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Dear JD Gordon [and Jared]: Mueller Has 17 Prosecutors; White House Obstruction Accounts for Just One

The WaPo has a piece reporting (with details about John Kelly’s “collusion” with Attorney General Jeff Sessions, who is supposed to be recused) what I noted here: Trump wants the Devin Nunes memo to come out, even in spite of the warnings about how releasing it will damage national security.

It rather absurdly claims that Mueller is “narrowing” his probe.

As Mueller narrows his probe — homing in on the ways Trump may have tried to impede the Russia investigation — a common thread ties many of the incidents together: a president accustomed to functioning as the executive of a private family business who does not seem to understand that his subordinates have sworn an oath to the Constitution rather than to him.

More amusing is this anonymous quote from JD Gordon.

A person who has spoken with Mueller’s team said investigators’ questions seemed at least partially designed to probe potential obstruction from Trump.

“The questions are about who was where in every meeting, what happened before and after, what the president was saying as he made decisions,” this person said, speaking on the condition of anonymity to recount a private session.

This person added that while it seemed unlikely Mueller’s team would yield any evidence of a coordinated effort to aid the Russians — “If you were on the campaign, you know we couldn’t even collude with ourselves,” he said — the investigators might find more details to support obstruction of justice. [my emphasis]

We know it was JD Gordon because he said precisely the same thing in an op-ed just after the George Papadopoulos plea made it clear Gordon and his buddies might be in a heap of trouble.

Trump camp too disorganized to collude

Criminalization of policy differences has descended upon America once again. The viciousness towards a sitting president and his team evokes memories of Bill Clinton’s 1998 impeachment. In the “witch hunt” Clinton was impeached for something unrelated to the Arkansas real estate deal which sparked the Whitewater investigation years earlier. Like a Soviet secret police chief once said: “Show me the man and I’ll find you the crime.” Indeed.

We’re seeing the same thing today. The Trump-Russia collusion story is a hoax and “witch hunt” of this century.

Like typical conspiracy theories, usually the simplest explanation is correct. The campaign was chaotic, understaffed and underpaid, if paid at all. We couldn’t collude amongst ourselves. [my emphasis]

Since JD Gordon is — by his own account — incompetent, I’m going to repeat the substance of this post I did even as he first rolled out this line, just to help him out.

Update: I’ve been informed that Jared Kushner has also used this “we couldn’t collude because we’re too incompetent” line, so perhaps he’s the one who believes he’s not at risk for engaging in a quid pro quo with Russians and others. 

Robert Mueller has 17 prosecutors. We’ve only seen what 10 of them are doing. And just one of them — Watergate prosecutor James Quarles — is known to be working on the White House obstruction case.

Here’s a census of Mueller’s prosecutors who’ve thus far shown what they’re working on:

Manafort docket:

  • Andrew Weismann (1)
  • Greg Andres (2)
  • Kyle Freeny (3)

Adam Jed (4), an appellate specialist, has appeared with these lawyers in grand jury appearances.

Papadopoulos docket:

  • Jeannie Rhee (5)
  • Andrew Goldstein (6)
  • Aaron Zelinsky (7)

Flynn docket:

  • Brandon L. Van Grack (8)
  • Zainab Ahmad (9)

Obstruction docket:

Even in these dockets, it’s clear Mueller is nowhere near done.

Flynn may have a status hearing scheduled for Thursday (though it’s not formally noted in the docket). I suspect, instead, we’ll get a joint status report like was submitted in Papadopoulos’ case on January 17, which basically said, “we’re very busy cooperating, don’t bug us until April 23.”

And CNN just reported that Mueller’s team has drafted superseding indictments against Paul Manafort and Rick Gates, and Gates appears to be prepping to flip.

Former Trump campaign aide Rick Gates has quietly added a prominent white-collar attorney, Tom Green, to his defense team, signaling that Gates’ approach to his not-guilty plea could be changing behind the scenes.

Green, a well-known Washington defense lawyer, was seen at special counsel Robert Mueller’s office twice last week. CNN is told by a source familiar with the matter that Green has joined Gates’ team.

Green isn’t listed in the court record as a lawyer in the case and works for a large law firm separate from Gates’ primary lawyers.

Green’s involvement suggests that there is an ongoing negotiation between the defendant’s team and the prosecutors.

[snip]

Superseding indictments, which would add or replace charges against both Gates and Manafort, have been prepared, according to a source close to the investigation. No additional charges have been filed so far. When there is a delay in filing charges after they’ve been prepared, it can indicate that negotiations of some nature are ongoing.

So even where we have some visibility, that visibility suggests there is plenty of work trying to see if there was any conspiracy tied to the election.

That leaves the following prosecutors, listed with their specialities:

  • Aaron Zebley (11): probably working on coordination
  • Michael Dreeben (12): appellate wizard
  • Elizabeth Prelogar (13): appellate specialist and Russian speaker
  • Scott Meisler (14): appellate specialist
  • Rush Atkinson (15): fraud prosecutor
  • Ryan Dickey (16): Cybersecurity (just added in November)
  • Mystery prosecutor (17)

I mean, Mueller hasn’t even revealed all his prosecutors yet, much less what they’re all working on.

But JD Gordon would have you believe the prosecutors’ attention to what meetings he and his buddies were in means Mueller is only investigating obstruction.

How Did Don McGahn Threaten to Quit without Telling Trump?

There’s something funny about the story — first broken by NYT tonight, then confirmed by WaPo — that Trump wanted to fire Robert Mueller last June but backed off after White House Counsel Don McGahn threatened to quit.

Oh sure, the NYT version has all the trappings of the classic principled stand. McGahn threatened to quit which led Trump to back down.

After receiving the president’s order to fire Mr. Mueller, the White House counsel, Donald F. McGahn II, refused to ask the Justice Department to dismiss the special counsel, saying he would quit instead, the people said.

But the WaPo lays out something that’s only hinted at in the NYT version: McGahn never told Trump himself he was going to quit.

McGahn did not deliver his resignation threat directly to Trump, but was serious about his threat to leave, according to a person familiar with the episode.

[snip]

Trump decided to assert that Mueller had unacceptable conflicts of interest and moved to remove him from his position, according to the people familiar with internal conversations.

In response, McGahn said he would not be at the White House if Trump went through with the move, according to a senior administration official.

Described that way, it sounds more like McGahn wasn’t going to take yet another action that exposed him, personally, to obstruction charges. After all, McGahn had already nudged close to that line on several occasions, though it’s not something foregrounded in either of these stories.

While the NYT admits that McGahn was just months off of trying to persuade Jeff Sessions to ignore DOJ ethics advice and not recuse, it doesn’t mention that McGahn helped orchestrate getting Jeff Sessions and Rod Rosenstein to provide cover for a Jim Comey firing that he knew, because he had insisted Trump rewrite his firing letter, was ultimately an effort to end the Russian investigation.

The other funny thing about both these stories is how they obscure one of the known sources of tension that led to John Dowd replacing Marc Kasowitz. Both stories describe Kasowitz’ efforts to discredit Mueller to make claims of partisanship — an effort that continues today, albeit largely though not entirely outsourced to the more venal Republican members of the House.

Around the time Mr. Trump wanted to fire Mr. Mueller, the president’s legal team, led then by his longtime personal lawyer in New York, Marc E. Kasowitz, was taking an adversarial approach to the Russia investigation. The president’s lawyers were digging into potential conflict-of-interest issues for Mr. Mueller and his team, according to current and former White House officials, and news media reports revealed that several of Mr. Mueller’s prosecutors had donated to Democrats.

But it doesn’t explain what Michael Wolff, at least, reports to be the precipitating cause of Kasowitz and Mark Corallo’s departure: their own concern that Trump’s July 7, 2017 lies about the June 9, 2016 meeting itself amounted to obstruction of justice.

An aggrieved, unyielding, and threatening president dominated the discussion, pushing into line his daughter and her husband, Hicks, and Raffel. Kasowitz—the lawyer whose specific job was to keep Trump at arm’s length from Russian-related matters—was kept on hold on the phone for an hour and then not put through. The president insisted that the meeting in Trump Tower was purely and simply about Russian adoption policy. That’s what was discussed, period. Period. Even though it was likely, if not certain, that the Times had the incriminating email chain—in fact, it was quite possible that Jared and Ivanka and the lawyers knew the Times had this email chain—the president ordered that no one should let on to the more problematic discussion about Hillary Clinton.

[snip]

In Washington, Kasowitz and the legal team’s spokesperson, Mark Corallo, weren’t informed of either the Times article or the plan for how to respond to it until Don Jr.’s initial statement went out just before the story broke that Saturday.

[snip]

Mark Corallo was instructed not to speak to the press, indeed not to even answer his phone. Later that week, Corallo, seeing no good outcome—and privately confiding that he believed the meeting on Air Force One represented a likely obstruction of justice—quit.

If this story is correct, then it wasn’t, just, the plan to attack Mueller that caused the break (and as I said, that plan has just been outsourced to people protected by Speech and Debate clause protections). Rather, it was also a subsequent incident of clear obstruction, one done in the wake of a meeting with Vladimir Putin.

Where was McGahn the principled attorney threatening to quit rather than permit obstruction to occur for that?

Several things may be contributing to the nonsensical parts of these stories. First, it may be that a number of these people are at some risk of obstruction charges themselves. To the extent they’re all trying to spin their activities in the best light (assisted, in McGahn’s case, because he shares a lawyer with Reince Priebus and Steve Bannon), they may have to blame others for their actions.

Add in the fact that some of this testimony might be surprising to others. While McGahn, with John Dowd and Ty Cobb, presumably has the most knowledge, it’s possible he didn’t know about Sessions’ testimony (and Sessions reportedly didn’t share details of his testimony with Trump).

So I don’t know what the truth is.

I do know, however, that threatening to quit but not telling Trump about it is a funny way of changing his behavior.

Update: The CNN confirmation of this emphasizes, like the WaPo does, that McGahn didn’t threaten to quit directly. It also quotes Anthony Scaramucci saying that the attempt to fire doesn’t matter because Trump backed off the decision — so it may be that’s how the leakers (all represented by the same lawyer, William Burck — spun this).

Also consider the possibility that NewsMax CEO Chris Ruddy, who is a Mike Schmidt source and who floated Trump’s plan to fire Mueller contemporaneously as a way of trying to get him to back down, is a key source for this. It may mean that Ruddy’s stance, far more than McGahn’s, is what led Trump to back down.

The Politico version of this emphasizes Ruddy’s June stance.

In mid-June, Chris Ruddy, a close Trump friend and Mar-a-Lago member, said after a visit to the White House that he’d overheard discussion about the president considering firing Mueller.

“It could trigger something well beyond anything they ever imagined,” he told POLITICO at the time. Later that day, Ruddy told PBS NewsHour anchor Judy Woodruff that Trump was “considering perhaps terminating the special counsel.”

Ruddy added during the interview he thought it would be “a very significant mistake” to oust Mueller. He noted Mueller had interviewed with Trump to succeed Comey as FBI director, though the president later went on to appoint former Justice Department official Chris Wray to the job.

Mueller should invite Ruddy in for a chat.

Politico also quotes an attorney representing someone else suggesting that it reflects an all-man-for-himself attitude among Trump’s associates.

“It’s one more brick in the wall,” said a Washington lawyer representing another senior Trump aide in the Russia probe who added that the most interesting aspect of the Trump-Mueller story to him was that “people are leaking this shit.”

“That is a sign to me people perceive this ship has sprung a leak and it’s time to make themselves look good,” the attorney said. “To some extent I think the fact of the leaking is almost the most significant, that we’ve reached an inflection point where people at the center of things feel the need to redeem themselves at the expense of the president.”

I do think the leaking of this is significant — and may have as much to do with news of Bannon or Sessions’ testimony as anything else — but given that at least two of the people involved here (McGahn and Reince Priebus) share a lawyer, it may only represent that particular lifeboat abandoning ship.

Update: The updated WaPo version of this makes it clear that Reince Priebus and Steven Bannon were both in the loop on this.

Trump’s ire at Mueller rose to such a level that then-White House strategist Stephen K. Bannon and then-Chief of Staff Reince Priebus grew “incredibly concerned” that he was going to fire Mueller and sought to enlist others to intervene with the president, according to a Trump adviser who requested anonymity to describe private conversations.

Both of the men were deeply worried about the possibility and discussed how to keep him from making such a move, this person said.

Priebus and Bannon did not immediately respond to requests for comment.

In one meeting with other advisers, Bannon raised the concern that if Trump fired Mueller it could trigger a challenge to his presidency based on the 25th Amendment, which lays out the process of who succeeds a president in case of incapacitation.

Despite internal objections, Trump decided to assert that Mueller had unacceptable conflicts of interest and moved to remove him from his position, according to the people familiar with the discussions.

In response, McGahn said he would not remain at the White House if Trump went through with the move, according to a senior administration official.

The president, in turn, backed off.

So it seems this leakapalooza stems in part from Burck, the lawyer representing them all.

Update: As this Politico piece (linked by PINC below) notes, McGahn hired Burck in the wake of obstructing justice in the Comey firing, way before Mueller came calling.

So it wasn’t that McGahn took a principled stand in June. It’s that his lawyer told him to stop obstructing justice.

Update: CBS tells what feels like the real story. First, as noted, McGahn’s threat didn’t really make it to Trump. Indeed, the firing wasn’t really even an order. The response was more of an eye roll. And, as predicted, the other people involved were fellow Burck clients Reince Priebus and Steve Bannon.

Two sources directly involved in the deliberations tell CBS News chief White House correspondent Major Garrett that McGahn’s threat was not communicated directly to Mr. Trump, but adjudicated by senior staff, principally then-chief of staff Reince Priebus and then-chief strategist Steve Bannon.

Garrett reports that while Mr. Trump talked about firing Mueller, he never issued a direct “order” to do so in any written form, although he did say he favored it in the presence of senior staff.

[snip]

White House senior staff viewed Mr. Trump’s talk of firing Mueller skeptically, as he frequently mentioned firing people in his administration, but often quickly forgets about it.

In the Mueller instance, as in other potential firing cases, senior staff acknowledged the president with nods, but did not take action, in hopes Mr. Trump would simmer down or forget, sources tell Garrett.

Because of this, discussion of firing Mueller was not acted upon or elevated from the White House to Department of Justice.

Moreover, McGahn’s threat went beyond the Mueller firing to his own compromised position.

McGahn threatened to resign over an accumulation of stresses and frustrations with the president, rather than leaving for issues related to Mueller’s potential firing.

McGahn’s primary stress was being a “no” voice for Mr. Trump.

Suddenly, this looks not so much like McGahn heroically defending the Constitution as McGahn trying to fix a shitty work situation.

On the Sessions and Trump Interviews: It’s Not Just Obstruction of Justice

There are two stories out (in addition to this piece I did for TNR) renewing the frenzy around the Mueller investigation.

First, NYT reveals that Mueller interviewed Jeff Sessions for a few hours last week.

Attorney General Jeff Sessions was questioned for several hours last week by the special counsel’s office as part of the investigation into Russia’s meddling in the election and whether the president obstructed justice since taking office, according to a Justice Department spokeswoman.

Then, WaPo reports that Mueller wants to interview Trump about the Mike Flynn and Jim Comey firings.

Within the past two weeks, the special counsel’s office has indicated to the White House that the two central subjects that investigators wish to discuss with the president are the departures of Flynn and Comey and the events surrounding their firings.

Commenters and the WaPo piece (which cites information that should only be available from a member of Trump’s legal team) suggest these developments mean Trump is looking at obstruction.

Mueller’s interest in the events that led Trump to push out Flynn and Comey indicates that his investigation is intensifying its focus on possible efforts by the president or others to obstruct or blunt the special counsel’s probe.

I’m sure obstruction absolutely is one of the things Mueller is assessing when interviewing Sessions and Trump.

But neither of these interviews, particularly not the Sessions one, is necessarily focused exclusively on obstruction.

Sessions, for example, was in a key early meeting where setting up a meeting between Putin and Trump was discussed (though Sessions claims he opposed the idea). I have noted, for example, how Sessions played dumb when asked whether he had any discussions about emails and that key Sessions aide Stephen Miller is a top candidate to have heard about emails from George Papadopoulos.

[I]t seems highly likely that on April 27 (or whenever Papadopoulos was next in DC), Miller learned that Russia had some kind of emails from Hillary.

[Stephen] Miller, recall, is Jeff Sessions’ close aide, his installment in the Administration. The NYT makes clear that Miller was interviewed by Mueller’s team recently, which means he was one of the people the government planned to interview just after locking in Papadopoulos’ plea.

Which makes this exchange from Jeff Sessions’ most recent congressional appearance, on October 18, all the more interesting. First, Patrick Leahy got the Attorney General to admit that there was a difference between not recalling something and affirmatively denying something. Leahy then pointed out that, once the meetings he had denied were disclosed, Sessions started not recalling certain things about the meetings that he had previous affirmatively denied.

Leahy: Later in March, when you did disclose such meetings, you said you could not recall what was said at the meetings. Your answer to my question was an emphatic no. It wasn’t, “I don’t recall.” You are a lawyer, I am a lawyer. You are, in fact, our nation’s top lawyer. Is there a difference between responding “no” and “I do not recall”?

Sessions: Yes.

Leahy: Thank you.

Sessions: Certainly it is, Senator Leahy.

Leahy: So if you could not recall, then you could not answer have answered my first question, yes or no, if later you said that you don’t recall what was discussed. The reason I ask is that, US intelligence intercepts reported in July that it would appear you did in fact discuss campaign issues with the Russian Ambassador.

Leahy then asked Sessions whether he had, since the election, had conversations with Russian officials about a slew of things, starting with emails. Sessions got even squirrelier than he normally is, and first attempted to answer a question Leahy didn’t ask.

Sessions: I have never had a meeting with any Russian officials to discuss any kind of coordinating campaign efforts.

So then Leahy asked about each item in turn.

Leahy: Let’s take this piece by piece. Did you discuss any of the following: Emails?

Sessions: Repeat the question again about emails.

Leahy: Since the 2016 campaign, have you discussed with any Russian connected official anything about emails?

Sessions: Discuss with them. I don’t recall having done any such thing.

Right after this exchange, Sessions totally balks when Leahy asks him if he has been interviewed or asked for an interview by Mueller, saying he should clear it with the Special Counsel.

Now, there was some imprecision in this questioning. It’s clear that Sessions believed he was answering the question about during the campaign, not since it.

But of the things Leahy asked about — emails, Russian interference, sanctions, or any policies or positions of the Trump campaign or presidency — Sessions ultimately not-recalled in response to just one question: the emails.

Based on the past practice Leahy had just laid out, Sessions claimed to not recall issues that he had actually done. Which would suggest Sessions is worried that there’s evidence he has discussed emails — with someone. It’s just not clear how he interpreted that question.

And while Trump’s firing of Comey after attempting him to drop the Flynn investigation is a key prong in any obstruction case, his role in Flynn’s non-firing is far more interesting, especially given the likelihood, given Republican efforts to claim privilege, that he was on the Mar-a-Lago side of orders directing Flynn to ask Sergey Kislyak to hold off on a response to Obama’s sanctions. While it’s certainly possible that Mueller may hold off on any examination of Trump’s personal role in any hypothetical quid pro quo with the Russians, there’s plenty of reason to believe Trump was in the loop.

And in early discussions about Sally Yates’ testimony, Adam Schiff had said she might explain why Trump waited so long to fire Mike Flynn after she warned Don McGahn he had been compromised. One obvious reason is that it allowed Flynn, who had helped set up a meeting days later, attend it. That might change the connotation of the timing of the Comey firing, just in time to report back to Russia that the firing had “taken off” the pressure created by the investigation.

President Trump told Russian officials in the Oval Office this month that firing the F.B.I. director, James B. Comey, had relieved “great pressure” on him, according to a document summarizing the meeting.

“I just fired the head of the F.B.I. He was crazy, a real nut job,” Mr. Trump said, according to the document, which was read to The New York Times by an American official. “I faced great pressure because of Russia. That’s taken off.”

Mr. Trump added, “I’m not under investigation.”

It’s crystal clear that Trump fired Comey in an attempt to stave off investigation of Mike Flynn.

But the why behind that obstruction led to the rest of the guts of the Russia investigation. And the why may implicate both Trump (as unindicted co-conspirator) and Sessions (most likely as witness) more directly in any quid pro quo pertaining to the election.

[Photo: National Security Agency, Ft. Meade, MD via Wikimedia]

Jack Goldsmith and Susan Hennessey Run Cover for Those Giving Jeff Sessions Unreviewable Authority to Criminalize Dissent

I’m used to Susan Hennessey partnering with Ben Wittes to write apologies for NSA and FBI that ignore known facts. I’m a bit surprised that Jack Goldsmith did so in this defense of Democrats — like Adam Schiff and Nancy Pelosi and nineteen Democratic Senators — who have voted to give Jeff Sessions unreviewable authority to criminalize dissent using certain privacy tools.

NSA did not fix “abouts” problems before the issues became public

There are numerous problems with this post. The one that irks me the most, however, is the claim that the “system itself” identified and addressed problems with “abouts” collection before they became public.

We acknowledge that the program has raised hard legal questions as well as difficult compliance issues, primarily involving “abouts” collection. But these problems were identified by the system itself, long before the issues became public, and the practices were fixed or terminated.

This claim, one I’ve corrected Hennessey for on numerous occasions on Twitter, is false, and should be retracted.

I say that with great confidence, because I wrote about the problems on August 11, 2016, well before NSA failed to disclose the full extent of the problems in an October 4, 2016 hearing, which led the worst FISC judge ever, Rosemary Collyer, to complain about NSA’s institutional “lack of candor.”

At the October 26, 2016 hearing, the Court ascribed the government’s failure to disclose those IG and OCO reviews at the October 4, 2016 hearing to an institutional “lack of candor” on NSA’s part and emphasized that “this is a very serious Fourth Amendment issue.”

As a reminder, the problem (the FISC has) with “abouts” collection is not so much that it collected entirely domestic communications — that’s the complaint of the rest of us. It’s that NSA never ever complied with John Bates’ 2011 requirement that NSA not conduct back door searches on upstream collection, because it might result in searches of those entirely domestic communications. In my August 2016 post, I noted that reviewers kept discovering that NSA continued to do back door searches on upstream data in violation of that prohibition, and kept refusing to implement technical fixes to avoid them.

I also raised concerns about the oversight of 704/705(b), which is how the NSA first realized how badly non-compliant their upstream searches were, on May 13, 2016, That’s about when NSA first reported to DOJ “in May and June 2016” that “approximately eighty-five percent of” queries using a tool the NSA employs with 704/705b queries “were not compliant with the applicable minimization procedures.”

I’ll grant that I’m remarkably attentive to documents that get declassified years after the fact. But I’m nevertheless “the public.” If I’m identifying these problems — and NSA’s refusal to make the technical fixes to avoid them — before they get fully briefed to DOJ or FISC, then it is absolutely false to claim that “the system” fixed or terminated the problem long before they became public.

Again, Lawfare should issue a retraction for that claim.

Update, January 19: On Twitter yesterday, Hennessey claimed I misread this quote, and that her proof that the system works was that the NSA had gotten away with ignoring Bates’ orders for five years, but finally shut it down before the public learned that NSA had been ignoring FISC’s orders.

This is still factually false — as I responded to her, the NSA was still identifying problems for eight months after I wrote about the problems, even assuming it had found all of them by April 2017, which was the last declassified reporting on it. But her explanation actually makes the comment downright damning for the NSA. It suggests a lawyer who was at NSA during the period it was not in compliance believes that getting away with violating the Fourth Amendment for five years, but fixing it before documents released on a three year delay (and only because of Snowden) is a sign of a law-abiding agency.

A portrait of a guy who doesn’t know key details as a rigorous overseer

The fact that I was harping on the “abouts” problems before any overseers of the program managed to fully investigate and fix them by itself disproves the claims that Hennessey and Goldsmith make in their hagiography of Adam Schiff.

He is the ranking Democrat on the House intelligence committee and one of the most knowledgeable and informed members of Congress on intelligence matters. Schiff has not hesitated to be  when he sees fit. He has watched the 702 program up close over many years in classified settings in his oversight role. He knows well its virtues and its warts. We suppose it is possible that Schiff would vote to give the president, whose integrity he so obviously worries about, vast powers to spy on Americans in an abusive way. Given everything Schiff has publicly said and done over the last year, however, a much more plausible inference is that he knows not only how valuable the 702 program is but also how law-constrained and carefully controlled and monitored it is.

Plus, I’m not sure why they think that Schiff’s attempt to fix the Section 215 phone dragnet only after Edward Snowden made it public proves that Schiff “never hesitated to be critical of intelligence community practices.” On the contrary, it proves that he did hesitate to do so before excessive programs became public.

The distinction is utterly critical given something I’ve pointed out about this bill. The bill itself is an admission that the intelligence community is out of control, and that congressional overseers can’t get information they need to adequately oversee the program without demanding it in legislation. That’s because it requires the IC to provide information on two practices that Congress cannot be deemed competent to legislate on without having answers about first.

For example, the bill requires an IG Report on how FBI queries raw data.

(b) MATTERS INCLUDED.—The report under subsection (a) shall include, at a minimum, an assessment of the following:

(1) The interpretations by the Federal Bureau of Investigation and the National Security Division of the Department of Justice, respectively, relating to the querying procedures adopted under subsection (f) of section 702 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1881a(f)), as added by section 101.

[snip]

(6) The scope of access by the criminal division of the Federal Bureau of Investigation to information obtained pursuant to the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), including with respect to information acquired under subsection (a) of such section 702 based on queries conducted by the criminal division.

(7) The frequency and nature of the reviews conducted by the National Security Division of the Department of Justice and the Office of the Director of National Intelligence relating to the compliance by the Federal Bureau of Investigation with such querying procedures.

I have explained (and I know Hennessey regards this as a problem too) that since 2012, FBI has devolved its access to raw 702 data to field offices. The FBI already conducted far, far less oversight of the back door searches it conducts than NSA does. But because the DOJ/DNI 702 review teams visit only a fraction of the FBI field offices with each review, and because FBI’s querying system doesn’t collect enough information to do oversight remotely, it is possible that the offices that are least familiar with 702 requirements are — for the smaller number of 702 queries they conduct — getting the least oversight.

You can’t pass a bill that effectively blesses FBI’s use of back door searches on Americans about whom it has no evidence of any wrongdoing, while admitting you don’t know how FBI conducts those back door searches, and make any claim to conduct adequate oversight. Rather, the bill permits FBI to continue practices it has stubbornly refused to brief Congress on, rather than demanding that FBI brief Congress first, so Congress can impose any restrictions that might be necessary to adequately protect Americans.

The bill also requires a briefing within six months to explain how DOJ complies with FISA’s legally mandated notice requirements (because notice under 702 is treated as notice under 106(c), this covers 702 surveillance as well).

Not later than 180 days after the date of the enactment of this Act, the Attorney General, in consultation with the Director of National Intelligence, shall provide to the Committee on the Judiciary and the Permanent Select Committee on Intelligence of the House of Representatives and the Committee on the Judiciary and the Select 10 Committee on Intelligence of the Senate a briefing with respect to how the Department of Justice interprets the requirements under sections 106(c), 305(d), and 405(c) of the Foreign Intelligence Surveillance Act of 1978 (50 14 U.S.C. 1806(c), 1825(d), and 1845(c)) to notify an aggrieved person under such sections of the use of information obtained or derived from electronic surveillance, physical search, or the use of a pen register or trap and trace device. The briefing shall focus on how the Department interprets the phrase ‘‘obtained or derived from’’ in such sections.

The public treatment of DOJ’s serial, obvious failures to give notice to defendants is a nifty trick. When DOJ fails to give notice, it clearly violates the law, but notice is not included in minimization procedure review, so therefore is not reviewed by the FISC. When surveillance boosters like Hennessey and Goldsmith say there have never been any willful violations of the law, they manage to ignore the notice violations that have allowed some pretty problematic practices to avoid judicial oversight only because by breaking the law DOJ ensures no court will find them to be breaking the law.

Catch 22: Heads legal violations never get reviewed by a court, tails surveillance boosters can claim the surveillance has a clean bill of health.

Again, this is a known, egregious problem with the implementation of 702.

But rather than do the obvious thing as part of what this post dubs “robust democratic deliberation,” which is to demand answers about how notice is (not) given and require DOJ to fix it as part of the bill, the bill instead simply requires DOJ to provide the information that Congress needs to do basic oversight six months after reauthorization, which effectively punts fixing the problem six years down the road.

How many Chinese-American scientists will be improperly prosecuted because FBI is technically inane in those 6 years, because a bunch of California legislators like Nancy Pelosi, Adam Schiff, and Dianne Feinstein chose to punt on basic oversight?

The most egregious example of this, however, involves the government’s obstinate refusal to explain how many US persons are affected by 702. This bill also did not incorporate an HJC proposal requiring a count of how many Americans got referred for criminal prosecution off of 702 collection.

Letting Jeff Sessions criminalize dissent

That refusal — the refusal to even legislatively require the government to report on the impact of 702 surveillance on Americans, via incidental collection and/or criminal referral — brings us to the problem with this bill that opponents are all raising, but about which Hennessey and Goldsmith are inexcusably silent: the codification of giving Jeff Sessions unreviewable authority to determine what counts as a “criminal proceeding [that] affects, involves, or is related to the national security of the United States.”

Here’s how Hennessey and Goldsmith describe the impact of this program on Americans.

As Lawfare readers know, Section 702 authorizes the intelligence community to target the communications of non-U.S. persons located outside the United States for foreign intelligence purposes. It does not permit the intelligence community to target a U.S. person anywhere in the world. But it does permit incidental collection on U.S. persons, subject to strict rules about minimization and use.

Their silence about how the bill doesn’t deal with back door searches is problematic enough.

But they predictably, but problematically, make no mention of the way the bill codifies the use of 702 in domestic law enforcement under the Tor/VPN exception.

As I have laid out, in 2014 FISC created an exception to the rule that NSA must detask from a facility as soon as they learn that Americans are also using that facility. That exception applies to Tor and (though I understand this part even less) VPN servers — basically the kinds of privacy tools that criminals, spies, journalists, and dissidents might use to hide their online activities. NSA has to sort through what they collect on the back end, but along the way, they get to decide to keep any entirely domestic traffic they find has significant foreign intelligence purpose or is evidence of a crime, among other reasons. The bill even codifies 8 enumerated crimes under which they can keep such data. Some of those crimes — child porn and murder — make sense, but others — like transnational crime (including local drug dealers selling imported drugs) and CFAA (with its well-known propensity for abuse) pose more potential for abuse.

But it’s the unreviewable authority for Jeff Sessions bit that is the real problem.

We know, for example, that painting Black Lives Matter as a national security threat is key to the Trump-Sessions effort to criminalize race. We also know that Trump has accused his opponents of treason, all for making critical comments about Trump.

This bill gives Sessions unreviewable authority to decide that a BLM protest organized using or whistleblowing relying on Tor, discovered by collection done in the name of hunting Russian spies, can be referred for prosecution. The fact that the underlying data predicating any prosecution was obtained without a warrant under 702 would — in part because this bill doesn’t add teeth to FISA notice — ensure that courts would never learn the genesis of the prosecution. Even if a court somehow managed to do so, however, it could never deem the domestic surveillance unlawful because the bill gives Jeff Sessions the unreviewable authority to treat dissent as a national security threat.

This is such an obviously bad idea, and it is being supported by people who talk incessantly about the threat that Trump and Sessions present. Yet, rather than addressing the issue head on (which I doubt Hennessey could legally do in any case), they simply remain silent about what is the biggest complaint from privacy activists, that this gives a racist, vindictive Attorney General far more authority than he should have, and does so without fixing the inadequate protections for criminal defendants along the way.

I mean, I get that surveillance boosters who recognize the threat Trump and Sessions pose want to absolve themselves for giving Trump tools that can so obviously be abused.

But this attempt does so precisely by dodging the most obvious reasons for which boosters should be held to account.

Update: Changed post to note that just Trump has accused FBI Agents of treason, not Sessions, and not (yet) journalists.

Update: Here’s the roll call of the 65-34 vote passage of the bill. Democrats who voted in favor are:

  1. Carper
  2. Casey
  3. Cortez Masto
  4. Donnelly
  5. Duckworth
  6. Feinstein
  7. Hassan
  8. Heitkamp
  9. Jones
  10. Klobuchar
  11. Manchin
  12. McCaskill
  13. Nelson
  14. Peters
  15. Reed
  16. Schumer
  17. Shaheen
  18. Stabenow
  19. Warner
  20. Whitehouse

 

The 702 Capitulations: a Real Measure of the “Deep State”

There were two details of the Section 702 reauthorization in the House that deserve more attention, as the Senate prepares for a cloture vote today at 5:30.

First, in the Rules Committee hearing for the bill, Ranking House Judiciary Committee member Jerry Nadler revealed that the FBI stopped engaging with his staffers when the two sides reached a point on negotiations over the bill beyond which they refused to budge.

Effectively, FBI just used the dual HJC/House Intelligence jurisdiction over FISA to avoid engaging in the legislative process, to avoid making any concessions to representatives supposedly overseeing this program.

As a result, the final bill included only a sham warrant requirement — one that will give criminal suspects more protection against warrantless search than it gives people against whom the FBI has no suspicion — and provided an easy way for the NSA to turn “about” collection (which has been the source of repeated NSA violations of FISA over the years) back on.

Then there was the effort Nancy Pelosi made to use the President’s reactive FISA tweet to impose a few more limits on the warrant requirement. In a filibustering speech, she suggested that Trump’s tweet claiming his had been surveilled and abused under the law (in reality, Title I warrants were used during the campaign, but Section 702 has likely been part of the investigation as well) necessitated a motion to recommit instructing HPSCI to boost the protections for Americans.

Pelosi had to have know the motion would fail (it did, with just six of the most libertarian Republicans joining Democrats in support). She counts votes better than anyone.

What the vote was really about was an effort not to fix the real problems with the bill. Nor was it a meaningful effort to add anything but illusory protections to the bill. It was an effort to make a vote in support of the bill more politically palatable. Pelosi (and Adam Schiff, who worked closely with Pelosi on this front) appears to have known that there will be political costs for supporting this bill, perhaps especially in San Francisco where one-fifth of Pelosi’s constituents are Chinese-American, one of the groups most disproportionately affected by the spying program.

She knew she was going to have to vote for the bill, political cost and all, and was trying to use Trump’s tweet to minimize the costs of doing so.

These two events, in my opinion, show how dysfunctional legislation affecting the “Deep State,” the entrenched national security bureaucracy, is. There is a clear political recognition among the Democratic leaders cooperating in passing the bill that the bill goes too far. Probably, they worry about what will happen when we learn how Jeff Sessions will use the unreviewable authority to deem either warrantless back door searches for Americans’ names or retention of Tor and VPN domestic collection a “national security” issue to target Democratic constituencies.

But that recognition was not enough to muster the political will to oppose the bill.

Heads the “Deep State” wins, tails democratic oversight fails.

Did The Most Senior White House Official Lie to the NYT about the Content of the Comey Firing Letter?

One week after conducting a “surprise” interview set up by Trump ally Christopher Ruddy (for which he was widely criticized), Mike Schmidt has a widely hailed story describing the evidence supporting an obstruction charges against Donald Trump.

Or maybe against Attorney General Jeff Sessions.

Most interestingly, it suggests that several days after Trump attacked Jeff Sessions while watching Jim Comey’s May 3 testimony to Congress, Sessions sent an aide to Congress to try to gin up a series of damning stories about Comey.

White House aides gave updates to Mr. Trump throughout, informing him of Mr. Comey’s refusal to publicly clear him. Mr. Trump unloaded on Mr. Sessions, who was at the White House that day. He criticized him for recusing himself from the Russia investigation, questioned his loyalty, and said he wanted to get rid of Mr. Comey.

[snip]

Two days after Mr. Comey’s testimony, an aide to Mr. Sessions approached a Capitol Hill staff member asking whether the staffer had any derogatory information about the F.B.I. director. The attorney general wanted one negative article a day in the news media about Mr. Comey, according to a person with knowledge of the meeting.

A Justice Department spokeswoman said the incident did not occur. “This did not happen and would not happen,” said the spokeswoman, Sarah Isgur Flores. “Plain and simple.”

Hmmm. I don’t think Sessions has honored his recusal.

He may have also ordered up Rod Rosenstein to suggest Comey needed firing.

Earlier that day, Rod J. Rosenstein, the deputy attorney general, had pulled one of Mr. McGahn’s deputies aside after a meeting at the Justice Department. Mr. Rosenstein told the aide that top White House and Justice Department lawyers needed to discuss Mr. Comey’s future. It is unclear whether this conversation was related to the effort to dig up dirt on Mr. Comey.

The following weekend, Trump went to Bedminster to have Stephen Miller write up a letter firing Comey. It’s this detail I’m most interested in.

In interviews with The Times, White House officials have said the letter contained no references to Russia or the F.B.I.’s investigation. According to two people who have read it, however, the letter’s first sentence said the Russia investigation had been “fabricated and politically motivated.” [my emphasis]

Remember, Schmidt has just had a rather celebrated interview with one particular White House official. Er, The White House Official. Half of the off-the-record comments omitted from the NYT transcript of the interview clearly pertain to the Russian investigation.

TRUMP: Everybody knows the answer already. There was no collusion. None whatsoever.

_________

TRUMP: Maybe I’ll just say a little bit of a [inaudible]. I’ve always found Paul Manafort to be a very nice man. And I found him to be an honorable person. Paul only worked for me for a few months. Paul worked for Ronald Reagan. His firm worked for John McCain, worked for Bob Dole, worked for many Republicans for far longer than he worked for me. And you’re talking about what Paul was many years ago before I ever heard of him. He worked for me for — what was it, three and a half months?

[snip]

TRUMP: What I’ve done is, I have absolute right to do what I want to do with the Justice Department. But for purposes of hopefully thinking I’m going to be treated fairly, I’ve stayed uninvolved with this particular matter.

_________

TRUMP: For purposes of the Justice Department, I watched Alan Dershowitz the other day, who by the way, says I, says this is a ridiculous —

SCHMIDT: He’s been very good to you.

TRUMP: He’s been amazing. And he’s a liberal Democrat. I don’t know him. He’s a liberal Democrat. I watched Alan Dershowitz the other day, he said, No. 1, there is no collusion, No. 2, collusion is not a crime, but even if it was a crime, there was no collusion. And he said that very strongly. He said there was no collusion. And he has studied this thing very closely. I’ve seen him a number of times. There is no collusion, and even if there was, it’s not a crime. But there’s no collusion. I don’t even say [inaudible]. I don’t even go that far.

_________

TRUMP: So for the purposes of what’s going on with this phony Russian deal, which, by the way, you’ve heard me say it, is only an excuse for losing an election that they should have won, because it’s very hard for a Republican to win the Electoral College. O.K.?

This last break in the transcript picks up right where the information these White House officials lying to the NYT leave off: with the claim that this is a “fabricated and politically motivated” investigation.

Particularly given that Schmidt has been working this aspect of the story for months, what are the chances that the most senior White House official lied to Schmidt about what he had written to justify firing Jim Comey?

What Explains Trump’s Focus on Manafort?

As I noted yesterday on Twitter, the transcript of NYT’s interview with Donald Trump reads like this:

collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion

23 times Trump either denied any evidence of collusion between his campaign and Russia or alleged collusion between Hillary and … I’m not entirely clear who she was supposed to have colluded with.

Whatever else this interview was, it was also a testament to Trump’s continued obsession with trying to deny any guilt.

Which is why I’m so interested in both the form and the singular focus on Trump’s denial of Paul Manafort.

SCHMIDT: What’s your expectation on Mueller? When do you —

TRUMP: I have no expectation. I can only tell you that there is absolutely no collusion. Everybody knows it. And you know who knows it better than anybody? The Democrats. They walk around blinking at each other.

SCHMIDT: But when do you think he’ll be done in regards to you —

TRUMP: I don’t know.

SCHMIDT: But does that bother you?

TRUMP: No, it doesn’t bother me because I hope that he’s going to be fair. I think that he’s going to be fair. And based on that [inaudible]. There’s been no collusion. But I think he’s going to be fair. And if he’s fair — because everybody knows the answer already, Michael. I want you to treat me fairly. O.K.?

SCHMIDT: Believe me. This is —

TRUMP: Everybody knows the answer already. There was no collusion. None whatsoever.

_________

TRUMP: Maybe I’ll just say a little bit of a [inaudible]. I’ve always found Paul Manafort to be a very nice man. And I found him to be an honorable person. Paul only worked for me for a few months. Paul worked for Ronald Reagan. His firm worked for John McCain, worked for Bob Dole, worked for many Republicans for far longer than he worked for me. And you’re talking about what Paul was many years ago before I ever heard of him. He worked for me for — what was it, three and a half months?

SCHMIDT: A very short period of time.

TRUMP: Three and a half months. [Inaudible] So, that’s that. Let’s just say — I think that Bob Mueller will be fair, and everybody knows that there was no collusion.

The interview started with a discussion of Jeff Sessions’ recusal, which led Trump to claim he won because he campaigned better than Hillary, but then Mike Schmidt returned to Russia, which returned Trump to his “no collusion” line.

Then Schmidt permits Trump to go off the record about … something. Then the interview goes back on the record with Trump apparently deciding to offer up details after all. He offers the following defense of Manafort:

  • He’s a nice, honorable man
  • Manafort worked for other Republicans too
  • Manafort didn’t work (on the campaign) for Trump long at all
  • Trump never heard of the man who lived in Trump Tower and had had a firm with Trump’s buddy Roger Stone

Having already had two people flip on him and agree to cooperate with prosecutors, Trump starts by flattering Manafort. He rightly reminds that Manafort has long been tolerated in the Republican party, even after Manafort’s fondness for working with thugs became widely known.

Trump then dismisses any Manafort taint based on time associated with the campaign (three and a half key months of the campaign, during the period when Russians were reaching out to provide dirt), not based on his actions for the campaign.

Finally, by falsely claiming he didn’t know Manafort, Trump absolves himself of any prior taint the lobbyist had.

As I said, I’m interested in this passage not just for Trump’s lame attempt at defending himself, but also that he did so. It’s only Manafort Trump feels the need to defend himself against, not Flynn (whom Trump reportedly is preparing to accuse of lying), not Papadopoulos, and not even Rick Gates (who, after all, hung around the campaign through the transition).

The Daily Beast did do an uninteresting piece suggesting Mueller’s team may get a superseding indictment against Manafort, but it doesn’t even imagine Mueller getting to the guts of the case, perhaps by indicting Manafort based on his ongoing reporting on the campaign to Oleg Deripaska via Konstantin Kilimnik, the latter of whom also served as a go-between in an effort to help Manafort write a self-defensive op-ed. Instead, it imagines only that Manafort will get a superseding indictment on tax charges.

Alternately, Schmidt may have said something during that off the record section that directly raised Manafort. Schmidt’s regular beat is the FBI, not Mar a Lago, so he may know something far more interesting than the Daily Beast does about where Mueller is going.

Whatever the reason, Trump seems far more worried about damage Manafort can do to him right now than any damage Flynn can.

Congress Should Revert to Section 702 as Passed in 2008, If That’s What the Spooks Want!

Congress is passing a continuing resolution with an extension of Section 702 today, giving Congress one month to figure out how it will reauthorize the surveillance program.

But the Intelligence Community is making one more bid to talk Congress into passing some bill today. The same Intelligence Community that has opposed bills that offer even lip service reforms — most notably the House Judiciary Committee bill — insist that anything else than a new authorization will make the country less safe.

Reauthorizing Section 702 before it expires is vital to keeping the nation safe. Let us be clear: if Congress fails to act, vital intelligence collection on international terrorists and other foreign adversaries will be lost. The country will be less secure.

And (again, from an IC that has refused to engage with the HJC bill) the IC wants its reauthorization now, without the short term extension, because short term extension don’t provide certainty.

We also believe it is important that Congress reauthorize Section 702 before it expires on December 31, 2017.  Although the current Section 702 certifications do not expire until April 2018, the Intelligence Community would need to start winding down its Section 702 program well in advance of that date.  Winding down such a valuable program would force agencies to divert resources away from addressing foreign threats. Short-term extensions are not the long-term answer either, as they fail to provide certainty, and will create needless and wasteful operational complications. We urge Congress, therefore, to act quickly to reauthorize Section 702 in a manner that preserves the effectiveness of this critical national security law before it expires.

Where the release gets truly inexcusable, however, is how they flip their demand that this reauthorization codify certain dubious practices and not limit other ones. Congress is not required to make changes, the spooks say, without telling you that even the SSCI bill makes at least one reform, and most of the bills on the floor today make more serious ones. Those are the bills the IC prevented from passing.

To be clear – Congress is not required to make any changes to Section 702. The Intelligence Community conducts and uses 702 collection in a manner that protects the privacy and civil liberties of individuals.

The spooks pretend, as they have before, that the Ninth Circuit approved back door searches, which it didn’t.

Every single court that has reviewed Section 702 and queries of its data has found it to be constitutional.

They then take their emphasis on the word targeting a step further than normal to avoid telling you that their “targeted surveillance” of location-obscuring servers like Tor and VPNs actually collects on US persons, and the “oversight’ of that collection allows entirely domestic communications collected via such “targeted” collection to be used in criminal cases.

The Intelligence Community’s use of Section 702, which permits targeted surveillance only of foreign persons located outside the United States, is subject to extensive oversight and incorporates substantial protections to protect the privacy and civil liberties of individuals.

Here, the spooks don’t acknowledge how much has changed in between the various passage of these bills.

In short, we believe Congress got it right in 2008 when it passed Section 702 and in 2012 when Congress reauthorized it.

Consider: if the 702 on the table today were 702 as it existed in 2008, Congress would pass it gladly. That’s because no backdoor searches were permitted (though FBI was already doing them), to say nothing of the 2014 exception that permits the collection of US person location-obscured communications. And upstream “about” collection wasn’t affirmatively permitted either.

In other words, if Congress could have Section 702 as it passed in 2008, it’d be a vast improvement from a privacy perspective than the program as it exists right now (and also wouldn’t include a counterproliferation certificate or approval to target cybersecurity targets).

Note, too, the spooks don’t admit that most of Congress didn’t know about backdoor and other kinds of US person searches in 2012.

All that said, even after saying that Congress had it right in 2008, the spooks return to the coded demands that Congress not do a single thing to limit the spying on Americans that has gotten added to the program since 2008.

Nevertheless, the Intelligence Community continues to be open to reasonable reforms to Section 702 to further enhance the already-substantial privacy protections contained in the law, but we simply cannot support legislation that would impede the operational efficacy of this vital authority.

There were many “reasonable reforms to … further enhance the already-substantial privacy protections contained in the law.” Those were the bills the IC refused to let pass, which is why we’re here on one of the last legislative days of the year, punting this legislation for a month.

Trump Transition Team Outraged To Be Treated as Transition Team!!

This is a general post on the GOP claim Mueller improperly obtained emails from ~13 Transition officials, updated as new news comes available. This post explains what is really going on: the Transition appears to have withheld emails — including the KT McFarland one referring to the election as having been “thrown” — and Mueller obtained proof they were withholding things. 

Both Fox News and Axios have pieces reflecting the outrage!!! among Trump people that they got asked questions about emails they thought they had hidden from Mueller’s investigation. Axios reveals that Mueller obtained the full contents of 12 accounts (Reuters says 13), one including 7,000 emails, from people on the “political leadership” and “foreign-policy team;” it says it includes “sensitive emails of Jared Kushner.”

Fox reveals that a transition lawyer wrote Congress today claiming that it was unlawful for government employees to turn over emails hosted on government servers for a criminal investigation.

A lawyer for the Trump presidential transition team is accusing Special Counsel Robert Mueller’s office of inappropriately obtaining transition documents as part of its Russia probe, including confidential attorney-client communications and privileged communications.

In a letter obtained by Fox News and sent to House and Senate committees on Saturday, the transition team’s attorney alleges “unlawful conduct” by the career staff at the General Services Administration in handing over transition documents to the special counsel’s office.

Officials familiar with the case argue Mueller could have a problem relating to the 4th Amendment – which protects against unreasonable searches and seizures.

Kory Langhofer, the counsel to Trump for America, wrote in the letter that the the GSA “did not own or control the records in question.”

But, Langhofer says, Mueller’s team has “extensively used the materials in question, including portions that are susceptible to claims of privilege.”

And Axios explains that the Trump people actually sorted through this stuff. “The sources say that transition officials assumed that Mueller would come calling, and had sifted through the emails and separated the ones they considered privileged.”

I’m really looking forward to hearing the full story about this, rather than just this partisan spin. For example, I’m interested in whether Mueller realized via some means (perhaps from someone like Reince Priebus or Sean Spicer — update, or George Papadopoulos) that the White House had withheld stuff that was clearly responsive to his requests, so he used that to ask GSA to turn over the full set.

I’m also interested in how they’ll claim any of this was privileged. The top 13 political and foreign policy people on the Trump team might include (asterisks mark people confirmed to be among those whose accounts were obtained):

  1. Pence
  2. Bannon
  3. Jared*
  4. Flynn*
  5. KT McFarland
  6. Spicer
  7. Priebus
  8. Nunes
  9. Sessions
  10. Seb Gorka
  11. Stephen Miller
  12. Hope Hicks
  13. Ivanka
  14. Don Jr
  15. Rebekah Mercer
  16. Kelly Anne Conway
  17. Rudy Giuliani
  18. Steven Mnuchin
  19. Rick Gates
  20. Corey Lewandowski
  21. Tom Bossert

Just one of those people — Sessions — is a practicing lawyer (and he wasn’t, then), and he wasn’t playing a legal role in the transition (though both Sessions and Nunes may have been using their congressional email, in which case Mueller likely would show far more deference; update: I’ve added Rudy 911 to the list, and he’d obviously qualify as a practicing lawyer). Though I suppose they might have been talking with a lawyer. But I would bet Mueller’s legal whiz, Michael Dreeben, would point to the Clinton White House Counsel precedent and say that transition lawyers don’t get privilege.

Furthermore, Trump wasn’t President yet! This has come up repeatedly in congressional hearings. You don’t get privilege until after you’re president, in part to prevent you from doing things like — say — undermining existing foreign policy efforts of the actually still serving President. So even if these people were repeating things Trump said, it wouldn’t be entitled to privilege yet.

Finally, consider that some of these people were testifying to the grand jury months and months ago. But we’re only seeing this complaint today. That’s probably true for two reasons. One, because Mueller used the emails in question (most notably, the emails between McFarland and Flynn from December 29 where they discussed Russian sanctions) to obtain a guilty plea from Flynn. And, second, because Republicans are pushing to get Trump to fire Mueller.

Update: I’ve added Pence, Don Jr., Ivanka, Hope Hicks, Kelly Anne Conway, Rudy Giuliani, Steven Mnuchin back in here.

Update: Here’s more from Reuters.

Langhofer, the Trump transition team lawyer, wrote in his letter that the GSA’s transfer of materials was discovered on Dec. 12 and 13.

The FBI had requested the materials from GSA staff last Aug. 23, asking for copies of the emails, laptops, cell phones and other materials associated with nine members of the Trump transition team response for national security and policy matters, the letter said.

On Aug. 30, the FBI requested the materials of four additional senior members of the Trump transition team, it said.

The GSA transfer may only have been discovered this week (probably as a result of Congress’ investigation). But the witnesses had to have known these emails went beyond the scope of what the transition turned over. And the request date definitely is late enough for Mueller to have discovered not everything got turned over, perhaps even from George Papadopoulos, who flipped in late July.

Update: One more thing. Remember that there were worries that transition officials were copying files out of a SCIF. That, by itself, would create an Insider Threat concern that would merit FBI obtaining these emails directly.

Update: Here’s a report dated June 15 on a transition lawyer instructing aides and volunteers to save anything relating to Russia, Ukraine, or known targets (Flynn, Manafort, Page, Gates, and Stone).

Update: AP reports that Flynn was (unsurprisingly) among those whose email was obtained.

Update: Here’s the letter. I unpacked it here. It’s a load of — I believe this is the technical term — shite. First, it stakes everything on PTT not being an agency. That doesn’t matter at all for a criminal investigation — Robert Mueller was no FOIAing this stuff. It then later invokes a bunch of privileges (the exception is the attorney client one) that only come with the consequent responsibilities. It then complains that Mueller’s team didn’t use a taint team.

Perhaps the craziest thing is they call for a law that would only permit someone to access such emails for a national security purpose — as if an espionage related investigation isn’t national security purpose!

Update: Chris Geidner got GSA’s side of the story. Turns out they claim the now dead cover up GC didn’t make the agreement the TFA lawyer says he did. In any case, GSA device users agreed their devices could be monitored.

“Beckler never made that commitment,” he said of the claim that any requests for transition records would be routed to the Trump campaign’s counsel.

Specifically, Loewentritt said, “in using our devices,” transition team members were informed that materials “would not be held back in any law enforcement” actions.

Loewentritt read to BuzzFeed News a series of agreements that anyone had to agree to when using GSA materials during the transition, including that there could be monitoring and auditing of devices and that, “Therefore, no expectation of privacy can be assumed.”

Update: Mueller’s spox, Peter Carr, issued a statement saying, “When we have obtained emails in the course of our ongoing criminal investigation, we have secured either the account owner’s consent or appropriate criminal process.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Except I worry about something else.

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

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

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

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

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