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James Clapper: Unmasking And/Or Jeff Sessions?

I’m traveling so I’ll have to lay out my thoughts about the Comey firing later.

But for the moment I want to point to a detail in Monday’s hearing that deserves more attention now.

Early in the hearing, Chuck Grassley asked both Sally Yates and James Clapper if they have ever unmasked a Trump associate or member of Congress. Yates said no, but Clapper revealed he had unmasked someone, but couldn’t say more.

GRASSLEY: OK. I want to discuss unmasking.

Mr. Clapper and Ms. Yates, did either of you ever request the unmasking of Mr. Trump, his associates or any member of Congress?

CLAPPER: Yes, in one case I did that I can specifically recall, but I can’t discuss it any further than that.

GRASSLEY: You can’t, so if I ask you for details, you said you can’t discuss that, is that what you said?

CLAPPER: Not — not here.

Grassley returned to the issue for clarification later on. Clapper said he had asked to have the identity of both a member of Congress and a Trump associate unmasked. But then he said he had only asked on one occasion.

GRASSLEY: Mr. Clapper, you said yes when I asked you if you ever unmasked a Trump associate or a member of Congress. But I forgot to ask, which was it? Was it a Trump associate, a member of Congress, or both?

CLAPPER: Over my time as DNI, I think the answer was on rare occasion, both. And, again, Senator, just to make the point here, my focus was on the foreign target and at the foreign target’s behavior in relation to the U.S. person.

GRASSLEY: OK. How many instances were there, or was there just one?

CLAPPER: I can only recall one.

Finally, Lindsey Graham returned to the issue at the close of the hearing. Clapper confirmed he had made a request to unmask a Trump associate and a member of Congress.

You made a request for unmasking on a Trump associate and maybe a member of Congress? Is that right, Mr. Clapper?

CLAPPER: Yes.

Obviously, there’s plenty of room for confusion in these exchanges, and Clapper has a history of sowing confusion in Congressional testimony.

But if it is true that he has only unmasked one person but that he has unmasked both a Trump associate and a member of Congress, it would suggest he unmasked the identity of a member of Congress who is a Trump associate.

If that’s right, there are several possibilities for who it could be: transition official Devin Nunes, national security advisor Richard Burr, and national security official Jeff Sessions.

But the most likely is Sessions, because we know he was talking to Sergey Kislyak and the intelligence community has pulled their collection on Kislyak.

Even if that’s the case, it’s unsurprising Sessions’ communications with Kislyak have been reviewed and unmasked.

Still, it is a data point from Monday’s hearing that makes Sessions’ role in the firing of Jim Comey worth noting.

Dana Boente Still Has a Job and Why That’s of Interest for WikiLeaks

WaPo has a weird story reporting, erroneously, that Donald Trump has no US Attorneys.

Attorney General Jeff Sessions is making aggressive law enforcement a top priority, directing his federal prosecutors across the country to crack down on illegal immigrants and “use every tool” they have to go after violent criminals and drug traffickers.

But the attorney general does not have a single U.S. attorney in place to lead his tough-on-crime efforts across the country. Last month, Sessions abruptly told the dozens of remaining Obama administration U.S. attorneys to submit their resignations immediately — and none of them, or the 47 who had already left, have been replaced.

“We really need to work hard at that,” Sessions said when asked Tuesday about the vacancies as he opened a meeting with federal law enforcement officials. The 93 unfilled U.S. attorney positions are among the hundreds of critical Trump administration jobs that remain open.

While it is true that Trump had Sessions ask for the remaining 93 US Attorneys’ resignations, he subsequently announced he was keeping Rod Rosenstein (who contrary to WaPo’s claim that he “served as U.S. attorney for Maryland” is still there, and who will become Deputy Attorney General as soon as he’s confirmed in the next few weeks) and Dana Boente (who is US Attorney for EDVA but also acting AG for the Russia investigation).

Both Boente and Rosenstein made press announcements today; the guys whose custody they announced probably would prefer if they weren’t on the job.

I guess the WaPo wanted to suck up to Jeff Sessions and so didn’t consider the possibility that we’re better off with 91 US Attorney vacancies than 91 racist hacks like Sessions, pushing through his regressive policies.

Anyway, since we’ve established that Boente still has a job and in fact oversees the Russia investigation, I thought I’d point out something I was considering during last week’s threats from CIA Director Mike Pompeo against WikiLeaks.

During Pompeo’s comments at CSIS last week, he said,

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]

[W]e 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.

As some people observed, Pompeo’s comments are inconsistent with the practice of Obama’s DOJ, particularly under Holder. While Holder would have happily prosecuted Julian Assange for his role in release of files leaked by Chelsea Manning, he realized that if he did, he’d be criminalizing stuff that the press does.

Pompeo, at least, seems to disagree.

And the reason why Boente’s continued tenure as Eastern District US Attorney — and his role overseeing the Russian investigation — is that he has also been overseeing the ongoing investigation into Wikileaks since 2013.

Consider the fact that Assange’s actions of late may be more incriminating than those involving Manning (even assuming Assange can credibly claim he has no way of knowing whether Russia is responsible for the DNC hack, Assange’s comments about both the DNC and the Vault 7 leak suggest more coordination than in the past). Then add in the fact that Boente, for the next few weeks anyway, might be able to claim to be both US Attorney and Acting AG on any role by WikiLeaks in the publication of the DNC emails. And it raises the possibility that Boente would use this window to indict Assange.

I think that’s unlikely. Moreover, while an indictment would give the US reason to pressure Ecuador even more to boot Assange, it’s not clear they would. But it’s possible.

Raw Versus Cooked: Could NSC Monitor FBI’s Investigation?

Multiple people,including Bart Gellman and Josh Marshall, are now arguing that the reason Ezra Cohen-Watnick and Michael Ellis found intercepts involving Trump’s people is that they were monitoring FBI’s investigation of the investigation.

I certainly think the Trump people would like to do that — and would be willing to stoop to that. I even believe that the response to the Russian hack last year had some counterintelligence problems, though probably not on the FBI side.

But there are some details that may limit how much the NSC can monitor the investigation.

First, Devin Nunes has always been very clear: the intercepts he was shown have nothing to do with Russia. That’s not, itself, determinative. After all, Cohen-Watnick and Ellis might have found a bunch of Russian intercepts, but only shared the non-Russian ones so Nunes could make a stink without being accused of endangering the investigation. Also, it’s possible that intercepts involving other countries — most notably Turkey, but there are other countries that might be even more interesting, including Ukraine or Syria — would impact any Russian investigation.

Also note that among the many things Nunes appears not to understand about surveillance is that there are two ways an American’s name can be visible outside the circle of analysts doing the initial review of them: their names can be put into finished intelligence reports that get circulated more broadly, with customers asking to have the name unmasked after the fact. Alternately, their names can be found off of subsequent searches of raw data. At the NSA and CIA, searches for US person content are somewhat controlled. At FBI they are not only not controlled, but they are routine even for criminal investigations. So if, say, General Flynn (or Paul Manafort) were under investigation for failing to register as a foreign agent, the FBI would routinely search their database of raw FISA material on his name. (These are the “back door searches” Ron Wyden has been screaming about for years, concerns which people like Devin Nunes have previously dismissed on national security grounds.) And we have every reason to believe that counterintelligence intercepts of Russians in the US are among the raw feeds that the FBI gets. So if Flynn had conversations with Russians (or Turks) in the US, we should assume that FBI saw them as a routine matter if Flynn became the subject of an investigation at all. We should also assume that the FBI did a search on every Sergey Kislyak intercept in their possession, so they will have read everything that got picked up, including all recorded calls with Trump aides.

On March 15, the House Intelligence Committee asked the NSA, CIA, and FBI for information on unmasking. I don’t believe that request asked about access to US person names on subsequent searches or raw material. Furthermore, at least as of last week, the FBI was not rushing to comply with that request. As I noted after the Jim Comey hearing before HPSCI, none of the Republicans concerned about these issues seemed to have any basic clue about FBI’s searches on raw data. If Nunes doesn’t know (and he appears not to), it’s unlikely Ellis knows, who was until this month Nunes’ aide.

But there’s one other thing that may prevent NSC from obtaining information about the investigation: FBI sometimes uses what are called “ad hoc databases” that include raw FISA data (and probably, post EO 12333 sharing rule changes, raw EO 12333 data) tied to particular investigations. It’s unclear what conditions might necessitate the use of an ad hoc database (see page 25ff for a discussion of them), but if security concerns would encourage their use, it would be likely to have one here, an investigation which Comey described as being so sensitive he delayed briefing the Gang of Four. Ad hoc databases are restricted to those working on investigations, and include specific records of those authorized to access the database. So if FBI were using an ad hoc database for this investigation, it would be even harder for the NSC to learn what they were looking at.

If the FBI’s investigation relies on raw intelligence — and it would be unfathomable that it does not, because it would probably receive the raw FISA data tied to such an investigation routinely, and EO 12333 sharing rules specifically envision the sharing of raw data associated with counterintelligence investigations — then the NSC’s access to finished intelligence reports would provide little insight into the investigation (Nunes was a bit unclear on whether that’s what he was looking at, but the entire premise of his complaints is that these were finished reports).

But while we’re worrying about whether and how Trump would monitor an investigation into his aides, remember that in 2002, Jay Bybee wrote a memo authorizing the sharing of grand jury information with the President and his close advisors including for counterintelligence investigations.

In addition, the Patriot Act recently amended 6(e) and Title III specifically to provide that matters involving foreign intelligence or counterintelligence or foreign intelligence information may be disclosed by any attorney for the government (and in the case of Title III, also by an investigative or law enforcement officer) to certain federal officials in order to assist those officials in carrying out their duties. Federal officials who are included within these provisions may include, for example, the President, attorneys within the White House Counsel’s Office, the President’s Chief of Staff, the National Security Advisor, and officials within the Central Intelligence Agency and the Department of Defense.

[snip]

Although the new provision in Rule 6(e) permitting disclosure also requires that any disclosures be reported to the district court responsible for supervising the grand jury, we conclude that disclosures made to the President fall outside the scope of the reporting requirement contained in that amendment, as do related subsequent disclosures made to other officials on the President’s behalf.

In other words, Trump could demand that he — or his National Security Advisor! — get information on any grand jury investigations, including those covering counterintelligence cases. And no judge would be given notice of that.

With Jeff Sessions’ recusal, that’s far less likely to happen than it might have been. But understand that the Executive Branch believes that the President can learn about the happenings in grand jury investigations of the sort that might target his aides.

Update: additional details have been added to this post after it was first posted.

FBI Delayed Telling the Gang of Four about Trump-Related Investigation Because It Is So Serious

As every newspaper in town has reported, at today’s hearing into Russia’s hack of the DNC, Jim Comey confirmed that the FBI has a counterintelligence investigation into the hack that includes whether Trump’s associates coordinated with Russian actors. Along the way, Comey refused to join in James Clapper’s statement that there was no evidence of collusion between Trump’s aides and Russia. When the now retired Director of National Intelligence said that, Clapper had emphasized that his statement only extended through the end of his service, January 20; he warned that some evidence may have been discovered after that.

A far more telling detail came close to the end of the hearing, during NY Congresswoman Elise Stefanik’s questioning. She started by asking what typical protocols were for informing the DNI, the White House, and senior Congressional leadership about counterintelligence investigations.

Stefanik: My first set of questions are directed at Director Comey. Broadly, when the FBI has any open counterintelligence investigation, what are the typical protocols or procedures for notifying the DNI, the White House, and senior congressional leadership?

Comey: There is a practice of a quarterly briefing on sensitive cases to the Chair and Ranking of the House and Senate Intelligence Committees. The reason I hesitate is, thanks to feedback we’ve gotten, we’re trying to make it better. And that involves a briefing briefing the Department of Justice, I believe the DNI, and the — some portion of the National Security Council at the White House. We brief them before Congress is briefed.

Stefanik: So it’s quarterly for all three, then, senior congressional leadership, the White House, and the DNI?

Comey: I think that’s right. Now that’s by practice, not by rule or by written policy. Which is why, thanks to the Chair and Ranking giving us feedback, we’re trying to tweak it in certain ways.

Note that point: the practice has been that FBI won’t brief the Gang of Four until after they’ve briefed DOJ, the DNI, and the White House. Stefanik goes on to ask why, if FBI normally briefs CI investigations quarterly, why FBI didn’t brief the Gang of Four before the last month, at least seven months after the investigation started. Comey explains they delayed because of the sensitivity of the investigation.

Stefanik: So since in your opening statement you confirmed that there is a counterintelligence investigation currently open and you also referenced that it started in July, when did  you notify the DNI, the White House, or senior Congressional leadership?

Comey: Congressional leadership, sometime recently — they were briefed on the nature of the investigation and some details, as I said. Obviously the Department of Justice must have been aware of it all along. The DNI … I don’t know what the DNI’s knowledge of it was, because we didn’t have a DNI until Mr. Coats took office and I briefed him his first morning in office.

Stefanik: So just to drill down on this, if the open investigation began in July, and the briefing of Congressional leadership only occurred recently, why was there no notification prior to the recent — the past month.

Comey: I think our decision was it was a matter of such sensitivity that we wouldn’t include it in the quarterly briefings.

Stefanik: So when you state “our decision,” is that your decision, is it usually your decision what gets briefed in those quarterly updates?

Comey: No. It’s usually the decision of the head of our counterintelligence division.

Stefanik: And just again, to get the details on the record, why was the decision not to brief senior congressional leadership until recently, when the investigation had been open since July, a very serious investigation. Why was that decision made to wait months?

Comey: Because of the sensitivity of the matter.

Stefanik then got Comey to reconfirm what the IC report says: that Russia had hacked numerous entities, he would later say over a thousand, including Republican targets.

Stefanik then turned to the Yahoo investigation. She asked whether the FSB officers involved conducted the hack for intelligence purposes — a question Comey refused to answer. He also refused to answer what the FSB did with the information stolen.

Stefanik: Taking a further step back of what’s been in the news recently and I’m referring to the Yahoo hack, the Yahoo data breach, last week the Department of Justice announced it was charging hackers with ties to the FSB in the 2014 data breach. Was this hack done, to your knowledge, for intelligence purposes?

Comey: I can’t say in this forum.

Stefanik: Press reporting indicates the Yahoo hack targeted journalists, dissidents and government officials. Do you know what the FSB did with the information they obtained?

Comey: Same answer.

Stefanik: Okay, I understand that.

This is important for a number of reasons, including the evidence that the FSB was hiding their hacking from others in Russia.

Stefanik then turned to the sanctions, asking if Comey had any insight into how the Obama Administration chose who got sanctioned in December — which included Alexsey Belan but not the FSB officers involved (one of whom, Dmitry Dokuchaev, was already under arrest for treason by the time of the sanctions).

Stefanik: How did the Administration determine who to sanction as part of the election hacking? How familiar are [] with that decision process and how is that determination made?

Comey: I don’t know. I’m not familiar with the decision-making process. The FBI is a factual input but I don’t recall — I don’t have any personal knowledge about how the decisions were made about who to sanction.

Again, her interest in this is significant — I’ll explain why in a follow-up.

Stefanik then asked what the intelligence agencies would do going forward to keep entities safe from Russian hacking. As part of the response, Mike Rogers revealed (unsurprisingly) that NSA first learned of FSB’s hacking of those many targets in the summer of 2015.

Finally, Stefanik returned to her original point, when Congress gets briefed on CI investigations. Comey’s response was remarkable.

Stefanik: It seems to me, in my first line of questioning, the more serious a counterintelligence investigation is, that would seem to trigger the need to update not just the White House, the DNI, but also senior congressional leadership. And you stated it was due to the severity. I think moving forward, it seems the most severe and serious investigations should be notified to senior congressional leadership. And with that thanks for your lenience, Mr. Chairman, I yield back.

Comey could have been done with Stefanik yielding back. But instead, he interrupted, and suggested part of the delay had to do with the practice of briefing within the Executive Branch NSC before briefing Congress.

Comey: That’s good feedback, Ms. Stefanik, the challenge for is, sometimes we want to keep it tight within the executive branch, and if we’re going to go brief congressional leaders, the practice has been then we brief inside the executive branch, and so we have to try to figure out how to navigate that in a good way.

Which seems to suggest one reason why the FBI delayed briefing the Gang of Four (presumably, this is the Gang of Eight) is because they couldn’t brief all Executive Branch people the White House, and so couldn’t brief Congress without first having briefed the White House.

Which would suggest Mike Flynn may be a very central figure in this investigation.

Update: I’ve corrected my last observation to match Comey’s testimony that the delay had to do with keeping things on a close hold within the Executive Branch. That may be nothing, it may reflect the delay on confirming Dan Coats, it may be Flynn (if you normally brief the NSC, after all the National Security Advisor would be among the first to be briefed), but it also could be Jeff Sessions.

The Friday Afternoon Massacre: Who Is Overseeing the Trump Investigation?

Update: After refusing to resign, Preet has now officially been fired. It remains to be seen whether there’s some underlying legal reason to force Trump to do this, or whether it’s press grand-standing.

Dana Boente, the US Attorney for Eastern District of VA and Acting Deputy Attorney General since Trump fired Sally Yates, just called the other US Attorneys and told them to submit their resignations effective immediately.

The press seems most interested in whether this order covers media hound Preet Bharara, US Attorney for Southern District of NY. Preet is leading an investigation into NY political scandals affecting key Democrats, and Trump had told him he would be kept on (Preet’s political godfather is Chuck Schumer, which may have had something to do with that).

But I’m far more interested in whether Boente himself is resigning to himself.

In addition to serving as Acting DAG, since Jeff Sessions recused himself from any investigation into Trump last week, Boente has been in charge of that investigation. So if Boente resigned to himself this afternoon, it would mean no one was in charge of the investigation. Plus, Boente also oversees several other interesting investigations, notably the long-standing investigation of Wikileaks.

Mind you, Rod Rosenstein, at least until this afternoon US Attorney for MD, is all teed up to be confirmed as DAG. Except Richard Blumenthal has said he would hold up that investigation until a special counsel was appointed to investigate Trump. With no DAG and no one in charge of the Trump investigation (the USAs in WDPA, DC, and NDCA, who also have a piece of the investigation presumably also just resigned), Blumenthal might be pressured to relent on that front.

Update: NBC finally got some clarity on Boente — he (and Rosenstein) will stay on. Which I guess means Preet is out.

Jeff Sessions’ Narrow Recusal

Update: I was on Democracy Now on these issues today. Here’s the link.

As you know, after having two meetings with Russian Ambassador Sergey Kislyak that he did not reveal in response to specific questions posed as part of his confirmation process exposed, Attorney General Jeff Sessions recused from any investigation into the elections.

Contrary to much reporting on the recusal, it was nowhere near a complete recusal from matters pertaining to Trump’s administration and its’ ties to Russia. Here’s what Sessions said in his statement:

During the course of the confirmation proceedings on my nomination to be Attorney General, I advised the Senate Judiciary Committee that ‘[i]f a specific matter arose where I believed my impartiality might reasonably be questioned, I would consult with Department ethics officials regarding the most appropriate way to proceed.

During the course of the last several weeks, I have met with the relevant senior career Department officials to discuss whether I should recuse myself from any matters arising from the campaigns for President of the United States.

Having concluded those meetings today, I have decided to recuse myself from any existing or future investigations of any matters related in any way to the campaigns for President of the United States.

I have taken no actions regarding any such matters, to the extent they exist.

This announcement should not be interpreted as confirmation of the existence of any investigation or suggestive of the scope of any such investigation.

Consistent with the succession order for the Department of Justice, Acting Deputy Attorney General and U.S. Attorney for the Eastern District of Virginia Dana Boente shall act as and perform the functions of the Attorney General with respect to any matters from which I have recused myself to the extent they exist.

As I emphasized, the only thing he is recusing from is “existing or future investigations of any matters related in any way to the campaigns for President of the United States.”

There are two areas of concern regarding Trump’s ties that would not definitively be included in this recusal: Trump’s long-term ties to mobbed up businessmen with ties to Russia (a matter not known to be under investigation but which could raise concerns about compromise of Trump going forward), and discussions about policy that may involve quid pro quos (such as the unproven allegation, made in the Trump dossier, that Carter Page might take 19% in Rosneft in exchange for ending sanctions against Russia), that didn’t involve a pay-off in terms of the hacking. There are further allegations of Trump involvement in the hacking (a weak one against Paul Manafort and a much stronger one against Michael Cohen, both in the dossier), but that’s in no way the only concern raised about Trump’s ties with Russians.

The concern about the scope of Sessions’ recusal is underscored by the way in which he narrowly addressed his lies to the Senate. Here is his answer to Al Franken, which was a question about campaign surrogates, but did not ask about communications about the campaign.

FRANKEN: CNN has just published a story and I’m telling you this about a news story that’s just been published. I’m not expecting you to know whether or not it’s true or not. But CNN just published a story alleging that the intelligence community provided documents to the president-elect last week that included information that quote, “Russian operatives claimed to have compromising personal and financial information about Mr. Trump.” These documents also allegedly say quote, “There was a continuing exchange of information during the campaign between Trump’s surrogates and intermediaries for the Russian government.”

Now, again, I’m telling you this as it’s coming out, so you know. But if it’s true, it’s obviously extremely serious and if there is any evidence that anyone affiliated with the Trump campaign communicated with the Russian government in the course of this campaign, what will you do?

SESSIONS: Senator Franken, I’m not aware of any of those activities. I have been called a surrogate at a time or two in that campaign and I didn’t have — did not have communications with the Russians, and I’m unable to comment on it.

His press conference and a (surprisingly good) interview with Tucker Carlson underscores that he is just addressing questions about the election, not conversations with Russians generally (conversations that might address those other two concerns, especially that of influencing policy on things like Ukraine). In the interview, Sessions denied having conversations with Russians “on a continuing basis to advance any kind of campaign agenda” and said “I never had any conversations with the Russians about the campaign.”

By Sessions’ own admission, the conversation with Kislyak concerned Ukraine; he said Kislyak was pushing back on what the Ukrainian Ambassador had said just the day before, though Sessions claims he himself pushed back as well.

That’s important because they key policy issue on which there have been concerns about undue influence is Ukraine.

It is not illegal to have meetings with an Ambassador, where the Ambassador makes a case for policies his country supports — precisely what appears to have gone on in the meeting Sessions did not disclose. But the (thus far unproven) allegations involving other Trump officials go beyond that, without necessarily pertaining to the election. That’s why Sessions’ recusal is far too narrow to be meaningful.

Five Data Points on the Sessions News

As you no doubt have heard, Jeff Sessions met twice with Russian Ambassador Sergey Kislyak last year, then told the Senate Judiciary Committee he had either not talked about the election with any Russians (a written response to Patrick Leahy’s question) or not talked with Russians as a surrogate of the campaign (an oral response to Al Franken).WSJ describes the probe as reviewing stuff in spring of last year, so before the July contact with Kislyak. Thus far, Sessions, his spox, and anonymous Trump official have offered three conflicting explanations for Sessions’ non-disclosure, including Sessions’ own, “I have no idea what this allegation is about. It is false.”

Already, Democrats are demanding Sessions’ resignation and more Democrats and some Republicans are calling for him to recuse himself for the FBI counterintelligence investigation. The Twittersphere is calling for prosecution for perjury.

Update: WSJ had originally said Sessions and Kislyak spoke by phone, then corrected to in-person. According to this, he had one of each, with a phone followup several days after the in-person. Which means there’d be a transcript.

Jeff Sessions will almost certainly not be prosecuted for perjury

Which brings me to my first data point. Jeff Sessions is not going to be prosecuted for perjury. And that’s true for more reasons than that he is the AG.

First, it’s a hard crime to prove, because you have to prove that someone knowingly lied. Right now Sessions is all over the map, but he’s also dumb enough to be able to feign stupidity.

Plus, lying to Congress just doesn’t get prosecuted anymore. Remember, Alberto Gonzales lied in his own confirmation hearing in 2005, claiming there were no disagreements about Stellar Wind. It was always clear that was a lie, but even after Jim Comey confirmed that was the case with his May 2007 SJC hospital heroes performance, AGAG stuck around for another three months. And while his lie has often been cited as the reason for his departure in August 2007, I believe that the proximate reason is that he refused to do something Bush wanted him to do, at which point the White House threw him under the bus.

Plus, there are already at least three Trump officials who lied in their confirmation hearings — Mnuchin on his role in robosigning, DeVos on her role in the Prince family foundation, and Pruitt on his use of private emails. None of them are going anywhere.

Finally, in 2013, Holder’s DOJ went way out of its way to protect former DOJ official Scott Bloch from doing time after he lied to the House Oversight Committee. That precedent will make it all the harder to hold anyone accountable for lying to Congress in the future.

The timing of this roll-out gets more and more interesting

Now consider the timing of how all this rolled out.

In another blockbuster (revealing that the Obama Administration squirreled away information on Trump’s advisors to protect informants IDs from him, but also to ensure incriminating information would be available for others), NYT reveals that, after Putin’s non-response to Obama’s December 28 sanctions raised concerns, the FBI found Mike Flynn’s contacts with Kislyak on January 2.

On Jan. 2, administration officials learned that Mr. Kislyak — after leaving the State Department meeting — called Mr. Flynn, and that the two talked multiple times in the 36 hours that followed. American intelligence agencies routinely wiretap the phones of Russian diplomats, and transcripts of the calls showed that Mr. Flynn urged the Russians not to respond, saying relations would improve once Mr. Trump was in office, according to multiple current and former officials.

On January 10, the Trump dossier began to leak. Al Franken actually used that as the premise to ask Sessions about contacts with the Russians.

On January 12, David Ignatius published the first word of the Flynn-Kislyak calls, alerting anyone dumb enough not to already know that the FBI was going through Kislyak’s ties with Trump officials.

This had the effect of teeing up Flynn as a target, without giving Sessions (and other Trump officials) that their contacts with Kislyak were being scrutinized. And only after Flynn’s departure has this Sessions stuff come out.

I imagine someone in the White House Counsel’s office is now reviewing all the metadata and transcripts tied to Kislyak to see who else had curious conversations with him.

The claim Kislyak is the top spy recruiter

CNN’s version of this story and a separate profile of Kislyak insinuates that Session’s contact with Kislyak by itself is damning, because he “is considered by US intelligence to be one of Russia’s top spies and spy-recruiters in Washington.”

Current and former US intelligence officials have described Kislyak as a top spy and recruiter of spies, a notion that Russian officials have dismissed. Kremlin spokesman Dmitri Peskov said that “nobody has heard a single statement from US intelligence agencies’ representatives regarding our ambassador,” and attacked the “depersonalized assumptions of the media that are constantly trying to blow this situation out of proportion.”

Even aside from the fact that two Democrats — Joe Manchin of his own accord, and Claire McCaskill after she claimed never to have spoken with Kislyak — have also had contact with him, this seems like a red herring. No matter what Kislyak’s intention, it is still acceptable for someone to meet with a person presenting as a diplomat (for example, no one used to care that Saudi Arabia’s Bandar bin Sultan was running ops when he was Ambassador to the US).

Moreover, if current and former US intelligence officials are so sure Kislyak is the master spook in the US, why wasn’t he at the top of the Persona Non Grata list of 35 diplomats who got ejected at the end of December (though, as I’ve noted in the past, the Russian press was talking about him being replaced).

The delayed preservation request

Yesterday, AP reported that Don McGahn instructed White House officials on Tuesday to retain information relating to Russian contacts.

One official said McGahn’s memo instructs White House staff to preserve material from Trump’s time in office, and for those who worked on the campaign, relevant material from the election.

But the timing of this actually raises more questions. Preservation requests first went out February 17. Reince Priebus admitted knowing about it on the Sunday shows February 19. Sometime during the week of February 20-24, Sean Spicer with Don McGahn conducted a device check with White House staffers to see whether staffers were using Signal or Confide, the latter of which automatically deletes texts, the former of which can be set to do so (after Spicer warned everyone not to leak about the device check, it leaked).

And yet, McGahn only gave preservation instructions on February 28?

Now it’s possible the White House didn’t receive one of the letters sent on February 17 (which would raise other questions), which seems to be the implication of the AP report. But if it did, then McGahn sat on that preservation request for over 10 days, even while being involved in activities reflecting an awareness that staffers were using apps that thwarted retention rules.

Some things can’t be prosecuted

Contrary to what you may believe, thus far none of these reports have confirmed a smoking gun, and the NYT pointedly makes it clear that its sources are not claiming to have a smoking gun (which may not rule out that they have one they’re not yet sharing).

The nature of the contacts remains unknown. Several of Mr. Trump’s associates have done business in Russia, and it is unclear if any of the contacts were related to business dealings.

But consider that smoking guns may be different depending on what they are. That’s true because somethings may be perfectly legal — such as investments from shady Russians — that nevertheless pose a serious counterintelligence risk of compromise going forward.

Its all the more true when you factor in the role of Sessions and Trump. For some of this stuff (including the September meeting with Kislyak) Sessions will be protected by Speech and Debate. It’d be very hard for DOJ to prosecute Sessions for stuff he did as a Senator, even assuming you had someone else in charge of the investigation or department.

Likewise, other crimes may not rise to the level of criminal prosecution but would rise to the level of impeachment. Which is why this passage from the NYT is so interesting.

Obama White House officials grew convinced that the intelligence was damning and that they needed to ensure that as many people as possible inside government could see it, even if people without security clearances could not. Some officials began asking specific questions at intelligence briefings, knowing the answers would be archived and could be easily unearthed by investigators — including the Senate Intelligence Committee, which in early January announced an inquiry into Russian efforts to influence the election.

If FBI judged it could not prosecute Trump or his close associates for something but nevertheless believed the evidence constituted something disqualifying, what they’d want to do is preserve the evidence, make sure SSCI could find it, and provide tips — laid out in the NYT, if need be — about where to look.

And any things that did rise to the level of criminal charges would be a lot easier to charge if someone besides Sessions were in charge.

This seems to be very methodical.

Update: February for January preservation date requests corrected. h/t TN.

Trump’s Muslim Ban Forces IC to Conduct Actual Assessment of Terror Threats

CNN reports that the Trump Administration has asked DHS and DOJ to come up with an intelligence report backing the selection of the seven Muslim banned countries. According to CNN, some of those working on the report feel they’re being asked to fit a report to a desired conclusion.

President Donald Trump has assigned the Department of Homeland Security, working with the Justice Department, to help build the legal case for its temporary travel ban on individuals from seven countries, a senior White House official tells CNN.

Other Trump administration sources tell CNN that this is an assignment that has caused concern among some administration intelligence officials, who see the White House charge as the politicization of intelligence — the notion of a conclusion in search of evidence to support it after being blocked by the courts. Still others in the intelligence community disagree with the conclusion and are finding their work disparaged by their own department.

This is another of those areas where I’m grateful for the incompetence of the Trump Administration. If it were me, I’d call the four Obama Administration officials who first named these seven countries a threat: former Deputy CIA Director Avril Haines, former Secretary of State John Kerry, former Homeland Security Czar Lisa Monaco, and former National Security Advisor Susan Rice. They’re already on a court declaration in this case, so even the ones who might have been able to dodge testifying normally, they wouldn’t be able to. Make them explain why Iran and Sudan are on this list. They would either have to admit the truth: that our notions of terrorism generally are utterly politicized, and that if we were to measure on actual threat, our close allies Saudi Arabia and Pakistan would lead the list. Or they’d have to invent something to justify their past politicized actions.

Instead, Trump is trying to politicize intelligence, which not only has elicited this backlash, but will never be able to accomplish its objective. Even after redefining terror attack down to include material support (something that is actually consistent with the last 15 years of FBI fluffing their terror prosecution numbers), it is still impossible to present Iran as a bigger terrorist threat than Saudi Arabia (plus, you’d have to acknowledge that the listing and delisting of MEK, which a number of Trump officials have supported for cash payments, is also totally politicized).

Hopefully, that will lead to a larger reassessment of how we think of terrorism, including the recognition that our allies are actually the problem, not our arch-enemy Iran. That’s obviously wildly optimistic. But it is the kind of possibility that Trump’s incompetence allows us to consider.

Nevertheless, She Persisted

One of the most disgusting events recorded in U.S. Senate history occurred last night while Senate Democrats held the floor to debate Jeff Sessions’ nomination as U.S. Attorney General.

Senate Leader Mitch McConnell used a gag rule to stop Elizabeth Warren from reading Coretta Scott King’s 1986 letter to the Senate Judiciary Committee about Jeff Sessions’ efforts to suppress African American voters and his fitness to serve as a federal judge.

This is breathtakingly offensive.

A Senator denied a First Amendment right, unable to participate in speech and debate in their role on behalf of constituents.

The suppression of an historic written statement by an historic figure, presented decades ago to the Senate.

A woman Senator prevented from speaking as part of a governmental body whose composition is 79% men.

The quashing of fact regarding a cabinet nominee’s racist behavior as a former member of law enforcement, germane to their unsuitability as U.S. Attorney General.

And most horrifically, the use of a gag rule circa 1836, instituted by white supremacist members of Congress who prevented abolitionists from speaking about ending slavery.

The Party of Lincoln is dead. It is a zombie animated by hatred, intent on hurting any who pose a threat to its continued grasp on power. It doesn’t take seriously its oath of office, instead resurrecting archaic nonsense to deprive the people of their rights while encouraging corruption.

In summoning Rule XIX and cementing his wretchedness into Senate record, McConnell said about Warren, “She was warned. She was given an explanation. Nevertheless, she persisted.”

She will, indeed, persist, Senator McConnell. She and millions of Americans will persist in their rejection of white supremacy and fascism which relies on it. You have generously offered a rallying cry for our resistance.

And when your body finally relinquishes the venal energy which moves it daily, know that whatever memorial is mounted for you will be visited for the next hundred years by women and minorities who’ll paste it with mementos which read, “Nevertheless, she persisted.”

On Sally Yates’ Stand and the Session’s Nomination

There are two funny details about the reporting on the stand then Acting Attorney General Sally Yates took against Donald Trump’s Muslim ban, which led to her firing. First, even in a story that explains the process by which Yates decided to order DOJ not to enforce the ban, there’s little consideration of timing.

[O]n Friday, Yates heard a media report that Trump had signed an executive order temporarily barring entry into the United States for citizens of seven Muslim-majority countries and refugees from around the world.

No one from the White House had consulted with Yates or any other senior leaders in the Justice Department. Yates had to decide whether her lawyers could defend Trump’s action in court. She did not even have a copy of the order, and her aides had to go online to find it.

“It was chaos,” said a senior Justice Department official.

[snip]

As acting attorney general Sally Yates struggled to figure out how or whether to defend President Trump’s immigration order last weekend — while protests erupted at airports nationwide, immigrants were denied entry to the United States and civil rights lawyers rushed to court — two events helped crystallize her decision.

The first was a television appearance by Trump on the Christian Broadcasting Network. In an interview, he said that Christians in the Middle East who were persecuted should be given priority to move to the United States because they had been “horribly treated.”

The second was late Saturday night when former New York mayor Rudolph W. Giuliani appeared on Fox News. Giuliani said Trump wanted a “Muslim ban” and asked him to pull together a commission to show him “the right way to do it legally.”

“Those two things put the order in a very different light,” said a senior Justice Department official familiar with her decision. “Trump’s executive order appeared to be designed to make distinctions among different classes of people based on their religion.”

The article cites the CBN interview with Trump — the interview was done on Friday and clips started being released on Saturday — but doesn’t say when Yates saw the interview. But the Giuliani interview was later in the day on Saturday.

By that point, DOJ already was defending the EO, at least against motions for stays, with stories of DOJ attorneys getting calls late at night to contest ACLU and other civil liberties’ groups suits. Where was Yates during that period? Who was calling these attorneys and getting them to courtrooms?

Just as notably, though, such reports rarely raise how Yates’ actions on Monday that led to her firing might have been designed to impact Jeff Sessions’ confirmation process, even while everyone reported on the question Sessions posed to Yates during her own confirmation about refusing illegal orders. Yet that’s precisely what happened, as Democrats delayed the committee vote on Sessions a day, citing the Yates versus Sessions exchange and the Muslim ban.

None of that means Yates’ delayed decision wasn’t the right one to make, one made from a principled stand about the discriminatory impact of this ban. It just seems like a decision that also served to heighten the pressure on Sessions’ own complicity in this bigotry.