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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Except I worry about something else.

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

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

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

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

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

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

Christopher Wray Departs from Jim Comey’s “Balance” on Encryption

In his statement before the House Judiciary Committee last week, FBI Director Christopher Wray raised encryption, as FBI Directors do when they go before Congress.

His comments on encryption have a really bizarre line, complaining that, “The more we as a society rely on electronic devices to communicate and store information, the more likely it is that information that was once found in filing cabinets, letters, and photo albums will now be stored only in electronic form.” The reverse is really the issue: our electronic devices now make it really easy to get and search through what previously might be hidden in a (locked!) filing cabinet. They also encourage us to write in texts what we used to say in phone or direct conversations. So the reality is all this digitalization just makes it easier to engage in one stop evidence shopping with someone’s phone.

The more interesting thing, to me, is the way in which Wray’s rhetoric deviates sharply from that of Jim Comey.

Comey, you’ll remember, always liked to talk about the “balance” between security and privacy. He used that formulation most times he discussed back doors in encryption.

And he gave an entire speech on it last year in the wake of the San Bernardino phone challenge.

In America we’ve always balanced privacy and security. It can be messy, it can be painful, but we’ve always worked through the three branches of government to achieve that balance in a sensible way.

[snip]

We have to find thoughtful, productive ways to talk about issues of privacy and security, and here’s the thing, by thoughtful I don’t mean that I’m right, and you’re wrong. I could be wrong about the way I assess, the way I perceive, the way I balance, the way I reason, but I think all productive conversations start from a place of humility. I could be wrong.

[snip]

[L]itigation is a terrible place to have any discussion about a complicated policy issue, especially one that touches on our values, on the things we care about most, on technology, on trade-offs, and balance.

[snip]

We are all people trying to do the right thing as we see the right. It is not for the FBI to decide how this country should govern itself.

It’s not for the FBI to decide what the right approach is here. Our job is to investigate. Our job is to tell you, the people who pay for us, when the tools you count on us to use aren’t working so much anymore, so you can figure out what to do about that. It’s also not the job of the technology companies to tell us—to tell you—what to do about this. Their job is to innovate and come up with the next great thing, and they’re spectacular at that, which is to be treasured. How we move forward needs to be resolved by the American people, and especially the young who know technology so well, and who care so deeply about getting the hard things right.

In his statement, Wray seems to be invoking this Comey formulation when he rejects the entire notion.

Some observers have conceived of this challenge as a trade-off between privacy and security. In our view, the demanding requirements to obtain legal authority to access data—such as by applying to a court for a warrant or a wiretap—necessarily already account for both privacy and security. The FBI is actively engaged with relevant stakeholders, including companies providing technological services, to educate them on the corrosive effects of the Going Dark challenge on both public safety and the rule of law, and with the academic community and technologists to work on technical solutions to this problem.

Wray appears to be rejecting Comey’s (usually false) show of seeking the right balanced between access and encryption, and instead saying a warrant is all it needs. That, in spite of the fact that Congress has specifically stopped short of requiring technical access for some of the applications that Wray and Comey were complaining about. Not to mention the fact that FBI doesn’t ever get a warrant to get to US person content via back door searches or the 2014 exception.

Ultimately, of course, the effect is the same: FBI is going to continue demanding back doors into encryption.

But Wray, apparently, doesn’t even feel the need to feign an interest in the debate.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

Christopher Wray Was Doing Great Until He Accused Chad of Spewing Jihadist Propaganda

In his first House Judiciary Committee oversight hearing today, FBI Director Christopher Wray responded to questions about FBI Agent Peter Strzok by explaining there was an ongoing Inspector General investigation into Strzok’s role in the investigation into Hillary’s treatment of classified information more times (at least 16) than he dodged answers in his confirmation hearing (11).

At that level, it was a typical HJC hearing, as each side spent more time pitching their partisan spin (with Democrats asking a string of questions Wray was unable to answer about Russia) rather than — with a few exceptions — conducting much oversight.

That said, I really appreciated two aspects of Wray’s testimony today. First, with the very notable exception of FISA matters (specifically, any FISA applications tied to Trump’s associates, and whether they derived in any way from the Steele dossier), Wray seemed genuinely willing to accept HJC’s mandate to conduct oversight.

As I’ve already noted, I get that HJC can be full of partisan hacks. But it is also the case that the Executive branch, particularly something as powerful as the FBI, must be subject to the oversight requests of Congress. And under both the Bush and Obama Administrations, FBI and DOJ largely treated their oversight committees with (sometimes deserved, but often undeserved) contempt. Even where Wray was bullshitting members of Congress, such as when he pretended that moving Strzok to human resources wasn’t a demotion, he at least appeared to treat their inquiries with respect.

Perhaps, if it is treated with respect it sometimes doesn’t deserve, HJC will come to become the committee FBI and DOJ need as an oversight body.

The other thing I appreciated — particularly in the wake of Jim Comey’s treatment of everything as a fight between “good guys” and “bad guys” — was Wray’s repeated invocation of the humanness of FBI and its officials. For example, in what must have been a rehearsed response to a question about the reputation of the FBI, Wray said, “Do we make mistakes? You bet we make mistakes. Just like everyone who is human makes mistakes,” before describing how the IG (which is currently investigating Strzok) provides the opportunity to “hold our folks accountable, if that’s appropriate.” Somewhat less convincingly, in response to a question from Cedric Richmond, who cleverly noted that the FBI Headquarters is still named after the architect of COINTELPRO, J Edgar Hoover, Wray again stressed the humanity of FBI. “It’s something we’re not proud of but it is also something we’ve learned from … We’re human, we make mistakes. We have things that we’ve done well. We’ve had things we done badly, and when we’ve done badly we try to learn from them.”

Given FBI’s intransigence on back door searches and Wray’s own evolving understanding of the problems caused by the designation Black Identity Extremist (not to mention what appears to be undeserved self-congratulation about how many — or rather few — open investigation into white supremacist terrorists the FBI has) I’m not convinced the FBI really has learned those lessons. It is still too white and too male of an organization to understand how much it polices some of the same things COINTELPRO did, and with even more intrusive tools.

But I am heartened that the FBI Director, perhaps largely because of the focus on Strzok, publicly recognized that FBI is not always the good guy, contrary to what Comey internalized and evangelized over and over. In discussions with Karen Bass about the BIE designation, too, it sounded like he was at least able to listen, even if he refused to withdraw the intelligence report that created the designation.

That said, Wray made several outright errors that need to be corrected.

The first two, both about Section 702, came in response to questions by Ted Poe (who was one of just a few people to raise Section 702, in spite of the fact that I’ve heard from numerous staffers they can’t get answers about key aspects of how 702 works). First, addressing Poe’s claim that back door searches are abusive, Wray claimed that courts that had considered the querying had found it to be consistent with the Fourth Amendment.

Every court, every  court, to have looked at the way in which Section 702 is handled, including the querying, has concluded that it’s being done consistent with the Fourth Amendment.

As the EFF laid out, that’s not actually true. The Ninth Circuit punted on precisely the issue of back door searches.

When Wray mentions the Ninth Circuit, he is likely referencing a 2016 decision by the U.S. Court of Appeals for the Ninth Circuit. In the opinion for USA v. Mohamed Osman Mohamud, the appeals court ruled that, based on the very specific evidence of the lawsuit, data collected under Section 702 did not violate a U.S. person’s Fourth Amendment rights. But the judge explicitly wrote that this lawsuit did not involve some of the more “complex statutory and constitutional issues” potentially raised by Section 702.

Notably, the judge wrote that the Mohamud case did not involve “the retention and querying of incidentally collected communications.” That’s exactly what we mean when we talk about “backdoor searches.”

Wray is mischaracterizing the court’s opinion. He is wrong.

In addition, Wray claimed that,

The individuals that are incidentally collected — the US person information that is incidentally collected — are people that are in communication with foreigners who are the subject of foreign intelligence investigations, so like an ISIS recruiter, there’s a US person picked up, that person would have been in email contact, for example, with an ISIS recruiter.

While I’m not certain precisely what gets dumped into the FBI database that is queried, it is false to claim that every US person who has information collected would necessarily have been in communication with the target. That’s because PRISM providers are cloud storage providers and NSA gets anything a target stores and then some, and because people email very interesting stuff to each other all the time. That means there’s a whole bunch of other things that might implicate US persons swept up in the PRISM collection that gets shared, in raw form, with the FBI.

I wanted to point to an assumption virtually everyone has been making about PRISM collection and its suitability for back door searches that may not be valid. If you think about the hack-and-leak dumps in recent years, for example, often the most damaging, as well as the most ridiculous infringements on privacy, involve email attachments, such as the list of most Democratic members of Congress’ email many passwords for which were easily obtainable online, or phone conversations about routine housekeeping or illness. And that’s just attachments; most of the PRISM providers are actually cloud storage providers, in addition to being electronic communication providers, and from the very first requests to Yahoo there was mission creep of all the types of things the government might demand.

And while NSA and FBI aren’t supposed to keep stuff that doesn’t count as foreign intelligence or criminal information, it’s clear (from the WaPo report) that NSA, at least, does.

So as we talk about how inappropriate the upstream back door searches were and are because they can search on stuff that’s not foreign intelligence information, we should remember that the very same thing is likely true of back door searches of  the fruits of searches on a person’s cloud storage account.

Plus, while the example of an ISIS recruiter makes for good show, the targets will also include people like Chinese scientists and Russian businessmen, among other things. There are completely innocent reasons — like science!!! — to speak to such targets. And yet if FBI does a back door search on Americans who’ve engaged in such innocent discussions it can and almost certainly has led to innocent people being targeted unfairly.

It bothers me that me — a dirty fucking hippie blogger, though admittedly one who has become (as a Congressional staffer introduced me as earlier this year) as expert on FISA as anyone outside of government — knows these details better than the FBI Director (who, after all, was involved in not providing defendants adequate notice of this stuff during its illegal go-around under Stellar Wind).

But Wray’s biggest error, on a different topic, came later. After first dodging Pramila Jayapal’s questions about whether Trump’s tweets have contributed to the spike of hate crimes this year by suggesting the data was untrustworthy (!!!), Director Wray than answered her question about the Muslim ban this way.

An awful lot of our terror investigations do also involve immigration violations, so there is a close nexus between immigration violations and counterterrorism investigations, and an awful lot of the terrorist investigations we have involve global jihadist rhetoric, which is disproportionately concentrated in certain countries.

One reason terror investigations involve immigration violations is because that’s an easy way to punish someone who hasn’t actually committed any crime (and given that most terrorist attacks are not recent immigrants, sort of beside the point).

But the notion that immigration from Muslim majority countries — like the six included in the current Muslim ban: Iran, Libya, Syria, Yemen, Somalia, and Chad — is dangerous because global jihadist rhetoric arises from those countries is the height of nonsense. That’s because the most effective recruiter of Americans for almost a decade was a man, Anwar al-Awlaki, who wrote much of his propaganda here or in the UK; while his rhetoric subsequently did get published from Yemen, he’s been dead for 6 years, with far less jihadist rhetoric in English from there. And while Syria, Somalia, and Libya do export hateful rhetoric, so did Iraq and does Saudi Arabia and Pakistan, two countries we haven’t banned. Iran certainly exports a great deal of anti-American rhetoric, but it is not recruiting terrorists here and most of its anti-American actions are legitimate state-based opposition derived from power relations, not religion. And Awlaki is by no means the only producer of anti-American rhetoric in majority Christian countries, including but not limited to the US and UK.

Ultimately, of course, Jayapal was talking about Trump’s Muslim ban, the one that bans elite Venezuelans and North Koreans along with weaker Muslim ones. And while he didn’t go as far as to say that Kim Jong-Un was spewing jihadist rhetoric, that’s the logic here.

But by implication, he was talking about Chad, which in spite of its cooperation on terrorism, got added to the list because Trump is incompetent. To suggest Chad is a propaganda threat and the US and UK are not is the height of folly.

But that’s what the FBI Director claimed today to avoid criticizing Trump’s bigotry.

Update: For some reason I was writing Cedric Richmond’s last name wrong all day today. I’ve corrected my use of “Johnson” instead of “Richmond” here. My apologies to him for my still uncorrected tweets.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

Abbe Lowell’s “No Apparent Evidence” of Jared Kushner Involvement Defense

The other day I examined how Abbe Lowell’s non-responsive answer to Senate Judiciary Committee concerns about the disclosure of his client Jared Kushner revealed that the Intelligence Committees are conducting thoroughly inadequate investigations. He claimed the disclosures to SJC matched those to the ICs, yet he totally blew off the request for documents “about” people and topics of interest. That means the ICs didn’t get Jared’s documents pertaining to people and topics of interest — which is a pretty good way of hiding what Jared knew about Russian tampering.

[C]heck out Lowell’s more general excuse for not turning over such documents:

With respect to the substance of your letter, let me start with the so-called “Missing Documents.” They are not missing at all. As you will note, after I spoke to your staff, I wrote a cover letter with our production. In that letter, I wrote: “We believe that our prior production [to the intelligence committees] contains the most pertinent documents to your inquiry into the June 9, 2016 meeting at Trump Tower, and related matters, and undercut any notion that there was collusion (or even any extensive interaction) between Mr. Kushner and Russia concerning the 2016 election.” The documents provided to those committees fully responded to their requests. That was why we said we would provide those documents to you first to see if anything else was relevant or new, and try to determine whether those documents satisfy your inquiry as well.

This production, which doesn’t include any documents about designated topics (including the June 9 meeting), satisfied the intelligence committees. That means the intelligence committees could not have asked for “about” documents (which is particularly ironic given that they’re both trying to find a way to help NSA turn “about” 702 collection back on). Which in turn means the intelligence committees likely have huge gaps in their understanding of Jared’s awareness of the Russian discussions.

And in addition to all his other contemptuous non-answers to Feinstein’s letter, Lowell says Jared shouldn’t have to sit for an interview with SJC because he already sat for 6 hours with the other committees, the committees that didn’t ask for “about” documents and therefore don’t have a complete picture of Jared’s involvement.

It turns out Adam Schiff now agrees that they didn’t have the documents necessary to provide adequate preparation to question Jared.

Rep. Adam Schiff (D., Calif.), the top Democrat on the House Intelligence Committee, said in an interview that Mr. Kushner had been interviewed “prematurely,” when the committee was “not ready.”

“We didn’t have the advantage of documents that we would have wanted to ask [him] about,” he said.

A failure to obtain and review the documents necessary to understand Jared’s action seems to be a trend.

Which is why I’m so interested in this comment, from Lowell, about whether Jared — widely reported to have been a key player in convincing Trump to fire Comey —

At the Oval Office meeting on Monday, May 8, Trump described his draft termination letter to top aides who wandered in and out of the room, including then-Chief of Staff Reince Priebus, White House Counsel Donald McGahn and senior adviser Hope Hicks. Pence arrived late, after the meeting had begun. They were also joined by Miller and Trump’s son-in-law, Jared Kushner, both of whom had been with Trump over the weekend in Bedminster. Kushner supported the president’s decision.

— Seems to have not heard of such thing. (See also this post.)

Mr. Lowell said in an interview, “When the president made the decision to fire FBI Director Comey, Mr. Kushner supported it.” A White House attorney added that Mr. Kushner had “no meaningful role” in the decision: “There’s no apparent evidence of Jared’s involvement in any decision-making process having to do with Mr. Comey’s firing.”

“No apparent evidence” sounds like the line of a lawyer that’s not budging beyond what he has seen in document review. But if he has designed all his document review — even to the point of ignoring the instructions from Congress — to avoid turning over any communications that reflect Kushner’s thinking about events he wasn’t personally involved in, then he’s not going to have stumbled across the most pertinent documents.

Which is to say, there may well be a good deal of evidence. But it does’t seem like Lowell’s working very hard to find out if there is.

In any case, while you’re reading this, about Mueller’s interest in Jared’s contacts, even beyond those with Russian bankers, this post on Jared’s so-called peace plan is on point.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

Today in the Ben Wittes (And Friends) Utter Lack of Self-Awareness File: Family and Friends Edition

This morning, Ben Wittes called Ashley Feinberg’s discovery of the Twitter account that Jim Comey had himself disclosed the existence of publicly, “a creepy stalking effort.”

Shortly thereafter he went on to backtrack a bit, calling Feinberg’s work “very impressive,” but then pitching his privacy concern as pertaining to Comey’s adult-aged son.

Later in the day he defended against claims he was “being mean” to her by pointing to the time she used his name to get Comey to click on a test phish.

Then Matt Tait weighed in, reaffirming that tracking Comey down through his adult-aged son was very stalkery.

Ultimately, though, they (and Susan Hennessey) end up asking what the news value of Feinberg identifying Comey’s Twitter account was.

Let’s review, shall we? We’re talking about whether it is acceptable for a journalist to use public means (facilitated by a loophole in Instagram), hopping through a public figure’s 22-year old son, to find the public figure’s Twitter account, which he revealed in a televised appearance.

And not just any public figure. This is Jim Comey, the man who, in 2004, declined to reauthorize a bulk Internet metadata dragnet (Comey showed no such compunction about reauthorizing a phone metadata dragnet), only to run to the FISA Court and tell Colleen Collar-Kotelly that she had no discretion but to approve it.

And thus was born the legal codification of the definition of “relevant to” that holds that the metadata of all Americans can be considered “relevant to” FBI’s standing terrorism investigations, the definition that, two years later, would be used to justify collection aspiring to obtain the metadata of all phone calls placed in this country. Not just those who talk to terrorists, but those who talk to the people who talk to them and the people who talk to those who talk to those who talk to them. Including their children.

The Internet dragnet (and the upstream collection that replaced it) collects things like what people get tagged or favorited in Instagram and Twitter accounts — precisely the kind of metadata that led Feinberg to identify Comey’s account.

But that’s not all that’s “relevant to” whether there is any news value to using publicly available metadata to identify a Twitter account that Comey himself revealed.

In 2014, when Jim Comey headed the FBI, DOJ’s Inspector General argued for at least the second time (with the first including practices that occurred while Comey was DAG) that FBI should not be obtaining all records associated with the Friends and Family account of a target.

[T]he significance of the FBI’s request for “associated” records is that the FBI has sought and in some cases received not only the toll billing records and subscriber information of the specific telephone number identified in the NSL, but also the toll billing numbers that belong to the same account — such as numbers in a group or family plan account — without a separate determination and certification by the FBI that the additional records are relevant to an authorized international terrorism investigation. Yet before the FBI may specifically request in an NSL the records of a subject’s family member or partner, Section 2709 would require an authorized official to certify that such records are relevant to a national security investigation. (158)

That is, DOJ’s IG had to tell the FBI for the second time, when Comey was running it, that they shouldn’t be collecting the phone records of a target’s mom or (dependent aged) child or girlfriend because they were associated with accounts relevant to an investigation.

The FBI accepted DOJ IG’s recommendation to ensure that records “associated to” those “relevant to” investigations not be collected, but had only implemented it thus far on the non-automated side of NSL submissions by the time of the report.

Now that we’ve reviewed Jim Comey’s great tolerance for using three hop metadata records as an investigative technique (if not the more targeted collection of records “associated to” those “relevant to” investigations) as well as the mind-numbing definition of what constitutes “relevant to,” let’s return to the context of his discussions about social media. While the Twitter revelation served as evidence for a story that he’s non-partisan, the Instagram one he likes to tell serves to support his claim to care about privacy. Here’s the quote Feinberg included in her piece, but Comey has made this speechlet numerous times over the years.

I care deeply about privacy, treasure it. I have an Instagram account with nine followers. Nobody is getting in. They’re all immediate relatives and one daughter’s serious boyfriend. I let them in because they’re serious enough. I don’t want anybody looking at my photos. I treasure my privacy and security on the internet.

Nobody is getting into his Instagram account (with its loophole permitting people like Feinberg or FBI agents to get to his metadata), Comey said. With respect to content, that seems to be true.

Presumably, he also believed nobody was getting into his Twitter account that at that point just one person — the weak link, Ben Wittes — had followed.

He was wrong.

Jim Comey’s understanding of his own well guarded privacy was overblown, in part because of the inherent insecurity of the platforms he uses and in part because of the OpSec practices of his friend and his son’s friend. I don’t think Comey much cares — in his business, the likelihood that a dumb associate might thwart otherwise admirable operational security (especially on the part of a 22-year old) of a target is a blessing, not a curse.

But it is an awesome illustration of the power and danger of this metadata soup that, under Comey, the government got far more access to.

Now, in threads where I’ve made this argument, people have rightly pointed out that the power of the FBI (which gets far more metadata) and a reporter is somewhat different, as might be the necessity for avoiding any chains involving children. Though the frequency with which Trump and his associates’ own (admittedly older) spawn get included in stories of his corruption demonstrates how important such connections are, even for journalists.

But the contention that FBI’s contact chaining and a journalist’s contact chaining are that different is belied by Comey’s own reaction, his first tweet ever.

Not only did he say he wasn’t mad and compliment her work, but he posted the link to FBI jobs.

I’d say Jim Comey sees a similarity in what Feinberg did.

I’m all in favor of protecting the accounts of children from such contact chaining — and am really not a big fan of contact chaining, generally. But those who, like Comey and Wittes and Hennessey and Tait, have championed a system that endorses at least two hop chaining irrespective of who gets hopped, not to mention those who’ve tolerated the collection on family members in even more targeted surveillance, I’m not all that interested in complaints about the privacy of a 22-year old son.

Or rather, I point to it as yet another example of surveillance boosters not understanding what the policies they embrace actually look like in practice.

Which is precisely why this “doxing” was so newsworthy.

Update: For the benefit of Al, I’m including this link to Comey introducing his children (Brian was 19 at the time, his youngest was 13) at his FBI Director confirmation hearing in 2013; a screencap is above. It sounds like he did the same at his DAG hearing 10 years earlier.

So if you’ve got a concern about their safety you might want to talk to the Senate about the practice of featuring families during confirmation hearings.

Update: Here we are Monday and Gates and Manafort still haven’t found anything liquid to put up as bail. Not only that, but in a filing raising a potential conflict with one of Gates’ money laundering expert lawyers, prosecutors reveal Gates is trying to have his partner from a movie-related firm’s brother serve as surety while also doing so for the partner.

Marc Brown, the brother of defendant Steven Brown, was proposed by Gates as a potential surety despite the facts that they seemingly do not have a significant relationship, they have not had regular contact over the past ten years, and Marc Brown currently serves as a surety for his brother Steven in his ongoing criminal prosecution in New York. In an interview with the Special Counsel’s Office on November 16, Marc Brown listed as a reason for seeking to support Gates that they belonged to the same fraternity (although they did not attend the same college) and that, as such, he felt duty bound to help Gates. Of note, Marc Brown’s financial assets were significantly lower, almost by half, than previously represented by Gates.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

How Trump Could Install a Mole in the Mueller Inquiry

For six years, I’ve been working to raise attention to a 2002 OLC memo that authorized the sharing of grand jury information with the President with no notice to the district court. In the New Republic, I talk about how Trump might be able to use it to order a DOJ lawyer to spy on the Mueller grand jury.

July 22, 2002, memo from the Justice Department’s Office of Legal Counsel, written by Jay Bybee, the author of the infamous torture memos, held that, under the statute, the president could get grand jury information without the usual notice to the district court. It also found that the president could delegate such sharing without requiring a written order that would memorialize the delegation.

Bybee’s memo relies on and reaffirms several earlier memos. It specifically approves two rationales for sharing grand jury information with the president that would be applicable to the Russian investigation. A 1997 memo imagined that the president might get grand jury information “in a case where the integrity or loyalty of a presidential appointee holding an important and sensitive post was implicated by the grand jury investigation.” And a 2000 memo imagined that the president might need to “obtain grand jury information relevant to the exercise of his pardon authority.”

If you set aside Trump’s own role in obstructing the investigation—including the firing of former FBI Director James Comey—these rationales are defensible in certain cases. In fact, the Justice Department has already shared information (though not from a grand jury) with the White House for one of these very reasons. In January, acting Attorney General Sally Yates warned White House Counsel Don McGahn that Russians might be able to blackmail then-National Security Advisor Mike Flynn. As Yates explained in her congressional testimony in May, after Flynn’s interview with the FBI, “We felt that it was important to get this information to the White House as quickly as possible.” She shared it so the White House could consider firing Flynn: “I remember that Mr. McGahn asked me whether or not General Flynn should be fired, and I told him that that really wasn’t our call, that was up to them, but that we were giving them this information so that they could take action.”

A similar situation might occur now that the investigation has moved to a grand jury investigation, if someone remaining in the White House—the most likely candidate is the president’s son-in-law, Jared Kushner—were found to be compromised by Russian intelligence. In Kushner’s case, there are clear hints that he has been compromised, such as when he asked to set up a back channel with the Russians during the transition.

If Trump were to rely on the memo, he might order a Justice Department lawyer to tell him what evidence Mueller had against Kushner, or whether Mike Flynn or former campaign manager Paul Manafort were preparing to cooperate with Mueller’s prosecutors if they didn’t get an immediate pardon. Unlike Yates, Trump would have an incentive to use such information to undercut the investigation into Russia’s meddling.

I point out that Trump’s partisan nominee to be Assistant Attorney General for Criminal Division, Brian Benczkowski, would be far more likely to share such information than the career prosecutors that currently have visibility onto the investigation (Benczkowski has refused to recuse from the Russian investigation, but has promised to follow ethical guidelines at DOJ).

One thing didn’t make the cut, though it’s a key reason why I think it possible someone is trying to use this precedent to provide Trump with a mole on the investigation.

Viet Dinh was both the key author of the PATRIOT Act as well as the procedures implementing these sharing rules. Dinh is also the Kirkland & Ellis partner who asked Benczkowski to exercise the really poor judgment of overseeing an investigation for Alfa Bank while he was awaiting a likely DOJ appointment. “I’ve known Viet Dinh for twenty years,” Benczkowski explained during his confirmation hearing for why he represented Alfa Bank while potentially up for nomination to DOJ.

Benczkowski certainly said the right things about honoring Mueller’s work. But Dinh, a guy who had a key role in compromising Benczkowski with respect to the investigation just as he got nominated played a key role in the sharing rules that might make it possible.

As I say in the piece, we had better hope DOJ guards recusal concerns a lot more closely than they seem to have been doing.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

One Thing Not Mentioned in Mueller Requests from the White House: The Putin Phone Call

Yesterday, three different outlets published versions of the list of stuff Robert Mueller has requested of the White House. The NYT describes Mueller asking for details of the in-person meeting with Russians after Comey’s firing, as well as details of Comey and Flynn’s firing,

Mueller’s office sent a document to the White House that detailed 13 different areas that investigators want more information about. Since then, administration lawyers have been scouring White House emails and asking officials whether they have other documents or notes that may pertain to Mr. Mueller’s requests.

One of the requests is about a meeting Mr. Trump had in May with Russian officials in the Oval Office the day after James B. Comey, the F.B. I director, was fired. That day, Mr. Trump met with the Russian foreign minister, Sergey V. Lavrov, and the Russian ambassador to the United States, Sergey I. Kislyak, along with other Russian officials. The New York Times reported that in the meeting Mr. Trump said that firing Mr. Comey relieved “great pressure” on him.

Mr. Mueller has also requested documents about the circumstances of the firing of Michael T. Flynn, who was Mr. Trump’s first national security adviser. Additionally, the special counsel has asked for documents about how the White House responded to questions from The Times about a June 2016 meeting at Trump Tower. That meeting was set up by Donald Trump Jr., the president’s eldest son, to get derogatory information from Russians about Hillary Clinton.

WaPo adds communications with Paul Manafort to the list and fleshes out the nature of the requests on Flynn and Comey.

Mueller has requested that the White House turn over all internal communications and documents related to the FBI interview of Flynn in January, days after he took office, as well as any document that discusses Flynn’s conversations with then­-Russian Ambassador Sergey Kislyak in December. Mueller has also asked for records about meetings then-Deputy Attorney General Sally Yates held with White House counsel Don McGahn in late January to alert him to Justice Department concerns about Flynn, as well as all documents related to Flynn’s subsequent ouster by the White House.

Regarding Comey, Mueller has asked for all documents related to meetings between Trump and Comey while Comey served at the FBI, records of any discussions regarding Comey’s firing and any documents related to a statement by then-press secretary Sean Spicer made on the night Comey was fired.

Here’s CNN’s mostly derivative version.

There’s one thing that’s not explicitly on this list (though it might be included in the larger request for details on Flynn’s firing): details surrounding the January 28th phone conversation between Trump and Putin, which included a bunch of people who happen to no longer be at the White House.

As a number of Democrats noted in the Sally Yates hearing before Senate Judiciary Committee, the call took place in the immediate wake of Yates’ two conversations with Don McGahn about Flynn’s potential for compromise by the Russians because of his lies about his conversation with Sergey Kislyak.

HIRONO: Others of my colleagues have mentioned, and you yourself, Mr. Clapper, said that RT is a Russian mouthpiece to spread propaganda. And, of course, we know that General Flynn attended a gala hosted by — or a 10th anniversary gala for RT in December, 2015, where he sat next President Putin and got paid over $33,000 for that.

Mr. Clapper, given the conversation that Ms. Yates provided to the White House regarding — and this is during the January 26th and 27th timeframe — regarding General Flynn, should he have sat in on the following discussions?

On January 28th, he participated in an hour-long call, along with President Trump, to President Putin. And on February 11th, he participated in a discussion with Prime Minister Abe and the president at Mar-a-Lago to discuss North Korea’s missile tests.

Should he — given the — the information that had already been provided by Ms. Yates, should he have participated in these two very specific instances?

In comments on Yates’ testimony when it got canceled on March 28, Adam Schiff focused on the possible explanation for why Flynn was kept on, through that meeting and for 18 days total after Yates’ warning to the White House.

In other words, the big question surrounding Flynn’s firing seems to have as much to do with why he wasn’t fired as why he was, eventually, 18 days after getting notice he was in trouble with DOJ. And the import of including him in that phone call with Putin seems to be a part of that.

Again, that may well be included in the universe of documents on Flynn’s firing (I’d love to see Yates’ firing in there as well, as the Muslim ban was used as an excuse to fire her just as she was raising concerns about Flynn). But it seems important to learn why Trump felt the need to keep Flynn on even after his communications with the Russians had gotten him in legal trouble.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

Robert Mueller’s Grand Jury and the Significance of Felix Sater

In response to Monday’s server hiccups and in anticipation that Mueller is nowhere near done, we expanded our server capacity overnight. If you think you’ll rely on emptywheel reporting on the Mueller probe, please consider a donation to support the site

The world is abuzz with the news that Robert Mueller has impaneled a DC-based grand jury that he used to subpoena information on the June 9, 2016 meeting between Don Jr., Paul Manafort, Jared Kushner, and some Russians promising dirt on Hillary Clinton. In reality, the Special Counsel had already been using a grand jury to get information on Mike Flynn and Paul Manafort and we should always have expected a dedicated grand jury.

Nevertheless, the move has convinced the chattering classes that this investigation is for real.

This comes as a surprise to people, apparently, after reports of Mueller’s 16th hire, illegal foreign bribery expert Greg Andres. It’s almost as if people haven’t been making sense of where Mueller is going from the scope of his hires, which include:

  1. Mob specialists: Andrew Weissman and Lisa Page are mob prosecutors.
  2. Fraud specialists: Weissman and Rush Atkinson are also fraud prosecutors.
  3. Corporate crime specialists: Weissman also led the Enron Task force. One of Dreeben’s key SCOTUS wins pertained to corporate crime. Jeannie Rhee has also worked on white collar defense.
  4. Public corruption specialists: Mueller hired someone with Watergate experience, James Quarles. And Andrew Goldstein got good press in SDNY for prosecuting corrupt politicians (even if Sheldon Silver’s prosecution has since been overturned).
  5. International experts: Zainab Ahmad, who worked terrorism cases in EDNY, which has some of the most expansive precedents for charging foreigners flown into JFK (including Russia’s darling Viktor Bout), knows how to bring foreigners to the US and successfully prosecute them in this country. Aaron Zelinsky has also worked in international law. Elizabeth Prelogar did a Fulbright in Russia and reportedly speaks it fluently. And, as noted, Andres has worked on foreign bribery.
  6. Cyber and spying lawyers: Brandon Van Grack is the guy who had been leading the investigation into Mike Flynn; he’s got a range of National Security experience. Aaron Zebley, Mueller’s former chief of staff at FBI, also has that kind of NSD experience.
  7. Appellate specialists: With Michael Dreeben, Mueller already has someone on the team who can win any appellate challenges; Adam Jed and Elizabeth Prelogar are also appellate specialists. Mueller’s hires also include former clerks for a number of SCOTUS justices, which always helps out if things get that far.

I lay this out there to suggest that in addition to hiring a bunch of super stars, Mueller also appears to have picked people for their expertise. Those picks reflect an already well-developed theory of the case, one formed long before he impaneled his own grand jury. And many of them boast expertise fairly distant from the question of foreign adversary’s hacking a political party’s server.

And I’d suggest there’s good reason for that.

Some of Mueller’s theory of the case undoubtedly comes from whatever evidence Jim Comey’s FBI and Van Grack’s grand jury had already collected, which at least publicly pertains to Mike Flynn’s disclosure problems, his comments to the Russians, and Paul Manafort’s money laundering. Some of it comes from stuff that was being investigated in NY.

But remember: Trump’s sordid ties to Russian mobsters (see categories 1, 2, 3, and 5) go back a long way. One of the best ways to understand what and how close some of those ties are is to look at the case of Felix Sater. Josh Marshall’s description here gets at a lot of the important bits.

Sater is a Russian emigrant who was jailed for assault in the mid-90s and then pulled together a major securities fraud scheme in which investors lost some $40 million. He clearly did something for the US government which the feds found highly valuable. It seems likely, though not certain, that it involved working with the CIA on something tied to the post-Soviet criminal underworld. Now Bayrock and Trump come into the mix.

According to Sater’s Linkedin profile, Sater joined up with Bayrock in 1999 – in other words, shortly after he became involved with the FBI and CIA. (The Times article says he started up with Bayrock in 2003.) In a deposition, Trump said he first came into contact with Sater and Bayrock in the early 2000s. The Trump SoHo project was announced in 2006 and broke ground in November of that year. In other words, Sater’s involvement with Bayrock started soon after he started working with the FBI and (allegedly) the CIA. Almost the entire period of his work with Trump took place during this period when he was working for the federal government as at least an informant and had his eventual sentencing hanging over his head.

What about Salvatore Lauria, Sater’s accomplice in the securities swindle?

He went to work with Bayrock too and was also closely involved with managing and securing financing for the Trump SoHo project. The Timesarticle I mentioned in my earlier post on Trump SoHo contains this …

Mr. Lauria brokered a $50 million investment in Trump SoHo and three other Bayrock projects by an Icelandic firm preferred by wealthy Russians “in favor with” President Vladimir V. Putin, according to a lawsuit against Bayrock by one of its former executives. The Icelandic company, FL Group, was identified in a Bayrock investor presentation as a “strategic partner,” along with Alexander Mashkevich, a billionaire once charged in a corruption case involving fees paid by a Belgian company seeking business in Kazakhstan; that case was settled with no admission of guilt.

All sounds totally legit, doesn’t it?

But there’s more!, as they say.

Sater’s stint as a “Senior Advisor” to Donald Trump at the Trump Organization began in January of January 2010 and lasted roughly a year. What significance that has in all of this I’m not sure. But here’s the final morsel of information that’s worth knowing for this installment of the story.

How exactly did all of Sater’s secret work and the federal government’s efforts to keep his crimes secret come to light?

During the time Sater was working for Bayrock and Trump he organized what was supposed to be Trump Tower Ft Lauderdale. The project was announced in 2004. People paid in lots of money but the whole thing went bust and Trump finally pulled out of the deal in 2009. Lots of people who’d bought units in the building lost everything. And they sued.

In other words, an FBI (and, possibly, CIA) informant had links with two of Trump’s business with ties to the Russian mob for — effectively — the entire extended Mueller tenure at FBI.

This is a point one of the few other people with reservations about Mueller as Special Counsel made to me not long ago. The FBI — Mueller’s FBI — has known about the ties between Trump’s businesses and the Russian mob for well over a decade. The FBI — Mueller’s FBI — never referred those ties, that money laundering, for prosecution in that entire time, perhaps because of the difficulties of going after foreign corruption interlaced with US businesses.

Now, in a remarkably short timeframe, former mob prosecutor Robert Mueller has put together a dream team of prosecutors who have precisely the kind of expertise you might use to go after such ties.

Because now it matters. It matters that the President has all these obligations to the Russian mob going back over a decade, because he can’t seem to separate his own entanglements from the good of the country.

Yes, Robert Mueller convened a grand jury and he has used it to go after the records of a meeting set up by one of Trump’s key Russian allies, Aras Agalarov, and his campaign, the guy who, at the very end of Mueller’s tenure at FBI, helped Trump stage the Miss Universe pageant in Russia, an event that may have marked significant new levels of Trump exposure to Russian compromise. But Mueller was on the trail of Trump and his Russian crime ties long before that. (The person with Mueller reservations actually wondered whether Trump himself wasn’t cooperating with the FBI in this period.)

Folks have made much of this exchange in the NYT’s long interview with Trump.

SCHMIDT: Last thing, if Mueller was looking at your finances and your family finances, unrelated to Russia — is that a red line?

HABERMAN: Would that be a breach of what his actual charge is?

TRUMP: I would say yeah. I would say yes. By the way, I would say, I don’t — I don’t — I mean, it’s possible there’s a condo or something, so, you know, I sell a lot of condo units, and somebody from Russia buys a condo, who knows? I don’t make money from Russia. In fact, I put out a letter saying that I don’t make — from one of the most highly respected law firms, accounting firms. I don’t have buildings in Russia. They said I own buildings in Russia. I don’t. They said I made money from Russia. I don’t. It’s not my thing. I don’t, I don’t do that. Over the years, I’ve looked at maybe doing a deal in Russia, but I never did one. Other than I held the Miss Universe pageant there eight, nine years [crosstalk].

SCHMIDT: But if he was outside that lane, would that mean he’d have to go?

[crosstalk]

HABERMAN: Would you consider——

TRUMP: No, I think that’s a violation. Look, this is about Russia. So I think if he wants to go, my finances are extremely good, my company is an unbelievably successful company. And actually, when I do my filings, peoples say, “Man.” People have no idea how successful this is. It’s a great company. But I don’t even think about the company anymore. I think about this. ’Cause one thing, when you do this, companies seem very trivial. O.K.? I really mean that. They seem very trivial. But I have no income from Russia. I don’t do business with Russia. The gentleman that you mentioned, with his son, two nice people. But basically, they brought the Miss Universe pageant to Russia to open up, you know, one of their jobs. Perhaps the convention center where it was held. It was a nice evening, and I left. I left, you know, I left Moscow. It wasn’t Moscow, it was outside of Moscow.

Technically, Trump was only asked about whether he’d consider Mueller’s review of finances unrelated to Russia to be outside his lane. But Trump largely answered it about Russia, about business deals — the condos, the pageant — with Russia going back to the time Mueller’s FBI would have been working with Felix Sater to learn about the Russian mob.

Yeah. It’s no surprise Mueller has impaneled a grand jury.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

The Compartments in WaPo’s Russian Hack Magnum Opus

The WaPo has an 8300 word opus on the Obama Administration’s response to Russian tampering in the election. The article definitely covers new ground on the Obama effort to respond while avoiding making things worse, particularly with regards to imposing sanctions in December. It also largely lays out much of the coverage the three bylined journalists (Greg Miller, Ellen Nakashima, and Adam Entous) have broken before, with new details. The overall message of the article, which has a number of particular viewpoints and silences, is this: Moscow is getting away with their attack.

“[B]ecause of the divergent ways Obama and Trump have handled the matter, Moscow appears unlikely to face proportionate consequences.”

The Immaculate Interception: CIA’s scoop

WaPo starts its story about how Russia got away with its election op with an exchange designed to make the non-response to the attack seem all the more senseless. It provides a dramatic description of a detail these very same reporters broke on December 9: Putin, who was personally directing this effort, was trying to elect Trump.

Early last August, an envelope with extraordinary handling restrictions arrived at the White House. Sent by courier from the CIA, it carried “eyes only” instructions that its contents be shown to just four people: President Barack Obama and three senior aides.

Inside was an intelligence bombshell, a report drawn from sourcing deep inside the Russian government that detailed Russian President Vladi­mir Putin’s direct involvement in a cyber campaign to disrupt and discredit the U.S. presidential race.

[snip]

The material was so sensitive that CIA Director John Brennan kept it out of the President’s Daily Brief, concerned that even that restricted report’s distribution was too broad. The CIA package came with instructions that it be returned immediately after it was read.

[snip]

In early August, Brennan alerted senior White House officials to the Putin intelligence, making a call to deputy national security adviser Avril Haines and pulling national security adviser Susan Rice side after a meeting before briefing Obama along with Rice, Haines and McDonough in the Oval Office.

While the sharing of this information with just three aides adds to the drama, WaPo doesn’t consider something else about it. The inclusion of Rice and McDonough totally makes sense. But by including Avril Haines, Brennan was basically including his former Deputy Director who had moved onto the DNSA position, effectively putting two CIA people in a room with two White House people and the President. Significantly, Lisa Monaco — who had Brennan’s old job as White House Homeland Security Czar and who came from DOJ and FBI before that — was reportedly excluded from this initial briefing.

There are a number of other interesting details about all this. First, for thousands of wordspace, the WaPo presents this intelligence as irreproachable, even while providing this unconvincing explanation of why, if it is so secret and solid, the CIA was willing to let WaPo put it on its front page.

For spy agencies, gaining insights into the intentions of foreign leaders is among the highest priorities. But Putin is a remarkably elusive target. A former KGB officer, he takes extreme precautions to guard against surveillance, rarely communicating by phone or computer, always running sensitive state business from deep within the confines of the Kremlin.

The Washington Post is withholding some details of the intelligence at the request of the U.S. government.

If this intelligence is so sensitive, why is even the timing of its collection being revealed here, much less its access to Putin?

That seemingly contradictory action is all the more curious given that not all agencies were as impressed with this intelligence as CIA was. It’s not until much, much later in its report until WaPo explains what remains true as recently as Admiral Rogers’ latest Congressional testimony: the NSA wasn’t and isn’t as convinced by CIA’s super secret intelligence as CIA was.

Despite the intelligence the CIA had produced, other agencies were slower to endorse a conclusion that Putin was personally directing the operation and wanted to help Trump. “It was definitely compelling, but it was not definitive,” said one senior administration official. “We needed more.”

Some of the most critical technical intelligence on Russia came from another country, officials said. Because of the source of the material, the NSA was reluctant to view it with high confidence.

By the time this detail is presented, the narrative is in place: Obama failed to respond adequately to the attack that CIA warned about back in August.

The depiction of this top-level compartment of just Brennan, Rice, McDonough, and Haines is interesting background, as well, for the depiction of the way McDonough undermined a State Department plan to institute a Special Commission before Donald Trump got started.

Supporters’ confidence was buoyed when McDonough signaled that he planned to “tabledrop” the proposal at the next NSC meeting, one that would be chaired by Obama. Kerry was overseas and participated by videoconference.

To some, the “tabledrop” term has a tactical connotation beyond the obvious. It is sometimes used as a means of securing approval of an idea by introducing it before opponents have a chance to form counterarguments.

“We thought this was a good sign,” a former State Department official said.

But as soon as McDonough introduced the proposal for a commission, he began criticizing it, arguing that it would be perceived as partisan and almost certainly blocked by Congress.

Obama then echoed McDonough’s critique, effectively killing any chance that a Russia commission would be formed.

Effectively, McDonough upended the table on those (which presumably includes the CIA) who wanted to preempt regular process.

Finally, even after  these three WaPo journalists foreground their entire narrative with CIA’s super duper scoop (that NSA is still not 100% convinced is one), they don’t describe their own role in changing the tenor of the response on December 9 by reporting the first iteration of this story.

“By December, those of us working on this for a long time were demoralized,” said an administration official involved in the developing punitive options.

Then the tenor began to shift.

On Dec. 9, Obama ordered a comprehensive review by U.S. intelligence agencies of Russian interference in U.S. elections going back to 2008, with a plan to make some of the findings public.

The WaPo’s report of the CIA’s intelligence changed the tenor back in December, and this story about the absence of a response might change the tenor here.

Presenting the politics ahead of the intelligence

The WaPo’s foregrounding of Brennan’s August scoop is also important for the way they portray the parallel streams of the intelligence and political response. It portrays the Democrats’ political complaints about Republicans in this story, most notably the suggestion that Mitch McConnell refused to back a more public statement about the Russian operation when Democrats were pushing for one in September. That story, in part because of McConnell’s silence, has become accepted as true.

Except the WaPo’s own story provides ample evidence that the Democrats were trying to get ahead of the formal intelligence community with respect to attribution, both in the summer, when Clapper only alluded to Russian involvement.

Even after the late-July WikiLeaks dump, which came on the eve of the Democratic convention and led to the resignation of Rep. Debbie Wasserman Schultz (D-Fla.) as the DNC’s chairwoman, U.S. intelligence officials continued to express uncertainty about who was behind the hacks or why they were carried out.

At a public security conference in Aspen, Colo., in late July, Director of National Intelligence James R. Clapper Jr. noted that Russia had a long history of meddling in American elections but that U.S. spy agencies were not ready to “make the call on attribution” for what was happening in 2016.

And, more importantly, in the fall, when the public IC attribution came only after McConnell refused to join a more aggressive statement because the intelligence did not yet support it (WaPo makes no mention of it, but DHS’s public reporting from late September still attributed the the threat to election infrastructure to “cybercriminals and criminal hackers”).

Senate Majority Leader Mitch McConnell (R-Ky.) went further, officials said, voicing skepticism that the underlying intelligence truly supported the White House’s claims. Through a spokeswoman, McConnell declined to comment, citing the secrecy of that meeting.

Key Democrats were stunned by the GOP response and exasperated that the White House seemed willing to let Republican opposition block any pre-election move.

On Sept. 22, two California Democrats — Sen. Dianne Feinstein and Rep. Adam B. Schiff — did what they couldn’t get the White House to do. They issued a statement making clear that they had learned from intelligence briefings that Russia was directing a campaign to undermine the election, but they stopped short of saying to what end.

A week later, McConnell and other congressional leaders issued a cautious statement that encouraged state election officials to ensure their networks were “secure from attack.” The release made no mention of Russia and emphasized that the lawmakers “would oppose any effort by the federal government” to encroach on the states’ authorities.

When U.S. spy agencies reached unanimous agreement in late September that the interference was a Russian operation directed by Putin, Obama directed spy chiefs to prepare a public statement summarizing the intelligence in broad strokes.

I’m all in favor of beating up McConnell, but there is no reason to demand members of Congress precede the IC with formal attribution for something like this. So until October 7, McConnell had cover (if not justification) for refusing to back a stronger statement.

And while the report describes Brennan’s efforts to brief members of Congress (and the reported reluctance of Republicans to meet with him), it doesn’t answer what remains a critical and open question: whether Brennan’s briefing for Harry Reid was different — and more inflammatory — than his briefing for Republicans, and whether that was partly designed to get Reid to serve as a proxy attacker on Jim Comey and the FBI.

Brennan moved swiftly to schedule private briefings with congressional leaders. But getting appointments with certain Republicans proved difficult, officials said, and it was not until after Labor Day that Brennan had reached all members of the “Gang of Eight” — the majority and minority leaders of both houses and the chairmen and ranking Democrats on the Senate and House intelligence committees.

Nor does this account explain another thing: why Brennan serially briefed the Gang of Eight, when past experience is to brief them in groups, if not all together.

In short, while the WaPo provides new details on the parallel intelligence and political tracks, it reinforces its own narrative while remaining silent on some details that are critical to that narrative.

The compartments

The foregrounding of CIA in all this also raises questions about a new and important detail about (what I assume to be the subsequently publicly revealed, though this is not made clear) Task Force investigating this operation: it lives at CIA, not FBI.

Brennan convened a secret task force at CIA headquarters composed of several dozen analysts and officers from the CIA, the NSA and the FBI.

The unit functioned as a sealed compartment, its work hidden from the rest of the intelligence community. Those brought in signed new non-disclosure agreements to be granted access to intelligence from all three participating agencies.

They worked exclusively for two groups of “customers,” officials said. The first was Obama and fewer than 14 senior officials in government. The second was a team of operations specialists at the CIA, NSA and FBI who took direction from the task force on where to aim their subsequent efforts to collect more intelligence on Russia.

Much later in the story, WaPo reveals how, in the wake of Obama calling for a report, analysts started looking back at their collected intelligence and learning new details.

Obama’s decision to order a comprehensive report on Moscow’s interference from U.S. spy agencies had prompted analysts to go back through their agencies’ files, scouring for previously overlooked clues.

The effort led to a flurry of new, disturbing reports — many of them presented in the President’s Daily Brief — about Russia’s subversion of the 2016 race. The emerging picture enabled policymakers to begin seeing the Russian campaign in broader terms, as a comprehensive plot sweeping in its scope.

It’s worth asking: did the close hold of the original Task Force, a hold that appears to have been set by Brennan, contribute to the belated discovery of these details revealing a broader campaign?

The surveillance driven sanctions

I’m most interested in the description of how the Obama Admin chose whom to impose sanctions on, though it includes this bizarre claim.

But the package of measures approved by Obama, and the process by which they were selected and implemented, were more complex than initially understood.

The expulsions and compound seizures were originally devised as ways to retaliate against Moscow not for election interference but for an escalating campaign of harassment of American diplomats and intelligence operatives. U.S. officials often endured hostile treatment, but the episodes had become increasingly menacing and violent.

Several of the details WaPo presents as misunderstood (including that the sanctions were retaliation for treatment of diplomats) were either explicit in the sanction package or easily gleaned at the time.

One of those easily gleaned details is that the sanctions on GRU and FSB were mostly symbolic. WaPo uses the symbolic nature of the attack on those who perpetrated the attack as a way to air complaints that these sanctions were not as onerous as those in response to Ukraine.

“I don’t think any of us thought of sanctions as being a primary way of expressing our disapproval” for the election interference, said a senior administration official involved in the decision. “Going after their intelligence services was not about economic impact. It was symbolic.”

More than any other measure, that decision has become a source of regret to senior administration officials directly involved in the Russia debate. The outcome has left the impression that Obama saw Russia’s military meddling in Ukraine as more deserving of severe punishment than its subversion of a U.S. presidential race.

“What is the greater threat to our system of government?” said a former high-ranking administration official, noting that Obama and his advisers knew from projections formulated by the Treasury Department that the impact of the election-related economic sanctions would be “minimal.”

Three things that might play into the mostly symbolic targeting of FSB, especially, are not mentioned. First, WaPo makes no mention of the suspected intelligence sources who’ve been killed since the election, most credibly Oleg Erovinkin, as well as a slew of other suspect and less obviously connected deaths. It doesn’t mention the four men Russia charged with treason in early December. And it doesn’t mention DOJ’s indictment of the Yahoo hackers, including one of the FSB officers, Dmitry Dokuchaev, that Russia charged with treason (not to mention the inclusion within the indictment of intercepts between FSB officers). There’s a lot more spy vs. spy activity going on here that likely relates far more to retaliation or limits on US ability to retaliate, all of which may be more important in the medium term than financial sanctions.

Given the Yahoo and other indictments working through San Francisco (including that of Yevgeniey Nikulin, who claims FBI offered him a plea deal involving admitting he hacked the DNC), I’m particularly interested in the shift in sanctions from NY to San Francisco, where Nikulin and Dokuchaev’s victims are located.

The FBI was also responsible for generating the list of Russian operatives working under diplomatic cover to expel, drawn from a roster the bureau maintains of suspected Russian intelligence agents in the United States.

[snip]

The roster of expelled spies included several operatives who were suspected of playing a role in Russia’s election interference from within the United States, officials said. They declined to elaborate.

More broadly, the list of 35 names focused heavily on Russians known to have technical skills. Their names and bios were laid out on a dossier delivered to senior White House officials and Cabinet secretaries, although the list was modified at the last minute to reduce the number of expulsions from Russia’s U.N. mission in New York and add more names from its facilities in Washington and San Francisco.

And the WaPo’s reports confirm what was also obvious: the two compounds got shut down (and were a priority) because of all the spying they were doing.

The FBI had long lobbied to close two Russian compounds in the United States — one in Maryland and another in New York — on the grounds that both were used for espionage and placed an enormous surveillance burden on the bureau.

[snip]

Rice pointed to the FBI’s McCabe and said: “You guys have been begging to do this for years. Now is your chance.”

The administration gave Russia 24 hours to evacuate the sites, and FBI agents watched as fleets of trucks loaded with cargo passed through the compounds’ gates.

Finally, given Congress’ bipartisan fearmongering about Kaspersky Lab, I’m most interested that at one point Treasury wanted to include them in sanctions.

Treasury Department officials devised plans that would hit entire sectors of Russia’s economy. One preliminary suggestion called for targeting technology companies including Kaspersky Lab, the Moscow-based cybersecurity firm. But skeptics worried that the harm could spill into Europe and pointed out that U.S. companies used Kaspersky systems and software.

In spite of all the fearmongering, no one has presented proof that Kaspersky is working for Russia (there are even things, which I won’t go in to for the moment, that suggest the opposite). But we’re moving close to de facto sanctions against Kaspersky anyway, even in spite of the fact (or perhaps because) they’re providing better intelligence on WannaCry than half the witnesses called as witnesses to Congress. But discrediting Kaspersky undercuts one of the only security firms in the world who, in addition to commenting on Russian hacking, will unpack America’s own hacking. You sanction Kaspersky, and you expand the asymmetry with which security firms selectively scrutinize just Russian hacking, rather than all nation-state hacking.

The looming cyberattack and the silence about Shadow Brokers

Which brings me to the last section of the article, where, over 8000 words in, the WaPo issues a threat against Russia in the form of a looming cyberattack Obama approved before he left.

WaPo’s early description of this suggests the attack was and is still in planning stages and relies on Donald Trump to execute.

Obama also approved a previously undisclosed covert measure that authorized planting cyber weapons in Russia’s infrastructure, the digital equivalent of bombs that could be detonated if the United States found itself in an escalating exchange with Moscow. The project, which Obama approved in a covert-action finding, was still in its planning stages when Obama left office. It would be up to President Trump to decide whether to use the capability.

But if readers make it all the way through the very long article, they’ll learn that’s not the case. The finding has already been signed, the implants are already being placed (implants which would most likely be discovered by Kaspersky), and for Trump to stop it, he would have to countermand Obama’s finding.

The implants were developed by the NSA and designed so that they could be triggered remotely as part of retaliatory cyber-strike in the face of Russian aggression, whether an attack on a power grid or interference in a future presidential race.

Officials familiar with the measures said that there was concern among some in the administration that the damage caused by the implants could be difficult to contain.

As a result, the administration requested a legal review, which concluded that the devices could be controlled well enough that their deployment would be considered “proportional” in varying scenarios of Russian provocation, a requirement under international law.

The operation was described as long-term, taking months to position the implants and requiring maintenance thereafter. Under the rules of covert action, Obama’s signature was all that was necessary to set the operation in motion.

U.S. intelligence agencies do not need further approval from Trump, and officials said that he would have to issue a countermanding order to stop it. The officials said that they have seen no indication that Trump has done so.

Whatever else this article is designed to do, I think, it is designed to be a threat to Putin, from long gone Obama officials.

Given the discussion of a looming cyberattack on Russia, it’s all the more remarkable WaPo breathed not one word about Shadow Brokers, which is most likely to be a drawn out cyberattack by Russian affiliates on NSA. Even ignoring the Shadow Brokers’ derived global ransomware attack in WannaCry, Shadow Brokers has ratcheted up the severity of its releases, including doxing NSA’s spies and hacks of the global finance system, It has very explicitly fostered tensions between the NSA and private sector partners (as well as the reputational costs on those private sector partners). And it has threatened to leak still worse, including NSA exploits against current Microsoft products and details of NSA’s spying on hostile nuclear programs.

The WaPo is talking about a big cyberattack, but an entity that most likely has close ties to Russia has been conducting one, all in plain sight. I suggested back in December that Shadow Brokers was essentially holding NSA hostage in part as a way to constrain US intelligence retaliation against Russia. Given ensuing events, I’m more convinced that is, at least partly, true.

But in this grand narrative of CIA’s early warning and Obama’s inadequate response, details like that remain unsaid.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

Who Would Have Told Trump to Go Back to Demand a Patronage Relationship with Comey?

Jim Comey made a comment in his testimony the other day I’ve not seen others mention. Mark Warner asked him to explain this comment on patronage from his written testimony.

The President began by asking me whether I wanted to stay on as FBI Director, which I found strange because he had already told me twice in earlier conversations that he hoped I would stay, and I had assured him that I intended to. He said that lots of people wanted my job and, given the abuse I had taken during the previous year, he would understand if I wanted to walk away.

My instincts told me that the one-on-one setting, and the pretense that this was our first discussion about my position, meant the dinner was, at least in part, an effort to have me ask for my job and create some sort of patronage relationship. That concerned me greatly, given the FBI’s traditionally independent status in the executive branch.

I replied that I loved my work and intended to stay and serve out my ten-year term as Director. And then, because the set-up made me uneasy, I added that I was not “reliable” in the way politicians use that word, but he could always count on me to tell him the truth. I added that I was not on anybody’s side politically and could not be counted on in the traditional political sense, a stance I said was in his best interest as the President. A few moments later, the President said, “I need loyalty, I expect loyalty.”

When Warner asked Comey to explain this comment at Thursday’s hearing, Comey explained he thought that Trump was belatedly trying to get something from Comey in exchange for letting him stay on his job.

WARNER: Let me move to the January 27th dinner, where you said “The president began by asking me whether I wanted to stay on as FBI director.”

He also indicated that “lots of people” again your words, “Wanted the job.” You go on to say the dinner itself was “Seemingly an effort to” to quote have you ask him for your job and create some “patronage” relationship. The president seems from my reading of your memo to be holding your job or your possibility of continuing your job over your head in a fairly direct way. What was your impression, and what did you mean by this notion of a patronage relationship?

COMEY: Well, my impression, and again it’s my impression, I could always be wrong but my common sense told me what was going on is, either he had concluded or someone had told him that you didn’t, you’ve already asked Comey to stay, and you didn’t get anything for it. And that the dinner was an effort to build a relationship, in fact, he asked specifically, of loyalty in the context of asking me to stay. As I said, what was odd about that is we’d already talked twice about it by that point and he said I very much hope you’ll stay. In fact, I just remembered sitting a third, when you’ve seen the. IC tour of me walking across the blue room, and what the president whispered in my ear was “I really look forward to working with you.” So after those encounters —

WARNER: That was a few days before your firing.

COMEY: On the Sunday after the inauguration. The next Friday I have dinner and the president begins by wanting to talk about my job and so I’m sitting there thinking wait a minute three times we’ve already, you’ve already asked me to stay or talked about me staying. My common sense, again I could be wrong but my common sense told me what’s going on here is, he’s looking to get something in exchange for granting my request to stay in the job. [my emphasis]

Comey explained that — after already having been assured three times that he would remain in his position — Trump raised the issue anew in a private dinner. Comey didn’t say this, but this happened the day after Sally Yates first told White House Counsel Don McGahn that Mike Flynn had misrepresented his comments to Sergey Kislyak. And in that dinner, Trump implied that if Comey wanted to stay in the job he’d been offered three times already, he had to give Trump loyalty.

What I’m especially interested in is what Comey believed elicited this: Comey figured that “either [Trump] had concluded or someone [else] had told [Trump] that you didn’t, you’ve already asked Comey to stay, and you didn’t get anything for it” which is what led Trump to invite Trump for dinner.

Given the timing, it would be interesting all by itself if Trump had decided on his own to get some kind of commitment from Comey in order to keep his job, because it would make it far more likely that McGahn told Trump about Yates’ concerns.

But Comey testified that he thought that perhaps someone else went to Trump and suggested he should go back to Comey and try to demand loyalty to keep his job.

Who?

Does Comey think Mike Flynn did this? Don McGahn (which would be downright shocking)? Or did he think that one of the two people who lingered at the next weird meeting alone with Trump — Attorney General Sessions or Son-in-Law-in-Chief Jared Kushner — made the suggestion?

He didn’t say. But I find the suggestion that Comey believes someone may have — at the same time as DOJ was telling the White House that Mike Flynn was in trouble — encouraged Trump to go make demands from Comey.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.