Posts

Dragons Caught in the Crossfire: On the Genealogy of the Current and Future Mueller Investigation

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

Lawfare has one of the best summaries of the Russian hack indictment on Friday. It does an excellent job of laying out what the indictment shows technically and legally. But I really wish it didn’t start with this passage.

This was the investigation over which the president of the United States fired James Comey as FBI director.

This is the investigation Comey confirmed on March 20, 2017, when he told Congress, “I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election.”

This was also the investigation that multiple congressional committees have spent more than a year seeking to discredit—most recently Thursday, when two House panels hauled the former deputy assistant director of the FBI’s Counterintelligence Department, Peter Strzok, a career FBI agent who worked on the Russia probe, up to Capitol Hill for 10 hours of public, televised, abusive conspiracy theorizing. When the president of the United States derides the Mueller investigation as a “witch hunt,” and when congressional Republicans scream at FBI agents, this is the investigation they are trying to harass out of existence.

I get the sentiment. I get criticizing Republicans for attacking the “Mueller probe” (or whatever you want to call it). I’ve criticized the Republicans for doing that myself. But it is assuredly not the case that Friday’s indictment is the “investigation over which the president of the United States fired James Comey as FBI director” or the investigation Comey confirmed in March of 2017.

The investigation that resulted in Friday’s indictment is, rather, the result of investigations conducted primarily in San Francisco and Pittsburgh. At the time Comey confirmed the counterintelligence investigation into Trump’s camp and at the time Comey got fired for not shutting the Trump counterintelligence investigation down, those San Francisco and Pittsburgh investigations were totally separate. Those two investigations almost certainly had little if any involvement from Peter Strzok (indeed, they involved a bunch of FBI cyber agents, a division of FBI that Strzok never tired of mocking in his texts to Lisa Page). The DOJ press release from Friday states that explicitly.

This case was investigated with the help of the FBI’s cyber teams in Pittsburgh, Philadelphia and San Francisco and the National Security Division.

Those two investigations (plus the separate one noted in Philadelphia that started later, as I understand it from what a lawyer who represented a witness in that investigation described to me) got moved under the Mueller umbrella sometime in or just before November, and now the GRU officer part of the investigation will be moved back to Pittsburgh where it started, to languish forever like some other nation-state hacker indictments investigated by Western District of Pennsylvania.

There are several reasons, besides exactitude, I’m harping on this point.

First, House Republicans, working in tandem with the President, have made the CI investigation Comey confirmed the end-all and be-all of the investigation, a way of simplifying it so as to villainize and discredit it. An entire stable of right wing journalists and members of Congress are trying to discredit something in the early stages of the investigation — whether it’s the inclusion of the Steele dossier among other evidence to obtain a FISA order on long-time suspected Russian asset Carter Page, the use of a lifelong Republican operative to conduct interviews in the least intrusive way, or the fact that even as he was losing the fight to investigate aggressively, Peter Strzok shared a widespread belief that Trump was not fit to be President. They believe that if they can do so, they can claim everything downstream of those actions is tainted. They’re doing so even while launching conspiracies off of stories that clearly show the existence of four counterintelligence investigations focused on the Russian operation, just one of which is known to have targeted Trump’s people.

“Crossfire Hurricane” was one of the code names for four separate investigations the FBI conducted related to Russia matters in the 2016 election.

“At a minimum, that keeps the hurry the F up pressure on him,” Strzok emailed Page on Oct. 14, 2016, less than four weeks before Election Day.

Four days later the same team was emailing about rushing to get approval for another FISA warrant for another Russia-related investigation code-named “Dragon.”

The GOP is literally bitching that the FBI was expediting FISA applications targeted at likely Russian targets during an ongoing Russian attack.

It is important to show how each of these attacks on the CI investigation into Trump is bullshit.

  • It is common to use information from consultants like Steele or paid informants in FISA applications. Their credibility is measured, in significant part, based on past credibility. And whatever you think about the impropriety of using oppo research (as DOJ also did with Clinton Cash) and whatever the likelihood that in this case Steele’s intelligence network got fed disinformation, it is the case that in 2016, Steele’s track record with the DOJ was far more reliable than a host of other consultants that presumably get included in FISA applications.
  • The FBI is permitted to use human informants at the assessment level (and when Stefan Halper interviewed Papadopoulos, it appears to have been a full investigation), and using a Republican operative like Halper to question George Papadopoulos was both less likely to affect the election in any way, and legally less dangerous for Papadopoulos than an undercover FBI officer would have been.
  • Strzok definitely believed Trump was unfit to be President, but (as I noted), he fought to use more aggressive investigative methods with both Hillary and Trump, and he lost that fight both times.

Ultimately, when you ask people wielding these complaints as if they’re a big deal what investigative steps against Page (after he left the campaign) or Papadopoulos (when he remained on it) would have been acceptable, they start to scramble, because (and I say this as someone who exposed herself to significant FBI scrutiny by going to them as a witness) these were reasonable steps to take. And the other favorite suggestion — that Trump would have responded to a defensive briefing — ignores that Trump hired Mike Flynn as his National Security Advisor even after President Obama gave him far more explicit warnings about the counterintelligence concerns about Flynn at the time.

At some point, GOP hoaxsters have to commit to whether they think it is legitimate to investigate suspected Russian spies or not, and if so how.

It is equally important to note that — as is demonstrably the case both with the GRU indictment rolled out Friday and with the information I provided — there is a ton of really damning evidence that never touched Peter Strzok. As I explained the other day, you can put information I provided to a team that had nothing to do with the Mueller team at the time I spoke to them, together with several other pieces of information Mueller obtained via other means (some of it was public!), and get right to the question of Trump conspiring with Russians to win the election.

Treating a range of investigations as only one investigation plays into the Trump game of discrediting an overly simplistic caricature of the investigation.

The other reason those covering the Russian investigation should be far more careful with what the investigation consisted of over time is, without understanding where the investigation came from, you can’t understand where the investigation is going. There have been a slew of reports reading dockets and citing anonymous DOJ and Trump sources. Some show an awareness of why prosecutors get added to dockets in particular cases. Others completely ignore things that are in the public record.

It is my well-educated opinion that we’re seeing several things with recent developments. First, where possible, Mueller is handing off things (the Concord Management and GRU hack prosecutions) that don’t need to be politically protected. He has also handed off issues (the Cohen search) that don’t relate directly to conspiring with Russians, even while any prosecution there could result in cooperation on the conspiracy case; though note, Mueller’s reported investigation of inauguration funding would also implicate Cohen. I suspect, eventually, he’ll hand off things that amount to garden variety corruption, as distinct from graft tied directly to the election money laundering.

But when reports say Mueller is preparing to wrap it up, I suspect the reality is Mueller is close to taking steps that will lay out a case for conspiracies with Russia involving people very close to Trump, which will make it much harder for Trump to refuse an interview without putting himself at risk to be indicted personally. Those steps will show what a farce six months of Trump-planted stories emphasizing a focus on obstruction have been. That prosecution Mueller’s team will see through, I imagine, not least because that’s precisely why he included four appellate specialists on his team, including Solicitor General star lawyer Michael Dreeben.

Update: Tweaked the San Francisco/Pittsburgh discussion because it was confusing several people.

Timeline

June 15, 2016: Likely start date for FBI investigation into hack of DNC/DCCC (the genesis for Friday’s indictment)

July 31, 2016: Peter Strzok opens up Operation Crossfire

October 21, 2016: Carter Page FISA approved

January 12, 2017: Carter Page FISA reauthorized

February 18, 2017: Reuters describes a tripartite division of investigation, with DNC hack investigation in Pittsburgh, Guccifer 2.0 investigation in San Francisco, and Trump CI investigation in DC

Early April, 2017: Carter Page FISA reauthorized

May 2017: I learn of Philadelphia investigation targeted in some way at Guccifer 2.0

May 17, 2017: Rod Rosenstein appoints Robert Mueller to take over Operation Crossfire

June 29, 2017: Carter Page FISA reauthorized

August 2, 2017: Mueller investigation includes, at a minimum, George Papadopoulos obstruction, Paul Manafort graft, collusion (including June 9 meeting), and obstruction

October 5, 2017: Papadopoulos pleads guilty (waiving venue)

Mid-October, 2017: Technical witness preparing for interview with Mueller’s team

October 30, 2017: Papadopoulos guilty plea unsealed

Early November, 2017: Mueller adds cyber prosecutor Ryan Dickey

November 2, 2017: WSJ reports DOJ will prosecute GRU hackers, reports that Pittsburgh, San Francisco, Philadelphia, along with DC remain in charge of investigation

December 1, 2017: Mike Flynn pleads guilty

February 12, 2018: Richard Pinedo pleads guilty, waives venue

February 16, 2018: Internet Research Agency (Concord Management) indictment

February 20, 2018: Alex van der Zwaan pleads guilty

February 22, 2018: Paul Manafort indicted in EDVA, refuses to waive venue

March 1, 2018: NBC reports that Mueller — not main DOJ — will prosecute GRU hackers

April 9, 2018: Michael Cohen searches executed by SDNY; SDNY investigation, covering taxi medallion fraud and hush money payments, is likely just part of his criminal exposure

May 3, 2018: Mueller adds Uzo Asonye to EDVA team prosecuting Paul Manafort at request of Judge TS Ellis

June 22, 2018: Mueller brings in DOJ team to prosecute Concord Management, freeing up tech-focused Mueller prosecutors

July 13, 2018: Mueller indicts GRU hackers, sends prosecution back to Pittsburgh

The State of Trump’s Anti-Mueller Strategy

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

I thought it’d be useful to summarize Trump’s many-fronted attack on the Mueller investigation today.

Forthcoming Peter Strzok testimony

As part of the GOP obstruction efforts, the House Judiciary Committee will have Peter Strzok for a public hearing Thursday, without (at least thus far) providing him with a transcript of his 11-hour testimony before the committee two weeks ago.

In his increasingly frequent rants about the Witch Hunt, Trump continues to focus on Strzok’s role.

Incidentally, I made some initial outreach to do an informal briefing with some Republican members of Congress about what I know about the election year tampering, but learned the committees were too busy with Strzok and related issues to hear from me.

Leak of two anti-Comey letters

Yesterday, a Saturday, the AP published two anti-Comey letters sent by the Trump team:

  • A June 27, 2017 screed from Marc Kasowitz delivered by hand to Robert Mueller, spinning Jim Comey’s descriptions of his own actions as inaccurate and Machiavellian
  • A September 1, 2017 letter from John Dowd to Rod Rosenstein complaining that there was no grand jury investigation into Comey’s behavior, the closure of the Hillary email investigation, and (vaguely) the Clinton Foundation

The AP claims that,

The 13-page document provides a window into the formation of a legal strategy that remains in use today by Trump’s lawyers — to discredit Comey’s value as a witness. It could have new relevance in the aftermath of a Justice Department inspector general report that criticized Comey for departing from protocol in the Clinton investigation.

The AP did not include Rudy Giuliani (among others, including Trump himself) in the list of those it reached out to for comment.

Lawyers for Comey declined to comment Saturday, as did Peter Carr, a spokesman for Mueller. Kasowitz and Trump lawyer Jay Sekulow did not return messages, and former Trump attorney John Dowd declined to comment.

The NYT’s continued parroting of Trump’s shitty legal team’s understanding of the case

Meanwhile, the Mike and Maggie team at NYT continues its practice of writing stories that claim to track a grand new Trump legal strategy, but along the way mostly maps out either Trump spin emphasizing obstruction or just outright misunderstanding of the case against the President. In the most recent installment, Mike and Maggie claim the obviously consistent half year strategy of inventing excuses not to do an interview is a new one.

President Trump’s lawyers set new conditions on Friday on an interview with the special counsel and said that the chances that the president would be voluntarily questioned were growing increasingly unlikely.

The special counsel, Robert S. Mueller III, needs to prove before Mr. Trump would agree to an interview that he has evidence that Mr. Trump committed a crime and that his testimony is essential to completing the investigation, said Rudolph W. Giuliani, the president’s lead lawyer in the case.

At one point, they even claim that the raid against Michael Cohen — as opposed to the mounting evidence that Mueller was examining Trump’s role in “collusion,” not just obstruction — that led Trump to take a more aggressive stance.

But in April, Mr. Trump concluded that Mr. Mueller and Justice Department officials were determined to find wrongdoing after federal investigators in New York, acting on a referral from the special counsel, raided the office, hotel room and home of Mr. Trump’s longtime personal lawyer Michael D. Cohen.

The most curious aspect of the story is Rudy’s claim that if Mueller — who as early as March was asking around 13 questions about “collusion” — could show real evidence, then Trump would be willing to sit for an interview.

“If they can come to us and show us the basis and that it’s legitimate and that they have uncovered something, we can go from there and assess their objectivity,” Mr. Giuliani said in an interview. He urged the special counsel to wrap up his inquiry and write an investigative report. He said Mr. Trump’s lawyers planned to write their own summary of the case.

This is an area where NYT could have laid out the evidence that implicates Trump personally, to show how silly this line is.

After that article, Schmidt weighed in twice more on Twitter, asserting that because Mueller told Trump’s team he needed to question the President for obstruction earlier this year, that remains true.

Mueller told Trump’s lawyers earlier this year that he needed to question the president to know whether he had criminal intent on obstruction issues. Hard to believe Mueller doesn’t try and do everything in his power to get Trump to answer those questions.

Schmidt also posted Dowd’s self-congratulation for his own strategy cooperating long enough to support the defense team’s current position that Mueller would have to show strong evidence of a crime to be able to subpoena the president to testify.

Giuliani’s hat trick of Sunday shows

In what must be the result of aggressive White House outreach, Rudy Giuliani appeared on several outlets this morning, following up on the NYT piece. On ABC, he nuanced his claim about whether Trump would sit for an interview, saying not that Mueller would have to show evidence of a crime, but that he’d have to show “a factual basis” for an investigation into Trump.

STEPHANOPOULOS: Let’s talk about Robert Mueller. The New York Times reported that President Trump won’t agree to an interview with Robert Mueller unless Mueller first proves he has evidence that President Trump committed a crime.

That was based on an interview with you. Is that the current condition?

GIULIANI: Yes, but I have to modify that a bit, look at my quote. My quote is not evidence of a crime, it’s a factual basis for the investigation. We’ve been through everything on collusion and obstruction.

We can’t find an incriminating anything, and we need a basis for this investigation, particularly since we now know it was started from (ph) biased — by biased —

STEPHANOPOULOS: We have James Comey’s testimony.

GIULIANI: Well Comey’s testimony is hardly worth anything. And — nor — nor did he ever — James Comey had — never found any evidence of collusion. And rules out obstruction by saying the president had a right to fire me. So all the rest of it is just politics. I mean, the — the — the reality is Comey, in some ways, ends up being a good witness for us.

Unless you assume they’re trying to get him into a perjury trap by (ph) he tells his version, somebody else has a different version.

Rudy went a bit further on CNN, claiming to be certain there’s no reason for the investigation because his team has debriefed all of Mueller’s witnesses (who, according to Rudy, are all part of the joint defense agreement).

BASH: Thank you.

And these new terms, particularly that Robert Mueller must show proof of Trump wrongdoing to agree to an interview, you actually have said that you don’t think that Mueller would even agree to it. So why do this dance? Why not just tell the special counsel, sorry, no interview?

GIULIANI: Well, we’d like to know if there is any factual basis for the investigation originally or they have developed one, because we can’t find one, nor can anyone else, nor have they, with all the leaking they have done, even leaked one, which I think would have happened immediately, because they want to justify themselves.

The fact is, I should correct it. I didn’t say they have to prove a crime.

BASH: Right.

GIULIANI: What I said was, they have to give us a factual basis, meaning some suspicion of a crime.

For example, I can’t initiate an investigation of my neighbor just because I don’t like him or just he’s politically different from me.

[snip]

BASH: … that there is no evidence — you say that the special counsel hasn’t produced evidence.

But they haven’t said that they have no evidence. They have — you say that there have been leaks. They have been remarkably tight- lipped, aside from what they have had to do with indictments and such.

GIULIANI: No, they haven’t. They leaked reports. They leaked reports. They leaked meetings. They’re leaking on Manafort right now. They leaked Cohen before it happened.

BASH: But this is an ongoing investigation. We don’t really know what they have and what they don’t have. That’s fair, right?

GIULIANI: Well, I have a pretty good idea because I have seen all the documents that they have. We have debriefed all their witnesses. And we have pressed them numerous times.

BASH: You have debriefed all of their witnesses?

GIULIANI: Well, I think so, I mean, the ones that were — the ones that were involved in the joint defense agreement, which constitutes all the critical ones.

Rudy said much the same on NBC — the most interesting part of that interview is Chuck Todd’s questions about why Trump would meet with Putin while being under investigation for colluding with him.

Central to all three of these interviews is the notion that because Michael Horowitz found that Jim Comey acted improperly in the Hillary investigation, Trump can’t be investigated for anything to do with him — the same story told implausibly in those two leaked letters.

The Trump team went to great lengths to spend their limited Sunday Morning political capital on rolling this out as a purportedly new Mueller strategy.

The Most Irresponsible Thing Michael Horowitz Has Done as DOJ IG

As you likely know, I’m a big fan of Michael Horowitz. I think he has routinely discovered key aspects of DOJ and FBI’s behavior that needs improvement. I think he has stood up to FBI pushback reasonably well, if not always successfully. That other professional IGs look to him as their leader reflects the great respect he has earned among his peers.

I’ve already mentioned, in passing, that I think Horowitz’ treatment of the NY field office leaks in the IG Report on the Hillary investigation to be really problematic. The report, and the Andrew McCabe report before it, makes it very clear the rampant leaking from NY motivated a lot of the defensive behavior at FBI and DOJ (not to mention the decision to take an overt act in advance of the election in violation of standing policy). Among other passages, the report cites this very long response (it starts on report page 385 if you want to read the whole thing) from Loretta Lynch, describing how much hatred towards Hillary there was in NY.

I said, but this has become a problem. And he said, and he said to me that it had become clear to him, he didn’t say over the course of what investigation or whatever, he said it’s clear to me that there is a cadre of senior people in New York who have a deep and visceral hatred of Secretary Clinton. And he said it is, it is deep. It’s, and he said, he said it was surprising to him or stunning to him. You know, I didn’t get the impression he was agreeing with it at all, by the way. But he was saying it did exist, and it was hard to manage because these were agents that were very, very senior, or had even had timed out and were staying on, and therefore did not really feel under pressure from headquarters or anything to that effect. And I said, you know, I’m aware of that…. I said, I wasn’t aware it was to this level and this depth that you’re talking about, but I said I’m sad to say that that does not surprise me. And he made a comment about, you know, you understand that. A lot of people don’t understand that. You, you get that issue. I said, I get that issue. I said I’m, I’m just troubled that this issue, meaning the, the New York agent issue and leaks, I am just troubled that this issue has put us where we are today with respect to this laptop.

The report makes clear that the NY leaks played a key role in Comey’s disastrous decision to announce the reopening of the investigation into Hillary.

Comey denied that a fear of leaks influenced his decision to send the October 28 letter to Congress. However, other witnesses told us that a concern about leaks played a role in the decision. As Baker stated, “We were quite confident that…. [I]f we don’t put out a letter, somebody is going to leak it. That definitely was discussed….” Numerous witnesses connected this concern about leaks specifically to NYO and told us that FBI leadership suspected that FBI personnel in NYO were responsible for leaks of information in other matters. Even accepting Comey’s assertion that leaks played no role in his decision, we found that, at a minimum, a fear of leaks influenced the thinking of those who were advising him.

In spite of the magnitude that these leaks had, Horowitz did not seize the FBI phones of the presumed leakers to find out what kind of damning texts they sent among themselves. This is a point made by NYCSouthpaw in a thread the day the report came out. The asymmetric focus on bias against Trump and not against Hillary is a real problem with this report.

I’m sympathetic with the IG’s explanations for why it didn’t find the source of leaks and hopeful by its promise to follow up.

Against this backdrop, and as noted at the time the OIG announced this review, we examined allegations that Department and FBI employees improperly disclosed non-public information. We focused, in particular, on the April/May and October 2016 time periods. We have profound concerns about the volume and extent of unauthorized media contacts by FBI personnel that we have uncovered during our review. Our ability to identify individuals who have improperly disclosed non-public information is often hampered by two significant factors. First, we frequently find that the universe of Department and FBI employees who had access to sensitive information that has been leaked is substantial, often involving dozens, and in some instances, more than 100 people. We recognize that this is a challenging issue, because keeping information too closely held can harm an investigation and the supervision of it. Nevertheless, we think the Department and the FBI need to consider whether there is a better way to appropriately control the dissemination of sensitive information.

Second, although FBI policy strictly limits the employees who are authorized to speak to the media, we found that this policy appeared to be widely ignored during the period we reviewed.221 We identified numerous FBI employees, at all levels of the organization and with no official reason to be in contact with the media, who were nevertheless in frequent contact with reporters. The large number of FBI employees who were in contact with journalists during this time period impacted our ability to identify the sources of leaks. For example, during the periods we reviewed, we identified dozens of FBI employees that had contact with members of the media. Attached to this report as Attachments G and H are link charts that reflects the volume of communications that we identified between FBI employees and media representatives in April/May and October 2016.222

In addition to the significant number of communications between FBI employees and journalists, we identified social interactions between FBI employees and journalists that were, at a minimum, inconsistent with FBI policy and Department ethics rules. For example, we identified instances where FBI employees received tickets to sporting events from journalists, went on golfing outings with media representatives, were treated to drinks and meals after work by reporters, and were the guests of journalists at nonpublic social events. We will separately report on those investigations as they are concluded, consistent with the Inspector General (IG) Act, other applicable federal statutes, and OIG policy. [my emphasis]

Though I would like more details about what the IG discovered when it tried to chase down FBI leaks. We know they grilled McCabe (and discovered the source of one leak that damaged Hillary). Who else did they grill, and how many were in NY?

But here’s the part I find totally irresponsible.

This is, of course, one of the totally decontextualized link analyses the IG includes in the report to substantiate its claim that the FBI leaks like a sieve. By context, this one (of two) probably reflects communications from October, a period we know (from the McCabe report) that DOJ investigated heavily, based in part off an effort to identify Devlin Barrett’s sources and those of other journalists who created a panic right before the election. The IG has gone through the effort to identify (between the two link analyses, assuming no overlap of journalists, though I suspect there may be some) the FBI sources for seven different journalists. At least the two or three journalists with more sources likely recognize they’ve been burned, as might their sources.

But the IG released these two link analyses without telling us information that it surely knows. That is: how many members of these clusters were sitting in NY, and how many in DC? Is the prolific one here Barrett (which is virtually the only way the IG would be able to claim there were too many calls to ID sources for a story we know they examined closely)? If so, then the IG already knows whether it’s true that NY started leaking about both the Weiner emails and the Clinton Foundation investigation with the purpose of pressuring DC to make certain decisions.

That is, having done this analysis, the IG knows the answer to a critical question: did leakers in NY have a significant role in forcing decisions that played a key role the outcome of the election?

If most of these leakers are in NY, then the answer is clear. But the IG didn’t tell us that information.

Worse still, by withholding this information, the IG allowed these two pages to be used (as released) out of context. They were waved around on TV all morning, with the clear suggestion that each of these leaks reflected someone trying to do in Trump. But the reality is possibly (likely even!) precisely the opposite — that a good chunk of these leakers were trying to help Trump.

And they may well have succeeded.

Michael Horowitz owes us at least that context. And I hope Democrats on the Senate Judiciary Committee demand that answer when Michael Horowitz shows up to testify.

Update: One more question I’ve got — how DOJ IG decided to stop the analysis at October, and not at the election. After all, the most damaging fake news story of the election, IMO, was the false leak to Bret Baier, attributed to “two sources inside the FBI,” that Hillary was going to be indicted.

 

The IG Report (and Public Evidence) Shows that Peter Strzok Lost the Argument to Investigate Aggressively

CNN provides an explanation, such as one is possible, for why Trump thinks the DOJ IG report on the Hillary investigation undermines the entire Russia investigation, which he just tweeted about.

The logic treats the FBI investigation into suspected Russian assets on Trump’s campaign as a conspiracy against Trump personally, based in part on Peter Strzok’s texts, taken out of the context of decisions made on the Russia investigation.

Trump’s lawyers now believe that since the IG report gave those at the FBI “the benefit of the doubt” about their behavior — finding no conspiracy — then the President should receive the same treatment. “Why doesn’t that apply to the President as well?” one source said.

In addition, while the IG report found no evidence of political bias, the President’s attorneys believe they can argue the entire investigation is tainted and corrupt, given the text from FBI Agent Peter Strzok that said about Trump’s election, “We’ll stop it.”

Of course, even within the context of the Hillary IG report, Strzok offers the evidence against the corruption of the FBI: that unlike the constant leaks about the Hillary investigation (the IG Report’s far biggest fault is that it doesn’t treat the leaking from SDNY as a topic unto itself), the FBI didn’t leak, at all, about the investigation into the suspected Russian assets on Trump’s campaign.

Strzok stated that had he—or the FBI in general—actually wanted to prevent Trump from being elected, they would not have maintained the confidentiality of the investigation into alleged collusion between Russia and members of the Trump campaign in the months before the election. Page similarly stated that, although she could not speak to what Strzok meant by that text message, the FBI’s decision to keep the Russia investigation confidential before the election shows that they did not take steps to impact the outcome of the election.

Because this is an IG Report on the Hillary investigation and not an IG Report on the Russia investigation, it does not explain the import of this answer from Strzok, explaining his insurance policy text.

In a text message exchange on August 15, 2016, Strzok told Page, “I want to believe the path you threw out for consideration in Andy’s office—that there’s no way he gets elected—but I’m afraid we can’t take that risk. It’s like an insurance policy in the unlikely event you die before you’re 40….”

[snip]

Strzok provided a lengthy explanation for this text message. In substance, Strzok told us that he did not remember the specific conversation, but that it likely was part of a discussion about how to handle a variety of allegations of “collusion between members of the Trump campaign and the government of Russia.” As part of this discussion, the team debated how aggressive to be and whether to use overt investigative methods. Given that Clinton was the “prohibitive favorite” to win, Strzok said the reference in his text message to an “insurance policy” reflected his conclusion that the FBI should investigate the allegations thoroughly right away, as if Trump were going to win. Strzok stated that Clinton’s position in the polls did not ultimately impact the investigative decisions that were made in the Russia matter.

In the inevitable IG report on the Russia investigation, this passage will be followed with analysis of what the outcome of this debate was, whether to use overt investigative methods or not. It will show that Strzok lost that debate.

We know that, in part, because Sally Yates said as much, and said it about the investigation into Paul Manafort. This is her explanation to the IG about overt steps in advance of an election.

And the Bureau never pushed back on that concept. This actually came up with, in the connection with Paul Manafort. And they had an investigation on Manafort and I had a lengthy discussion with [McCabe], at least one, maybe more, about how important it was at that time that our investigation not be overt. And what they were, what the Bureau was doing with respect to Manafort because that could impact Trump even though he was no longer his campaign manager. That unless there was something they really needed to do, because they were getting records and doing that kind of, unless there was something they needed, really needed to do overt they really needed to stay under the radar screen…. Because it’s not fair to impact [an election].

That this comment is about Manafort is significant for two reasons. First, because Manafort’s corruption was — like the Hillary email investigation — public. More importantly, the date of Strzok’s text, August 15, likely means the discussion was specifically in the contexts of the stories that week about Manafort’s corruption.

Moreover, there’s additional evidence the FBI didn’t take overt steps, particularly with those still tied to Trump’s campaign. It wasn’t until some time after February 16, 2017  — literally six months after that text — that FBI subpoenaed George Papadopoulos’ call records, a move FBI could have taken at any time with a “relevance” standard. That delay meant that Papadopoulos hid the existence of his entire communication history with Ivan Timofeev until after his two interviews (and tried to hide it entirely by deleting his Facebook account).

In this post, I showed that, given that they didn’t know about Ivan Timofeev until after his interviews, they could not even have started pursuing a warrant until after the first interview, at best (and didn’t know about the existence communications over a Section 702 provider with Timofeev until after both). In this post, I suggested that it looked like the FBI first obtained a preservation order for the device GSA had on him on March 9, 21 days after his second interview.

Since then two details have come out. First, this Peter Strzok/Lisa Page SMS text highlighted by Matt Tait suggests that as late as June 6, 2017, the Special Counsel’s office was still debating whether searching Section 702 presented a litigation risk (meaning Trump’s buddies are getting far more protection than the rest of us might be).

Then there’s a point that Eric Swalwell made in Monday’s hearing debating whether or not to reveal the Schiff memo. In response to Michael Turner’s suggestion that there was no evidence of “collusion” between Trump and Russia, Swalwell pointed out that only after the FBI challenged Trump aide claims did the Bureau find evidence to support a conspiracy.

George Papadopoulos I think is the canary in the coal mine. He was interviewed January 27, 2017, by FBI. He lied about his contacts over in London with the professor. He was interviewed again in February, and he lied. Only when the FBI showed the willingness to subpoena his Skype and Facebook logs did he come around 6 months later.

This makes it clear that the FBI had not even obtained call records from Papadopoulos (via an NSL or a subpoena) before the second interview, the standard for which is really low.

Again, this shows that, at least during that phase of the investigation, the FBI was moving very conservatively.

And, as noted, even several weeks after Robert Mueller took over the investigation, the team was still debating whether they could do what FBI otherwise does at an assessment level, which is to search 702 data in the FBI’s custody. As I’ve noted, the use of lifetime Republican Stefan Halper to ask Papadopoulos questions (the FBI can use informants at the assessment level) rather than collecting actual call records not only seems to have been an effort to use least intrusive means possible to chase down leads, but it also badly delayed the discovery of key details about Russia’s attempts to curry favor with Trump aides.

If Peter Strzok argued in August that the FBI should be far more aggressive investigating suspected assets infiltrating the Trump campaign to prevent the possibility that a Manchurian candidate might take over the country, he lost that debate, and continued to lose it for the almost the entirety of the time he was involved in the investigation, which according to the IG Report came on July 28, the day after IG Michael Horowitz informed Rod Rosenstein and Mueller about his texts with Lisa Page.

We then obtained all text messages and instant messages for those FBI personnel for the entire period of the Midyear investigation through July 1, 2017, to capture post-election discussions.

[snip]

Strzok was removed from the Special Counsel’s investigation on approximately July 28, 2017, and returned to the FBI in another position, after the OIG informed the DAG and Special Counsel of the text messages discussed in this report on July 27, 2017.

So Strzok lost his argument to investigate more aggressively, and as soon as evidence of his alarm about the suspected assets infiltrating the Trump campaign and his disgust with Trump generally became known, he was removed from the case.

This is the evidence that Trump wants to turn into a conspiracy against him.

All that said, Strzok remained on the case just long enough to net its first arrest, that of Papadopoulos on July 26. Which is why I’m so interested in his explanation for a May 18, 2017 text, another one that disproves the conspiracy. In the text written 10 months after the start of the investigation, Strzok suggested his gut sense suggested “there’s no big there there.”

“you and I both know the odds are nothing. If I thought it was likely I’d be there no question. I hesitate in part because of my gut sense and concern there’s no big there there.”

Here’s his explanation of the text after the fact, which would incorporate information he learned in the two months he remained on the investigation after May 18.

As I looked at the predicating information, as I looked at the facts as we understood them from…the allegations that Russia had these emails, and offered to members of the Trump campaign to release them. As we looked at the various actors, the question [was,]…was that part of a broad, coordinated effort, or was that simply a bunch of opportunists seeking to advance their own or individual agendas…which of that is it? …My question [was] about whether or not this represented a large, coordinated conspiracy or not. And from that, as I looked at what would give me professional fulfillment, what I thought would be the best use of my skills and talents for the FBI and for the United States, whether to take, which path to take. [my emphasis]

On May 18, he suggested there was no big there there. But in a description of the investigation that reflects knowledge through July 28, during which period FBI finally started analyzing call records (and also learned about the June 9 Trump Tower meeting), he instead weighed it as a matter of determining whether there was a “broad, coordinated effort” or just “a bunch of opportunists seeking to advance their own or individual agendas.” Virtually all the evidence answering that question was collected and analyzed after Peter Strzok was removed from the investigation.

One detail here is new, however. When describing his understanding of the investigation through July 28, Strzok described Russians offering emails to members, plural, of the Trump campaign. Not just Papadopoulos.

Update: This post was edited for flow.

The Giant Holes in Trump’s Mike Flynn Story Point to “Collusion,” Not Obstruction

I wanted to look more closely at the story the President’s lawyers told Mueller’s team about Flynn’s firing in January, both for what it reveals about the White House’s response to the Sally Yates warning, and for its claims about how it interprets DOJ actions. The letter reveals the following:

  • The White House claims, Sally Yates’ public comments (which they entirely ignore) to the contrary, that they got DOJ permission to release the Mike Flynn intercept; given the timing of the story as laid out, and Trump’s question about FBI leaking, I actually think it possible if not likely that the White House was a source for the February 9 story leaking the intercept. If that’s true, it totally undermines the Trump letter.
  • Don McGahn wrote a memo on the lead-up to Flynn’s firing two days after the firing, and one day after Trump’s “let it go” conversation with Jim Comey. It appears to be inconsistent with Transition materials, particularly an email showing (among other things) that Reince Priebus knew in real time what Flynn told Kislyak on December 29. Firing Comey would have been an effort to prevent FBI from discovering those transition period communications.
  • The Trump letter didn’t address two of the questions asked about Flynn’s firing. In addition to remaining silent about what Trump really knew about what Flynn said to Pence, it doesn’t address Trump’s involvement in the transition period communications with Sergey Kislyak. That’s important because that’s the question that Flynn’s initial interview should have revealed. Contrary to what the letter claims, then, Flynn’s plea and Trump’s silence in the letter about the substance of the plea is proof not that Trump didn’t obstruct, but that Trump continues to refuse to explain why Flynn asked Kislyak to hold off on responding to sanctions, to say nothing of whether Flynn did so on his orders.

The section (less the Comey and McCabe testimony) and associated footnotes follow, with my comments.

Mueller asked for six Flynn related things; Trump only responded to four

Here are the things Mueller asked Trump to explain pertaining to the Flynn firing.He said

  1. Former National Security Advisor Lt. Gen. Michael Flynn — information regarding his contacts with Ambassador Kislyak about sanctions during the transition process;
  2. Lt. Gen. Flynn’s communications with Vice President Michael Pence regarding those contacts;
  3. Lt. Gen. Flynn’s interview with the FBI regarding the same;
  4. Then-Acting Attorney General Sally Yates coming to the White House to discuss same;
  5. The President’s meeting on February 14, 2017, with then-Director James Comey;
  6. Any other relevant information regarding former National Security Advisor Michael Flynn;

In our most recent meeting, you mentioned the possibility of obstruction in connection with the case of former National Security Advisor and Lt. Gen. Michael Flynn (Ret.) “Lt. Gen. Flynn”), and that you desired to speak with the President specifically regarding his conversation with then-Director Comey one day after the President fired Lt. Gen. Flynn for lying to the Vice President.

Note, at the outset, how Trump’s lawyers have taken 6 questions about the specifics of communications about Flynn and turned that into a question that focuses on the meaning of the February 14 “Let it go” meeting? So as you’re reading the following, watch how Trump’s lawyers redefine the scope of the questions — I’ll revisit this at the end.

Also as you read this, remember that this response happens in the wake of (and may be the first meeting after) Mike Flynn flipping in part because Jared Kushner hung him out to dry in testimony.

You have already been provided the testimony of White House Counsel and his extensive internal file memo as well as the testimony and notes of the President’s Chief of Staff, Reince Priebus “Mr. Priebus”), and other members of the White House Counsel’s office.

Again, Mueller has asked specifically about Flynn’s comments to Pence. Pence is not included here.

Trump complains that Mueller hasn’t turned over Comey’s memos; the memos seriously undermine some claims made in the letter

According to former Mr. Comey, the following occurred at a February 14, 2017, meeting between him and the President:

The President then returned to the topic of Mike Flynn, saying, “He is a good guy and has been through a lot.” He repeated that Flynn hadn’t done anything wrong on his calls with the Russians, but had misled the Vice President. He then said, “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.” I replied only that “he is a good guy.” … I did not say I would “let this go.”16

The White House denied and refuted that the President said these words to Mr. Comey.17 We decline to recommend to the President that he be interviewed on this subject for many reasons.

16 We note that you have declined our request on several occasions to share the classified notes of Mr. Comey, which have been leaked to the press and given to members of Congress and publicly disclosed. As Chief Executive Officer, the President has every right to have them. You provided them to While House Counsel. In addition, we note that Mr. Comey has had to correct his testimony on multiple occasions.

17 See infra p. 11 and n. 30.

One of the questions added to Sekulow’s list in March addressed Trump’s tweet suggesting there might be recordings of this meeting, which makes this response all the more interesting. In any case, you’ll see that in January Trump’s lawyers made a number of claims that Comey’s memos solidly refuted.

I’m also confused by the apparent contradiction — both the demand that Mueller turn over Comey’s memos (I’ll return to what Mueller was likely withholding in a bit) followed by the claim that he has given them to Don McGahn.

The sources cited for claims about Flynn don’t support those claims and have since been undermined further

What follows is a non-exhaustive list:

  • First, the President was not under investigation by the FBI;
  • Second, there was no obvious investigation to obstruct since the FBI had concluded on January 24, 2017, that Lt. Gen. Flynn had not lied, but was merely confused.18Director Comey confirmed this in his closed-door Congressional testimony on March 2, 2017.19

18 Evan Perez, Flynn Changed Story to FBI; No Charges Expected, CNN (Feb. 17, 2017)

19 The Editorial Board, The Flynn Information, WALL STREET JOURNAL (Dec. I, 2017) “A Congressional source also tells us that former FBI director James Comey told the House Intelligence Committee on March 2 that his agents had concluded that Mr. Flynn hadn’t lied but had forgotten that had been discussed.”).

I suspect the first of these bullets — that the President was not under investigation — will come back to haunt him. That is, Trump wasn’t investigation yet in part because by firing Flynn he separated the investigation that would soon subsume him, in part because of his own role in the actions Flynn was fired for.

As for the claims about Flynn. First, notice that the first source Trump’s lawyers cite doesn’t support their claims. The story says nothing about Flynn being confused. Rather, it says that, when challenged, Flynn claimed not to remember.

Flynn initially told investigators sanctions were not discussed. But FBI agents challenged him, asking if he was certain that was his answer. He said he didn’t remember.

The FBI interviewers believed Flynn was cooperative and provided truthful answers. Although Flynn didn’t remember all of what he talked about, they don’t believe he was intentionally misleading them, the officials say.

In addition, the CNN story cited notes that the investigation was only done, “barring new information that changes what they know.” A lot would transpire in the weeks after that story, including disclosure of a meeting at which sanctions were raised, that would change how Flynn’s skilled lying looked after the fact.

The second source isn’t any better — it supports the “forgot” claim too. And the GOP HPSCI report makes it clear that even that claim is inaccurate. What Comey said was that the interviewing agents saw no signs of deception.

Director Comey testified to the Committee that “the agents … discerned no physical indications of deception. They didn’t see any change in posture, in tone, in inflection, in eye contact. They saw nothing that indicated to them that he knew he was lying to them.”

From a lifetime intelligence official like Flynn, that’s not that surprising.

Trump’s lawyers get the law on obstruction wrong

Note, in the following section, I’m putting the initial bullet, the argument, and the footnotes all together. The footnotes will appear out of order as a result.

  • Third, as a matter of law, even if there had been an FBI investigation there could have been no actionable obstruction of said investigation under 18 U.S.C. § 1505, since an FBI investigation is not a “proceeding” under that statute. Since there is no cognizable offense, no testimony is required;

To briefly review the relevant law and facts, § 1505 of Title 18, United States Code, as amendedby the Victim and Witness Protection Act of 1982, forbids anyone from corruptly, or by threats of force or by any threatening communication, influencing, obstructing, or impeding any pending proceeding before a department or agency of the United States, or Congress.22Under § 1505, a “pending proceeding” is limited only to agencies with rule-making or adjudicative authority. The investigation of Lt. Gen. Flynn was being conducted by the FBI, which possesses only investigative authority, not adjudicative; it cannot conduct “proceedings” within the cognizance of§ 1505.23No court has ever held than an FBI investigation constitutes a § 1505 proceeding, and the U.S. Attorney’s Manual makes clear that “investigations by the Federal Bureau of Investigation (FBI) are not §1505 proceedings.”24The DOJ has even expressly acknowledged as much to the United States Court of Appeals for the Fourth Circuit.25As a matter of law, then, the FBI’s investigation of Lt. Gen. Flynn was not, at the time of the President’s comments as recalled by Mr. Comey, within the scope of § 1505.

22 In 1996, Congress enacted a clarifying amendment to 18 U.S.C. § 1515, which defines the term “corruptly” as used in § 1505 to mean “acting with an improper purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information.” False Statements Accountability Act of 1996, Pub. L. No. I 04-292, §3, I IO Stat. 3459, 3460.

23 Courts have explained it this way.

25 United States v. Adams, 335 Fed. Appx. 338, 342 (4th Cir. 2009) (Government conceded that criminal investigation by FBI or DEA was not pending proceeding within the scope of 18 U.S.C. § I 505, and requested defendant’s conviction on that count be vacated).

As numerous people have noted (including the NYT in an annotation of this), the President’s crack lawyers get which obstruction of justice statute might be at issue wrong.

Trump’s lawyers never address what Sally Yates has stated publicly — which badly undermines the Don McGahn narrative of these issues

The following section is the one I’m most interested in, because it probably added to the evidence that the White House obstructed. Because this argument is so muddled, I’m repeating the “second” point because it’s necessary to make what follows sensible. Having argued that obstructing an FBI investigation is not obstructing justice, Trump’s lawyers are now going to set out to suggest there was no way they could have known that Flynn was under investigation. (Note, for reasons of length, I don’t deal with Comey and McCabe’s testimony; suffice it to say that Comey’s testimony, including him entertaining the investigation of Trump, reportedly led directly to his firing, so the hearing actually proves the opposite of what the White House claims.)

  • Second, there was no obvious investigation to obstruct since the FBI had concluded on January 24, 2017, that Lt. Gen. Flynn had not lied, but was merely confused.18Director Comey confirmed this in his closed-door Congressional testimony on March 2, 2017.19
  • Fourth, both Mr. Comey and Mr. McCabe subsequently testified under oath that there was “no effort to impede” the investigation.20Mr. McCabe’s testimony followed Mr.Comey’s testimony on May 3, 2017, just six days before his termination, that “it would be a big deal to tell the FBI to stop doing something . . . for a political reason. That would be a very big deal. It’s not happened in my experience.”21

The following facts are taken from information voluntarily provided to your office or from information that is publicly available. These facts further demonstrate that the President did not obstruct justice in any manner concerning Lt. Gen. Flynn.

According to Acting Attorney General Sally Yates (“Ms. Yates”), on January 24, 2017, Lt. Gen. Flynn was interviewed by the FBI. According to reports, “The FBI interviewers believed Flynn was cooperative and provided truthful answers. Although Flynn didn’t remember all of what he talked about, they don’t believe he was intentionally misleading them, the officials say.”26

This account of the FBl’s interview and subsequent conclusions was later confirmed by the closed-door congressional testimony of Mr. Comey.27 Mr. Comey also confirmed in his May 3, 2017, Senate Intelligence Committee testimony that he “did participate in conversations about that matter” with Ms. Yates, referring to the FBl’s interview of Lt. Gen. Flynn. before she conveyed the information to the White House in the days that followed.28

27 “A Congressional source also tells us that former FBI director James Comey told the House Intelligence Committee on March 2 that his agents had concluded that Mr. Flynn hadn’t lied, but had forgotten what had been discussed.” The Editorial Board, The Flynn Information, WALL STREET JOURNAL (Dec. 1, 2017).

28 Read the Full Testimony of FBI James Comey in Which He Discusses Clinton Email Investigation, supra n.21.

This repeats what was already said, that the FBI at first came away thinking that Flynn had shown no signs of deception. Trump’s lawyers choose to source these claims to the same CNN and WSJ pieces they had already cited instead of 1) Flynn’s guilty plea 2) Comey’s testimony or 3) what Yates told McGahn. Only after having relied on the press that Trump otherwise demonizes does the letter cite what Yates actually said.

On January 26, 2017, Ms. Yates met with White House Counsel Don McGahn (“Mr. McGahn”). As outlined by Mr. McGahn in his White House Counsel’s Office memo dated February 15, 2017,29“Yates expressed two principal concerns during the meeting: (1) that Flynn may have made false representations to others in the Administration regarding the content of the calls; and (2) that Flynn’s potentially false statements could make him susceptible to foreign influence or blackmail because the Russians would know he had lied.” “Yates further indicated that on January 24, 2017, FBI agents had questioned Flynn about his contacts with Kislyak. Yates claimed that Flynn’s statements to the FBI were similar to those she understood he had made to Spicer and the Vice President.”3029 This confidential and privileged memorandum was provided to your office as part of the White House’s voluntary production, and is identified as SCR002b_SCR002b000000001.30 Recall that Lt. Gen. Flynn had previously been asked questions by other transition team personnel concerning his conversations with Ambassador Kislyak via an email chain of January 12, 2017. See DJTFP00027478. The response provided by Lt. Gen. Flynn was vague, and appears to imply that sanctions were not discussed. DOJ leadership would not advise the White House that transcripts of the calls existed, and of concerns about the content of those transcripts, until January 26, 2017, and even then, when asked by the White House, the DOJ refused to confirm that an investigation was underway.

Three things about this passage. First, whereas elsewhere the letter relies on public testimony (of Comey and McCabe), the letter doesn’t cite Yates’ public testimony. Instead, the White House relies on a narrative that Don McGahn drew up the day after the “let it go” conversation — that is, after such time as Flynn’s firing might be a problem. Here’s what they would have had to include had they actually included Yates’ testimony (which they don’t dispute).

We also told the White House Counsel that General Flynn had been interviewed by the FBI on February 24. Mr. McGahn asked me how he did and I declined to give him an answer to that. And we then walked through with Mr. McGahn essentially why we were telling them about this and the first thing we did was to explain to Mr. McGahn that the underlying conduct that General Flynn had engaged in was problematic in and of itself.

Secondly, we told him we felt like the vice president and others were entitled to know that the information that they were conveying to the American people wasn’t true. And we wanted to make it really clear right out of the gate that we were not accusing Vice President Pence of knowingly providing false information to the American people.

And, in fact, Mr. McGahn responded back to me to let me know that anything that General Flynn would’ve said would have been based — excuse me — anything that Vice President Pence would have said would have been based on what General Flynn had told him.

We told him the third reason was — is because we were concerned that the American people had been misled about the underlying conduct and what General Flynn had done, and additionally, that we weren’t the only ones that knew all of this, that the Russians also knew about what General Flynn had done.

And the Russians also knew that General Flynn had misled the vice president and others, because in the media accounts, it was clear from the vice president and others that they were repeating what General Flynn had told them, and that this was a problem because not only did we believe that the Russians knew this, but that they likely had proof of this information.

And that created a compromise situation, a situation where the national security adviser essentially could be blackmailed by the Russians. Finally, we told them that we were giving them all of this information so that they could take action, the action that they deemed appropriate.

Yates’ public testimony (to which Mary McCord would also be a witness) adds several elements to McGahn’s: she said the sanction discussion itself was wrong (elsewhere HPSCI has claimed she raised Logan Act violations). She talked about concerns about Pence’s credibility (remember–the White House doesn’t address getting Pence’s side of this story at all). And she claims she specifically suggested the White House should take action — that is, fire Flynn.

Finally, note that this passage cites an email chain dated January 12 — what was treated as campaign production with the Bates stamp “DJTJFP.” This is the only time the letter cites that production; they don’t, for example, cite the email chains referenced in Flynn’s plea that make it clear how hard it would have been to forget the Kislyak call because he was basically acting on orders from the President. In any case, the letter remarkably describes nothing about this chain of emails, not even who participated in it. But given the timing, it almost certainly was a response to the January 12 Ignatius story, and therefore was likely a press response chain. It may have also been prep for this all-important Pence appearance.

McGahn’s narrative reveals Trump knew of the Flynn interview before he demanded loyalty from Comey on January 27

Resuming … This is a detail that has gotten far too little attention. After Yates spoke to McGahn, he had a meeting with Trump and Priebus and others.

On January 26, 2017, Mr. McGahn briefed the President concerning the information conveyed by Ms. Yates. Additional advisors were brought in, including White House Chief of Staff Mr. Priebus. It was agreed that additional information would be needed before any action was taken. As recorded by Mr. McGahn, “Part of this concern was a recognition by McGahn that it was unclear from the meeting with Yates whether an action could be taken without jeopardizing an ongoing investigation.” At that time “President Trump asked McGahn to further look into the issue as well as finding out more about the calls.”

Note how important it is that the letter ignore Yates’ public statements? She claims she suggested the White House should take action, meaning they should fire Flynn. The White House claimed (in a piece written after the “let it go” conversation) that they didn’t know whether they could fire Flynn because there might be an ongoing investigation. And Trump used that as an excuse to get more information on the investigation.

McGahn’s narrative claims Yates said DOJ would not mind if the White House publicly revealed the intercept on Kislyak

Which is what leads to the January 27 meeting with Yates and McGahn.

On January 27, 2017, at Mr. McGahn’s request, Ms. Yates and Mr. McGahn had another meeting. Importantly, DOJ leadership declined to confirm to the White House that Lt. Gen. Flynn was under any type of investigation. According to Mr. McGahn’s memo:

During the meeting, McGahn sought clarification regarding Yates’s prior statements regarding Flynn’s contact with Ambassador Kislyak. Among the issues discussed was whether dismissal of Flynn by the President would compromise any ongoing investigations. Yates was unwilling to confirm or deny that there was an ongoing investigation but did indicate that the DOJ would not object to the White House taking action against Flynn. (Emphasis added.)

Further supporting the White House’s understanding that there was no FBI investigation that could conceivably have been impeded, “Yates also indicated that the DOJ would not object to the White House disclosing how the DOJ obtained the information relayed to the White House regarding Flynn’s calls with Ambassador Kislyak.” In other words, the DOJ expressed that the White House could make public that Lt. Gen. Flynn’s calls with Ambassador Kislyak had been surveilled. It seems quite unlikely that if an ongoing DOJ investigation of Lt. Gen. Flynn was underway, the DOJ would approve its key investigation methods and sources being publicized.

Key to the White House argument, then, are two details: first, that Yates didn’t confirm for McGahn that there was an ongoing investigation, but also his claim that, “DOJ would not object to the White House disclosing how the DOJ obtained the information relayed to the White House regarding Flynn’s calls with Ambassador Kislyak” Yates’ testimony portrays that very differently. First of all, she describes talking about the crimes that Flynn might be prosecuted for — surely a tip-off he was being investigated. More interestingly, what McGahn portrayed as DOJ’s assent for releasing news of the FISA wiretap publicly, Yates seems to have taken it to mean DOJ was willing to share the wiretap intercept privately, with the White House; she even implies she meant they could come to DOJ to review the intercept.

WHITEHOUSE: Did you discuss criminal prosecution of Mr. Flynn — General Flynn?

YATES: My recollection is that did not really come up much in the first meeting. It did come up in the second meeting, when Mr. McGahn called me back the next morning and asked the — the morning after — this is the morning of the 27th, now — and asked me if I could come back to his office.

And so I went back with the NSD official, and there were essentially four topics that he wanted to discuss there, and one of those topics was precisely that. He asked about the applicability of certain statutes, certain criminal statutes and, more specifically,

[snip]

And there was a request made by Mr. McGahn, in the second meeting as to whether or not they would be able to look at the underlying evidence that we had that we had described for him of General Flynn’s conduct. And we told him that we were inclined to allow them to look at that underlying evidence, that we wanted to go back to DOJ and be able to make the logistical arrangements for that. This second meeting on the 27th occurred late in the afternoon, this is Friday the 27th. So we told him that we would work with the FBI over the weekend on this issue and get back with him on Monday morning. And I called him first thing Monday morning to let him know that we would allow them to come over and to review the underlying evidence.

That McGahn is spinning this as permission to release the intercept publicly is remarkable, given that it leaked. Want to bet this means FBI determined the leaks about the Flynn wiretap were leaked by the White House?

Trump’s initial loyalty demand from Comey closely followed him learning about Flynn interview

That’s particularly significant given the weird dinner Trump had with Comey that night, which Comey documented at the time. I describe that meeting and its significance as follow-up to the second Yates meeting here. But the key details are that Trump:

  • Invited the FBI to investigate the pee tape to prove it was inaccurate (which I assume was an explicit request for public exoneration)
  • Asked if the FBI leaks (given the White House claim that DOJ said the FISA intercept could be released, the question is all the more interesting)
  • Asked, for the third time, if Comey wanted to keep his job
  • Asked for loyalty
  • Made this remarkable comment suggesting he didn’t trust Flynn that among other things pretended that Trump didn’t know of the impending Putin call

He then went on to explain that he has serious reservations about Mike Flynn’s judgment and illustrated with a story from that day in which the President apparently discovered during his toast to Teresa May that [Vladimir Putin] had called four days ago. Apparently, as the President was toasting PM May, he was explaining that she had been the first to call him after his inauguration and Flynn interrupted to say that [Putin] had called (first, apparently). It was then that the President learned of [Putin’s] call and he confronted Flynn about it (not clear whether that was in the moment or after the lunch with PM May). Flynn said the return call was scheduled for Saturday, which prompted a heated reply from the President that six days was not an appropriate period of time to return a call from the [President] of a country like [Russia]. (“This isn’t [redacted] we are talking about.”) He said that if he called [redacted] and didn’t get a return call for six days he would be very upset. In telling the story, the President pointed his fingers at his head and said “the guy has serious judgment issues.” I did not comment at any point during this topic and there was no mention or acknowledgement of any FBI interest in or contact with General Flynn.

All of which is to say that McGahn’s narrative conflicts in very key ways with the contemporaneous documentation of DOJ.

For some reason (McGahn claims) Reince Priebus grilled Mike Flynn about question he already knew the answer to

Which brings us to the claims that McGahn recorded the day after the conversation but which, in the wake of Flynn’s plea, are remarkable.

Your office is also aware that, in the week leading up to Lt. Gen. Flynn’s termination and the President’s alleged comments to Mr. Comey, Lt. Gen. Flynn had told both White House Counsel and the Chief of Staff at least twice that the FBI agents had told him he would not be charged. The first instance occurred during a discussion at the White House on February 8, 2017, between Mr. McGahn, Mr. Priebus, Mr. John Eisenberg and Lt. Gen. Flynn. “Priebus led the questioning” and “asked Flynn whether Flynn spoke about sanctions on his call with Ambassador Kislyak.” Lt. Gen. Flynn’s “recollection was inconclusive” and he responded that “he either was not sure whether he discussed sanctions, or did not remember doing so.” “Priebus specifically asked Flynn whether he was interviewed by the FBI. Flynn stated that FBI agents met with him to inform him that their investigation was over.” The second occurred on a telephone call on February 10, 2017, wherein Mr. McGahn, Mr. Priebus, and the Vice President confronted Lt. Gen. Flynn concerning his discussions with Ambassador Kislyak. As recorded in Mr. McGahn’s memo, “On the phone, Flynn is asked about the FBI investigation to which he says that the FBI told him they were closing it out.”

On February 10, 2017, upon confirming the true content and nature of Lt. Gen. Flynn’s three telephone calls with Ambassador Kislyak, and in light of his statements to them and the Vice President, White House Counsel Don McGahn and Chief of Staff Reince Priebus advised the President that Lt. Gen. Flynn “had to be let go.” As a result, on February 13, 2017, the President accepted Lt. Gen. Flynn’s resignation.

So the White House counsel says that a memo he wrote on February 15 said that on February 8, he, Reince Priebus, John Eisenberg, and Flynn quizzed Flynn about whether he asked Kislyak about sanctions.

That same day, per Jim Comey, Flynn had chummed up to Comey while he was waiting for a meeting with Priebus. And Priebus had asked Comey if there was a FISA order targeting Flynn personally. So already, the White House story doesn’t make sense. They weren’t trying to find out what Flynn had done, but rather how much scrutiny the White House was under as a result.

And it makes far, far less sense however when you consider that Reince Priebus would have learned in real time that Flynn spoke about sanctions with Kislyak. Tom Bossert forwarded the KT McFarland email detailing her (almost certainly relayed from Trump) instructions to Priebus (and Sean Spicer). What this meeting appears to be is not so much an effort to find out what Flynn said to Kislyak, it’s to find out how damning his lies to the FBI were. To which Flynn twice claimed (according to McGahn) that the FBI had dropped the inquiry.

The White House letter (and apparently McGahn’s narrative) are suspiciously silent on the February 9 WaPo story

The White House claims it got notice about what really happened with Flynn on February 10. The WaPo story revealing what those transcripts said came out after 9PM on February 9. Given the White House claim that DOJ had given permission to leak this, I think it quite possible the White House was the source for this story. Whether or not that’s true, the report in the story — in one of the most sensational stories of the Trump presidency — that “the FBI is continuing to examine Flynn’s communications with Kislyak” completely undermines the White House claim that they had no way of knowing that Flynn remained under investigation.

One way or another by Friday, February 10, the White House had gotten the information McGahn requested of Yates on January 27; given the delay and WaPo’s report, that might include the 302, as well as the intercepts. If it included the 302, it would have made it clear that, whatever the FBI agents believed about Flynn’s demeanor, the investigation hadn’t been  concluded.

Which is why Trump fired Flynn. Not because of anything he told Pence (remember: this letter completely blows off the request to learn about Flynn’s communications with Pence). But because keeping Flynn around meant remaining under scrutiny by FBI. Perhaps, too, Flynn had to be fired because retaining him would sustain the focus on precisely why Flynn (almost certainly operating under orders from Trump) intervened with the Russians about sanctions.

Nevertheless, that’s the opposite of what this letter argues. It uses that February 15 memo from McGahn, a memo that appears to be undermined by the Transition period discovery the White House knew to be in Mueller’s possession (not least because it was cited in Flynn’s plea), that claims no one had any way of knowing that Flynn was under investigation.

According to Mr. Comey’s testimony, the next day, on February 14, 2017, the President made comments expressing his “hope” that Mr. Comey “could see [his] way to letting this go” in reference to the situation with Lt. Gen. Flynn. The White House disputed Mr. Comey’s recollection of that conversation. Regardless, the White House Counsel and Chief of Staff, as well as others surrounding the President, had every reason to believe at that time that the FBI was not investigating Lt. Gen. Flynn, especially in light of the fact that Lt. Gen. Flynn was allowed to keep his active security clearance.

Even as Trump tries to claim he facilitated justice by firing Flynn, he continues to hide the same thing Flynn hid by lying

The letter ends with a bunch of claims that are barely supported, if at all.

  • Fifth, the investigation of Lt. Gen. Flynn proceeded unimpeded and actually resulted in a charge and a plea;
  • Sixth, assuming, arguendo, that the President had made a comment to Mr. Comey that Mr. Comey claimed to be a direction, as the chief law enforcement official pursuant to Article II of the United States Constitution, the President had every right to express his view of the case;
  • Seventh, your office already has an ample record upon which to base your findings of no obstruction. As such there is no demonstrated, specific need for the President’s responses; and,
  • Eighth, by firing Lt. Gen. Flynn, the President actually facilitated the pursuit of justice. He removed a senior public official from office within seventeen days, in the absence of any action by the FBI and well before any action taken by your office.

For all intents, purposes, and appearances, the FBI had accepted Flynn’s account; concluded that he was confused but truthful; decided not to investigate him further; and let him retain his clearance. As far as he could tell, the President was the only one who decided to continue gathering and reviewing the facts in order to ascertain whether Lt. Gen. Flynn’s actions necessitated severe and consequential action — removal from office. The President ordered his White House Counsel to continue its review of the situation, which ultimately concluded that Lt. Gen. Flynn had misled the Vice President. The President did not obstruct justice. To the contrary, he facilitated it.

We emphasize these points because even if an FBI investigation constituted a ‘’proceeding” under the statute, which it does not, the statute also requires intent to obstruct. There could not possibly have been intent to obstruct an “investigation” that had been neither confirmed nor denied to White House Counsel, and that they had every reason (based on Lt. Gen. Flynn’s statements and his continued security clearance) to assume was not ongoing. Further, by insisting on and accepting Lt. Gen. Flynn’s public resignation as national security adviser, the President expedited the pursuit of justice while the DOJ and the FBI were apparently taking no action.

So, to reiterate, within seventeen days of first being advised by DOJ leadership concerning Lt. Gen. Flynn, and within just three days of the President’s senior team confirming the requisite facts, the President took decisive action and directed Lt. Gen. Flynn, his highest ranking national security advisor, to resign. The President did so in spite of the fact that the FBI had, apparently, decided not to pursue the case further. The President did so in spite of the great political cost to himself. Far, far, from obstructing justice, the only individual in the entire Flynn story that ensured swift justice was the President. His actions speak louder than any words.

Let’s work backwards from where Trump claims he was helping justice by waiting 17 days, through a number of classified meetings (including the Putin one), before letting someone go that Yates has suggested should have been fired from the start. I suspect the McGahn letter tries to work backwards to spin the delay in better light.

There’s a good reason why Mueller’s team didn’t give Trump Comey’s memo before they wrote this letter. Because his account of the January 27 and February 8 interactions undermine the White House narrative, quite severely in the case of the January 27 dinner. And those earlier interactions can’t be viewed as Trump just commenting on a case.

That brings us to bullet five and seven: Trump’s claim that Mueller charged Flynn in spite of Trump’s efforts to obstruct and that Mueller has enough information without his testimony.

Both bullets obscure the nature of the inquiry. After all, Flynn got a plea because Mueller needed it to understand what was really going on with his communications with Kislyak (and Israel). That is, it took ten months until Mueller finally got at the jist of the issue, which is whether Flynn’s deferral of sanctions, almost certainly on orders from Trump, was part of a quid pro quo.

And in addition to the Pence questions I’ve focused on, this letter does absolutely nothing to address bullet point one: “information regarding his contacts with Ambassador Kislyak about sanctions during the transition process.” Which is to say that in January, Mueller asked Trump to finally come clean about why he was undercutting Obama’s policy on sanctions (and why Flynn lied about it).

That’s the “collusion” question behind the obstruction one. Trump refused to answer it then, and he continued to refuse to answer it when Mueller asked again (and added a slew more “collusion” questions) in March.

Which is to say, the more Trump refuses to answer Mueller’s questions, the bigger the “collusion” questions get.

Update: Subtitles added for clarity.

What Got Added to Sekulow’s List: Further Obstruction (Including Consideration of Firing Mueller), and “Collusion”

As bmaz noted, the NYT just published the most batshit letter, written on January 29 by John Dowd and Jay Sekulow, trying to dodge testimony for Trump. Here’s what, according to Dowd and Sekulow, Mueller had told them on January 8 he wanted to ask about.

  1. Former National Security Advisor Lt. Gen. Michael Flynn — information regarding his contacts with Ambassador Kislyak about sanctions during the transition process;
  2. Lt. Gen. Flynn’s communications with Vice President Michael Pence regarding those contacts;
  3. Lt. Gen. Flynn’s interview with the FBI regarding the same;
  4. Then-Acting Attorney General Sally Yates coming to the White House to discuss same;
  5. The President’s meeting on February 14, 2017, with then-Director James Comey;
  6. Any other relevant information regarding former National Security Advisor Michael Flynn;
  7. The President’s awareness of and reaction to investigations by the FBI, the House and the Senate into possible collusion;
  8. The President’s reaction to Attorney General Jeff Sessions’ recusal from the Russia investigation;
  9. The President’s reaction to Former FBI Director James Comey’s testimony on March 20, 2017, before the House Intelligence Committee;
  10. Information related to conversations with intelligence officials generally regarding ongoing investigations;
  11. Information regarding who the President had had conversations with concerning Mr. Comey’s performance;
  12. Whether or not Mr. Comey’s May 3, 2017, testimony lead to his termination;
  13. Information regarding communications with Ambassador Kislyak, Minister Lavrov, and Lester Holt;
  14. The President’s reaction to the appointment of Robert Mueller as Special Counsel;
  15. The President’s interaction with Attorney General Sessions as it relates to the appointment of Special Counsel; and,
  16. The statement of July 8, 2017, concerning Donald Trump, Jr.’s meeting in Trump Tower.

On March 5, Trump’s lawyers had a heated meeting with Mueller’s team, where Mueller floated a subpoena. In the wake of that meeting, Mueller provided a new list of topics of interest, which resulted in the Sekulow list leaked a month ago.

In the wake of the testy March 5 meeting, Mueller’s team agreed to provide the president’s lawyers with more specific information about the subjects that prosecutors wished to discuss with the president. With those details in hand, Trump lawyer Jay Sekulow compiled a list of 49 questions that the team believed the president would be asked,

Here’s that list, as presented by the NYT (there are fewer than the 49 described by the NYT because of how they combined questions). I’ve bolded the ones that appear to be entirely new in the later list.

  1.  What did you know about phone calls that Mr. Flynn made with the Russian ambassador, Sergey I. Kislyak, in late December 2016?
  2. What was your reaction to news reports on Jan. 12, 2017, and Feb. 8-9, 2017?
  3. What did you know about Sally Yates’s meetings about Mr. Flynn?
  4. How was the decision made to fire Mr. Flynn on Feb. 13, 2017?
  5. After the resignations, what efforts were made to reach out to Mr. Flynn about seeking immunity or possible pardon?
  6. What was your opinion of Mr. Comey during the transition?
  7. What did you think about Mr. Comey’s intelligence briefing on Jan. 6, 2017, about Russian election interference?
  8. What was your reaction to Mr. Comey’s briefing that day about other intelligence matters?
  9. What was the purpose of your Jan. 27, 2017, dinner with Mr. Comey, and what was said?
  10. What was the purpose of your Feb. 14, 2017, meeting with Mr. Comey, and what was said?
  11. What did you know about the F.B.I.’s investigation into Mr. Flynn and Russia in the days leading up to Mr. Comey’s testimony on March 20, 2017?
  12. What did you do in reaction to the March 20 testimony? Describe your contacts with intelligence officials.
  13. What did you think and do in reaction to the news that the special counsel was speaking to Mr. Rogers, Mr. Pompeo and Mr. Coats?
  14. What was the purpose of your calls to Mr. Comey on March 30 and April 11, 2017?
  15. What was the purpose of your April 11, 2017, statement to Maria Bartiromo?
  16. What did you think and do about Mr. Comey’s May 3, 2017, testimony?
  17. Regarding the decision to fire Mr. Comey: When was it made? Why? Who played a role?
  18. What did you mean when you told Russian diplomats on May 10, 2017, that firing Mr. Comey had taken the pressure off?
  19. What did you mean in your interview with Lester Holt about Mr. Comey and Russia?
  20. What was the purpose of your May 12, 2017, tweet?
  21. What did you think about Mr. Comey’s June 8, 2017, testimony regarding Mr. Flynn, and what did you do about it?
  22. What was the purpose of the September and October 2017 statements, including tweets, regarding an investigation of Mr. Comey?
  23. What is the reason for your continued criticism of Mr. Comey and his former deputy, Andrew G. McCabe?
  24. What did you think and do regarding the recusal of Mr. Sessions?
  25. What efforts did you make to try to get him to change his mind?
  26. Did you discuss whether Mr. Sessions would protect you, and reference past attorneys general?
  27. What did you think and what did you do in reaction to the news of the appointment of the special counsel?
  28. Why did you hold Mr. Sessions’s resignation until May 31, 2017, and with whom did you discuss it?
  29. What discussions did you have with Reince Priebus in July 2017 about obtaining the Sessions resignation? With whom did you discuss it?
  30. What discussions did you have regarding terminating the special counsel, and what did you do when that consideration was reported in January 2018?
  31. What was the purpose of your July 2017 criticism of Mr. Sessions?
  32. When did you become aware of the Trump Tower meeting?
  33. What involvement did you have in the communication strategy, including the release of Donald Trump Jr.’s emails?
  34. During a 2013 trip to Russia, what communication and relationships did you have with the Agalarovs and Russian government officials?
  35. What communication did you have with Michael D. Cohen, Felix Sater and others, including foreign nationals, about Russian real estate developments during the campaign?
  36. What discussions did you have during the campaign regarding any meeting with Mr. Putin? Did you discuss it with others?
  37. What discussions did you have during the campaign regarding Russian sanctions?
  38. What involvement did you have concerning platform changes regarding arming Ukraine?
  39. During the campaign, what did you know about Russian hacking, use of social media or other acts aimed at the campaign?
  40. What knowledge did you have of any outreach by your campaign, including by Paul Manafort, to Russia about potential assistance to the campaign?
  41. What did you know about communication between Roger Stone, his associates, Julian Assange or WikiLeaks?
  42. What did you know during the transition about an attempt to establish back-channel communication to Russia, and Jared Kushner’s efforts?
  43. What do you know about a 2017 meeting in Seychelles involving Erik Prince?
  44. What do you know about a Ukrainian peace proposal provided to Mr. Cohen in 2017?

The additions are instructive. The one new bit on Flynn involves Trump’s offer of a pardon.

The new bits on obstruction pertain to ongoing efforts to obstruct the investigation, including consideration of firing Mueller and ongoing efforts to discredit Jim Comey and Andrew McCabe.

But the most interesting are the 14 or so questions on Trump’s involvement in and awareness of election tampering. Given the timing of Rick Gates’ plea on February 23 and the subsequent focus on Roger Stone and Michael Cohen, I’m particularly interested in the addition of questions involving both of them (as well as the question about Manafort’s efforts to get Russia’s help).

Trump would have been far better off having an interview in January. Because the questions are getting harder — and Mueller’s interest in his involvement in “collusion” is getting more apparent.

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

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

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

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

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

I find the April 2016 failed test suspicious.

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

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

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

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

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

[snip]

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

[snip]

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Flynn Conspiracy Call Is Coming from Inside the [White] House

Maggie and Mike have another of their “scoops” where they repeat what Trump’s lawyers tell them uncritically. In addition to mis-reporting the import of an alleged Mueller comment that he would release a report describing Trump’s obstruction within 2 months of mid-terms, the piece describes some letters Trump’s lawyers sent DOJ in an attempt to exonerate Trump. Among the topics addressed in the letters was whether it was obstruction for Trump to fire Comey because he wouldn’t stop the investigation into Mike Flynn.

The lawyers did not say whether Mr. Trump had asked for an end to the Flynn investigation. But their letters cited statements by the White House that denied Mr. Comey’s account.

The lawyers also argued that Mr. Trump could not have impeded the investigation because there was no inquiry to obstruct. The letter said that the F.B.I. had concluded that Mr. Flynn had not committed a crime when he told agents in January 2017 that he did not discuss sanctions with the Russian ambassador during the transition, an assertion later found to be false.

The lawyers said that law enforcement officials had told the White House that the bureau did not believe Mr. Flynn had lied. “For all intents, purposes and appearances, the F.B.I. had accepted Flynn’s account; concluded that he was confused but truthful; decided not to investigate him further; and let him retain his clearance,” the letters said.

It is not clear what basis his lawyers have for those assertions. Mr. Flynn pleaded guilty in December to lying to investigators and is cooperating with the special counsel inquiry.

The letters also said that Mr. Comey had told Congress in a closed-door briefing in March 2017 that Mr. Flynn had not lied to the F.B.I. in the interview and was merely confused. Mr. Comey said last month on NBC’s “Meet the Press” that that assertion was not accurate.

On top of revealing that Trump’s lawyers apparently do not deny that Trump asked Comey to back off the Flynn investigation (even if they contest Comey’s take more generally), these letters make it clear that a conspiracy the frothy right has adopted lately — that Flynn should never have been investigated — is coming from inside the White House.

That scoop is useful, then, for making it clear where dumb propaganda (and Congressional pushback)  is originating.

But Maggie and Mike barely mention how obviously problematic the Trump story is. Trump’s lawyers apparently argued to DOJ that the Trump couldn’t have obstructed any investigation by firing Comey because, “there was no inquiry to obstruct.” They support that claim by stating, “Mr. Comey had told Congress in a closed-door briefing in March 2017 that Mr. Flynn had not lied to the F.B.I. in the interview and was merely confused.”

Never mind that this claim ignores that there was already a counterintelligence investigation into Flynn when he was incidentally collected assuring Sergey Kislyak that the Trump Administration would work with Russia on sanctions. That investigation was premised on events that included a meeting with Kislyak in the Ambassador’s private residence in 2015, in advance of his trip to the big RT shindig, that Flynn’s spawn considered “very productive.”

But per the HPSCI Russia report, it’s a misstatement of what Comey actually told Congress in March 2017. That report says,

Director Comey testified to the Committee that “the agents … discerned no physical indications of deception. They didn’t see any change in posture, in tone, in inflection, in eye contact. They saw nothing that indicated to them that he knew he was lying to them.”

Indeed, the White House version doesn’t even cohere with the story spun by Chuck Grassley in a recent effort to grill an FBI agent involved.

According to that agent’s contemporaneous notes, Director Comey specifically told us during that briefing that the FBI agents who interviewed Lt. General Michael Flynn, “saw nothing that led them to believe [he was] lying.” Our own Committee staff’s notes indicate that Mr. Comey said the “agents saw no change in his demeanor or tone that would say he was being untruthful.”

In both versions offered by very partisan Republicans, the FBI agents talked about physical signs of deceit. The HPSCI report goes on to make clear that the same agents also recognized Flynn’s statements in the interview were “inconsistent” with the call intercept.

Yet somehow Trump’s lawyers decided to claim to DOJ that FBI concluded Flynn was just confused, a claim that apparently conflicts with evidence from at least 5 current or former DOJ employees currently unaffiliated with the Mueller probe, including Sally Yates, from whom the White House first obtained information about the Flynn interview.

There’s a lot more that’s crazy about Trump’s lawyers’ efforts to invent a story inconsistent with all known records. First, relying on a still classified HPSCI report makes it crystal clear (as if it wasn’t already) that HPSCI is sharing classified information with the White House. The logic of this claim is that Comey’s contemporaneous spoken statements to numerous DOJ officials should be dismissed but his spoken statements to Congress are credible. Leaking this story makes it clear that the White House is behind the worst conspiracies floating among the far right.

But, if the NYT portrayal of the letter is accurate, it also shows that in an attempt to explain away Trump’s actions, the White House is inventing facts. Inventing easily checked facts seems like a really curious strategy to proclaim someone’s innocence.

The Sekulow Questions, Part Six: Trump Exacerbates His Woes

In this series, it feels like time is marked by big Russian meetings and key firings.

I’m talking, of course, about my efforts to use the Mueller questions as imagined by Jay Sekulow to map out what the structure of the investigation (at least as it pertains to Trump personally) might be. Thus far, I’ve shown:

  • Russians, led by the Aras Agalarov and his son, cultivated Trump for years by dangling two things: real estate deals and close ties with Vladimir Putin.
  • During the election, the Russians and Trump appear to have danced towards a quid pro quo agreement, with the Russians offering dirt on Hillary Clinton in exchange for a commitment to sanctions relief, with some policy considerations thrown in.
  • During the transition period, Trump’s team took a series of actions that moved towards consummating the deal they had made with Russia, both in terms of policy concessions, particularly sanctions relief, and funding from Russian sources that could only be tapped if sanctions were lifted. The Trump team took measures to keep those actions secret.
  • Starting in January 2017, Trump came to learn that FBI was investigating Mike Flynn. His real reasons for firing Flynn remain unreported, but it appears he had some concerns that the investigation into Flynn would expose him personally to investigation.
  • After a failed attempt to quash the investigation into his Administration by firing Flynn, Trump grew increasingly angry that Jim Comey wouldn’t provide a quick exoneration without conducting an investigation first, leading to his firing.

May 10, 2017: What did you mean when you told Russian diplomats on May 10, 2017, that firing Mr. Comey had taken the pressure off?

Trump fired Comey just in time to report to Russian Ambassador Sergey Kislyak and Foreign Minister Sergey Lavrov in a meeting the next day that doing took the pressure off he felt because of Russia.

“I just fired the head of the F.B.I. He was crazy, a real nut job. I faced great pressure because of Russia. That’s taken off.” Remarkably, he also felt the need to reassure the Russians that, “I’m not under investigation.”

The reports that Trump’s lawyers need to have clearance because of the inclusion of this meeting in the list of questions suggests Mueller wants to learn more about the meeting beyond the public reports. That may include Trump’s sharing of classified information provided by the Israelis.

May 11, 2017: What did you mean in your interview with Lester Holt about Mr. Comey and Russia?

The day after meeting with the Russians, he told Lester Holt he was going to fire Comey regardless of what Rod Rosenstein recommended. [These are excerpts and a little rough; here’s a partial transcript that leaves out a lot of the Russian comments]

He’s a showboat, he’s a grand-stander, the FBI has been in turmoil, you know that. I know that. Everybody knows that. You take a look at the FBI a year ago, it was in virtual turmoil. Less than a year ago. It hasn’t recovered from that.

[in response to a question about Rosenstein’s recommendation] What I did was I was going to fire Comey. My decision. I was going to fire Comey. There’s no good time to do it, by the way. I was going to fire regardless of recommendation. [Rosenstein] made a recommendation, he’s highly respected. Very good guy, very smart guy. The Democrats like him. The Republicans like him. But regardless of recommendation I was going to fire Comey. Knowing there was no good time to do it.

And in fact when I decided to just do it, I said to myself, I said you know, this Russia thing with Trump and Russia is a made-up story, it’s an excuse by the Democrats for having lost an election that they should have won. And the reason they should have won it is the electoral college is almost impossible for a Republican to win. Very hard. Because you start off at such a disadvantage. So everybody was thinking, they should have won the election. This was an excuse for having lost an election.

I just want somebody that’s competent. I’m a big fan of the FBI. I love the people of the FBI.

As far as I’m concerned, I want that [investigation] to be absolutely done properly. When I did this now, I said I’ll probably, maybe confuse that. Maybe I’ll expand that, you know, lengthen the time because it should be over with, in my opinion, should have been over with a long time ago. ‘Cause all it is, is an excuse but I said to myself, I might even lengthen out the investigation, but I have to do the right thing for the American people.

[in response to question about why he put he was not under investigation in his termination letter] Because he told me that, I mean he told me that. I’ve heard that from others. I had a dinner him, he wanted to have dinner because he wanted to stay on, we had a very nice dinner at the White House very early on. [He asked to have dinner?] A dinner was arranged. I think he asked for the dinner. And he wanted to stay on as the FBI head. And I said, I’ll consider, we’ll see what happens. We had a very nice dinner. And at that time he told me you’re not under investigation. I knew anyway. First of all, when you’re under investigation, you’re giving all sorts of documents and everything. I knew I wasn’t under — and I heard it was stated at the committee, at some committee level, number one. Then during the phone call he said it, then during another phone call he said it. He said it at dinner, and then he said it twice during phone calls.

In one case I called him, in one case he called me.

I actually asked him, yes. I said, if it’s possible, would you let me know, am I under investigation? He said you are not under investigation. All I can tell you is that I know that I’m not under investigation. Personally. I’m not talking about campaigns, I’m not talking about anything else. I’m not under investigation.

[did you ask him to drop the investigation] No. Never. I want the investigation speeded up. Why would we do that? Iw ant to find out if there was a problem with an election having to do with Russia, or anyone else, any other country, I want it to be so strong and so good.

I want somebody that’s going to do a great job.

I think that looking into me and the campaign, I have nothing to do, his was set up by the Democrats. There’s no collusion between me and my campaign and the Russians. The other things is the Russians did not affect the vote.

If Russia hacked, If Russia had to anything to do with our election, I want to know about it. If Russia or anybody elseis trying to interfere with our elections I want to make sure that will never ever happen

[wiretapping] I was surprised [Comey said no spying] but I wasn’t angry. There’s a big thing going on right now, spying, to me that’s the big story.

I want a great FBI Director. I expect that [they will continue investigation].

[Flynn’s access to secrets] My White House Counsel it did not sound like an emergency. She didn’t make it sound that way either in the hearings the other day. It didn’t sound like it had to be done immediately. This man has served for many years. He’s a general. In my opinion a very good person. It would be very unfair to hear from someone we don’t even know to immediately run out and fire a general. We ultimately fired, but we fired for a different reason. Everything plays into it. We fired him because he said something to the Vice President that wasn’t true. He had clearance from the Obama Administration. I think it’s a very unfair thing that the media doesn’t talk about that.

I just sent a letter from one of the most prestigious law firms in the country that I have nothing to do with Russia, I have no investments in Russia, I don’t have property in Russia. I’m in total compliance in every way.

I had the Miss Universe Pageant in Moscow a long time ago. I have a certified letter. I’m not just saying that. I assume he’s gonna give the letter out. No loans, no nothing.

I never thought about it [optics of Lavrov meeting]. What difference does it make.

When I spoke with Putin he asked me whether I’d see Lavrov. I think we had a great discussion having to do with Syria, having to do with the Ukraine. Maybe that discussion will lead to peace.

Ultimately, Trump said several things here (aside from putting into the public record the meetings with Comey, though he got details that can almost certainly be proved wrong wrong). He differentiated between an investigation into himself personally and others, denied asking to halt the investigation into Flynn, provided his bogus self-exoneration claim of not having business ties with Russians. He also reiterated the claim he had been spied on.

May 12, 2017: What was the purpose of your May 12, 2017, tweet?

By this point, Trump and Comey were in a war of credibility. And Trump suggested that he might have tapes of his meetings with Comey.

The White House answers about whether there were tapes have dodged some, so it’s possible.

May 17, 2017: What did you think and what did you do in reaction to the news of the appointment of the special counsel?

In the wake of reporting that Comey had documented a request from Trump to halt the investigation into Flynn, on May 17, Rod Rosenstein appointed Robert Mueller to investigate any links between the Russian government and individuals associated with Trump’s campaign and “any matters that arose or may arise directly from the investigation.” The latter phrase made it clear that by firing Comey, Trump had put himself under investigation for obstructing the investigation in chief.

In the middle of a meeting with Sessions, Don McGahn, Mike Pence, and several others on replacing Comey, Rosenstein called McGahn and told him he had appointed Mueller. Trump took it out on Sessions, calling him an idiot and telling him he should resign. Sessions left and sent a resignation letter, but Pence, Steve Bannon, and Reince Priebus convinced him to hold off on accepting it. This piece describes Priebus’ side of that story.

May 31, 2017: Why did you hold Mr. Sessions’s resignation until May 31, 2017, and with whom did you discuss it?

Mueller has received testimony from most of the people who counseled Trump not to fire Sessions, including McGahn, Bannon, and Priebus (but not Pence). He has also gotten Sessions’ testimony on this point.

I’m particularly interested in whether Trump consulted with people not listed in the NYT story on this, such as Jared Kushner and Stephen Miller (who had counseled him to fire Comey in the first place). I also suspect that Trump had already reached out Flynn by this point to talk pardons.

June 8, 2017: What did you think about Mr. Comey’s June 8, 2017, testimony regarding Mr. Flynn, and what did you do about it?

On June 8, Comey testified to SSCI. The night before, he released a statement that reviewed much of what appeared in his memos. The hearing consisted of senators from each party trying to spin Comey’s report of being asked to drop the Flynn investigation, with little news  — though Comey did make clear the investigation covered false statements.

BLUNT: On the Flynn issue specifically, I believe you said earlier that you believe the president was suggesting you drop any investigation of Flynn’s account of his conversation with the Russian ambassador. Which was essentially misleading the vice president and others?

COMEY: Correct. I’m not going to go into the details but whether there were false statements made to government investigators, as well.

Comey refuted Trump’s claim that he didn’t ask him to stop the investigation into Flynn.

KING: In his press conference May 18th, the president responded, quote, no, no, when asked about asking you to stop the investigation into general Flynn. Is that a true statement?

COMEY: I don’t believe it is.

Comey said he viewed the Flynn investigation and the Russian one as touching, but separate, though raised the possibility of flipping Flynn.

KING: Back to Mr. Flynn. Would the — would closing out the Flynn investigation have impeded the overall Russian investigation?

COMEY: No. Well, unlikely, except to the extent — there is always a possibility if you have a criminal case against someone and squeeze them, flip them and they give you information about something else. But I saw the two as touching each other but separate.

Comey also revealed that he had shared memos memorializing his conversations with Trump with a friend.

BLUNT: You said something earlier and I don’t want to fail to follow up on, you said after dismissed, you gave information to a friend so that friend could get that information into the public media.

COMEY: Correct.

BLUNT: What kind of information was that? What kind of information did you give to a friend?

COMEY: That the — the Flynn conversation. The president had asked me to let the Flynn — forgetting my exact own words. But the conversation in the Oval Office.

Much of the hearing covered Sessions’ non-involvement. Comey deferred a number of questions to the closed session.

Trump used the Comey hearing — and his confirmation that at the time he left the president wasn’t under investigation — to have Marc Kasowitz make a statement claiming Trump never impeded the investigation and never demanded loyalty.

I am Marc Kasowitz, Predisent Trump’s personal lawyer.

Contrary to numerous false press accounts leading up to today’s hearing, Mr. Comey has now finally confirmed publicly what he repeatedly told the President privately: The President was not under investigation as part of any probe into Russian interference. He also admitted that there is no evidence that a single vote changed as a result of any Russian interference.

Mr Comey’s testimony also makes clear that the President never sought to impede the investigation into attempted Russian interference in the 2016 election, and in fact, according to Mr. Comey, the President told Mr. Comey “it would be good to find out” in that investigation if there were “some ‘satellite’ associates of his who did something wrong.” And he did not exclude anyone from that statement. Consistent with that statement, the President never, in form or substance, directed or suggested that Mr. Comey stop investigating anyone, including suggesting that that Mr. Comey“let Flynn go.” As he publicly stated the next day, he did say to Mr. Comey, “General Flynn is a good guy, he has been through a lot” and also “asked how is General Flynn is doing.”

Admiral Rogers testified that the President never “directed [him] to do anything . . . illegal, immoral, unethical or inappropriate” and never “pressured [him] to do so.” Director Coates said the same thing. The President likewise never pressured Mr. Comey. .

The President also never told Mr. Comey, “I need loyalty, I expect loyalty” in form or substance. Of course, the Office of the President is entitled to expect loyalty from those who are serving in an administration, and, from before this President took office to this day, it is overwhelmingly clear that there have been and continue to be those in government who are actively attempting to undermine this administration with selective and illegal leaks of classified information and privileged communications.

Kasowitz also accused Comey of leaking in order to lead to a special counsel investigation.

Mr. Comey has now admitted that he is one of these leakers. Today, Mr. Comey admitted that he unilaterally and surreptitiously made unauthorized disclosures to the press of privileged communications with the President. The leaks of this privileged information began no later than March 2017 when friends of Mr. Comey have stated he disclosed to them the conversations he had with the President during their January 27, 2017 dinner and February 14, 2017 White House meeting. Today, Mr. Comey admitted that he leaked to friends his purported memos of these privileged conversations, one of which he testified was classified. He also testified that immediately after he was terminated he authorized his friends to leak the contents of these memos to the press in order to “prompt the appointment of a special counsel.” Although Mr. Comey testified he only leaked the memos in response to a tweet, the public record reveals that the New York Times was quoting from these memos the day before the referenced tweet, which belies Mr. Comey’s excuse for this unauthorized disclosure of privileged information and appears to entirely retaliatory. We will leave it the appropriate authorities to determine whether this leaks should be investigated along with all those others being investigated. .

In sum, it is now established that there the President was not being investigated for colluding with the or attempting to obstruct that investigation. As the Committee pointed out today, these important facts for the country to know are virtually the only facts that have not leaked during the long course of these events.

This sort of kicked off the official campaign to discredit Comey and those who would back his story.

June 12, 2017: What did you think and do in reaction to the news that the special counsel was speaking to Mr. Rogers, Mr. Pompeo and Mr. Coats?

Public reports date Rogers and Coats’ interviews with Mueller to the week of June 12, 2017, so Pompeo’s must have been around that same time. Rogers and Coats, at least, testified that Trump tried to get them to state publicly that there was no collusion. They said the interaction was odd and uncomfortable, but that he did not order them to interfere.

Clearly, Trump responded to public reports of their being called as witnesses, though we don’t know what the response was. It’s possible that’s when Trump threatened to fire Mueller, only to back off when Don McGahn threatened to quit.

July 7, 2017: What involvement did you have in the communication strategy, including the release of Donald Trump Jr.’s emails?

I’ve laid out that I believe the evolving June 9 story is a limited hangout orchestrated by Agalarov lawyer Scott Balber. The strategy would have begun when Jared Kushner wrestled with the need to disclose the meeting, both in response to congressional investigations and for his clearance. Manafort, too, turned over emails backing the event about a month before the story came out publicly. This post talks about the response the weekend of the G-20 in Hamburg, including Ivanka sitting in on a meeting so Trump could strategize, and Hope Hicks suggesting the emails would never come out.

As a reminder, on the same day Trump had a second hour long meeting with Putin, he dictated Putin’s propaganda line that the meeting pertained to adoptions. Importantly, he hid what I’ve suggested was the quo in the quid pro quo, sanctions relief. Mueller undoubtedly would like to know if Putin helped him come up with that message, which would be really damning.

Mueller also wants to know about the decision to leak Don Jr’s emails. Bannon suspects that a Jared aide leaked the emails (his then lawyer Jamie Gorelick would cut back her work with him shortly thereafter). But remember: in a DM, Assange proposed that he give Wikileaks the email.

There’s clearly far more back story to the leaked email we don’t know yet.

If Trump’s involvement here involves coordination with Russians (like the Agalrovs, to say nothing of Putin) or Assange, it would provide damning evidence not of obstruction, but of collusion, an effort to coordinate a story about a key meeting. Trump’s lawyers have always suggested questions about Trump’s role in this statement are improper, which is itself a telling indicator that they don’t understand (or want to spin) the risk of the original June 9 meeting.

July 20, 2017: After the resignations, what efforts were made to reach out to Mr. Flynn about seeking immunity or possible pardon?

Mike Flynn tried to get Congressional immunity in March 2017, with Trump’s backing the effort in a tweet.

Mueller’s question seems to suggest even at that earlier period, someone from Trump’s camp reached out and discussed immunity with Flynn. Shortly before April 25, Trump also sent Flynn a message to “stay strong.” (h/t TC)

On July 20, the WaPo reported that Trump’s team was researching pardons. The NYT report first revealing that Trump offered pardons to Mike Flynn (and Manafort, who is curiously not mentioned in this question) describes it happening after John Dowd took over, in the wake of the revelation of the June 9 meeting and the Kasowitz firing. Dowd denied any such thing was happening on July 21, which is probably a good sign such discussions were taking place.

July 25, 2017: What was the purpose of your July 2017 criticism of Mr. Sessions? What discussions did you have with Reince Priebus in July 2017 about obtaining the Sessions resignation? With whom did you discuss it?

In late July, 2017, Trump accused Sessions of several sins: failing to crack down on leaks, failing to prosecute Hillary, and failing to fire Andrew McCabe. That must be the same time when Trump ordered Priebus to get Sessions’ resignation, which he dodged by stalling, which probably answers the “what was the purpose” question: to lay predicate to fire Sessions.

I’m particularly interested in the question about who Trump discussed this with, particularly given the provocative timing — the days before George Papadopoulos’s July 26 arrest and Paul Manafort’s July 27 condo search (using a warrant that, unlike a warrant from a May 27 storage unit search, invoked the June 9 meeting). It’s possible Trump had advance knowledge of this stuff (which would be alarming), but likely it’s a coincidence.

In any case, Mueller clearly has reason to believe Trump learned something about the investigation and discussed it with people that led him to try, again, to stop it by firing someone.

What was the purpose of the September and October 2017 statements, including tweets, regarding an investigation of Mr. Comey?

On September 1, Trump responded to reports that because Comey had a declination written before interviewing Hillary, he rigged the outcome of the investigation. In mid-October, in the wake of the Manafort indictment and George Papadopoulos plea, Trump returned to this attack. Rudy Giuliani has renewed this attack in recent days, which is presumably an attempt to undercut Comey’s credibility.

What discussions did you have regarding terminating the special counsel, and what did you do when that consideration was reported in January 2018?

The NYT report that Trump tried to fire Mueller in June 2017 made it clear that Mueller had received testimony about it (presumably from McGahn and others). Clearly, Mueller has reason to know that Trump did something else in response. Note that this report came out in the wake of the Michael Wolff book, which would give Mueller an excuse to call several of the relevant witnesses (such as Mark Corallo and Steve Bannon) as witnesses. This time period also closely follows the increasingly aggressive response in Congress.

What is the reason for your continued criticism of Mr. Comey and his former deputy, Andrew G. McCabe?

The assumption is that Trump continues to attack Comey and McCabe because doing so might harm their credibility with regards to an obstruction investigation, and that’s surely true (made all the worse by McCabe’s firing and his criminal referral).

But I increasingly believe (particularly given that the other contemporaneous witnesses to Comey’s concerns, like James Baker, are not named) that’s not the only reason Trump is doing this. My guess is it’s an attempt to undermine their decision to investigate Flynn. We now know, for example, that McCabe set up the interview with Flynn on Comey’s direction. So in addition to discrediting key witnesses against him, it seems possible that Trump is also trying to discredit the decision, at a time when  FBI was about to close a counterintelligence investigation into Flynn, to instead interview him, leading to the exposure of Trump’s efforts to undermine US policy during the transition period.

RESOURCES

These are some of the most useful resources in mapping these events.

Mueller questions as imagined by Jay Sekulow

CNN’s timeline of investigative events

Majority HPSCI Report

Minority HPSCI Report

Trump Twitter Archive

Jim Comey March 20, 2017 HPSCI testimony

Comey May 3, 2017 SJC testimony

Jim Comey June 8, 2017 SSCI testimony

Jim Comey written statement, June 8, 2017

Jim Comey memos

Sally Yates and James Clapper Senate Judiciary Committee testimony, May 8, 2017

NPR Timeline on Trump’s ties to Aras Agalarov

George Papadopoulos complaint

George Papadopoulos statement of the offense

Mike Flynn statement of the offense

Internet Research Agency indictment

Text of the Don Jr Trump Tower Meeting emails

Jared Kushner’s statement to Congress

Erik Prince HPSCI transcript

THE SERIES

Part One: The Mueller Questions Map Out Cultivation, a Quid Pro Quo, and a Cover-Up

Part Two: The Quid Pro Quo: a Putin Meeting and Election Assistance, in Exchange for Sanctions Relief

Part Three: The Quo: Policy and Real Estate Payoffs to Russia

Part Four: The Quest: Trump Learns of the Investigation

Part Five: Attempting a Cover-Up by Firing Comey

Greenberg Traurig Fires Rudy on the One Year Anniversary of the Comey Firing

For the last few weeks, Rudy Giuliani has been on a temporary leave from his firm Greenberg Traurig in a quest to negotiate the end of the Mueller probe of Donald Trump within weeks. As part of that goal, he has been badmouthing his former AUSA Jim Comey, calling him a disgraceful liar and a very perverted man.

GT’s Chair Richard Rosenbaum just issued a statement explaining that,

When Rudy Giuliani took an unpaid leave of absence from the firm, his intent was to play a limited role, for a short period of time, to address specific matters for President Trump. After recognizing that this work is all consuming and is lasting longer than initially accepted, Rudy has determined it is best for him to resign from the firm, effective May 9th.

Let’s be clear: this was not Rudy’s decision. The reputational cost of Rudy’s antics to the firm surely drove it.

Which is to say Rudy was made to resign. He was fired, effective May 9th.

What I especially love about it is the irony of the date: Rudy was fired on the one year anniversary of Comey’s firing.