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Sidney Powell’s Great Time Machine of Electoral Gaslighting

On January 4, 2017 at 9:43 AM, FBI lawyer Lisa Page emailed her boss, FBI General Counsel James Baker a citation for the Logan Act, referencing some prior discussion in the subject line: “Code section at question.”

Shortly thereafter, Peter Strzok emailed Page the text of the law, as well as a link to a Congressional Research Service report on the Logan Act. In it, he noted that the legislative history of the Logan Act did not deal with incoming officials (which might suggest that, contrary to all reporting, he was skeptical about its application). Page thanked Strzok, and then she sent the text of the law, but not the other discussion, to someone else.

Later that afternoon, Strzok started messaging FBI agents involved in the Flynn prosecution, asking them to hold open the Flynn investigation, noting that, “7th floor involved.”

The next day, representatives from the Intelligence Community briefed Obama on the Intelligence Community Assessment on Russian hacking. After the briefing, several people stayed behind to discuss the Flynn conversations with Sergey Kislyak. National Security Advisor Susan Rice described the meeting this way in a February 2018 letter sent to SJC.

… an important national security discussion between President Obama and the FBI Director and the Deputy Attorney General. President Obama and his national security team were justifiably concerned about potential risks to the Nation’s security from sharing highly classified information about Russia with certain members of the Trump transition team, particularly Lt. Gen. Michael Flynn.

In light of concerning communications between members of the Trump team and Russian officials, before and after the election, President Obama, on behalf of his national security team, appropriately sought the FBI and the Department of Justice’s guidance on this subject.

Rice’s memo to the file, written before FBI had interviewed Mike Flynn about his calls with Sergey Kislyak, described that President Obama, Jim Comey, Deputy Attorney General Sally Yates, Joe Biden, and herself attended the meeting. She recorded that Obama first instructed FBI (as he apparently already had) to do things normally.

President Obama began the conversation by stressing his continued commitment to ensuring that every aspect of this issue is handled by the Intelligence and law enforcement communities “by the book”. The President stressed that he is not asking about, initiating or instructing anything from a law enforcement perspective. He reiterated that our law enforcement team needs to proceed as it normally would by the book.

Rice describes how Obama then asked whether there was any reason not to share information with Trump’s incoming team.

From a national security perspective, however, President Obama said he wants to be sure that, as we engage with the incoming team, we are mindful to ascertain if there is any reason that we cannot share information fully as it relates to Russia.

Jim Comey responded with an ambivalent answer, stating that the FBI had not yet found Flynn to be sharing classified information, but observing that the sheer number of contacts between Kislyak and Flynn was abnormal. Comey stated that “potentially,” NSC should not share classified information with Flynn.

Director Comey affirmed that he is proceeding “by the book” as it relates to law enforcement. From a national security perspective, Comey said he does have some concerns that incoming NSA Flynn is speaking frequently with Russian Ambassador Kislyak. Comey said that it could be an issue as it relates to sharing sensitive information. President Obama asked if Comey was saying that the NSC should not pass sensitive information related to Russia to Flynn. Comey replied, “potentially.” He added he that he has not indication thus far that Flynn has passed classified information to Kislyak, but he noted that “the level of communication is unusual.”

On June 23, Mike Flynn prosecutor Jocelyn Ballantine sent Sidney Powell a “page of notes [] taken by former Deputy Assistant Director Peter Strzok.” She described that the page was undated, but that “we believe that the notes were taken in early January 2017, possibly between January 3 and January 5.”

The notes record a meeting that — like the meeting Rice described — was attended by Obama, Jim Comey, Sally Yates, Joe Biden, and Susan Rice.

At the meeting, Obama told Comey to, “Make sure you [look at?] things — have the right people on it,” an instruction telling the FBI to conduct the investigation normally. Then, Obama asked, “Is there anything I shouldn’t be telling transition team?” Comey responded, though his response is unclear: “Flynn > Kislyak calls but appear legit.” Certainly, however, Comey’s response involves some kind of comment on Flynn’s calls with Kislyak. Parts of the discussion before and after this exchange are redacted, with no redaction marks explaining the basis for doing so (though a Bates stamp makes it clear that Mueller’s team had this document, so it is in no way “new” to DOJ).

When Sidney Powell released the notes, she asserted that the notes were, “believed to be of January 4,” which is not what DOJ told her (they said the notes could be January 3, 4, or 5).

Strzok’s notes believed to be of January 4, 2017, reveal that former President Obama, James Comey, Sally Yates, Joe Biden, and apparently Susan Rice discussed the transcripts of Flynn’s calls and how to proceed against him.

Powell presents this meeting as new news, even though we’ve known about the meeting since Chuck Grassley made a stink about it to help her client in early 2018 (ten months before her client reallocuted his guilty plea). She did so, in part, to call attention to the comment from Joe Biden apparently raising the Logan Act, then repeated, falsely, that the investigation that had been since August 2016, was then in early January, and would be during his January 24, 2017 interview significantly focused on 18 USC 951, was only investigating the Logan Act.

According to Strzok’s notes, it appears that Vice President Biden personally raised the idea of the Logan Act. That became an admitted pretext to investigate General Flynn

According to Powell’s narrative, then, Biden mentioned the Logan Act on January 4, which led the FBI to start investigating it the next morning. According to Powell’s narrative, then, Biden is responsible for what she falsely claims was the pretext under which her client was interviewed.

To believe that, however, you’d have to believe there were two meetings, both with the same attendees, in both of which Obama first directed the FBI Director to conduct the Flynn investigation normally, and then asked whether he should be cautious about sharing sensitive information with the Trump team. In both meetings, you’d have to believe, Comey provided an ambivalent answer. You’d have to further believe that such an exchange was so concerning to Susan Rice that she would document it on her last day in office, but document only the second instance of such an exchange, not the first one.

Now, perhaps there’s some reason Jeffrey Jensen and Jocelyn Ballantine profess uncertainty about when Strzok took these notes. Or perhaps DOJ, which has politicized this process so much already, would like to claim uncertainty so as to suggest that Joe Biden raised the Logan Act before the FBI did, while they’re also falsely claiming that Flynn was interviewed only for the Logan Act.

But the simplest explanation for these notes is that the guy who played a key role in investigating the Russian side of the operation seconded Comey for the ICA briefing (he had done at least one earlier briefing at the White House, in September 2016), and then, when everyone stayed behind to address Flynn — an investigation Strzok was in the management chain on — he remained as Comey’s second and took notes of the same exchange that Susan Rice memorialized 15 days later. [See below: Strzok was not at the meeting in question, which would suggest these notes came even longer after the Logan Act had been raised at FBI.]

Which would likewise mean that DOJ, on the eve of a hearing on how DOJ is politicizing everything, fed Sidney Powell with a document she could misrepresent (as she has virtually everything that DOJ has fed her), and have numerous Republicans HJC members similarly misrepresent, all to turn this into a campaign issue.

Ah, well. Now that DOJ has declassified comments (almost certainly covered by Executive Privilege) in which Biden said he had seen nothing like what Flynn had done in the 10 years he was on the Senate Intelligence Committee (Biden was on the Committee during Reagan’s crimes), reporters can ask him how unprecedented it is for the incoming National Security Advisor to be wooed by a hostile power’s Ambassador during the transition.

Update: Glenn Kessler says Strzok’s lawyer says Stzrok wasn’t at this meeting, which makes the conspiracy around it even crazier.

The Eight Investigations into the Russian Investigation Have Already Lasted 47% Longer than the Investigation Itself

Before the holiday weekend, FBI Director Christopher Wray announced an “after-action review of the Michael Flynn investigation.” Thus far, that makes the eighth known investigation into the Russian investigation — and every known investigation included at least a small component relating to Mike Flynn. The investigations into the Russian investigation, which collectively have lasted around 2,064 days, have gone on 47% longer than the investigation itself.

This table lists all the known investigations pertaining to the Russian investigation, save those into people involved in the Carter Page FISA applications. All have at least a component touching on the investigation into Mike Flynn.

This table assumes the Russian investigation is ongoing, based off the redactions in the Roger Stone warrant releases and FOIAed 302s, even though Mueller closed up shop a year ago.

At least three of the investigations in this table pertain to allegations first seeded with Sara Carter and then to various Congressional staffers that Andrew McCabe said, “Fuck Flynn, and I fucking hate Trump.” McCabe was actually considered the victim of the first investigation, which was conducted by the FBI’s Inspection Division, the same entity that will conduct the investigation announced last week. While the full timing of that investigation is not known, Strzok gave a statement to the Inspection Division on July 26, 2017. That Inspection Division investigation led into the investigation into McCabe himself, though that investigation focused on his confirmation of the investigation into the Clinton Foundation (and so is not counted in this table).

Mike Flynn kept raising the “Fuck Flynn” allegations with prosecutors, leading the government to review the allegations two more times, including an October 25, 2018 interview with Lisa Page where she was also asked about her role in editing the Flynn 302s.

The defendant’s complaints and accusations are even more incredible considering the extensive efforts the government has made to respond to numerous defense counsel requests, including to some of the very requests repeated in the defendant’s motion. For instance, the defendant alleges that former FBI Deputy Director Andrew McCabe said, “‘First we f**k Flynn, then we f**k Trump,’ or words to that effect;” and that Deputy Director McCabe pressured the agents to change the January 24 interview report. See Mot. to Compel at 4, 6 (Request ##2, 22). Defense counsel first raised these allegations to the government on January 29, 2018, sourcing it to an email from a news reporter. Not only did the government inform defense counsel that it had no information indicating that the allegations were true, it conducted additional due diligence about this serious allegation. On February 2, 2018, the government disclosed to the defendant and his counsel that its due diligence confirmed that the allegations were false, and referenced its interview of the second interviewing agent, 4 who completely denied the allegations. Furthermore, on March 13, 2018, the government provided the defendant with a sworn statement from DAD Strzok, who also denied the allegations.

Nevertheless, on July 17, 2018, the defense revived the same allegations. This time, the defense claimed that the source was a staff member of the House Permanent Select Committee on Intelligence (“HPSCI”). The HPSCI staff member allegedly told the defendant that the second interviewing agent had told the staff member that after a debrief from the interviewing agents, Deputy Director McCabe said, “F**k Flynn.” Once again, the government reviewed information and conducted interviews, and once again confirmed that the allegations were completely false. And after defendant and his counsel raised the accusation for a third time, on October 15, 2018, the government responded by producing interview reports that directly contradicted the false allegations. Despite possessing all of this information, defense counsel has again resurrected the false allegations, now for a fourth time

The DOJ IG investigation into whether Jim Comey violated policy or the law by bringing home his CYA memos started in July 2017 and continued through last summer. Obviously, one of those memos recorded Trump asking Comey to let the Flynn investigation go.

The table above does not include the DOJ IG Report on the Midyear Exam investigation (into Hillary), even though that was the first to examine the Lisa Page and Peter Strzok texts. For timing purposes, only the DOJ IG investigation into Carter Page’s FISA applications investigation counts the investigation into Page and Strzok. That investigation also considered the treatment of Flynn’s presence in the first intelligence briefing for Trump.

Finally, there’s the John Durham investigation — which Bill Barr’s top aides were scoping at least as early as April 12 of last year. There is no public scope document. Similarly, there’s no public scope document of the Jeffrey Jensen review, which Barr launched to create some excuse to move to dismiss the Flynn prosecution after prosecutors recommended (and all of DOJ approved) prison time. Wray’s statement announcing the FBI’s own investigation into the Flynn investigation made clear that the Jensen investigation remains ongoing.

FBI Director Christopher Wray today ordered the Bureau’s Inspection Division to conduct an after-action review of the Michael Flynn investigation.  The after-action review will have a two-fold purpose:  (1) evaluate the relevant facts related to the FBI’s role in the Flynn investigation and determine whether any current employees engaged in misconduct, and (2)  evaluate any FBI policies, procedures, or controls implicated by the Flynn investigation and identify any improvements that might be warranted.

The after-action review will complement the already substantial assistance the FBI has been providing to U.S. Attorney Jeff Jensen in connection with his work on the Flynn case.  Under Director Wray’s leadership, the FBI has been fully transparent and cooperative with Mr. Jensen, and the FBI’s help has included providing special agents to assist Mr. Jensen in the fact-finding process.  Although the FBI does not have the prosecutorial authority to bring a criminal case, the Inspection Division can and will evaluate whether any current on-board employees engaged in actions that might warrant disciplinary measures.  As for former employees, the FBI does not have the ability to take any disciplinary action.

Director Wray authorized this additional level of review now that the Department of Justice, through Mr. Jensen’s work, has developed sufficient information to determine how to proceed in the Flynn case.  However, Mr. Jensen’s work will continue to take priority, and the Director has further ordered the Inspection Division to coordinate closely with Mr. Jensen and ensure that the review does not interfere with or impede his efforts.  Relatedly, for purposes of ensuring investigative continuity across these related matters, the Inspection Division will also utilize to the extent practicable the special agents that the FBI previously assigned to assist Mr. Jensen.

In Bill Barr’s interview with Catherine Herridge, he discussed the Jensen review in terms of criminal behavior, which would mean Jensen and Durham are both considering criminal charges for some of the same activities — activities that had been investigated six times already.

Based on the evidence that you have seen, did senior FBI officials conspire to throw out the national security adviser?

Well, as I said, this is a particular episode. And it has some troubling features to it, as we’ve discussed. But I think, you know, that’s a question that really has to wait an analysis of all the different episodes that occurred through the summer of 2016 and the first several months of President Trump’s administration.

What are the consequences for these individuals?

Well, you know, I don’t wanna, you know, we’re in the middle of looking at all of this. John Durham’s investigation, and U.S. Attorney Jensen, I’m gonna ask him to do some more work on different items as well. And I’m gonna wait till all the evidence is, and I get their recommendations as to what they found and how serious it is.

But if, you know, if we were to find wrongdoing, in the sense of any criminal act, you know, obviously we would, we would follow through on that. But, again, you know, just because something may even stink to high heaven and be, you know, appear everyone to be bad we still have to apply the right standard and be convinced that there’s a violation of a criminal statute. And that we can prove it beyond a reasonable doubt. The same standard applies to everybody.

This is one reason why DOJ’s claim to have found “new” information justifying their flip-flop on Flynn’s prosecution would be so absurd if DOJ weren’t making the claim (with no documentation) in court. Different entities in DOJ had already investigated circumstances surrounding the Flynn investigation at least seven times before Jensen came in and did it again.

But I guess Barr is going to keep investigating until someone comes up with the result he demands.

The Trump Administration Disproves the Trump Administration’s Claims that Mike Flynn’s Communications with Sergey Kislyak Were Routine

In this post, I showed how former National Security Advisor Susan Rice’s memorialization of a conversation about Mike Flynn’s calls to Sergey Kislyak with President Obama and others on January 5, 2017 made it clear that Obama wanted nothing to do with any investigation into Flynn. I noted there was one redacted passage that seemed, “consistent with Obama adopting some caution, but deferring any more drastic measures unless, ‘anything changes in the next few weeks.'”

In a never-ending bid to distract from Trump’s disastrous performance on COVID, the Trump Administration has now released the full letter, which reads this way:

On January 5, following a briefing by IC leadership on Russian hacking during the 2016 Presidential election, President Obama had a brief follow-on conversation with FBI Director Jim Corney and Deputy Attorney General Sally Yates in the Oval Office. Vice President Biden and I were also present.

President Obama began the conversation by stressing his continued commitment to ensuring that every aspect of this issue is handled by the Intelligence and law enforcement communities “by the book”. The President stressed that he is not asking about, initiating or instructing anything from a law enforcement perspective. He reiterated that our law enforcement team needs to proceed as it normally would by the book.

From a national security perspective, however, President Obama said he wants to be sure that, as we engage with the incoming team, we are mindful to ascertain if there is any reason that we cannot share information fully as it relates to Russia.

Director Comey affirmed that he is proceeding “by the book” as it relates to law enforcement. From a national security perspective, Comey said he does have some concerns that incoming NSA Flynn is speaking frequently with Russian Ambassador Kislyak. Comey said that could be an issue as it relates to sharing information. President Obama asked if Comey was saying that the NSC should not pass sensitive information related to Russia to Flynn. Comey replied, “potentially.” He added that he has no indication thus far that Flynn has passed classified information to Kislyak, but he noted that “the level of communication is unusual.”

The President asked Comey to inform him if anything changes in the next few weeks that should affect how we share classified information with the incoming team. Comey said he would.

The italicized passage is new. It reveals that Flynn was speaking to Kislyak “frequently,” a comment which is consistent with Sally Yates’ concern about the “back and forth” between Kislyak in which Flynn was making “specific asks.” Some of those specific asks Yates described in her Mueller interview remain redacted (as are the transcripts of Flynn’s calls with Kislyak themselves).

In DOJ’s motion to dismiss Flynn’s prosecution, they argue that Flynn’s calls were routine calls made to “build relationships.”

Such calls are not uncommon when incumbent public officials preparing for their oncoming duties seek to begin and build relationships with soon-to-be counterparts.

But the motion addresses only a subset of calls, not (for example) the face-to-face meeting with Kislyak on December 1, or calls Flynn made during the election (his 302 mentions one he made in January 2016, at a time he claimed not to be working with Trump, but there are reports there were more).

Most importantly, the filing doesn’t address a key reason why the FBI had reason to investigate Mike Flynn: the frequency of his calls to Kislyak were “unusual.”

In an effort to gaslight Trump supporters, then, the Trump Administration just showed that DOJ’s motion to dismiss falsely treated as normal communications that were not.

Which, given that the Trump Administration just produced evidence that proves DOJ’s motion to dismiss made a false claim, provides Sullivan all the more reason to demand all the transcripts between Flynn and Kislyak.

Three Days in December 2016: Sanctions, Nukes, Syria, and Russia

In this post, I described how badly much of the press had misrepresented the unmasking report released by Ric Grenell yesterday. The transcripts of the calls Mike Flynn had with Sergey Kislyak were identified by the FBI, FBI never put them into a finalized intelligence product, and Jim Comey told James Clapper about them.

The unmaskings described on the list released yesterday, by contrast, were finalized NSA products, not unfinished FBI ones, and none of the dates correlate with the discovery of Flynn’s calls.

In other words, the masking report released yesterday does not include the calls in question. These aren’t the droids you’re looking for.

Indeed, there is no evidence in the public record that any of these calls reflected any suspicion of wrong-doing.

That said, there were a flurry of requests to unmask Flynn’s name around mid-December 2016 that experts have highlighted both publicly and privately. While we can’t speak to the content of the intercepts in question, it is certain that Flynn was involved or mentioned in some communications in the days before December 14, 2016 that attracted an interesting set of people around the US government.

I’d like to look at what that flurry looks like. Before I start, let me lay out some assumptions. First, there may be a delay between the time NSA obtained communications themselves and the time it finalized a report on them, so the December 14 start date for this flurry may have happened days or more later after the communications were collected (though given how some of the most senior people in government reviewed these, that’s not necessarily true). Second, while there’s reason to believe this flurry is all related, we can’t be certain. Finally, remember that Flynn may not be the only American on this list; there could be any number of others, and their names might have gotten unmasked as well. To reiterate: Flynn wouldn’t necessarily have been a party to these communications; rather, he could have been discussed in them.

On the first day of this flurry, a significant group of people at Treasury — up to and including Treasury Secretary Jacob Lew — asked to unmask Flynn’s identity. This would suggest sanctions might be involved. Note, by that time Adam Szubin had moved to head Terrorism and Financial Crimes, so the issue might have more directly concerned money laundering than sanctions (though he appears to have still been in charge of OFAC as well).

In addition, John Brennan unmasked his identity, which suggests the intelligence immediately got briefed to the top of CIA.

Also that day, UN Ambassador Samatha Power unmasked Flynn’s identity twice that day, which (if this is part of the flurry) suggests someone in New York may have been involved.

The next day, December 15, Jim Comey got this intelligence and unmasked Flynn’s identity. Importantly, given the draft EC closing the Flynn investigation on January 4, 2017, nothing about this seems to have triggered notice to the Crossfire Hurricane team, which either suggests it involved an entirely different topic or proves that the FBI didn’t have it in for Flynn and treated some communications involving Flynn and Russia as routine.

John Brennan got something — either the same or a follow-on report, or something else entirely different — on December 15. That seems to have filtered down to CIA officials working on the Middle East, including Syria. But there’s not evidence that counterterrorism experts got it or were very interested, which is interesting given that Flynn always pitched cooperation with Russia in terms of cooperating against ISIS.

The same day, a whole bunch of people at NATO got it, including the Policy Advisor for Russia (Scott Parrish, too, seems to focus on Russia or Eastern Europe).

In addition, a senior person at Department of Energy and someone on the intelligence side there got it. This suggests nuclear power or proliferation is involved.

Finally, on December 16, four people at CIA whose location and portfolio are unknown got it, as well as the Ambassador to Russia (it would be unsurprising if those CIA people were also in Russia).

December 14, 2016

CIA Director John Brennan

UN Ambassador Samantha Power (twice)

Treasury

Secretary of Treasury Jacob Lew

Deputy Secretary of Treasury Sarah Raskin

Under Secretary of Treasury Nathan Sheets

Acting Under Secretary of Treasury Adam Szubin

Acting Assistant Secretary of Treasury, Office of Intelligence & Analysis Danny McGlynn

Acting Assistant Secretary of Treasury, Office of Intelligence & Analysis Mike Neufeld

Office of Intelligence & Analysis Patrick Conlan

December 15, 2016

FBI Director Jim Comey

CIA

CIA Director John Brennan

Deputy Assistant Director of Near East Mission Center [redacted]

Chief Syria Group [Redacted]

NATO

US Ambassador to NATO Douglas Lute

US Deputy Chief of US Mission to NATO Lee Litzenberger

US NATO [CIA?] Advisor to Ambassador Douglas Lute

US NATO Defense Advisor (DEFAD) Robert Bell

US NATO Deputy DEFAD James Hursh

US Representative to NATO Military Vice Admiral John Christenson

US NATO Office of the Defense Advisor (ODA) Policy Advisor for Russia Lieutenant Colonel Paul Geehreng

US NATO Political Officer [redacted] Scott Parrish

US NATO Political Advisor [POLAD] Tamir Waser

Department of Energy

US Department of Energy Deputy Secretary Elizabeth Sherwood-Randall

US Department of Energy Intelligence and Analysis, Executive Briefer

December 16

State

US Ambassador to Russia John Tefft

CIA

Chief of Station [Redacted]

Deputy Chief of Station [Redacted]

Collection Management Officer [Redacted]

Collection Management Officer [Redacted]

The most credible explanation I’ve seen for this flurry is that it relates to Flynn’s scheme to sell nuclear energy to Saudi Arabia (because it would involve sanctions, so Treasury, and proliferation, so Energy, and partnership with Russia), but that explanation doesn’t account for some of these readers, most notably someone with a Syria portfolio (the entire nuclear plan was a scheme to lure Russia away from Iran). Plus, unless those CIA people are tied to Saudi Arabia, these readers don’t include the key target of this scheme.

Moreover, it’s unclear why so many people at NATO would focus on this so quickly.

Whatever this flurry (or flurries), what Ric Grenell has done by releasing the list is given whatever adversary is involved, along with Mike Flynn, a picture of how this information flowed within the federal government.

Maybe that — and not any disclosure about who unmasked Flynn’s call with Sergey Kislyak — was the point.

Update: Here’s the first story on Jared Kushner’s request for a back channel, which Kislyak reported back to Moscow. It would have triggered Power (the meeting was in NY), Russia, Syria (Kushner said he wanted to cooperate on Syria). But it’s not clear why Treasury got this first, unless the message included set-up to the meeting with Sergei Gorkov, which took place on December 13. This being a report on Gorkov would explain the response at Treasury, but not other elements, such as the involvement of Energy (unless the Gorkov meeting was significantly different than has been reported).

Of over 40 Potential Unmaskings of Mike Flynn During the Transition, Just One Led to Criminal Charges

Chuck Grassley and Ron Johnson have just posted what they seem to think is a list of people who may have unmasked Mike Flynn’s identity in the transcripts of his conversations on December 29 and 31 with Sergey Kislyak.

As a threshold matter, what it actually shows, is that over 40 recipients of intelligence may have unmasked Mike Flynn’s identity in a finished NSA intelligence product between the 2016 election and inauguration. If they did, they did it by the book, with NSA approval per the accompanying letter from Paul Nakasone. And even if they unmasked Flynn’s identity, the person who did so may not have read it.

The implication is that one of these unmaskings was the one (or were the ones) that led to the discovery that Mike Flynn had secretly called up the Russian Ambassador and undermined US foreign policy, acting without specific orders from Trump (at least as the public record currently stands).

Mind you, almost all of them could not be. Only 8 of them post-date the calls between Flynn and Kislyak:

  • US Ambassador to the UN Samantha Power (1/11/17)
  • DNI James Clapper (1/7/2017)
  • Secretary of the Treasury Jacob Lew (1/12/17)
  • White House Chief of Staff Denis McDonough (1/5/17)
  • DDNI Michael Dempsey (1/7/17)
  • PDDNI Stephanie O’Sullivan (1/7/17)
  • CIA/CTMC 1/10/17
  • Vice President Joe Biden 1/12/17

And of those, only the McDonough unmasking corresponds even remotely to the time the IC discovered Flynn’s call, except we know FBI had already discovered it on January 4. Which is to say zero of these unmaskings could be the original one. A few people could be someone reading a transcript from the calls after the fact.

Except that some of these — such as the January 11 unmasking — are believed to relate to Mohammed bin Zayed’s secret trip to the US to meet Flynn and Steve Bannon and Jared Kushner, and so are of another intercept.

There’s probably a very good reason why the original unmasking doesn’t show up on this list, which reflects only NSA products and only finished intelligence reports. According to Jim Comey’s testimony, the FBI found the Kislyak-Flynn calls, not the NSA.

And so the last couple days of December and the first couple days of January, all the Intelligence Community was trying to figure out, so what is going on here? Why is this — why have the Russians reacted the way they did, which confused us? And so we were all tasked to find out, do you have anything [redacted] that might reflect on this? That turned up these calls at the end of December, beginning of January. And then I briefed it to the Director of National Intelligence, and Director Clapper asked me for copies [redacted], which I shared with him.

That’s consistent with Mary McCord’s testimony, which made it clear no one had to refer this transcript to the FBI, because it was the FBI’s.

Also on page 2 of her notes, McCord noted mention of a “referral,” and noted that ultimately no referral was required, as the FBI maintained the information and would not refer a matter to themselves.

Plus, Jim Comey says this never became a finished intelligence product, even while he admitted that the FBI unmasked his identity.

We did not disseminate this [redacted] in any finished intelligence, although our people judged was appropriate, for reasons that I hope are obvious, to have Mr. Flynn’s name unmasked. We kept this very close hold, and it was shared just as I described.

So if this transcript was an FBI intercept that never made it into a finalized intelligence product, then it wouldn’t show up in a list of finalized NSA products.

All of which is to say this list — which Politico is running with as if it’s the Holy Grail — most likely has nothing to do with Flynn’s conversations with Sergey Kislyak, and shows that the Deep State picked up Mike Flynn during the transition in a good deal of reporting, with reports that more than 40 people had a glimpse at. But only one recording launched an investigation.

The Public Record Claims that Flynn Had No Permission from Trump to Undermine US Policy in Calling Kislyak

In the last several days, part time Director of National Intelligence and full time Twitter troll Ric Grennell declassified the names of people who unmasked Mike Flynn’s name in call transcripts with Sergey Kislyak. The public record already shows the FBI did so after they discovered his calls explained why Russia had not responded as expected after Barack Obama imposed sanctions on Russia on December 28, 2016.

The press has, predictably, chased this issue as a matter of partisan game, demonstrating utter disinterest in how obviously they are being chumps in a political ploy.

Release of the list, which would be an unprecedented move, is likely to resurrect a partisan debate over an episode that had roiled the early days of Mr. Trump’s presidency and has taken on renewed urgency after the Justice Department moved to drop a criminal case against Mr. Flynn last week.

It takes enormous leaps of willful ignorance of the facts to treat this as the partisan spat that Trump wants it to be.

That’s true, for two reasons:

  • The public record shows that the Obama Administration did need to know Flynn’s identity to understand the Kislyak intercept and accorded Flynn deference as a result until such time that it appeared Flynn had acted without official sanction
  • The public record, over three years after the call, remains consistent with Mike Flynn making that call to Sergey Kislyak without permission from Trump himself, meaning the public record is consistent with Flynn acting on his own

Under FISA, the Executive Branch may not disseminate an American’s identity obtained from a FISA intercept, “unless such person’s identity is necessary to understand foreign intelligence information or assess its importance.” But if the Executive Branch needs that person’s identity to understand foreign intelligence, they can unmask the identity.

It matters that this call was made by the incoming National Security Advisor. At first, Flynn’s identity made the call look less suspicious. But within days of its discovery, Flynn’s own actions had created reason for far greater concern that the incoming NSA had made this call.

At first, the Flynn unmasking led to deference to him, albeit with concerns about sharing intelligence with (just) him

When Russia did not respond to the December 2016 sanctions, per Jim Comey’s testimony, the Intelligence Community tasked its members to learn why not.

And so the last couple days of December and the first couple days of January, all the Intelligence Community was trying to figure out, so what is going on here? Why is this — why have the Russians reacted the way they did, which confused us? And so we were all tasked to find out, do you have anything [redacted] that might reflect on this? That turned up these calls at the end of December, beginning of January.

Some days later, the FBI provided an answer: because someone had called up Russia and asked them not to escalate, and days later Russia had called up and told the same person that Vladimir Putin had not responded because of his call. Imagine the possible implications of this call without the identity. The call could reflect an amazingly powerful private individual who for some reason had the ability to make Vladimir Putin to take action against his stated interests. Or it could reflect something fairly routine. You had to know who made the call to figure out which it was.

In his testimony, Comey made it clear that, 1) they did unmask Flynn’s name but 2) the FBI issued no finalized report on this, meaning they were protecting the discovery from wider dissemination.

We did not disseminate this [redacted] in any finished intelligence, although our people judged was appropriate, for reasons that I hope are obvious, to have Mr. Flynn’s name unmasked. We kept this very close hold, and it was shared just as I described.

Sally Yates’ 302 describes how Obama responded. He stated specifically that he wanted no more follow-up information, but he did want advice on whether his White House should treat Flynn differently as a result.

After the briefing, Obama dismissed the group but asked Yates and Comey to stay behind. Obama started by saying he had “learned of the information about Flynn” and his conversation with Kislyak about sanctions. Obama specified he did not want any additional information on the matter, but was seeking information on whether the White House should be treating Flynn any differently, given the information.

[snip]

Yates recalled Comey mentioning the Logan Act, but can’t recall if he specified there was an “investigation.” Comey did not talk about prosecution in the meeting. It was not clear to Yates from where the President first received the information. Yates did not recall Comey’s response to the President’s question about how to treat Flynn.

A letter Congress sent to Susan Rice quoting from her own letter to the file makes it clear that Obama explicitly stated he wanted no involvement in any law enforcement matters. He just wanted to know whether the Administration should limit how they would share classified information with Flynn during the transition.

On January 5, following a briefing by IC leadership on Russian hacking during the 2016 Presidential election, President Obama had a brief follow-on conversation with FBI Director Jim Corney and Deputy Attorney General Sally Yates in the Oval Office. Vice President Biden and I were also present.

President Obama began the conversation by stressing his continued commitment to ensuring that every aspect of this issue is handled by the Intelligence and law enforcement communities “by the book”. The President stressed that he is not asking about, initiating or instructing anything from a law enforcement perspective. He reiterated that our law enforcement team needs to proceed as it normally would by the book.

From a national security perspective, however, President Obama said he wants to be sure that, as we engage with the incoming team, we are mindful to ascertain if there is any reason that we cannot share information fully as it relates to Russia.

[redacted]

The President asked Comey to inform him if anything changes in the next few weeks that should affect how we share classified information with the incoming team. Comey said he would.

As to DOJ, at first Mary McCord treated this just as Republicans would want: by assuming this was just the normal pre-inauguration outreach one would expect from an incoming National Security Advisor.

It seemed logical to her that there may be some communications between an incoming administration and their foreign partners.

There are several takeaways from this record. We don’t know exactly what the transcripts say (and neither did some of the people involved), but this reaction is entirely inconsistent with Flynn saying anything to Kislyak to indicate he was operating on Trump’s orders. If he had, then Obama would not have had a concern about sharing information with Flynn and only Flynn. If it was clear Trump was involved, Obama’s concerns would be mitigated because Trump constitutionally would be entitled to this anyway. There’s no evidence Flynn made it clear he had Trump’s sanction to make these calls.

These actions also make it clear that, while the FBI responded to this as they would any counterintelligence investigation, both Obama and Rice were very careful about respecting the transition of power. The redacted passage in Rice’s letter is consistent with Obama adopting some caution, but deferring any more drastic measures unless, “anything changes in the next few weeks.”

From January 15, 2017 to the present, the public record has always been consistent with Flynn deciding to make the call on his own — and possibly acting rogue

Ten days after the Obama Administration adopted a cautious response to learning of Flynn’s calls, something did change.

The Vice President went on Face the Nation and told a journalist that he had asked Mike Flynn and Flynn denied speaking about sanctions at all.

MIKE PENCE: I talked to General Flynn about that conversation and actually was initiated on Christmas Day he had sent a text to the Russian ambassador to express not only Christmas wishes but sympathy for the loss of life in the airplane crash that took place. It was strictly coincidental that they had a conversation. They did not discuss anything having to do with the United States’ decision to expel diplomats or impose censure against Russia.

JOHN DICKERSON: So did they ever have a conversation about sanctions ever on those days or any other day?

MIKE PENCE: They did not have a discussion contemporaneous with U.S. actions on–

JOHN DICKERSON: But what about after–

MIKE PENCE: –my conversation with General Flynn. Well, look. General Flynn has been in touch with diplomatic leaders, security leaders in some 30 countries. That’s exactly what the incoming national security advisor–

JOHN DICKERSON: Absolutely.

MIKE PENCE: –should do. But what I can confirm, having spoken to him about it, is that those conversations that happened to occur around the time that the United States took action to expel diplomats had nothing whatsoever to do with those sanctions.

From that moment to this day, the record is consistent with Mike Flynn working without the knowledge of or prior sanction from Trump and Pence. I believe Flynn did have prior sanction from Trump, but I believe that only because I think Trump and Flynn have hidden that detail for years. But because Flynn and KT McFarland, at least, told Mueller’s prosecutors that they had no memory of consulting with Trump about what to say to Kislyak ahead of time and Trump has categorically denied it, the public record says that Flynn made the decision both to undermine the official policy of the United States and decide what policy to pursue after consulting with a few Transition aides, but not Trump himself, which was a key conclusion of this part of the Mueller Report.

Although transition officials at Mara-Lago had some concern about possible Russian reactions to the sanctions, the investigation did not identify evidence that the President-Elect asked Flynn to make any request to Kislyak.

To be clear, starting in November 2017 — ten months after Obama’s people got Flynn’s name unmasked — Flynn and KT McFarland for the first time started admitting that Flynn had consulted with Trump’s staff at Mar-a-Lago before calling Kislyak, after denying it for that time. (This passage is largely sourced to a November 17, 2017 Flynn interview and a December 22, 2017 McFarland interview.)

Flynn recalled that he chose not to communicate with Kislyak about the sanctions until he had heard from the team at Mar-a-Lago.1241 He first spoke with Michael Ledeen, 1242 a Transition Team member who advised on foreign policy and national security matters, for 20 minutes. 1243 Flynn then spoke with McFarland for almost 20 minutes to discuss what, if anything, to communicate to Kislyak about the sanctions. 1244 On that call, McFarland and Flynn discussed the sanctions, including their potential impact on the incoming Trump Administration’s foreign policy goals. 1245 McFarland and Flynn also discussed that Transition Team members in Mar-a-Lago did not want Russia to escalate the situation. 1246 They both understood that Flynn would relay a message to Kislyak in hopes of making sure the situation would not get out of hand.1247

Immediately after speaking with McFarland, Flynn called and spoke with Kislyak. 1248 Flynn discussed multiple topics with Kislyak, including the sanctions, scheduling a video teleconference between President-Elect Trump and Putin, an upcoming terrorism conference, and Russia’s views about the Middle East. 1249 With respect to the sanctions, Flynn requested that Russia not escalate the situation, not get into a “tit for tat,” and only respond to the sanctions in a reciprocal manner.1250

Multiple Transition Team members were aware that Flynn was speaking with Kislyak that day. In addition to her conversations with Bannon and Reince Priebus, at 4:43 p.m., McFarland sent an email to Transition Team members about the sanctions, informing the group that “Gen [F]lynn is talking to russian ambassador this evening.” 1251 Less than an hour later, McFarland briefed President-Elect Trump. Bannon, Priebus, Sean Spicer, and other Transition Team members were present. 1252 During the briefing, President-Elect Trump asked McFarland if the Russians did “it,” meaning the intrusions intended to influence the presidential election. 1253 McFarland said yes, and President-Elect Trump expressed doubt that it was the Russians.1254 McFarland also discussed potential Russian responses to the sanctions, and said Russia’s response would be an indicator of what the Russians wanted going forward. 1255 President-Elect Trump opined that the sanctions provided him with leverage to use with the Russians. 1256 McFarland recalled that at the end of the meeting, someone may have mentioned to President-Elect Trump that Flynn was speaking to the Russian ambassador that evening. 1257

So Flynn had the input of Michael Ledeen, McFarland, and through McFarland, the input of Transition Team members at Mar-a-Lago.

But — as I lay out in this post — the timeline laid out in Mueller’s deliberately unclear account shows no consultation between Flynn and Trump, or even McFarland and Trump, before the call. Someone may have mentioned that Flynn was making the call in a briefing Trump attended, but there’s no evidence Trump provided input on what he should say. Moreover, by the time of that briefing, Flynn appears to have already made the first call. McFarland reported to Flynn on the briefing in the same call where he told her what had transpired on his call.

1:53PM: McFarland and other Transition Team members and advisors (including Flynn, via email) discuss sanctions.

2:07PM: [Transition Team Member] Flaherty, an aide to McFarland, texts Flynn a link to a NYT article about the sanctions.

2:29PM: McFarland calls Flynn, but they don’t talk.

Shortly after 2:29PM: McFarland and Bannon discuss sanctions; according to McFarland’s clean-up interview, she may have told Bannon that Flynn would speak to Kislyak that night.

3:14PM: Flynn texts Flaherty and asks “time for a call??,” meaning McFarland. Flaherty responds that McFarland was on the phone with Tom Bossert. Flynn informs Flaherty in writing that he had a call with Kislyak coming up, using the language, “tit for tat,” that McFarland used on emails with others and that Flynn himself would use with Kislyak later that day.

Tit for tat w Russia not good. Russian AMBO reaching out to me today.

Sometime in here but the Report doesn’t tell us precisely when: Flynn talks to Michael Ledeen, KT McFarland, and then Kislyak. [my emphasis]

4:43PM: McFarland emails other transition team members saying that,  “Gen [F]lynn is talking to russian ambassador this evening.”

Before 5:45PM: McFarland briefed President-Elect Trump, Steve Bannon, Reince Priebus, Sean Spicer, and others on the sanctions. McFarland remembers that someone at the briefing may have mentioned the upcoming Kislyak call.

After the briefing: McFarland and Flynn speak by phone. Flynn tells McFarland, “that the Russian response to the sanctions was not going to be escalatory because they wanted a good relationship with the incoming Administration,” and McFarland tells Flynn about the briefing with Trump.

Moreover, the record shows that, after Flynn reported back to McFarland after Kislyak told him Russia would not respond because of the call Flynn made, he sent an email specifically designed to cover up that Kislyak had said so.

Shortly thereafter, Flynn sent a text message to McFarland summarizing his call with Kislyak from the day before, which she emailed to Kushner, Bannon, Priebus, and other Transition Team members. 1265 The text message and email did not include sanctions as one of the topics discussed with Kislyak. 1266 Flynn told the Office that he did not document his discussion of sanctions because it could be perceived as getting in the way of the Obama Administration’s foreign policy.126

Not only did Trump say, shortly after he fired Flynn, that he did not direct Flynn to discuss sanctions with Kislyak (though he said he would have directed him to do so if he wasn’t already doing it), but according to the public record, Flynn claims to have first told Trump he may have spoken about sanctions on February 6.

The week of February 6, Flynn had a one-on-one conversation with the President in the Oval Office about the negative media coverage of his contacts with Kislyak. 193 Flynn recalled that the President was upset and asked him for information on the conversations. 194 Flynn listed the specific dates on which he remembered speaking with Kislyak, but the President corrected one of the dates he listed. 195 The President asked Flynn what he and Kislyak discussed and Flynn responded that he might have talked about sanctions.196

The record also shows that, after Trump asked Reince Priebus to get KT McFarland to write a statement asserting that Trump had not spoken with Flynn before the call, she declined to do so because she didn’t know whether it had or not and John Eisenberg advised she not do so because it would make her Ambassadorial appointment look like a quid pro quo (which recently released 302s makes it look like).

Priebus called McFarland into his office to convey the President’s request that she memorialize in writing that the President did not direct Flynn to talk to Kislyak.255 McFarland told Priebus she did not know whether the President had directed Flynn to talk to Kislyak about sanctions, and she declined to say yes or no to the request.256 P

255 KTMF _ 00000048 (McFarland 2/26/ 17 Memorandum for the Record); McFarland 12/22/ 17 302, at 17.

256 KTMF _00000047 (McFarland 2/26/ 17 Memorandum_ for the Record) (“I said I did not know whether he did or didn’t, but was in Maralago the week between Christmas and New Year’s (while Flynn was on vacation in Carribean) and I was not aware of any Flynn-Trump, or Trump-Russian phone calls”); McFarland 12/22/ 17 302, at 17.

In short, even today, there is no evidence that Flynn had any permission from Trump to make this call. For over three years, Flynn and Trump have insisted he did not, which makes the significance of the intercept very different.

The public record, over three years later, is that Mike Flynn called up the country that just attacked us and — with no permission from Trump to do so — undermined the foreign policy of the United States.

So two things happened with this intercept.

At first, the fact that it was made by the incoming National Security Advisor led top DOJ officials to treat it with deferral. That is, they decided the meaning and the context was that of an incoming NSA calling foreign countries, and therefore fairly routine.

But ten days later, the transcript would look like something entirely different, the incoming NSA — who had received direct payments from Russia in the years leading up to this action — acting on his own with the Russian Ambassador. The President specifically denied having any role in the calls and fired Flynn (though said he didn’t mind the call). He went to some lengths to create a record to substantiate that he had not spoken to Flynn about it.

It would take ten months before prosecutors would have testimony (they had call records reflecting calls by March and probably had emails by August 2017) reflecting any consultation on Flynn’s part with any of his colleagues. Until they got that testimony, Flynn would have looked like had gone rogue, and decided to not only undermine Obama’s policy, but to set Trump’s policy, all on his own.

Either of those situations would justify unmasking someone’s identity. In either one of those situations, the FBI and other national security officials would have an obligation to track who was undermining the punishment for an attack by a hostile government, whether they deferred to it (in the case for the period when it seemed routine outreach) or investigated it (once it became clear the official was lying about it).

To suggest or even parrot, as Trump’s lackeys are, that this was a partisan decision suggests the United States should ignore when top national security officials appear to go rogue, undermining the current Administration without any evidence of sanction from the incoming one.

The Logan Act Is Just the Cherry on Mike Flynn’s Foreign Agent Sundae

There’s an ironic line in Billy Barr’s CBS interview this week, where he acknowledges that prosecutors can become too wedded to a particular outcome.

These are very smart people who were working in the special counsel’s office, and in senior levels of the FBI. So what drove them here?

Well, I think one of the things you have to guard against, both as a prosecutor and I think as an investigator, is that if you get too wedded to a particular outcome and you’re pursuing a particular agenda, you close your eyes to anything that sort of doesn’t fit with your preconception. And I think that’s probably the phenomenon we’re looking at here.

That’s because Barr and Sidney Powell have the frothy right chasing the Logan Act like six year olds after a soccer ball as if that was the only basis to interview Mike Flynn on January 24, 2017. It’s unclear whether frothy commenters have been duped by Barr’s guile, or they just haven’t read the record.

The record is crystal clear, however: When the investigation into Mike Flynn was opened on August 16, 2016, he was being investigated as a witting or unwitting Agent of a Foreign Power (Barr’s DOJ — and DOJ IG — have both made the same error in suggesting this was just about FARA, but the investigation was also predicated under 18 USC 951). Timothy Shea conceded in his motion to dismiss the prosecution that that investigation was never closed. And evidence from three different contemporaneous witnesses — Jim Comey, Mary McCord, and Bill Priestap — say that’s why the FBI interviewed Flynn on January 24, 2017.

Bill Priestap made clear that they did this interview to find out whether Flynn was acting as an agent for Russia.

The FBI’s provided rationale for doing the interview was that the existence of the investigation had already leaked, so Flynn was already aware that the information was being discussed publicly and there was no element of surprise. Priestap told the group the goal of the interview was whether to determine whether or not Flynn was in a clandestine relationship with the Russians.

That’s what Comey said, too.

MR. COMEY: To find out whether there was something we were missing about his relationship with the Russians and whether he would — because we had this disconnect publicly between what the Vice President was saying and what we knew. And so before we closed an investigation of Flynn, I wanted them to sit before him and say what is the deal?

The Priestap notes that the frothy right is pointing to as proof of abuse makes quite clear that the point of the interview was not to create a perjury trap, but to see whether Flynn would be honest about his relationship with the Russians.

Bob Litt, who (per these same records) was the first person to raise the Logan Act, analyzed the ways that Timothy Shea’s motion conflicts with the FBI’s DIOG. He described the interview to be, first and foremost, about counterintelligence.

The attorney general and his minions are making the astounding argument that when the FBI—aware of extensive Russian interference in U.S. politics in order to benefit the Trump campaign—learned that the incoming national security advisor requested that Russia not respond to the sanctions that were imposed in response to that interference and then lied to other government officials about that, it could not even “collect information or facts to determine” whether this created a counterintelligence threat. This cannot be right. Even if the prior investigation into Flynn had been closed, which it had not, these circumstances at a minimum justified an assessment under standard FBI policy.

In fact, the department’s motion virtually concedes the point. It dismisses Flynn’s lies to Pence and Spicer by saying that “[h]ad the FBI been deeply concerned about the disparities between what they knew had been said on the calls and the representations of Vice President Pence or Mr. Spicer, it would have sought to speak with them directly, but did not.” But that would be a kind of investigative activity, and under the DIOG, either the FBI has a basis to investigate or it doesn’t. If the facts justified talking to Pence about Flynn, they justified talking to Flynn.

Once you have a predicated investigation into 18 USC 951, adding another potential crime (the Logan Act) does not change that the investigation into 18 USC 951 remained, per Shea, ongoing.

In his interview, Barr misrepresents the record to claim what Flynn did — undermining the punishment imposed on a hostile foreign country after they attacked us — was “laudable.”

They did not have a basis for a counterintelligence investigation against Flynn at that stage, based on a perfectly legitimate and appropriate call he made as a member of the transition. So.

[snip]

Let me say that, at that point, he was the designated national security adviser for President-Elect Trump, and was part of the transition, which is recognized by the government and funded by the government as an important function to bring in a new administration. And it is very typical, very common for the national security team of the incoming president to communicate with foreign leaders.

And that call, there was nothing wrong with it whatever. In fact, it was laudable. He– and it was nothing inconsistent with the Obama administration’s policies. And it was in U.S. interests. He was saying to the Russians, you know, “Don’t escalate.” And they asked him if he remembered saying that, and he said he didn’t remember that.

There are several problems with this claim.

For starters, at first, Mary McCord agreed with this take. She dismissed the call for the same reasons Barr still does — that this was just the typical communication between an incoming national security team and foreign leaders.

Two things changed her mind.

The first was the evidence that Flynn was lying about what he did to others in the incoming Administration.

It seemed logical to her that there may be some communications between an incoming administration and their foreign partners, so the Logan Act seemed like a stretch to her. She described the matter as “concerning” but with no particular urgency. In early January, McCord did not think people were considering briefing the incoming administration. However, that changed when Vice President Michael Pence went on Face the Nation and said things McCord knew to be untrue. Also, as time went on, and then-White House spokesperson Sean Spicer made comments about Flynn’s actions she knew to be false, the urgency grew.

It is normal for officials in incoming Administrations to reach out to foreign leaders. But it is not the norm for incoming officials to freelance, to set policy that no one else in the Administration knows about. And the public evidence at the time the FBI interviewed Flynn was that he had done this on his own and was actively hiding it form his colleagues (as indeed the current record says he was).

The record that Barr distorted in this interview shows that FBI was in a holding pattern until there was public evidence that Flynn had lied to others in the Administration, which not only changed the calculus about warning the Administration, but created urgency to take an investigative step FBI might not otherwise have done.

The other thing that changed McCord’s mind about whether this was the normal pre-inauguration outreach was reading the transcript.

After reading them, she felt they were “worse” than she initially thought; she noted that her recollection of them is that Flynn proactively raised the issue of sanctions, and she feels it is hard to believe he would forget talking about something he raised himself.

Sally Yates described Flynn make a series of asks, some of which remain classified.

And McCord wasn’t the only one who responded that way. Once Mike Pence and Reince Priebus read the transcripts, Flynn was out the door the next day.

Notably, even though Ric Grenell is in the middle of a declassification spree, neither he nor Barr have chosen to declassify the actual transcripts here, even though Flynn has requested them repeatedly. Barr’s DOJ is also withholding other details that would describe the reaction of Administration officials to reading the transcript in the Buzzfeed FOIA. So it’s easy for Barr to claim this was normal, but a career prosecutor who read the transcripts said they weren’t, and Barr is deliberately withholding information that would let us test that claim.

This is why DOJ’s materiality argument fails, too. Had Flynn told the truth, the FBI might have had reason to treat this as the normal pre-inauguration contact. But once he lied, the FBI had more reason to continue investigating, to try to figure out why he lied. All the more so given that Flynn was hiding his other Foreign Agent relationship with Turkey at the time.

If Flynn’s behavior were, as Barr claims, “laudable,” then he would have simply admitted it. Once he lied about it, the FBI had more reason to suspect he had been freelancing, deliberately undermining American policy without the sanction and knowledge of others in the Trump Administration.

Only one thing explains Barr’s view, and it is damning. The FBI had reason to investigate anyway, and as Litt correctly lays out, these actions were solidly within the guidelines laid out in the FBI’s Domestic Investigations and Operations Guide. But the only way to conclude, as Barr has, that Flynn’s actions — calling up the Russian Ambassador and telling him not to worry about the sanctions imposed for helping Trump get elected — are not clear cut evidence that he was clandestinely operating as an Agent of Russia is if Trump told him to do it.

That doesn’t make it laudable. But it is as close as we’ve ever come to an admission that Flynn did this not just with the knowledge of, but on orders from, Trump. That’s probably why Trump is boasting about learning from Nixon right now: Because unlike Nixon, he got away with cheating to win an election.

The Kinds and Significance of Russian Interference — 2016 and 2020

Trump’s meltdown last week — in which he purged top staffers at the Director of National Intelligence after a briefing on Russian interference in the 2020 election, followed by National Security Advisor Robert O’Brien making shit up on Meet the Press — has created a firestorm about Russian interference in the 2020 election. That firestorm, however, has spun free of what ways Russia interfered in 2016 and what effect it had.

Five ways Russia interfered in 2016

First, remember that there were at least five ways Russia interfered in 2016:

  • Stealing information then releasing it in a way that treats it as dirt
  • Creating on-going security challenges for Hillary
  • Using trolls to magnify divisions and feed disinformation
  • Tampering with the voting infrastructure
  • Influence peddling and/or attempting to recruit Trump aides for policy benefits

Stealing information then releasing it in a way that treats it as dirt

The most obvious way Russia interfered in 2016 was by hacking the DNC, DCCC, and John Podesta (it also hacked some Republicans it did not like). It released both the DNC and Podesta data in such a way as to exaggerate any derogatory information in the releases, successfully distracting the press for much of the campaign and focusing attention on Hillary rather than Trump. It released DCCC information that was of some use for Republican candidates.

Roger Stone took steps — not all of which are public yet — to optimize this effort. In the wake of Stone’s efforts, he moved to pay off one participant in this effort by trying to get a pardon for Julian Assange.

Creating on-going security challenges for Hillary

In addition to creating a messaging problem, the hack-and-leak campaign created ongoing security challenges for Hillary. Someone who played a key role in InfoSec on the campaign has described the Russian effort as a series of waves of attacks. The GRU indictment describes one of those waves — the efforts to hack Hillary’s personal server — which came in seeming response to Trump’s “Russia are you listening” comment. An attack that is often forgotten, and from a data perspective was likely one of the most dangerous, involved a month-long effort to obtain Hillary’s analytics from the campaign’s AWS server.

Whatever happened with this data, the persistence of these attacks created additional problems for Hillary, as her staff had to spend time playing whack-a-mole with Russian hackers rather than optimizing their campaign efforts.

Using trolls to magnify divisions and feed disinformation

Putin’s “chef,” Yevgeniy Prigozhin, also had staffers from his troll factory in St. Petersburg shift an ongoing campaign that attempted to sow division in the US to adopt a specific campaign focus, pushing Trump and attacking Hillary. Importantly, Prigozhin’s US-based troll effort was part of a larger multinational effort. And it was in no way the only disinformation and trolling entity involved in the election. Both parties did some of this, other countries did some, and mercenaries trying to exploit social media algorithms for profit did some as well.

Tampering with the voting infrastructure

Russia also tampered with US voting infrastructure. In 2016, this consisted of probing most states and accessing voter rolls in at least two, though there’s no evidence that Russian hackers made any changes. In addition, Russian hackers targeted a vendor that provided polling books, with uncertain results. The most substantive evidence of possible success affecting the vote in 2016 involved failures of polling books in Durham County, NC, which created a real slowdown in voting in one of the state’s most Democratic areas.

In recent days, there have been reports of a ransomware attack hitting Palm Beach County in September 2016, but it is unclear whether this was part of the Russian effort.

Because there’s no certainty whether the Russian hack of VR Systems was behind the Durham County problems, there’s no proof that any of these efforts affected the outcome. But they point to the easiest way to use hacking to do so: by making it harder for voters in particular areas to vote and harder for specific localities to count the vote.

Some of what Russia did in 2016 — such as probes of a particularly conservative county in FL — may have been part of Russia’s effort to discredit the outcome. They didn’t fully deploy this effort because Trump won.

Influence peddling and/or attempting to recruit Trump aides for policy benefits

Finally, Russia accompanied its other efforts with various kinds of influence peddling targeting Trump’s aides. It was not the only country that did so: Saudi Arabia, Egypt, Turkey, UAE, and Israel were some of the others. Foreign countries were similarly trying to target Hillary’s campaign — and the UAE effort, at least, targeted both campaigns at once, through George Nader.

Importantly, however, these efforts intersected with Russia’s other efforts to interfere in the election in ways that tied specific policy outcomes to Russia’s interference:

  • An unrealistically lucrative Trump Tower deal involved a former GRU officer and sanctioned banks
  • At a meeting convened to offer Trump dirt about Hillary, Don Jr agreed in principle to revisit ending Magnitsky sanctions if Trump won
  • George Papadopoulos pitched ending sanctions to Joseph Mifsud, who had alerted him that Russia had emails they intended to drop to help Trump
  • Paul Manafort had a meeting that tied winning the Rust Belt, carving up Ukraine, and getting paid personally together; the meeting took place against the background of sharing internal polling data throughout the campaign

As I’ll note in a follow-up, information coming out in FOIAed 302s makes it clear that Mike Flynn’s effort to undercut Obama’s December 2016 sanctions was more systematic than the Mueller Report concludes. So not only did Russia make it clear it wanted sanctions relief, Trump moved to give it to them even before he got elected (and his Administration found a way to exempt Oleg Deripaska from some of these sanctions).

Manafort continued to pursue efforts to carve up Ukraine until he went to jail. In addition, Trump continues to take actions that undercut Ukraine’s efforts to fight Russia and corruption. Neither of these have been tied to a specific quid pro quo (though the investigation into Manafort’s actions, especially, remained inconclusive at the time of the Mueller Report).

So while none of these was charged as a quid pro quo or a conspiracy (and the reasons why they weren’t vary; Manafort lied about what he was doing, and why, whereas Mueller couldn’t prove Don Jr had the mens rea of entering into a quid pro quo), Russia tied certain policy outcomes to its interference.

Trump’s narcissism and legal exposure exacerbated the effects

The Russian attack was more effective than it otherwise would have been for two reasons. First, because he’s a narcissist and because Russia built in plausible deniability, Trump refused to admit that Russia did try to help him. Indeed, he clings more and more to Russian disinformation about what happened, leading the IC to refuse to brief him on the threat, leading to last week’s meltdown.

In addition, rather than let FBI investigate the people who had entered into discussions of a quid pro quo, Trump obstructed the investigation. Trump has spent years now attacking the rule of law and institutions of government rather than admit what DOJ IG found — there was reason to open the investigation, or admit what DOJ found — there was reason to prosecute six of his aides for lying about what happened.

The Russian effort was just one of the reasons Hillary lost

It’s also important to remember that Russia’s interference was just one of the many things that contributed to Hillary’s loss.

Other aspects were probably more important. For example, Republican voter suppression, particularly in Wisconsin and North Carolina, was far more important than any effect the VR Systems hack may have had in Durham County. Jim Comey’s public statements about the email investigation had at least as much effect as the Russian hack-and-leak campaign did on press focus. Hillary made some boneheaded choices — like barely campaigning in WI and MI; while I had worried that she made those choices because Russia tampered with her analytics (with the AWS hack), that doesn’t seem to have happened. Disinformation sent by the Trump campaign and associates was more significant than Russian disinformation. It didn’t help that the Obama Administration announced a sharp spike in ObamaCare prices right before the election.

The response matters

As noted, Trump’s narcissism dramatically increased the effect of the Russian efforts in 2016, because he has always refused to admit it happened.

Compare that to Bernie’s response to learning that Russia was trying to help his campaign, which accepted that it is happening and rejected the help.

“I don’t care, frankly, who [Russian President Vladimir] Putin wants to be president,” Sanders said in a statement. “My message to Putin is clear: Stay out of American elections, and as president I will make sure that you do.

“In 2016, Russia used Internet propaganda to sow division in our country, and my understanding is that they are doing it again in 2020. Some of the ugly stuff on the Internet attributed to our campaign may well not be coming from real supporters.”

This was not perfect — Bernie could have revealed this briefing himself weeks ago, Bernie blamed the WaPo for reporting it when it seems like the story was seeded by O’Brien. But it was very good, in that it highlighted the point of Russian interference — sowing divisions — and it reaffirmed the import of Americans selecting who wins. Plus, contrary to Trump, there’s no reason to believe Bernie would pursue policies that specifically advantaged Russia.

Other factors remain more important than Russian interference

There’s very serious reason to be concerned that Russia will hack the outcome of 2020. After all, it would need only to affect the outcome in a small number of precincts to tip the result, and the prospect of power outages or ransomware doing so in urgent fashion have grown since 2016.

That said, as with 2016, there are far more urgent concerns, and those concerns are entirely American.

Republicans continue to seek out new ways to suppress the vote, including by throwing large swaths of voters off the rolls without adequate vetting. There are real concerns about voting machines, particularly in Georgia (and there are credible concerns about the reliability of GA’s tally in past elections). Republicans have continued to make polling locations less accessible in Democratic precincts than in Republican ones.

Facebook refuses to police the accuracy of political ads, and Trump has flooded Facebook with disinformation.

And Bloomberg’s efforts this year — which include a good deal of trolling and disinformation — are unprecedented in recent memory. His ad spending has undercut the ability to weigh candidates. And his personnel spending is increasing the costs for other candidates.

Russian efforts to sway the vote are real. Denying them — as some of Bernie’s supporters are doing in ways that hurt the candidate — does not help. But, assuming DHS continues to work with localities to ensure the integrity of voting infrastructure, neither does overplaying them. Between now and November there’s far more reason to be concerned about American-funded disinformation and American money distorting our democratic process.

The Stakes and Misinformation about the Andrew McCabe Declination

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Size of Bill Barr’s Cover-Up Hints at the Magnitude of What He’s Covering Up

After the Tuesday Afternoon Massacre — where four prosecutors withdrew from the Roger Stone case rather than be party to Bill Barr interfering in the prosecution of Trump’s rat-fucker — we learned on Friday that Bill Barr had deployed a third US Attorney — Saint Louis’ Jeffrey Jensen — to the DC US Attorney’s office as part of an elaborate cover-up for Trump’s crimes. I’m going to attempt to lay out the full scope of Barr’s attempted cover-up. This post will serve as an overview and I will update it with links to the known or suspected evidence and crimes that Barr is covering up. I’m not including efforts to launch or sustain investigations into those Trump perceives to be his enemies.

The cover-up has the following aspects:

Interim US Attorneys oversee investigations implicating Trump’s actions

Geoffrey Berman, Southern District of New York: For the most part, Berman seems to have operated independently after his appointment as US Attorney for SDNY, but there are recent concerns that investigations implicating Trump have been stymied:

  • Hush payments: After getting Michael Cohen to plead guilty to covering up Trump’s past sex partners during the election and obtaining testimony from National Enquirer, the investigation closed with no further charges on or before July 17, 2019.
  • Ukrainian grifters: There are conflicting stories about the scope of the investigation into Ukrainian grifters Lev Parnas and Igor Fruman, particularly with regards to how seriously SDNY is considering charges against Rudy Giuliani. WaPo reported steps taken implicating Rudy’s activities on February 14, 2020. But Parnas has insinuated that his sudden arrest on October 9 was an attempt to keep him silent; Barr visited SDNY that day and subsequently visited Rupert Murdoch at his home. SDNY showed unusual concern for the privacy of third parties as Parnas tried to share more information with the House Intelligence Committee. And Bill Barr has not recused in spite of a clear conflict and a request from Parnas.
  • Halkbank: Barr tried to pre-empt an indictment of Turkey’s Halkbank with a settlement.

Timothy Shea, District of Columbia: While Berman worked for several years without any show of corruption, that’s not true of Timothy Shea, a trusted Barr aide. The very first day he started work — having been installed by Barr with just a day’s notice — he started questioning the guidelines sentence of Roger Stone, who has promised to remain silent about details of Trump’s involvement in his efforts to optimize the release of emails stolen by Russian. Then, Shea worked with Bill Barr to reverse the guidelines sentence recommended by career prosecutors. In addition, Shea’s appointment coincided with the start of a “review” of other prosecutions and investigations of Trump associates in DC including, but not limited to, Mike Flynn and Erik Prince.

Confirmed US Attorneys “review” investigations into Trump and his associates

John Durham, Connecticut: In May 2019, Barr ordered John Durham to conduct an investigation into the origins of the Crossfire Hurricane investigation of Trump associates’ ties to Russia. He predicated the investigation, explicitly, on the absence of evidence. In clear contrast to the Mueller investigation, DOJ has produced no documentation regarding the scope of the investigation (including whether Durham could pursue crimes by Trump’s associates or even Barr himself if he found evidence of a crime), and Barr has remained personally involved, completely negating the entire point of appointing a US Attorney to conduct the investigation. Republicans have described the point of this investigation as an effort to discredit the Mueller investigation. It has included the following:

  • Bill Barr’s worldwide tour chasing the hoaxes rolled out through George Papadopoulos via the right wing echo chamber
  • Some disinformation likely fed via Rudy
  • The legitimate criminal investigation of FBI Attorney Kevin Clinesmith, the actual venue for which should be Washington DC
  • CIA’s 2016 determination — confirmed by more recent intelligence collection and reviewed approvingly by the Senate Intelligence Committee — that Russia not only wanted to hurt Hillary, but help Trump in the 2016 election
  • Communications between John Brennan and Jim Comey and Andrew McCabe

Jeffrey Jensen, Eastern District of Missouri: The “review” Jeffrey Jensen is conducting of DC US Attorney cases seems to couple with Durham’s investigation. It reportedly is second-guessing decisions made by prosecutors on the Mike Flynn and Erik Prince investigation, as well as other non-public investigations. The review is almost certainly assessing rumors started by known propagandists that have already been investigated three times, including by FBI’s Inspection Division, rumors already reviewed and dismissed in a meticulous 92-page opinion from Emmet Sullivan. This “review” seems to have been part of the installment of Shea at DC and may amount to an attempt to thwart investigations that Jessie Liu let proceed without political interference.

DOJ diverts disinformation from Rudy Giuliani to another confirmed US Attorneys

In recent weeks, Barr has appointed Scott Brady, US Attorney for Western District of Pennsylvania, to vet incoming information from Rudy’s foreign influence peddling in Ukraine. It’s unclear whether Barr did this to try to make something out of that disinformation, or to prevent evidence that might support foreign influence peddling charges against Rudy from getting to prosecutors in SDNY.

Richard Donoghue, Eastern District of New York: Donoghue is apparently “handling certain Ukraine-related matters.” In connection to that, Jeffrey Rosen put Donoghue in charge of coordinating all investigations that pertain to Ukraine,

to avoid duplication of efforts across Offices and components, to obviate the need for deconfliction at a later stage of potentially overlapping investigations, and to efficiently marshal the resources of the Department to address the appropriate handling of potentially relevant new information.

That in and of itself is not problematic. But by putting Jensen in charge of intake, presumably before it gets to Donoghue, Rosen has ensured that information that — because it is disinformation — would be incriminating to Rudy, not Joe Biden (or anyone else).

DOJ prevents full investigation of Ukraine complaint

Barr and his DOJ engaged in multiple acts of obstruction of the Ukraine complaint. First, Barr did not recuse from a complaint mentioning him by name. Then (knowing that Barr was personally implicated), DOJ did not conduct a full assessment of the whistleblower complaint, which would have identified a tie to the SDNY investigation of Lev Parnas and Igor Fruman. Then OLC invented an excuse not to share whistleblower complaint with Congress, which resulted in a significant delay and almost led Ukraine to make concessions to obtain aid. Then, DOJ did not share whistleblower complaint with FEC as required by Memorandum of Notification. Finally, DOJ made a comment claiming Trump was exonerated, precisely the abuse — speaking about ongoing investigations — that Jim Comey got fired for.