopoulos. Papadopoulos said he had discussed the matter with a lawyer and had been advised not to engage any longer.

I truly feel proud that was able to do my part to assist with everything I know but as you saw yesterday there was nothing else to add and we had a nice coffee but nothing of substance.

[snip]

You guys are professionals and am sure you can deal with that person if he truly is a threat. Can’t help anymore than I have. If there is something directly related to me then that’s another matter.

The agent said he had one more thing to clear up, asked to talk to Papadopoulos, they agreed to meet at 6:30 PM, then Papadopoulos called back and said he had spoken with an attorney who told him not to go, but offered to meet Monday in the Chicago Field Office.

In spite of repeated questioning, Papadopoulos did not offer up the name of the attorney he had consulted (nor did they meet the following Monday, which would have been February 6). That’s significant, because in his Congressional testimony, Papadopoulos revealed that he had called Marc Kasowitz — at a time when he was representing Trump — and asked him if he wanted to represent him (meaning, this happened before he had an attorney).

Q And you didn’t talk to anyone from the Trump organization about that interview with the FBI?

A I don’t think I did, no. Q So you were interviewed again by the FBI — A I can’t remember if I reached out to Marc Kasowitz about either that or my subpoena from the Senate. And I emailed him and I said, Look, would you be interested in representing me? I think that’s what happened. But I don’t — I can’t remember exactly why I emailed him, but I think I emailed Marc Kasowitz’ firm sometimes after the interview, but I don’t remember if he ever responded or anything like that.

[snip]

Q Right, right, right. So when you sent this email, would it have been after the first FBI interview, but before the second one, or –

A I think it would be after I was done with my initial contacts with the FBI.

It’s certainly possible that Papadopoulos just consulted a friend who was an attorney (who wisely told him to stop meeting with the FBI without representation). But it is possible that the President’s then-defense attorney told him to stop meeting with the FBI.

February 10, 2017

The date of interview recorded on the second 302 is February 10, 2017. But both Papadopoulos’ arrest affidavit and his statement of offense say the interview happened on February 16. That’s actually a fairly significant discrepancy because, per the Mueller Report, the FBI interviewed Mifsud on February 10, and one argument they made to substantiate that his lies were material were that those lies prevented them from pinning down Mifsud on his lies. It appears the February 10 date is correct, but that FBI treated a call (also with his counsel) on February 16, as the interview in question.

In any case, this is Papadopoulos’ first interview represented by counsel. The government has said that Papadopoulos repeated the same lies he told on January 27, and it’s clear he did. He said Mifsud wanted to impress him because he “had recently come off his advisory position for the BEN CARSON campaign.” Papadopoulos misrepresented how he got hired by Sam Clovis, suggesting there was a time between when they spoke and his hiring, when it happened on the same call; in the interview Papadopoulos said happened in person in London, though it happened by phone. Papadopoulos describes the emails coming up during a discussion about Hillary’s campaign, not Trump’s. He left out that Mifsud said the Russians planned to anonymous leak the emails. Papadopoulos twice falsely said he hadn’t told any foreign government officials that Russia planned to disclose information (in addition to Australia, he told a Greek official).

This 302 seems to reflect the FBI agents cueing Papadopoulos to tell them about telling someone at a nightclub about emails, which he said he had not; it makes me wonder if he said that to Source 3 in one of their interviews after the election (which, if so, would make the IG Report’s silence on the topic really suspect), or whether — as many people suspect — he said that to Erica Thompson at a dinner party, then repeated it again to her and Downer when they had drinks.

February 16, 2017

On February 16, the Assistant General Counsel for FBI’s Cyber Law Branch called and set up a phone interview to try to clarify the timing of the conversation with Mifsud, explaining that resolving some inconsistencies in his story was time sensitive. The 302 is heavily redacted, but it’s clear that Papadopoulos refused to be pinned down on timing — it even seems like FBI had figured out that it had occurred at his breakfast meeting with Mifsud, but Papadopoulos couldn’t recall whether it had happened then.

Papadopoulos then dug in on a story that tried to claim these emails couldn’t be the ones stolen from the DNC, first reiterating that “he did not believe MIFSUD’s claims that the Russians had HILLARY CLINTON’s e-mails” (a claim utterly inconsistent with having told others about it), and then suggesting that the emails might be Hillary’s deleted emails.  This passage — and its heavy redaction — is particularly interesting, because it appears to be the first time Papadopoulos told this story, and it’s the story he has since settled on, but it appears that he only told it after the FBI asked him about the comments three times.

This interview appears to be the first time the FBI asked Papadopoulos not to speak to the media, which he agreed to do.

July 27, 2017

The next interview report documents his arrest at Dulles on July 27, 2017. While this was not an interview — indeed, arresting agents had to tell Papadopoulos several times to shut up because he didn’t have his attorney present — Papadopoulos did offer up some lame excuses that seem to indicate he knew he hadn’t told the full truth:

[H]e was only able to provide the information that he remembered, PAPADOPOULOS then stated that if he had forgotten something, that doesn’t necessarily mean he’s lying.

[snip]

[Papadopoulos] then added that he was only twenty-eight years old when he was thrust into the national spotlight with all this.

[snip]

PAPADOPOULOS stated that he didn’t understand why he was in the current situation that he was, when both FLYNN and MANAFORT are not.

[snip]

At one point while PAPADOPOULOS was waiting in the booking room he expressed concern with the fact that he was just a small fish and yet he was going to look like the fall guy for this investigation.

Papadopoulos appears to have asked to call a second attorney, in addition to his own, who by the length of last name could be Jay Sekulow, which would be consistent with him having reached out to Kasowitz earlier in this process.

Papadopoulos also repeatedly said he had told the whole story in a statement to the Senate Intelligence Committee, which is interesting given that this would have taken place when Jared Kushner and Michael Cohen were writing statements for Committee testimony as a way to script and coordinate stories. That would make it all the more interesting if Papadopoulos did mention Sekulow, because Sekulow was the one coordinating all these statements.

After he turned into a MAGA star, Papadopoulos would suggest the FBI bullied him during his arrest. According to the 302, he thanked them for their kindness.

At approximately 10:40 PM PAPADOPOULOS was provided with coffee and water and PAPADOPOULOS thanked the agents for treating him very well.

July 28, 2017

The day after he was arrested, Papadopoulos needed help getting home because he had had his passports confiscated and had not replaced his driver’s license after he had recently lost his wallet, so the agents drove him to the airport and made sure he could get on a plane.

Agents then provided PAPADOPOULOS with his attorney’s telephone number and a granola bar for his travel back to Chicago.

August 10, 2017

In his first interview after being charged, Papadopoulos told a very clear story of the chronology of working for Carson, then interviewing with Clovis and being hired that same call, then traveling to Rome where he met Mifsud, all details he had claimed to not remember previously. He explained how Olga offered to connect him with people in Russia. He described both Trump and Jeff Sessions responding to his offer to try to set up a meeting with Putin enthusiastically. He described Mifsud introducing him to Ivan Timofeev, something he had not disclosed previously (but which would have been apparent once FBI accessed his Facebook account). Papadopoulos still claimed, at this point, not to have told anyone about the Russians having dirt on Hillary.

August 11, 2017

Though heavily redacted, this 302 appears to parallel the August 10 one, getting the timeline of meeting Mifsud correct, describing Trump and Sessions’ enthusiasm for a Putin meeting,

It describes Papadopoulos remembering, then backing off a memory of discussing the emails with Clovis.

PAPADOPOULOS stated to the best of his recollection he remembered CLOVIS being upset after PAPADOPOULOS said, “Sam, I think they have her emails.” PAPADOPOULOS then reiterated he was not certain if that event actually happened or if he was wrongfully remembering an event which did not occur.

September 19, 2017

This interview, his most substantive, is almost entirely redacted. From what’s unredacted, it’s clear Papadopoulos was withholding information until shown the evidence of something via communication records. For example, he admitted to an April 12 meeting that did not appear elsewhere. He was prodded to describe a Skype conversation with Timofeev. Papadopoulos needed to be “specifically asked,” before he admitted he told the Greek Foreign Minister about Russia having dirt on Hillary Clinton, too.

This interview included questions about the Transatlantic Group that he attended with Walid Phares and Sam Clovis, during which Papadopoulos discussed a September 2016 meeting with Putin’s office in London. Papadopoulos refused to walk the FBI through his notes on this planned meeting.

PAPADOPOULOS then stated he could not read his own handwriting and, therefore he could not assist the interviewers with further identifying what his notes referenced.

September 20, 2017

Papadopoulos had one more interview during the pre-plea period, which was memorialized in a 4-page 302. But that was not included in yesterday’s dump. That interview covered:

  • How the campaign supported his efforts to set up a meeting with Putin.
  • Details about how he used his journal.
  • What he told others on the campaign about the Hillary dirt, possibly including the Sam Clovis reference.
  • What an email Sergei Millian sent him on August 23, 2016, offering a disruptive technology that might help his political work, meant.

October 5, 31, 2017

Papadopolous pled guilty on October 5, 2017. A 302 describes how Papadopoulos got the card of the FBI agent to talk to him about a problem he had had with his email account. The next day Papadopoulos explained what the problem was, and the agent told him to change his password and make sure forwarding was not on.

On October 28, the agent asked Papadopoulos whether the media or anyone from the Trump campaign had tried to contact him. Papadopoulos said neither had, and agreed to let the FBI know if that happened. After news of his plea broke on October 31, the FBI agent contacted Papadopoulos again, to find out whether he made any contact. Papadopoulos said he didn’t think the media has his phone number.

November 7, 2017

The agent called Papadopoulos to ask about media reports on people in the campaign that conflicted with his own testimony. Papadopoulos explained he had seenreports that Sessions had shut down his efforts to arrange a Trump Putin meeting. Papadopoulos said he “would stick to his original story,” (which is what he did earlier than year on telling anyone about emails). Papadopoulos said he wouldn’t have continued his efforts if Sessions hadn’t approved.

Papadopoulos disputed Bannon’s claims never to have met with Papadopoulos. Papadopoulos “remembered specifically coordinating with BANNON when he was arranging the meeting between TRUMP and the Egyptian president.” (Bannon would distance himself from Papadopoulos in his second interview with the FBI, saying that Mike Flynn handled all this.)

Papadopoulos responded to reading the first five pages of Carter Page’s HPSCI transcript by describing a call, possibly in late March, where Page told Papadopoulos to “stop showing off,” possibly because Papadopoulos was trying to broker a Russia meeting.

December 2017

Per the sentencing memorandum, the government reached out to set up a meeting in late December, but after learning that Papadopoulos had cooperated in a NYT interview, canceled the interview.

the government arranged to meet again with the defendant to ask further questions in late December 2017. However, upon learning that the defendant had participated in a media interview with a national publication concerning his case, the government canceled that meeting.

There may or may not be a 302 pertaining to this.

American Democracy Needs Better Reporters than Pete Williams

Bill Barr made big news yesterday saying intemperate things in what has charitably been called an “interview” with NBC’s Pete Williams. Those comments have distracted from other details of the so-called interview, which deserve further attention for the way that Williams was utterly useless in guiding the interview towards any of the questions that needed to be answered. Given Barr’s assault on the rule of law, garbage interviews like this undermine the Constitution.

Williams helps Barr continue to cover up his role in the Ukraine investigation

First, consider the exchange that Williams and Barr have to exonerate the Attorney General in involvement in Rudy Giuliani’s Ukraine conspiracy.

Williams: Were you ever asked by the White House to talk to anybody in Ukraine about an investigation of Joe Biden? (18:40)

Barr: No.

Williams: Are you concerned that Ukraine has a missing server from the Hillary Clinton emails?

Barr [searching look]: Fortunately I haven’t gotten into the Ukraine thing. I don’t know. I’m not even sure about the nature of these allegations.

Williams: What about the allegation that it was the Ukrainians who meddled in the election, not the Russians. Are you satisfied that’s not the case?

Barr: I am confident the Russians attempted to interfere in the election. I don’t know about the Ukrainians. I haven’t even looked into it, frankly.

Williams: What was your involvement in the Department’s decision not to investigate the President’s phone call to Ukraine?

Barr: We put out a statement that explained the process, which was the Criminal Division made that decision and in the process consulted with the senior most career employees who are the experts on campaign finance laws and that process was supervised by the Deputy but I’m not going to go beyond what we’ve already said about that process.

Williams: Well, were you satisfied that everything that was done–

Barr: Absolutely.

I wouldn’t be surprised if Williams were using a script DOJ gave him, because Williams asks none of the questions that remain unanswered about DOJ’s role in the Ukraine investigation, such as why they didn’t do the bare minimum of connecting the dots implemented after 9/11, why the didn’t refer the complaint to the FEC, why they didn’t abide by the whistleblower protection act, why (on demand, apparently) they issued a statement exonerating the President, or who the three Ukrainians that DOJ admitted have been fed into John Durham’s investigation are.

Instead, Williams lets Barr ignore his question about his role in reviewing the whistleblower complaint and claim — as the person who knew of the Lev Parnas investigation that also knew of the whistleblower complaint — he has no role in the Ukraine thing. This exchange raises more questions about Barr’s involvement, but Williams instead allows him to claim a clean bill of health.

Williams allows Barr to pretend bypassing MLAT is normal

Perhaps the most alarming part of this so-called interview is how Williams let Barr claim that entirely bypassing the Mutual Legal Assistance Treaty (MLAT) process in requesting law enforcement assistance from other countries is normal.

[Why he went to three countries] The presentation of that in the media [laughs] has been silly. The person running the investigation is John Durham. But this is a very unusual circumstance where we are going to foreign governments where we are asking them to assist and cooperate including some of their sensitive materials and personnel. A US Attorney doesn’t show up on the doorstep of some of these countries like London and say, Hey, I want to talk to your intelligence people and so forth. All the regularities were followed. I went through the — my purpose was to introduce Durham to the appropriate people and set up a channel where he could work with these countries. At the request of these countries — I went through the Ambassadors of each country, and the governments wanted to initially talk to me to find out, what is this about, what are the ground rules, is this going to be a criminal case, are you going to do a public report. They wanted to understand the ground rules before I met with Durham and I met with them and I set up appropriate channels. This was perfectly appropriate. (14:37)

This issue goes to the core of the problem with Trump’s Ukraine conspiracy. Barr’s nervous answer suggests he knows bypassing normal process might implicate him in a criminal conspiracy.

And Williams, supposedly a DOJ beat journalist who should know better, just lets this bullshit answer sit there, unchallenged.

Williams allows Barr to lie about techniques used by the FBI

Barr’s attack on the FBI is based on a lie about how it operates. The FBI has what’s called the Domestic Investigations and Operations Guide. The entire point of it is to make sure paperwork is filed before any investigative steps are taken. Barr turns that on its head when he complains that the FBI opened an investigation before taking an investigative step.

They jump right into a full-scale investigation before they even went and talked to the foreign officials about exactly what was said the opened an investigation of the campaign

The DIOG lists what an agent can do at each of three levels of investigation — assessment, preliminary investigation, and full investigation. It permits the government to use Confidential Human Sources — the basis for most of Barr’s complaint about “spying” on the campaign — at the Assessment level (which is basically a tip).  Thus, in spite of what Barr says, the fact that FBI opened this as a full investigation (which DOJ IG found to be proper) had nothing to do with the FBI’s ability to use informants.

Suggests the investigation shouldn’t have been sustained once it got opened (0:20)

There has to be some basis before we use these very potent powers in our core First Amendment activity, and here, I thought this was very flimsy (2:18)

The Department as a rule of reason, … Is what you’re relying on sufficiently powerful to justify the techniques you’re using

What are the alternatives … When you step back and ask what was this all based on, it’s not sufficient (2:48)

they used very intrusive techniques they didn’t do what would normally be done under those circumstances, which is to go to the campaign and certainly there were people in the campaign who could be trusted including a member of the Senate Judiciary Committee and the governor of New Jersey (5:13)

Anyone covering DOJ has an obligation to point out that this is a lie, especially because Barr has never in his history leading the DOJ complained about such techniques being used with others, especially minorities, when exercising their First Amendment rights. Indeed, Barr’s DOJ currently investigates not only Muslims in mosques (which has been going on under both parties), but people protesting Trump’s immigration policies or legally representing immigrants. Barr’s DOJ used a wiretap in a garden variety leak investigation when it already knew the leaker this year. Williams has an obligation with calling Barr out for his very selective concern about the First Amendment.

But that’s not the only complaint about process. Barr keeps demanding not just that the FBI give Trump a defensive briefing (one of the subjects of the investigation, Mike Flynn, attended his first campaign briefing, and that was within days of the time Flynn inked his deal to become an undisclosed agent of Turkey), but that they just waltz to the campaign and start asking questions.

From day one they say they’re not going to talk to the campaign, they’re going to put people in there, wire them up, and have these conversations with people involved in the campaign because that way we’ll get the truth (8:44)

Barr would never let FBI approach any other investigation like this, starting by allowing the subject of the investigation to excuse their actions.

Note, one of the people Barr thought FBI should have asked — Jeff Sessions — ultimately came to be a subject of this investigation.

Barr takes this so far that he complains that John Brennan and Barack Obama tried to limit an ongoing Russian attack that was going on whether or not Trump’s flunkies were involved. 

What I find particularly inexplicable is that they talked to the Russians but not to the Presidential campaign. On August 4 Brennan braced the head of Russian intelligence, he calls the head of Russian intelligence, … they go and confront the Russians, who clear are the bad guys, and they won’t go and talk to the campaign and say what is this about (5:51)

He’s basically complaining, here, that Obama tried to keep the country safe from hostile interference in the election.

And Williams just sat there looking at his list of questions like a child.

Williams lets Barr minimize what happened in the Russian investigation

Predictably, Barr minimizes what the Russian investigation showed. He claims that what has subsequently been explained to be a suspected Russian asset with ties to both sides of the Russian operation, Joseph Mifsud, telling George Papadopoulos they were going to drop emails that later got dropped was not worthy of investigation.

In May 2016, a 28 year campaign volunteer says in a social setting … a suggestion of a suggestion that Russians had adverse information from Hillary that they might dump in the campaign (3:24)

Barr then claims there was no evidence of “collusion,” something Williams agrees with.

There never has been any evidence of collusion … completely baseless (2:57) [Well, it doesn’t turn out that way at the beginning, at the start ]

According to Mark Meadows’ definition of “collusion,” it was proven by the guilty verdict in the Roger Stone trial. Moreover, the Mueller Report makes it clear there was evidence not just of “collusion,” but also conspiracy, just not enough to charge. In this case, Williams affirmatively adds to the disinformation on this point.

Barr conflates the investigation into Carter Page and everyone else

Barr did something that the Republicans have been doing all day: conflating the investigation into Carter Page with the investigation into Trump’s other flunkies, in spite of the fact that the investigation of each individual was also individually predicated and that the investigation into Page was based off stuff going back years before he joined the Trump campaign and most of the investigative activities took place after he was fired from the campaign. In one comment, Barr literally conflates Carter Fucking Page with the President himself, and ignores that the President was only investigated after he tried to obstruct the investigation into Mike Flynn.

At that point [when FBI talked to Steele’s source], when their entire case collapsed, what did they do? They kept on investigating the President well into his administration. (10:26)

He repeats that claim a second time.

Their case collapsed after the election (13:57)

Barr not only does that, but ignores the incriminatory evidence against Page, so as to be able to claim that the investigation should never have started.

From the very first day of this investigation, which was July 31 … all the way to September 2017, there was not one bit of incriminatory evidence to come in, it was all exculpatory. The people they were taping denied any involvement with Russia, denied the very specific facts that the FBI was relying on, … the FBI ignores it, presses ahead, withholds that information from the court, withholds critical exculpatory information from the court  (9:07)

Barr made an interesting claim — that the sole reason the FBI got a FISA (including a physical search FISA, which allows them to obtain stored communications like email) was to access his comms from the campaign.

I think going through people’s emails, which they did as a result of the FISA warrant, they went through everything from Page’s life. … his emails go back. The main reason they were going for the FISA warrant initially was to go back historically and seize all his emails and texts … that’s exactly why they got the FISA (12:30)

That may be true (obviously, the FBI would have wanted to know why Page went to Moscow during the campaign), but DOJ imposed minimization procedures to limit dissemination of those materials.

The final PMPs restricted access to the information collected through FISA authority to the individuals assigned to the Crossfire Hurricane team and required the approval of a DAD or higher before any FISA-derived information could be disseminated outside the FBI. In normal circumstances, the FBI is given more latitude to disseminate FISA-derived information that appears to be foreign intelligence information or evidence of a crime. Evans told us that he believed these added restrictions were warranted here because of the possibility that the FISA collection would include sensitive political campaign related information.

Barr’s conflation of Page with the campaign as a whole and Trump himself was all a ploy, and a journalist could have noted the game Barr was playing in real time. Williams did not.

Williams lets additional Barr bullshit go unquestioned

In addition to those general problems, Barr made a number of other bullshit assertions. For example, Barr claimed the investigation into Trump was the first counterintelligence investigation into a candidate even though that’s what the Hillary email investigation was.

Greatest danger to our free system is that the incumbent use apparatus of state to spy and effect outcome, first time in history this has been done (1:14)

Later, Williams lets a renowned authoritarian to claim not just that he cares about civil liberties, but that his primary job is protecting them.

[In response to Williams’ suggestion that this authoritarian cares about civil liberties] I think our nation was turned on its head for three years based on a completely bogus narrative that was largely fanned and hyped by an irresponsible press … the Attorney General’s primary responsibility is to protect against the abuse of the law enforcement and intelligence apparatus and make sure it doesn’t play an improper role in our political life. That’s my responsibility. (18:06)

Barr poo poos the regularity of illegal foreign money coming into campaigns.

In most campaigns signs of illegal foreign money coming in (2:01)

Don’t assume campaign is acting in league with foreign powers, there has to be some basis (2:13)

This makes me, for the first time, concerned about how DOJ rolled out the Andy Khawaja indictment.

Finally, Williams asks, but doesn’t follow up on his question about whether it was appropriate for Durham to make a comment.

[After Williams mentions the grand jury] I think it was definitely appropriate because it was necessary to avoid public confusion. … Durham’s work was not being preempted, Durham was doing something different, (15:33)

Interestingly, Barr effectively confirmed Williams’ insinuation this was now a grand jury investigation, which would amount to sharing grand jury information.

I have been pointing out increasingly often that many members of the press seem uninterested in defending the parts of the Constitution that don’t directly affect press protections. The duty to uphold the rule of law is particularly important for DOJ reporters, who should know enough about how investigations work to identify when something is abnormal (as Barr’s direct involvement, generally, is, to say nothing of his international field trip).

Williams was not up to the task in this interview.

DOJ Should Just Give Andrew McCabe What He Wants, But They Won’t

185 paragraphs into his complaint against Bill Barr, Christopher Wray, and DOJ and FBI for unlawful termination, Andrew McCabe makes what is probably an untrue statement.

Had Plaintiff pledged his personal loyalty to Trump, voted for Trump in the 2016 election (or falsely told Trump that he had), not worn a T-shirt supporting Dr. McCabe’s campaign, and not been married to Dr. McCabe, Defendants would not have reached the decisions to demote him and terminate him, nor would they have proceeded on the accelerated schedule that deprived him of his full vested pension and related benefits.

The statement is true, insofar as they’re the issues that Trump bitched about for the year leading up to McCabe’s firing in part to discredit the Mueller investigation. They’re true because Trump has claimed they’re true, so there will be abundant evidence to submit to prove they are true. But they’re not true insofar as the Russian investigation is what led Trump to hunt down his perceived enemies, and the DOJ IG investigation is the claimed reason for McCabe’s firing.

But the claims nevertheless assert the principle that FBI employees can’t be forced to take a loyalty oath. And as such, the lawsuit seeks to uphold a principle at the core of our judicial system.

That’s not the only complaint McCabe makes. Along another First Amendment claim, he also makes two due process claims and one mandamus claim that gets into the legal fine print of the way that, in response to pressure from Trump, top DOJ officials fast-tracked an effort to get rid of McCabe.

The legal details are actually of real interest, given that Wray, then Associate Deputy Attorney General Scott Schools, and Jeff Sessions, among others, bolloxed the firing of McCabe. As Schools told McCabe while he was trying to accelerate the review of his termination in March 2018, “We’re making it up as we go along.” DOJ fucked up in two significant ways.

First, they didn’t get around to “firing” McCabe until 10:00 pm on March 16, 2018, after FBI clocked the final day McCabe had to put in before qualifying for retirement at 5:00 pm that same day. FBI registered that day as a full vacation day. By the time Sessions fired McCabe late at night, he claims, he was already legally retired. (Note, there’s a real tragicomic section describing Sessions’ role, including that the firing did not come with any of the official details like time of termination needed for such a firing, that are very similar to the way that Sessions himself would be fired 8 months later).

The other way they bolloxed McCabe’s firing is by demoting him on January 28, 2018. On that day, Wray gave McCabe a choice: to remain at FBI in a demoted role of his picking if he lied and said the demotion was voluntary, or remain in a lesser role of Wray’s choice if he refused to lie. Instead, McCabe took terminal leave, meaning he was no longer one of the positions that the Attorney General or Acting Attorney General could terminate directly. As McCabe described it, Sessions didn’t have the authority to fire McCabe.

Sessions publicly announced that he had terminated Plaintiff “[p]ursuant to [DOJ] Order 1202,”but that did not give Sessions the authority to terminate employees in Plaintiff’s position. DOJ Order 1202, promulgated pursuant to 5 U.S.C. § 3151, provides that the FBI Director alone has authority to terminate career FBI senior executives, except that the Attorney General and Deputy Attorney General retain authority to remove those who serve in certain enumerated “key positions.” After Defendant Wray removed Plaintiff from the role of Deputy Director in January 2018 and replaced him with Bowdich, Plaintiff remained a career FBI senior executive but did not serve in any of the “key positions” listed in DOJ Order 1202. Defendant Wray, as FBI Director, did not authorize Plaintiff’s termination and in fact previously refused Sessions’ request to terminate Plaintiff. Accordingly, Plaintiff was not, in fact, terminated before his retirement.

[snip]

Additionally, Sessions lacked any authority to terminate Plaintiff due to conflicts of interest and recusals, including Sessions’ March 2017 recusal from “investigations of any matters related in any way to the campaigns for President of the United States.” Defendants’ pretextual basis for Plaintiff’s termination arose from the OIG investigation of Plaintiff’s actions related to the 2016 U.S. presidential campaign, specifically his actions regarding campaign-related articles published in October 2016 by the Wall Street Journal. Sessions’ recusal, on its face, extended to the OIG investigation. Sessions’ recusal was therefore a “disability” under 28 U.S.C §508(a), meaning that he lacked qualification to participate in Plaintiff’s termination. As a result, Sessions had no authority to terminate Plaintiff.

The entire complaint is (as one would expect for a suit filed by four Arnold & Porter lawyers on behalf of a lawyer who happens to be a former top FBI official) very well lawyered in such a way that the legal issues are very narrow, even while invoking the entirety of Trump’s obstructive behavior along the way.

The easiest way DOJ could make this go away would be to grant McCabe’s request, to find that he had retired before he was fired, with the benefits accruing accordingly (McCabe refutes the findings of the DOJ IG investigation against him in more cursory fashion, though it’s key to his due process claims and his allegations reflect badly on the well-respected Michael Horowitz). But to do that, DOJ would rob Trump of one of his favorite petty wins.

So they probably won’t.