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About the Oleg Deripaska Reference in the Mueller Memo

As I promised in my general summary of the Mueller memo and my assertion that there are more memos from DAG Rosenstein authorizing expanded scope on Mueller’s investigation, I want to comment on the reference to Oleg Deripaska in the memo.

The memo, remember, ostensibly only needs to lay out how Mueller’s appointment “to investigate Russian interference with the 2016 presidential election and related matters” authorizes him to prosecute a bunch of money laundering used to hide the fact that Paul Manafort was lobbying for the interests of the Party of Regions, the Russian backed effort to keep its favored oligarchs in power in Ukraine, when he was pretending to represent an independent entity.

But at the end of a long paragraph explaining how Rosenstein’s appointment order alone would justify that prosecution — because Manafort played a key role in Trump’s campaign, and because Manafort resigned after his extensive ties to Yanukovych were exposed — Mueller drops in a reference to “open source reporting” tying Manafort to Deripaska.

The Appointment Order itself readily encompasses Manafort’s charged conduct. First, his conduct falls within the scope of paragraph (b)(i) of the Appointment Order, which authorizes investigation of “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.” The basis for coverage of Manafort’s crimes under that authority is readily apparent. Manafort joined the Trump campaign as convention manager in March 2016 and served as campaign chairman from May 2016 until his resignation in August 2016, after reports surfaced of his financial activities in Ukraine. He thus constituted an “individual associated with the campaign of President Donald Trump.” Appointment Order ¶ (b) and (b)(i). He was, in addition, an individual with long ties to a Russia-backed Ukrainian politician. See Indictment, Doc. 202, ¶¶ 1-6, 9 (noting that between 2006 and 2015, Manafort acted as an unregistered agent of Ukraine, its former President, Victor Yanukovych—who fled to Russia after popular protests—and Yanukovych’s political party). Open-source reporting also has described business arrangements between Manafort and “a Russian oligarch, Oleg Deripaska, a close ally of President Vladimir V. Putin.”8 [my emphasis]

There’s no explicit reference to Deripaska in Manafort’s indictment. The only public references to him in the Manafort prosecution I’m aware of are instead to Deripaska’s crony, Konstantin Kilimnik, laying out his efforts to spin the indictment in an op-ed in the Kyiv Post, which Mueller’s prosecutors argued was an attempt to skirt the gag rule in the case. There’s admittedly more detailed reference to Kilimnik — referred to as Person A — in the same team’s sentencing memo for Alex Van der Zwaan, including the assertion that,

[T]he lies and withholding of documents were material to the Special Counsel’s Office’s investigation. That Gates and Person A were directly communicating in September and October 2016 was pertinent to the investigation. Federal Bureau of Investigation Special Agents assisting the Special Counsel’s Office assess that Person A has ties to a Russian intelligence service and had such ties in 2016. During his first interview with the Special Counsel’s Office, van der Zwaan admitted that he knew of that connection, stating that Gates told him Person A was a former Russian Intelligence Officer with the GRU.2

2 Person A worked with Manafort and Gates in connection with their Ukraine lobbying work. Person A is a foreign national and was a close business colleague of Manafort and Gates. He worked in Ukraine at Manafort’s company Davis Manafort International, LLC (DMI). Up until mid-August 2016, Person A lived in Kiev and Moscow

But thus far, nothing specifically relating to Deripaska or Kilimnik has been charged, even while a different open source report describing Manafort’s offer to give private briefings to Deripaska via Kilimnik laid out a much closer tie between Deripaska and election tampering, and another open source report described FBI scrutiny of Kilimnik’s role in changing the GOP platform.

As noted, instead of referencing those more damning open source reports, Mueller instead points to the August 15, 2016 NYT article that precipitated Manafort’s resignation from the Trump campaign. The report, sourced to investigators in “Ukraine’s newly formed National Anti-Corruption Bureau” laid out the secret ledgers showing that Manafort may have received $12.7 million in off-the-book payments for his consulting services that tampered with Ukraine’s electoral process.

The report goes on to lay out the general logic of the money laundering prosecution at issue — how Manafort’s money laundering prevented others from understanding how much he actually made for his services to Yanukovych and the Party of Regions.

Mr. Manafort never registered as a foreign agent with the United States Justice Department — as required of those seeking to influence American policy on behalf of foreign clients — although one of his subcontractors did.

It is unclear if Mr. Manafort’s activities necessitated registering. If they were limited to advising the Party of Regions in Ukraine, he probably would not have had to. But he also worked to burnish his client’s image in the West and helped Mr. Yanukovych’s administration draft a report defending its prosecution of his chief rival, Yulia V. Tymoshenko, in 2012.

Whatever the case, absent a registration — which requires disclosure of how much the registrant is being paid and by whom — Mr. Manafort’s compensation has remained a mystery.

From there, it turns to the Pericles Open Market fund that Manafort, Gates, and others got Deripaska to fund. The story doesn’t describe any direct tie between the secret ledgers at issue in the story and the Deripaska investments. Rather,the Deripaska lawsuit against Manafort made details of the fund available to Ukraine’s special prosecutor, who cited them as an example of how Yanukovych’s cronies laundered money.

In a recent interview, Serhiy V. Gorbatyuk, Ukraine’s special prosecutor for high-level corruption cases, pointed to an open file on his desk containing paperwork for one of the shell companies, Milltown Corporate Services Ltd., which played a central role in the state’s purchase of two oil derricks for $785 million, or about double what they were said to be worth.

“This,” he said, “was an offshore used often by Mr. Yanukovych’s entourage.”

[snip]

Mr. Deripaska agreed to commit as much as $100 million to Pericles so it could buy assets in Ukraine and Eastern Europe, including a regional cable television and communications company called Black Sea Cable. But corporate records and court filings show that it was hardly a straightforward transaction.

The Black Sea Cable assets were controlled by a rotating cast of offshore companies that led back to the Yanukovych network, including, at various times, Milltown Corporate Services and two other companies well known to law enforcement officials, Monohold A.G. and Intrahold A.G. Those two companies won inflated contracts with a state-run agricultural company, and also acquired a business center in Kiev with a helicopter pad on the roof that would ease Mr. Yanukovych’s commute from his country estate to the presidential offices.

The Deripaska reference in a memo describing why Mueller was authorized to prosecute Manafort for related (but not explicitly) money laundering would otherwise be a non-sequitur. Because it appears in an article that not only lays out the basis for the underlying charges, but does so in an article that had an impact on Manafort’s role in the campaign, it doesn’t seem so obviously tangential. Plus, it has the added benefit (unlike the open source reporting deriving from leaks from Congress or law enforcement) of being an on-the-record source from someone perfectly entitled to the talk to the press about Ukraine’s investigation into Manafort. This, then, was a legally permissible way to insert Deripaska into a filing where he otherwise might not have belonged.

Plus, that same open source report lays out that Ukraine’s National Anti-Corruption Bureau can’t prosecute suspects, but instead has to rely on entities like the FBI — with which it has an evidence sharing agreement — to do so.

The bureau, whose government funding is mandated under American and European Union aid programs and which has an evidence-sharing agreement with the F.B.I., has investigatory powers but cannot indict suspects. Only if it passes its findings to prosecutors — which has not happened with Mr. Manafort — does a subject of its inquiry become part of a criminal case.

During Jim Comey’s March 20, 2017 testimony (which is cited explicitly in the Mueller memo to lay out the initial unclassified scope of the investigation), Jim Himes tried to get the then FBI Director to admit that DOJ had not responded to seven requests for MLAT assistance to secure Manafort’s cooperation in their inquiry.

HIMES: And the reason I bring all this up with you is because the story also says and it appears to have been confirmed by the Department of Justice that the current Ukraine regime, hardly a friend of the Russians. And very much targeted by the Russians has made seven requests to the United States government’s — the United States government for assistance under the MLA treaty in securing the assistance of Paul Manafort as part of this on anti-corruption case. And in fact, the story says that you were presented personally with a letter asking for that assistance.

So my question Director Comey is, is that all true? Have you been asked to provide assistance to the current Ukrainian government with respect to Paul Manafort? And how do you intend to respond to that request?

COMEY: It’s not something I can comment on. I can say generally, we have a very strong relationship and cooperation in the criminal and national security areas with our Ukrainian partners, but I can’t talk about the particular matter.

Comey, while not confirming the report, instead suggested that the FBI continued to cooperate closely with Ukraine on this issue — a strong suggestion that Ukraine ultimately had asked an entity that could take prosecutorial action to do so.

To sum up thus far: this reference to Deripaska is, to the best of my knowledge, the first explicit reference to him anywhere in the Manafort docket. It has no obvious place in a memo explaining why Mueller is authorized to prosecute Manafort for money laundering tied to the Party of Regions. But there it is, in the middle of a paragraph explaining why Manafort’s prosecution follows logically even from the original grant of authority, to say nothing of any unredacted or redacted bullet points explicitly including Manafort’s alleged and documented ties to Deripaska in the scope of Mueller’s authority. By including it in the memo, Mueller effectively includes Deripaska in the ongoing discussions of the things Judge Amy Berman Jackson will likely soon agree Mueller has the authority to prosecute.

It is, then, the most telling line in the entire memo, and the most clever. It uses the opportunity of this memo to pre-authorize where Mueller is going, without having to reveal what evidence Mueller is sitting on to go there.

Of course, where he’s going — to this oligarch and his crony’s role in Trump’s election — is very obviously tied to the case in chief, the Russian tampering in the US election.

Update: Later today Mueller’s team requested permission to file one of the exhibits from their filing — which given Judge Berman Jackson’s description has to be the Rosenstein memo — under seal. Which suggests they want him to know what else he’s being investigated for, which is probably the Deripaska stuff.

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There Are Almost Certainly Other DAG Rosenstein Memos

April 3, 2018/15 Comments/in 2016 Presidential Election, CIA Leak Case, emptywheel, Mueller Probe /by emptywheel

As I noted in this post, Robert Mueller’s team of “Attorneys for the United States of America” responded to Paul Manafort’s claim that Rod Rosenstein’s grant of authority to the Special Counsel did not extend to the money laundering he is currently being prosecuted for by revealing an August 2, 2017 memo from Rosenstein authorizing Mueller to investigate, along with a bunch of redacted stuff,

Allegations that Paul Manafort:

Committed a crime or crimes by colluding with Russian government officials with respect to the Russian government’s efforts to interfere with the 2016 election for President of the United States, in violation of United States law;

Committed a crime or crimes arising out of payments he received from the Ukrainian government before and during the tenure of President Viktor Yanukovych.

As the filing notes, this memo has not been revealed before, neither to us nor to Manafort.

That’s all very interesting (and has the DC press corps running around claiming this is a big scoop, when it is instead predictable). More interesting, however, is the date, which strongly suggests that there are more of these memos out there.

Mueller is unlikely to have waited two and a half months to memorialize his scope

I say that, first of all, because Rosenstein wrote the August 2 memo two and a half months after he appointed Mueller. Given Trump’s raging attacks on the investigation, it’d be imprudent not to get memorialization of the scope of the investigation at each step. Indeed, as I’ve noted, in the filing Mueller points to the Libby precedent, arguing that this memo “has the same legal significance” as the two memos Jim Comey used to (publicly) memorialize the scope of Patrick Fitzgerald’s investigation.

The August 2 Scope Memorandum is precisely the type of material that has previously been considered in evaluating a Special Counsel’s jurisdiction. United States v. Libby, 429 F. Supp. 2d 27 (D.D.C. 2006), involved a statutory and constitutional challenge to the authority of a Special Counsel who was appointed outside the framework of 28 C.F.R. Part 600. In rejecting that challenge, Judge Walton considered similar materials that defined the scope of the Special Counsel’s authority. See id. at 28-29, 31-32, 39 (considering the Acting Attorney General’s letter of appointment and clarification of jurisdiction as “concrete evidence * * * that delineates the Special Counsel’s authority,” and “conclud[ing] that the Special Counsel’s delegated authority is described within the four corners of the December 30, 2003 and February 6, 2004 letters”). The August 2 Scope Memorandum has the same legal significance as the original Appointment Order on the question of scope.

The first of those Comey letters, dated December 30, 2003, authorized Fitz to investigate the leak of Valerie Plame’s identity. The second of those, dated February 6, 2004, memorialized that Fitz could also investigate,

federal crimes committed in the course of, and with intent to interfere with, your investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses; to conduct appeals arising out of the matter being investigated and/or prosecuted; and to pursue administrative remedies and civil sanctions (such as civil contempt) that are within the Attorney General’s authority to impose or pursue.

It’s the second memo that memorialized Fitz’ authority to prosecute Scooter Libby for protecting Dick Cheney’s role in outing Valerie Plame.

Mueller, then the acting FBI Director, would presumably have been in the loop of the Fitz investigation (as Christopher Wray is in Mueller’s) and would have known how these two letters proceeded. So it would stand to reason he’d ask for a memo from the start, particularly given that the investigation already included multiple known targets and that Trump is even more hostile to this investigation than George Bush and Dick Cheney were to Fitz’s.

Admittedly, unlike the Comey memo, which was designed for public release, there’s no obvious, unredacted reference to a prior memo. Though something that might imply a prior memo is redacted at the top of the released memo (though this is probably a classification marking).

And, given that this memo was designed to be secret, Rosenstein may have written the memo to obscure whether there are prior ones and if so how many.

The memo closely follows two key dates

That said, the date of the memo, August 2, is mighty curious. It is six days after the July 27 Papadopoulos arrest at Dulles airport. And seven days after the July 26 no knock search of Paul Manafort’s Alexandria home.

That timing might suggest any of several things. It’s certainly possible (though unlikely) the timing is unrelated.

It’s possible that Rosenstein wrote the memo to ensure those two recent steps were covered by his grant. That wouldn’t mean that the search and arrest wouldn’t have been authorized. The memo itself notes that Mueller would be obliged to inform Rosenstein before each major investigative step.

The Special Counsel has an explicit notification obligation to the Attorney General: he “shall notify the Attorney General of events in the course of his or her investigation in conformity with the Departmental guidelines with respect to Urgent Reports.” 28 C.F.R. § 600.8(b). Those reports cover “[m]ajor developments in significant investigations and litigation,” which may include commencing an investigation; filing criminal charges; executing a search warrant; interviewing an important witness; and arresting a defendant.

Both Papadopoulos’ arrest and that dramatic search would fit this criteria. So it’s virtually certain Rosenstein reviewed Urgent Memos on both these events before they happened. Plus, his memo makes it clear that the allegations included in his memo “were within the scope of the Investigation at the time of your appointment and are within the scope of the Order,” meaning that the inclusion of them in the memo would retroactively authorize any activities that had already taken place, such as the collection of evidence at Manafort’s home outside the scope of the election inquiry.

As I noted, the memo also asserts that Special Counsels’ investigative authority, generally, extends to investigating obstruction and crimes the prosecutor might use to flip witnesses.

The filing is perhaps most interesting for the other authorities casually asserted, which are not necessarily directly relevant in this prosecution, but are for others. First, Mueller includes this footnote, making it clear his authority includes obstruction, including witness tampering.

The Special Counsel also has “the authority to investigate and prosecute federal crimes committed in the course of, and with intent to interfere with, the Special Counsel’s investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses” and has the authority “to conduct appeals arising out of the matter being investigated and/or prosecuted.” 28 C.F.R. § 600.4(a). Those authorities are not at issue here.

Those authorities are not at issue here, but they are for the Flynn, Papadopoulos, Gates, and Van der Zwaan prosecutions, and for any obstruction the White House has been engaging in. But because it is relevant for the Gates and Van der Zwaan prosecutions, that mention should preempt any Manafort attempt to discredit their pleas for the way they expose him.

The filing includes a quotation from DOJ’s discussion of special counsels making it clear that it’s normal to investigate crimes that might lead someone to flip.

[I]n deciding when additional jurisdiction is needed, the Special Counsel can draw guidance from the Department’s discussion accompanying the issuance of the Special Counsel regulations. That discussion illustrated the type of “adjustments to jurisdiction” that fall within Section 600.4(b). “For example,” the discussion stated, “a Special Counsel assigned responsibility for an alleged false statement about a government program may request additional jurisdiction to investigate allegations of misconduct with respect to the administration of that program; [or] a Special Counsel may conclude that investigating otherwise unrelated allegations against a central witness in the matter is necessary to obtain cooperation.”

That one is technically relevant here — one thing Mueller is doing with the Manafort prosecution (and successfully did with the Gates one) is to flip witnesses against Trump. But it also makes it clear that Mueller could do so more generally.

Mueller used the false statements charges against Papadopoulos to flip him. He surely hopes to use the money laundering charges against Manafort to flip him, too. Both issues may have been at issue in any memo written to newly cover the events of late July.

Mueller may not have revealed the scope of the Manafort investigation at that time

Now consider this detail: the second bullet describing the extent of the investigation into Manafort has a semi-colon, not a period.

It’s possible Mueller used semi-colons after all these bullets (of which Manafort’s is the second or third entry). But that, plus the resumption of the redaction without a double space suggests there may be another bulleted allegation in the Manafort allegation.

There are two other (known) things that might merit a special bullet. First, while it would seem to fall under the general election collusion bullet, Rosenstein may have included a bullet describing collusion with Aras Agalarov and friends in the wake of learning about the June 9 Trump Tower meeting with his employees. More likely, Rosenstein may have included a bullet specifically authorizing an investigation of Manafort’s ties with Oleg Deripaska and Konstantin Kilimnik.

The Mueller memo actually includes a specific reference to that, which as I’ve noted I will return to.

Open-source reporting also has described business arrangements between Manafort and “a Russian oligarch, Oleg Deripaska, a close ally of President Vladimir V. Putin.”

The latter might be of particular import, given that we know a bunch of fall 2017 interviews focused on Manafort’s ties to Deripaska and the ongoing cover-up with Kilimnik regarding the Skadden Arps report on the Yulia Tymoshenko prosecution.

All of which is to say that this memo may reflect a new expansion of the Manafort investigation, perhaps pursuant to whatever the FBI discovered in that raid on Manafort’s home. If so, that should be apparent to him, as he and his lawyers know what was seized.

Still, I wouldn’t be surprised if he inquired about what authorized that July 26 raid, if for no other reason than to sustain his effort to make more information on Mueller’s investigation public.

The redactions almost certainly hide two expansions to the investigation as it existed in October 2016

Now let’s turn to what else (besides another possible Manafort bullet) the redactions might show, and what may have been added since.

The unredacted description of the Manafort investigation takes up very roughly about one fifth of the section describing allegations Mueller was pursuing.

The Schiff Memo revealed that DOJ had sub-investigations into four individuals in October 2016.

Endnote 7 made it clear that, in addition to Page, this included Flynn and Papadopoulos, probably not Rick Gates, and one other person, possibly Roger Stone.

In August 2017, all four of those would have been included in a Rosenstein memo, possibly with a bullet dedicated to Gates alone added. That said, not all of these would require two or more bullets (and therefore as much space as the Manafort description). Papadopoulos’ description might include two, one dedicated to the collusion and one to the lying about collusion, or just one encompassing both the collusion and the lying. Flynn’s might include three, one dedicated to the collusion, one to the lying about it, and one to the unregistered foreign agent work, including with Turkey, that we know Mueller to have been investigating; or, as with Papadopoulos, the lying about the collusion might be incorporated into that bullet. Stone’s bullet would likely have only reflected the collusion, an investigation that is currently very active. Carter Page’s suspected role as a foreign agent might be one bullet or two.

That suggests, though doesn’t confirm, that there are a few other things included in those redacted bullets, things not included in the investigation in October 2016 as reflected in the Schiff memo.

Indeed, we should expect two more things to be included in the bullet points: First, the name of any suspect, including the President, associated with the obstruction of justice. Rosenstein himself had already been interviewed with respect to that aspect of the investigation by August 2, so surely Rosenstein had already authorized that aspect of the investigation.

The redactions most likely also include the names of Don Jr and Jared Kushner (and Paul Manafort), for their suspected collusion with Russia as reflected in the June 9 meeting. At least according to public reporting, Mueller may have first learned of this in June when Manafort and Kushner confirmed it in turning over evidence to Congress and Mueller. The first revelations that Mueller was obtaining subpoenas from a dedicated grand jury were on August 3, just one day after this memo. That same day, reports described Mueller issuing subpoenas related to the June 9 meeting.

Indeed, it’s quite possible Rosenstein issued this memo to memorialize the inclusion of the President’s spawn among the suspects of the investigation.

Rosenstein has almost certainly updated this memo since August 2

All that said, there’s not enough redacted space to include the known expanded current scope of the investigation, and given that the newly expanded scope gets closer to the President, Rosenstein has surely issued an update to this memo since then. These things are all definitively included in the current scope of the investigation and might warrant special mention in any update to Rosenstein’s authorizing memo:

The Trump Organization’s Russian ties
The efforts to establish a back channel with Russia through George Nader and the Emirates
Jared Kushner’s efforts to mix policy and personal enrichment
Jeff Sessions’ awareness of the Russian effort to deal emails
Alex Van der Zwaan’s involvement and Skadden Arp’s involvement generally
Cambridge Analytica’s efforts to reach out to Julian Assange
The actual Russian hack-and-leak
The actions of the Internet Research Agency, as reflected in the indictment

Many of these — particularly the ones that affect only Russians — might be included under a generic “collusion with Russia” bullet. The closer scrutiny on Jared, however, surely would get an update, as would any special focus on the Attorney General.

More importantly, to the extent Mueller really is investigating Trump’s business interests (whether that investigation is limited just to Russian business, or more broadly) — the red line the NYT helpfully set for the President — that would necessarily be included in the most up-to-date memo authorizing Mueller’s activities. There is no way Mueller would take actions involving the President personally without having the authorization to do so in writing.

Which is why we can be virtually certain the August 2 memo is not the last memo Rosenstein has written to authorize Mueller’s actions.

Mind you, Mueller probably wouldn’t want to release a memo with several pages of redacted allegations. Which may be why we’re looking at the redacted version of an almost certainly superseded memo.

Updated: Later today Mueller’s team asked to file a copy of an exhibit–which given Judge Berman Jackson’s description of it as released in redacted form, has to be the Rosenstein memo–under seal. Which suggests they’re going to show Manafort what else they’re investigating (which I bet is the Deripaska stuff).

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Buried Amid the John Dowd News, Mueller’s Team Seems to Think Trump Knows about the June 9 Meeting

March 22, 2018/75 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

I didn’t get a chance to unpack this story before John Dowd up and resigned. It lays out the four areas that Dowd was, until yesterday, negotiating with Mueller’s office regarding Trump’s testimony. It actually provides less detail than the WaPo and CNN stories I covered here. Those stories laid out that Mueller’s team was asking specific questions about:

Flynn’s Firing

Whether Trump knew about Flynn’s communications with Russian Ambassador Sergey Kislyak during the presidential transition?
What instructions, if any, the president gave Flynn about the contact?Whether he fired Flynn because he had misled Vice President Pence about his contact with Kislyak?

Comey’s Firing

Whether he fired Comey because he had mishandled an investigation of Democratic presidential candidate Hillary Clinton?
What was Attorney General Jeff Sessions’ involvement in the Comey dismissal?

While far less detailed than those earlier articles, however, yesterday’s pre-Dowd departure story describes Mueller’s team asking questions about four areas (I’ve reordered these to make them chronological):

The circumstances surrounding [the June 9, 2016] Trump Tower meeting
The President’s role in crafting a statement aboard Air Force One that miscast Donald Trump Jr.’s campaign June 2016 meeting with Russians in Trump Tower
The firing of national security adviser Michael Flynn
The firing of FBI Director James Comey

It was this focus, according to CNN, that pissed Trump off because,

The focus on Trump himself in Mueller’s pursuits has alarmed and angered the President, who adhered to a legal strategy of holding back set by his attorney John Dowd and White House special counsel Ty Cobb, who have said for months the investigation was likely to conclude soon.

And now Dowd is gone and Ty Cobb is reportedly likely to follow him, to be replaced by table-pounders who will make noise rather than argue the facts.

Bullet 1 — seven words slipped into the CNN story between stuff we’ve long talked about Trump’s involvement in — ought to be blaring headlines.

BREAKING: “Robert Mueller’s prosecutors are going to ask the President about the circumstances surrounding the meeting at which some Russians, including representatives from Trump’s old business associate Aras Agalarov, pitched Junior, Jared, and Trump’s corrupt campaign manager, on dirt about Hillary in the context of relaxing sanctions,” the headline should have read.

Call me crazy. But I doubt Mueller’s team would ask the President about this unless they had reason to believe Trump knew something about it.

And that changes the import of the three other bullets dramatically.

For example, most people have assumed Bullet 2, Trump’s claim this meeting pertained to adoptions and not dirt-for-sactions, is about obstruction charges (Elizabeth de la Vega lays out how that might serve as the basis for one or another conspiracy charge here). But that ignores that Trump spent the weekend leading up to that statement meeting, twice, with Vladimir Putin, including that bizarre meeting over dinner with no babysitter right before the White House released the statement.

BREAKING: The President met twice with Vladimir Putin while he was taking the lead on responding to questions about a meeting we’re all pretending Trump knew nothing about, and then came out with the spin that Vladimir Putin would most likely give it, the designated Russian propaganda line to cover up its campaign against Magnitsky sanctions.

Which brings us to Bullet 3: Whether Trump (via KT McFarland serving as a go-between from Mar a Lago) ordered Flynn to ask Sergey Kislyak to hold off on responding to sanctions, and if so, why he fired Flynn for doing what he told him to do.

Trump surely didn’t fire Flynn because he lied to Mike Pence (if indeed he did lie). Did he fire Flynn because he didn’t lie about it, making an otherwise marginally legally problematic discussion a legally problematic issue? Or did he fire Flynn because he believed it was the most efficacious way to make the focus on his efforts to roll back sanctions on Russia go away?

Bullet 4. Mueller’s prosecutors want to know why, a day before the Russians showed up for a meeting at which Trump refused to have US press, Trump fired Comey, and then told the Russians,

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

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

Laid out like this, this is what Mueller’s four bullets might look like:

What Trump knew about the dirt-for-sanctions relief deal his one-time business partner Aras Agalarov pitched
Whether Trump gave his National Security Adviser orders to deliver that dirt-for-sanctions deal even before being inaugurated
Why Trump fired Flynn if he was following his orders delivering on that dirt-for-sanctions deal
What Trump meant when he said he fired Comey because firing him took care of the great pressure he had because of Russia

Even as Mueller was negotiating these four questions, Trump called up Putin, at which, according to the Kremlin, “It was agreed to develop further bilateral contacts in light of [the fact that Trump had just fired Rex Tillerson, the next guy standing in the way of fulfilling the dirt-for-sanctions relief deal]. The possibility of organizing a top-level meeting received special attention.” “We will probably get together in the not-too-distant future,” Trump said of the call on Tuesday. “I suspect that we’ll probably be meeting in the not-too-distant future,” he said a second time, a line that reportedly surprised his aides, another piece of news lost in the legal team shake-up. “I think, probably, we’ll be seeing President Putin in the not-too-distant future,” Trump said a third time in his public comments.

So now Dowd is gone, which is probably lucky for him because otherwise he’d be business negotiating over Bullet 5.

5. Why did Trump fire Rex Tillerson and how does that relate to this big new push to meet with Putin again?

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Iran-Contra Cover-Up King Doesn’t Address Sessions’ Other Lies, or Conspiracy-in-Chief

March 21, 2018/27 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

Fresh off several witnesses revealing that Jeff Sessions wasn’t as offended by George Papadopoulos’ plan to pitch meetings with Putin as he claims he was, ABC reported that, Andrew McCabe approved an investigation into whether Jeff Sessions lied to Congress about his ties with Russia.

Nearly a year before Attorney General Jeff Sessions fired senior FBI official Andrew McCabe for what Sessions called a “lack of candor,” McCabe oversaw a federal criminal investigation into whether Sessions lacked candor when testifying before Congress about contacts with Russian operatives, sources familiar with the matter told ABC News.

An anonymous source tried to claim that Sessions would not have known that McCabe briefly oversaw an investigation into Sessions’ own perjury, but Sessions’ lawyer pointedly refused to confirm that.

One source told ABC News that Sessions was not aware of the investigation when he decided to fire McCabe last Friday less than 48 hours before McCabe, a former FBI deputy director, was due to retire from government and obtain a full pension, but an attorney representing Sessions declined to confirm that.

Sessions’ lawyer is Chuck Cooper. Most recently, he got famous failing spectacularly to defend Prop 8. But years and years ago, he played a key role in excusing Iran-Contra, notably by inventing the concept of pixie dusting executive orders.

Given his past as a great cover-up artist, take note of how carefully he words his more general denial.

Two months ago, Sessions was interviewed by Mueller’s team, and the federal inquiry related to his candor during his confirmation process has since been shuttered, according to a lawyer representing Sessions.

“The Special Counsel’s office has informed me that after interviewing the attorney general and conducting additional investigation, the attorney general is not under investigation for false statements or perjury in his confirmation hearing testimony and related written submissions to Congress,” attorney Chuck Cooper told ABC News on Wednesday.

The AG is not under investigation for any lies in his confirmation hearing testimony, Cooper said.

Here’s what that leaves out:

Obstruction charges for inventing the reason to fire Comey, pretending to be involved in the firing of US Attorneys including Preet Bharara, and for firing McCabe
False statements charges tied to Sessions’ later testimony before Congress
False statements charges tied to his Mueller testimony about whether he opposed the Russian outreach (we now know Mueller has gotten conflicting statements on this point)
Implication in the Russian conspiracy directly

It’s the last one that is most interesting (and where all these false statements charges are headed anyway). We now know some of the people at the March 31, 2016 meeting believe Sessions was not opposed to the Russian outreach. We know that Sessions’ close aide, Stephen Miller, was in the thick of things.

And then there’s this bizarre exchange from a November exchange with Patrick Leahy (who seems to have known that Sessions was then under investigation for lying to Congress).

Leahy asked about each item in turn.

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

Sessions: Repeat the question again about emails.

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

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

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

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

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

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

Sessions refused to deny he had discussed emails with a “Russian connected official” since the election.

None of these potential ties in the conspiracy are included in Cooper’s carefully worded denial (nor is Sessions’ knowing that McCabe had okayed an investigation into him for failing to meet his duty of candor, the same thing Sessions just fired McCabe for).

That speaks volumes.

In any case, it seems we’ll be hearing a lot more about Sessions’ implication in all this, in the wake of his firing of McCabe.

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“What Did the President Do and What Do His Lawyers Claim He Was Thinking?”

March 20, 2018/45 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

Ever since Richard Nixon, the big question one asks of presidential involvement in scandals is about the cover-up: “what did the president know and when did he know it?” Not so Trump in the investigation into his campaign’s conspiracy with Russia.

Robert Mueller’s prosecutors are already asking about the president’s actions: “What did the president do and what was he thinking when he did it?” WaPo describes the Trump team’s effort to dodge such questions by offering a summary of what his lawyers claim he did and was thinking.

The written materials provided to Mueller’s office include summaries of internal White House memos and contemporaneous correspondence about events Mueller is investigating, including the ousters of national security adviser Michael Flynn and FBI Director James B. Comey. The documents describe the White House players involved and the president’s actions.

Special counsel investigators have told Trump’s lawyers that their main questions about the president fall into two simple categories, the two people said: “What did he do?” and “What was he thinking when he did it?”

Trump’s lawyers expect Mueller’s team to ask whether Trump knew about Flynn’s communications with Russian Ambassador Sergey Kislyak during the presidential transition, for example, and what instructions, if any, the president gave Flynn about the contact, according to two advisers.

Trump said in February that he fired Flynn because he had misled Vice President Pence about his contact with Kislyak. He said he fired Comey because he had mishandled an investigation of Democratic presidential candidate Hillary Clinton.

CNN’s version of the same story seems to suggest such a summary is something they’ve already done, that what was new about last week was a sit-down with Watergate lawyer James Quarles.

As President Donald Trump’s reaction to special counsel Robert Mueller grows more irate by the day, attorneys on both sides sat down last week in a rare face-to-face discussion about the topics investigators could inquire of the President. It was the first in-person meeting after several weeks of informal discussions between the two sides, according to two sources familiar with the talks.

Mueller’s team added granularity to the topics it originally discussed with the defense team months ago, like the firing of FBI Director James Comey, according to one of the sources.

[snip]

The President’s attorneys sent the special counsel a summary of evidence they had turned over to prosecutors already, a practice they’ve followed multiple times throughout the investigation. Mueller himself didn’t attend the meeting. But prosecutors including former Watergate prosecutor James Quarles III gave Trump’s lawyers enough detail that the President’s team wrote a memo with possible questions they expect to be asked of him.

In addition to Trump’s involvement in directing Mike Flynn to ask Sergey Kislyak to defer any response to the new sanctions imposed in December 2016, CNN says that Jeff Sessions’ involvement in firing Comey is also on the list of questions they have for the president.

This time around, for instance, the prosecutors said they would ask about Attorney General Jeff Sessions’ involvement in the Comey dismissal and what Trump knew about national security adviser Michael Flynn’s phone calls with then-Russian Ambassador Sergey Kislyak in late December 2016.

[snip]

CNN reported in January that Mueller’s team had given the President’s lawyers general topics for an interview, such as Trump’s request that Comey drop the investigation into Flynn, his reaction to Comey’s May 2017 testimony on Capitol Hill, and Trump’s contact with intelligence officials about the Russia investigation.

A source familiar with the talks said more recent discussions about Trump’s interview also touched on Sessions and Flynn. Sessions previously spoke to Mueller’s team while investigators looked into possible obstruction of justice. And during the transition, Flynn had spoken to Kisklyak about sanctions and the United Nations, then lied to investigators about the calls before Trump fired him. Flynn pleaded guilty to lying to investigators and agreed to cooperate with Mueller in December.

The questions about Sessions and Flynn are both interesting because of recent events.

First, CNN’s story reporting an interest in Sessions’ role in Comey’s firing came out after the report that Sessions and the president traveled separately yesterday to the opioid event they appeared at together. I found that odd at first — Trump should be happy that Sessions fired Andy McCabe for him last Friday. Perhaps Trump is mad that by firing McCabe, Sessions and Rod Rosenstein have taken one excuse he could use to fire both of them off the table. Or perhaps Sessions has realized that he needs to avoid talking to Trump about his own conversations with prosecutors. But if Sessions has become a witness against Trump and the discussions last week made that clear, then it puts the president in a particularly exquisite bind, because the Senate would not take kindly if Trump fired one of their own after he went to such lengths to fire McCabe.

The separate flight is all the more interesting given the news that three witnesses have testified that Sessions was actually more supportive of Trump’s outreach to Russia than he himself (and JD Gordon) has claimed.

And given Mueller’s apparent efforts to confirm what has long been obvious — that KT McFarland was relaying Trump’s orders to Flynn on what to say to Kislyak back in December 2016, consider Mike Flynn’s odd campaign appearance last Friday. Amid stories that he’s beginning to rebuild his life, Flynn started a campaign speech for a right wing nut job attempting to unseat Maxine Waters by alluding to his unfair treatment in an unfair process.

“I’m not here to complain about who has done me wrong or how unfair I’ve been treated or how unfair the entire process has been,” Flynn said to a small audience, which laughed at his remark, though Flynn did not.

Flynn then went on to reflect his role in getting Trump elected.

“All of us are imperfect,” he said. “Heck, I used to introduce … Trump during our various campaign stops as an imperfect candidate. I mean, clearly, he’s not a traditional politician. But his ‘Make America Great Again’ philosophy energized the country enough to get him overwhelmingly elected.”

“Whether we like it or not, that’s what happened,” Flynn added.

Particularly given the others who’ve endorsed Omar Navarro, like Roger Stone and Alex Jones, you’d think this was all a dig at Mueller, and it may well be. Except that Jared Kushner had an opportunity to exonerate Flynn last fall; his failure to do so is what led Flynn to flip, leading to these questions about whether Trump ordered Flynn to ask the Russians to delay their response to sanctions.

Now, any confirmation that the president ordered Flynn to ask Kislyak to delay his response on one level makes Flynn’s effort less damning: it’s one thing for an incoming National Security Advisor to freelance in trying to undermine the incumbent’s policies. It’s another thing for the incoming president to do so.

But contrary to the obstruction narrative that every fool has been repeating, Mueller is not just interested in how and why Jim Comey got fired. He’s also interested in why Trump fired Flynn. That question becomes more pressing if the president ordered Flynn to chat up Kislyak, and if the president ordered Flynn to lie to hide what he had done (leading to his lie to the FBI). Why not just admit that that was incoming policy? Why not just admit to the FBI that Flynn was acting on Trump’s orders? Instead of doing that, Flynn lied and Trump tried instead to thwart the investigation into Flynn, up to and including firing Comey.

Why fire Comey just before the meeting with the Russians and then brag about it to them?

For months, credulous journalists have been distinguishing between the president’s presumed obstruction and the substantive conspiracy others were being accused of, as if no Trump flunkies were involved in the cover-up and Trump was walled off from the conspiracy. But that distinction has never held up, especially not given the interest in why Trump fired Flynn.

“What did the president do and what the fuck was he thinking when he did it?” are questions not about the cover-up, but about the substantive crime.

And that’s the question Mueller’s Watergate prosecutor has now posed to the president’s lawyers.

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Lordy, There Were Tapes

March 14, 2018/39 Comments/in Mueller Probe /by emptywheel

No, not of Stormy Daniels and Trump — though there appear to be tapes of that too! But of Trump’s conversations with Jim Comey.

Here’s another section of the Democratic report on all the things HPSCI didn’t investigate.

After firing FBI Director James Comey on May 9, 2017, President Trump tweeted on May 12, 2017: “James Comey better hope that there are no “tapes” of our conversations before he starts leaking to the press!” On June 9, 2017, the Committee sent White Counsel Donald McGahn a letter requesting that, “the White House inform the Committee if there exist now, or at any time have existed, any recordings, memoranda, or other documents within the possession of the White House which memorialized conversations between President Donald J. Trump and former FBI Director James Comey.” On June 23, 2017, the Committee received a response letter from the Assistant to the President for Legislative Affairs referring the Committee to “President Trump’s June 22, 2017, statement regarding this matter” as its official response. The letter quotes in full the President’s statement that was made in the form of successive tweets on Twitter, in which the President stated that he has “no idea whether there are ‘tapes’ or recordings” of his conversations with James Comey and that the President “did not make” and does “not have any such recordings.”

On June 29, 2017 the Committee sent the White House a second bipartisan letter urging the White House to appropriately and fully comply with the Committee’s June 9 request and clarifying that, should the White House not respond fully, “the Committee will consider using compulsory process to ensure a satisfactory response.” The Committee made clear that the President’s statement on Twitter, and the White House’s letter referring to the President’s statement, were only partially responsive to the Committee’s request. By only referring to the President’s statement, the White House’s letter did not clarify for the Committee whether the White House has any responsive recordings, memoranda, or other documents.

The White House responded that same day—June 29, 2017—stating: “To clarify, the White House’s previous response to your letter advising you that the White House has no recordings, together with the President’s public statements on the matter, constitute our response to your request.” As the Minority made clear to the Majority at the time, the White House’s two responses are woefully inadequate and sidestep the Committee’s explicit requests by not acknowledging or addressing (1) whether “recordings, memoranda, or other documents” at “any time have existed” within the “possession of the White House which memorialized conversations between President Donald J. Trump and former FBI Director James Comey”; and (2) whether any memoranda or other documents “exist now” in the White House’s possession memorializing the same.

The Minority has a good faith reason to believe that the White House does in fact possess such documentation memorializing President Trump’s conversations with Director Comey.

Subsequent press reporting revealed the existence of a memorandum reportedly composed by President Trump and Stephen Miller that referenced President Trump’s communications with Director Comey. The Committee should subpoena to the White House to produce all responsive documents.

Effectively the passage notes the following:

June 9: HPSCI members from both parties sent a request for tapes or memoranda
June 23: The day after Trump tweeted that he didn’t know if there were tapes, the White House responded that the President didn’t make tapes
June 29: Members from both parties sent a letter noting the WH response did not state whether it had any recordings or memoranda
June 29: The WH responded the same day stating that it has no recordings (and remaining silent about memoranda)

That’s when the Republicans got cold feet. Having been given an answer allowing for the possibility that tapes had been made (and destroyed), and a memo was written up about the conversation.

Maybe that’s the one McGahn was hiding in his safe, the one John Dowd complained about?

The debate in Mr. Trump’s West Wing has pitted Donald F. McGahn II, the White House counsel, against Ty Cobb, a lawyer brought in to manage the response to the investigation. Mr. Cobb has argued for turning over as many of the emails and documents requested by the special counsel as possible in hopes of quickly ending the investigation — or at least its focus on Mr. Trump.

Mr. McGahn supports cooperation, but has expressed worry about setting a precedent that would weaken the White House long after Mr. Trump’s tenure is over. He is described as particularly concerned about whether the president will invoke executive or attorney-client privilege to limit how forthcoming Mr. McGahn could be if he himself is interviewed by the special counsel as requested.

The friction escalated in recent days after Mr. Cobb was overheard by a reporter for The New York Times discussing the dispute during a lunchtime conversation at a popular Washington steakhouse. Mr. Cobb was heard talking about a White House lawyer he deemed “a McGahn spy” and saying Mr. McGahn had “a couple documents locked in a safe” that he seemed to suggest he wanted access to.

Even more interesting than what this does for the obstruction case against people like McGahn, it suggests Trump continued his habit of taping his meetings from his practice earlier in his career.

That might be as significant for our understanding of the June 9, 2016 meeting as it is for any meetings Trump had with Comey.

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The Significance of the January 12 Reauthorization of Carter Page’s FISA Order

February 25, 2018/22 Comments/in 2016 Presidential Election, FISA, Mueller Probe /by emptywheel

I’d like to riff on a small but significant detail revealed in the Schiff memo. This paragraph adds detail to the same general timeframe for the orders obtained against Page laid out in the Nunes memo: the first application approved on October 21, with reauthorizations in early January, early April, and late June.

Republican judges approved the Carter Page FISA orders

The passage also narrows down the judges who approved the orders, necessarily including FISC’s sole Reagan appointee Raymond Dearie and FISC’s sole Poppy appointee Anne Conway, plus two of the following W appointees:

Rosemary Collyer (worst FISC judge ever)
Claire Eagan (OK, she may be worse than Collyer)
Robert Kugler
Michael Mosman (a good one)
Dennis Saylor (also good)

I won’t dwell on this here, but it means the conspiracy theory that Obama appointee Rudolph Contreras approved the order, and because of that recused in the Flynn case, is false.

The first reapplication came days after the dossier and a second Isikoff article came out

Back to the timing. The footnotes provide the dates for two of the other applications: June 29 (in footnotes 12, 14, 15, 16) and January 12 (footnote 31), meaning the third must date between April 1 and 12 (the latter date being 90 days after the second application).

As I laid out here, the timing of that second application is critical to the dispute about whether FBI handled Michael Isikoff’s September 23 article appropriately, because it places the reapplication either before or after two key events: the publication of the Steele dossier on January 10 and Isikoff’s publication of this story on January 11. Isikoff’s January article included a link back to his earlier piece, making it fairly clear that Steele had been his source for the earlier article. The publication of that second Isikoff piece should have tipped off the FBI that the earlier article had been based on Steele (not least because the second Isikoff piece IDs Steele as an “FBI asset,” which surely got the Bureau’s attention).

FBI didn’t respond to Isikoff in time for the second application

Now, you could say that FBI should have immediately reacted to the Isikoff piece by alerting the FISC, but that’s suggesting bureaucracies work far faster than they do. Moreover, the application would not have been drafted on January 12. Except in emergency, the FISC requires a week notice on applications. That says the original application would have been submitted on or before January 5, before the dossier and second Isikoff piece.

FBI appears to have dealt with the Isikoff article interestingly. The body of the Schiff memo explains that Isikoff’s article, along with another that might be either Josh Rogin’s or Julia Ioffe’s articles from the time period, both of which cite Isikoff (Rogin’s is the only one of the three that gets denials from Page directly), were mentioned to show that Page was denying his Moscow meetings were significant.

That redacted sentence must refer to the January 12 application, because that footnote is the only footnote citing that application and nothing else in the paragraph discusses it.

An earlier passage describes the first notice to FISC, in that same January 12 application, “that Steele told the FBI that he made his unauthorized media disclosure because of his frustration at Director Comey’s public announcement shortly before the election that the FBI reopened its investigation into candidate Clinton’s email use.”

It’s possible that redacted sentence distinguishes what Grassley and Graham did in their referral of Steele. The first application stated that, “The FBI does not believe that [Steele] directly provided this information to the press.” Whereas the January reapplication stated in a footnote that the FBI, “did not believe that Steele gave information to Yahoo News that ‘published the September 23 News Article.” Within a day or so, the FBI should have realized that was not the case.

So it’s true FBI was denying that the September Isikoff article was based off Steele reporting after the time they should have known it was, but that can probably best be explained by the application timelines and the lassitude of bureaucracy.

The submission of the preliminary second application likely coincides with the Obama briefing on the Russian threat

As noted above, the second application would have been submitted a full week earlier than it otherwise would have had to have been given the 90-day term on FISA orders targeting Americans. That means the preliminary application was probably submitted by January 5. Not only would that have been too early to incorporate the response to the dossier, most notably the second Isikoff piece, but it even preceded Trump’s briefing on the Russian tampering, which took place January 6.

It’s also interesting timing for another reason: it means FBI may have submitted its reapplication targeting Page on the same day that Jim Comey and Sally Yates briefed Obama, Susan Rice, and Joe Biden, in part, on the fact that Putin’s mild response to the election hack sanctions rolled out in late December arose in response to requests from Mike Flynn to Sergey Kislyak. As I addressed here, that briefing has become a subject of controversy again, as Chuck Grassley and Lindsey Graham tried to suggest that the Steele dossier may have contributed to the investigation of Flynn.

But contrary to what the Republican Senators claimed in their letter to Rice on the subject, Rice claims the Steele dossier and the counterintelligence investigation never came up.

The memorandum to file drafted by Ambassador Rice memorialized 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. In the conversation Ambassador Rice documented, there was no discussion of Christopher Steele or the Steele dossier, contrary to the suggestion in your letter.

Given the importance and sensitivity of the subject matter, and upon the advice of the White House Counsel’s Office, Ambassador Rice created a permanent record of the discussion. Ambassador Rice memorialized the discussion on January 20, because that was the first opportunity she had to do so, given the particularly intense responsibilities of the National Security Advisor during the remaining days of the Administration and transition. Ambassador Rice memorialized the discussion in an email sent to herself during the morning of January 20, 2017. The time stamp reflected on the email is not accurate, as Ambassador Rice departed the White House shortly before noon on January 20. While serving as National Security Advisor, Ambassador Rice was not briefed on the existence of any FBI investigation into allegations of collusion between Mr. Trump’s associates and Russia, and she later learned of the fact of this investigation from Director Comey’s subsequent public testimony. Ambassador Rice was not informed of any FISA applications sought by the FBI in its investigation, and she only learned of them from press reports after leaving office.

Grassley and Graham appear to have confused the IC investigation with the counterintelligence investigation, only the latter of which incorporated the Steele dossier.

In any case, one reason the apparent coincidence between the January 5 briefing and the reapplication process is important is it suggests it was also pushed through a week early to provide room for error with the inauguration. If a FISA order on January 19 goes awry, it might not get approved under President Trump. But if anything happened to that application submitted around January 5, it’d be approved with plenty of time before the new Administration took over.

Intelligence from Page’s FISA collection helped support the government’s high confidence that Russia attempted to influence the election

Here’s one of the most interesting details in the Schiff memo, however. This passage describes that the wiretap on Page obtained important intelligence, though it won’t tell us what it is.

That redacted footnote, number 14, describes that the redacted intelligence is part of what gave the Intelligence Community “high confidence”

Admittedly, this footnote, with its citation to the October and June applications, is uncertain on this point. But for the wiretap on Page to have supported the December ICA assessment of the Russian tampering, then it would have had to have involved collection from that first period.

If that’s right, then it suggests the reason the Obama Administration may have applied for the order renewal early, the same day Comey and Yates briefed Obama on the ICA and Flynn, is because something from that order (possibly targeting Page’s December trip to Moscow) added to the IC’s certainty that the Russians had pulled off an election operation.

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Meanwhile, Over In Turkey . . .

February 19, 2018/31 Comments/in Sanctions, State Department /by Peterr

Well isn’t this interesting? From Diplopundit last Friday comes a post with this title: Tillerson Meets Erdoğan in Ankara With Turkish Foreign Minister as Interpreter. The post is a series of tweets from all kinds of media folks, which include some of these gems:

Nicholas Wadhams of Bloomberg News:

Secretary of State Tillerson is currently meeting with Turkey’s President Recep Tayyip Erdogan. He is the lone US representative and Turkey’s foreign minister is translating.

Rajib Soylu, Washington correspondent for Daily Sabah:

This is the second Erdoğan – Tillerson meeting where all Turkish, American officials, and even the translators excluded.

Turkish FM functions as a translator.

Ihlan Tanir of Washington Hatti US:

Im trying to understand — I never expected Pres Erdogan and Sec Tillerson to have a press conference but they did not even read statements following 200 minutes of a meeting?

Let’s pause here for a moment to let that last one sink in.

It’s one thing if the Turkish Foreign Minister brings Erdogan over to Tillerson at a meet-and-greet and translates some friendly “let me show you pictures of my grandkids” chit-chat between the two. But that’s not what this was. This was a lengthy, official, and private meeting that lasted over three hours between some very high level folks at a time of rather significant tension between the two countries.

You don’t have meetings like this without your own translator. You just don’t. The typical process is that both sides have interpreters. Official A speaks, the interpreter for Official B tells Official B what was said, and the interpreter for Official A says some version of “Yes, that’s correct” to verify the interpretation. Then it all works in reverse when Official B replies. With difficult issues under discussion, the last thing either side wants is confusion about what each side is saying.

Excluding your own interpreter is so far outside of normal protocols it is unreal, and begs the ever-green question about most everything since 1/20/2017: idiot or crook?

As Diplopundit noted in his/her own tweet, someone else was missing from this meeting — an official note taker:

Saving money on translators*, too? And the foreign FM will just share his notes of the T-E discussion with the State Dept. Or EUR can use their Magic 8 ball. It knows everything and always willing to share.

(* Diplopundit later corrected this to “interpreters”, as a slip of the fingers since “translators” are more precisely those who deal with written documents while “interpreters” handle verbal communications.)

“EUR” in that last tweet is the State Department’s Office of European Affairs, where long ago I was an intern. I can only imagine the reaction in Foggy Bottom was when word of Tillerson’s meeting with Erdogan reached them. It likely involved multiple variations on “He did WHAT?!?!?” with various . . . ahem . . . flavoring words for emphasis added. As former State Department spokesperson and retired Rear Admiral John Kirby told CNN:

“If the meeting is not conducted in English, it is foolhardy in the extreme not to have at his side a State Department translator, who can ensure that Mr. Tillerson’s points are delivered accurately and with the proper emphasis,” said former State Department spokesman and CNN diplomatic and military analyst John Kirby.

“That Mr. Tillerson eschewed this sort of support in what he knew would be a tense and critical meeting with President Erdogan smacks of either poor staff work or dangerous naïveté on his part,” Kirby added.

And that’s what Kirby said about this in public. I’ll leave it to your imagination what he and other current and former State and Defense Department folks said to each other about it in private. Hold onto this for a moment, because we’ll come back to it in a bit.

Eventually, Tillerson and his Turkish counterpart Mevlut Cavusoglu did in fact have a press availability, which the State Department has up on their website. In the statements issued by both, as well as their answers to questions from the reporters, they talked about all manner of increasingly tense topics, from the Kurds to what’s happening in Syria to the failed coup and the Turkish demands for Fethullah Gulen to be extradited back to Turkey, and more.

Two items stood out here. First, there’s this from Tillerson about midway through:

SECRETARY TILLERSON: Well, with respect to how we’re going forward – and that’s what all of the discussion here was about, recognizing where we find ourselves. And I think as the foreign minister indicated, we find ourselves at a bit of a crisis point in the relationship. And we could go back and revisit how we got here, but we don’t think that’s useful. We’ve decided and President Erdogan decided last night we needed to talk about how do we go forward. The relationship is too important, it’s too valuable to NATO and our NATO allies, it’s too valuable to the American people, it’s too valuable to the Turkish people for us to not do anything other than concentrate on how are we going forward.

And out of the meetings last night – and much of our staff was up through the night to memorialize how we’re going to go about this, and we’ll share a little bit of that in the joint statement. We’re going to reserve a lot of the details because there’s a lot of work yet to be done, and we – and our working teams need to be allowed to do that work in a very open, frank, honest way with one another so that we can chart the way forward together.

I’ll bet the staff was up through the night. If no staff were allowed in the three hour meeting, then the only one who can tell them what was said, what kind of emphasis it was given, what threats were made, what promises were made, and what kind of nuance there was to each of the exchanges was Tillerson. No offense to the Secretary, but that makes the work of the staff very very difficult. To begin with, they had to interview Tillerson just to get all the information about the meeting (and pray he didn’t leave anything out), before they could even think about “how we’re going forward.”

But the larger item that stood out to me came in the very last pair of question asked, reprinted in full below but with emphasis added:

QUESTION:[ed: to Tillerson] Did you warn Turkey that they could be subject to sanctions under CAATSA legislation if they go ahead with the purchase of the S-400 system? [ed: CAATSA is the Russian sanctions legislation that Congress passed but Trump refuses to implement with any teeth.]

And for you, Mr. Foreign Minister, would the threat of U.S. sanctions stop you from going ahead with the purchase of the S-400 system? And if you do buy the system, do you still want to remain in NATO if you’re obtaining the weapons from Russia?

SECRETARY TILLERSON: We did discuss the impact of the CAATSA law that was passed by the Congress last summer that deals with purchases of Russian military equipment. I discussed it last night with President Erdogan; we had further discussions this morning about it. And indeed, it’s in the first group of issues that the foreign minister is referring to. We need to put a group of experts together, and we’ll look at the circumstances around that, as we’ve done with governments all over the world, not just Turkey, because the intent of that legislation was not to harm our friends and allies. But it is directed at Russia for its interference in our elections. So we’ve been advising countries around the world as to what the impact on their relationship and purchases that they might be considering with Russia, and many have reconsidered those and have decided to not proceed with those discussions.

Every case is individual on its own. We want to consult with Turkey and at least ensure they understand what might be at risk in this particular transaction. We don’t have all the details yet, so I can’t give you any kind of a conclusion, but it’ll be given very careful scrutiny, obviously, and we’ll fully comply with the law. And we are – we are now implementing CAATSA and fully applying it around the world.

FOREIGN MINISTER CAVUSOGLU: Thank you very much. First and foremost, I need to underline that I am against the terminology that you use. You used the threat terminology. That is not a correct terminology to be used because it is true for all countries and states. We never use the language of threat and we deny if it is used against us, because this is not correct.

But as Rex has also indicated, this was not something that we talked just yesterday and today. When we met in Vancouver, we talked about this, and from time to time when we have phone conversations, we talk about such issues. This was again brought to the agenda in one of those talks. Of course, there is a law that was enacted by the United States Congress, and they explained this legislation to us. But on the other hand, this is our national security, and it’s important for our national security. I have emergency need of an air defense system. We want to purchase this from our allies, but this does not exist. So even when we are purchasing small-scale arms, the Congress or some other European parliaments, we have – we have and we had difficulty in purchasing these because of these excuses, and I have an emergency need. And the Russian Federation came up with attractive proposals for us. We also talked to other countries, not just with Russia, but we talked about this issue of emergency need with many countries and we had bilateral talks.

Also, in the mid-term, we talked about joint production and technology transfer. We focused on this because this is important for Turkey. And lastly, during the Paris visit of our president – with Eurosam – this is a French-Italian partnership – there was a pre-agreement signed, a memorandum of understanding signed with these groups. So we do not have any problems with our allies. Why should we not meet this requirement with NATO? But, of course, when it is not met within this platform, we need to look for alternative resources. Otherwise, some batteries – some Patriot were withdrawn from our frontier. Some European allies withdrew them. We have (inaudible) of the Italians and Patriots of Spain, and we do not have any other air defense. And we need to meet this requirement as soon as possible. And when we talked to Russia, this was actually an agreement that we reached before the legislation in Congress was enacted. And the remaining part was about the details of loans, et cetera.

Of course, we talked about all of these, and we will take into consideration this – within this working group the commission, but all of us need to understand each other and respect each other. Thank you very much.

In Cavusoglu’s answer, he is pushing back hard on attempts to isolate Turkey. He’s being polite about it, but the very public message is clear: “You know, the Russians seem very interested in making a deal with us, and if you persist in trying to pressure us and don’t back us with the Kurds and cause problems in Syria and don’t return that coup-instigating terrorist you are harboring, the Russians seem pretty clearly ready to help us out where you will not.”

Which makes Tillerson’s earlier comment above sound like he got that message loud and clear. To repeat: “The relationship is too important, it’s too valuable to NATO and our NATO allies, it’s too valuable to the American people, it’s too valuable to the Turkish people for us to not do anything other than concentrate on how are we going forward.”

But there were also some private messages being sent here, too.

Let’s go back to that no-staff-allowed element of the meeting once more. In general, it is in the interests of both parties to a conversation like that to have interpreters and notetakers present, so that in the public discussions that follow (like the one above), everyone agrees on the basic facts of what was said and you don’t getting into a “but you said . . .” and “no I didn’t” back-and-forth. For the meeting to exclude such staffers means that there is something else that overrides this interest.

In this case, the Turks had to have demanded that Tillerson not bring anyone with him to this meeting. There’s no way he would have told his staff “I got this – you take a break while I talk with Erdogan” on his own. The question is why, and all the possible answers I can come up after reading the Turkish Foreign Minister’s reply to that last question involve Vladimir Putin wanting Erdogan to pass on some kind of message to Trump — a message that he did not wish to be delivered within earshot of interpreters and notetakers.

It reminds me very much of that May 2017 Oval Office meeting that Trump had with Russian Foreign Minister Sergey Lavrov and outgoing Ambassador to the US Sergey Kislyak. That was the meeting where we later learned that Trump revealed Israeli intelligence to the Russians about their source inside ISIS and told them that he just fired “that nut job” James Comey which took the pressure off of him because of Russia.

Oh, and the US press were kept out of that meeting as well, with the only reports of it coming after the Russians told us about it. As Politico’s Susan Glasser noted about that Oval Office meeting, it came at the specific request of Putin:

The chummy White House visit—photos of the president yukking it up with Lavrov and Russian Ambassador to the United States Sergey Kislyak were released by the Russian Foreign Ministry since no U.S. press was allowed to cover the visit—had been one of Putin’s asks in his recent phone call with Trump, and indeed the White House acknowledged this to me later Wednesday. “He chose to receive him because Putin asked him to,” a White House spokesman said of Trump’s Lavrov meeting. “Putin did specifically ask on the call when they last talked.”

Kind of makes me wonder if the reason Tillerson left the interpreter back at the embassy is because Putin asked him to in a phone call last Monday. From CNN:

Washington (CNN) President Donald Trump spoke Monday with his Russian counterpart Vladimir Putin to express condolences for a weekend plane crash outside Moscow, according to a US official.

The phone call came amid ongoing Washington-Moscow tensions over policy in the Middle East and Russia’s attempts to meddling in US elections.

Russian news agencies reported the phone call also included discussion of the situation in Israel. . . .

Again we’re hearing about this via Russian news agencies? I’m sensing a pattern here . . .

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New Right Hook: Mike Flynn Lied When He Admitted to a Judge He Lied to the FBI

February 14, 2018/72 Comments/in 2016 Presidential Election, emptywheel, Mueller Probe /by emptywheel

Apparently, the latest Grassley-Graham effort to spin a very understandable reaction to the discovery that the incoming National Security Advisor might be compromised by Russia — to have a meeting about whether that requires a change in the government’s investigative approach and then memorialize the meeting — as a Christopher Steele plots is not an isolated event. To accompany the Grassley-Graham effort to obscure, the right wing is now seeing a conspiracy, best captured in this Byron York piece with follow-ups elsewhere, in Mike Flynn’s guilty plea.

At issue is leaked March 2017 testimony from Jim Comey (in a piece complaining about the leak of Flynn’s FISA intercepts) that the FBI agents who interviewed Flynn on January 24, 2017 believed any inaccuracies in Flynn’s interview with the FBI were unintentional.

In March 2017, then-FBI Director James Comey briefed a number of Capitol Hill lawmakers on the Trump-Russia investigation.

[snip]

According to two sources familiar with the meetings, Comey told lawmakers that the FBI agents who interviewed Flynn did not believe that Flynn had lied to them, or that any inaccuracies in his answers were intentional. As a result, some of those in attendance came away with the impression that Flynn would not be charged with a crime pertaining to the Jan. 24 interview.

From that, York spins out a slew of laughable claims: Mike Flynn would have no reason to address the FBI amid swirling coverage of lies about Russian ties! The Deputy Attorney General “sends” FBI agents to conduct interviews! DOJ “effectively gave” Jim Comey authority to decide Hillary’s fate but then fired him for usurping that authority! They lead up to York’s theory that DOJ may have overridden the FBI agents in forcing Flynn to sign a plea admitting he made false statements.

It could be that the FBI agents who did the questioning were overruled by Justice Department officials who came up with theories like Flynn’s alleged violation of the Logan Act or his alleged vulnerability to blackmail.

[snip]

To some Republicans, it appears the Justice Department used a never-enforced law and a convoluted theory as a pretext to question Flynn — and then, when FBI questioners came away believing Flynn had not lied to them, forged ahead with a false-statements prosecution anyway. The Flynn matter is at the very heart of the Trump-Russia affair, and there is still a lot to learn about it.

Along the way, York feigns apparent ignorance of everything he knows about how criminal investigations work.

For example, York pretends to be unaware of all the pieces of evidence that have surfaced since that time that have changed the context of Flynn’s January 24 interview. There’s the weird dinner Trump invited Comey to on January 27, a day after Sally Yates first raised concerns about the interview with White House Counsel Don McGahn, where Trump told Comey “I need loyalty, I expect loyalty.” There’s the more troubling meeting on February 14, where (after asserting that Flynn had indeed lied to Mike Pence) Trump asked Comey to drop the Flynn investigation.

He repeated that Flynn hadn’t done anything wrong on his calls with the Russians, but had misled the Vice President. He then said, “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.”

There’s the March 30 phone call in which the President complained about the “cloud” of the Russian investigation. There’s the April 11 phone call where the President complained about that “cloud” again, and asked for public exoneration. There’s the newly reported Don McGahn call following that conversation, to Dana Boente asking for public exoneration. There’s Comey’s May 9 firing, just in time for Trump to tell Russians on May 10 that firing that “nut job” relieved pressure on him. There’s the letter Trump drafted with Stephen Miller’s help that made it clear Comey was being fired because of the Russian investigation.

Already by the time of Comey’s firing, the White House claim that Mike Flynn got fired because he lied about his conversations to Sergey Kislyak to Mike Pence, was falling apart.

Then, in August, the Mueller team obtained the transition emails that transition lawyers had withheld from congressional requests (and therefore from Mueller), including those of Flynn himself, Jared Kushner, and KT McFarland. The transition would go on to squawk that these emails, which didn’t include Trump and dated to before Trump became President, were subject to executive privilege, alerting Mueller that the emails would have been withheld because the emails (some sent from Mar-A-Lago) reflected the involvement of Trump. Not to mention that the emails tied conversations about Russia to the “thrown election.”

Then there’s Jared Kushner’s interview with Mueller’s team in the weeks before Mike Flynn decided to plead guilty. At it, prosecutors asked Jared if he had any information that might exculpate Flynn.

One source said the nature of this conversation was principally to make sure Kushner doesn’t have information that exonerates Flynn.

There were reports that Flynn felt like he had been sold out just before he flipped, and I would bet this is part of the reason why. In addition to instructions regarding the sanction calls with Kislyak, which were directed by KT McFarland, Flynn’s statement of offense describes someone we know to be Kushner directing Flynn to call countries, including Russia, to try to persuade them to avoid a vote on Israeli West Bank settlements.

On or about December 22, 2016, a very senior member of the Presidential Transition Team directed FLYNN to contact officials from foreign governments, including Russia, to learn where each government stood on the resolution and to influence those governments to delay the vote or defeat the resolution.

Granted, Mueller’s team didn’t make the point of the lies as obvious as they did with the George Papadopoulos plea, where they made clear Papadopoulos lied to hide that he learned of the “dirt” on Hillary in the form of emails after he started on the campaign and whether he told the campaign about those emails (not to mention that he had contacts with Ivan Timofeev).

Mueller’s not telling us why Flynn’s lies came to have more significance as Mueller collected more and more evidence.

But what they make clear is that the significance of Flynn’s lies was not, as it first appeared, that he was trying to hide the subject of the calls from Mike Pence. I mean, maybe he did lie to Pence about those calls. But discussions about how to work with the Russians were not secret; they included at least Kushner, McFarland, Tom Bossert, Reince Priebus, Steve Bannon, and Sean Spicer. Some of those conversations happened with McFarland emailing while at Mar-A-Lago with the President-Elect.

So given the weight of the evidence collected since, Flynn’s lies now appear neither an effort to avoid incriminating himself on Logan Act charges, nor an effort to cover up a lie he told others in the White House, but the opposite. His lies appear to have hidden how broadly held the Russian discussions were within the transition team, not to mention that he was ordered to make the requests he did, possibly by people relaying orders from Trump, rather than doing them on his own.

That, by itself, doesn’t make the Flynn conversations (as distinct from the lies) illegal. But it means Trump went to great lengths to try to prevent Flynn from suffering any consequences for lying to hide the degree to which negotiations with Russia during the transition period were the official policy of the Trump team. And when Trump (or rather, his son-in-law) stopped protecting Flynn on that point, Flynn decided to admit to a judge that he had been knowingly lying.

It doesn’t take a conspiracy to realize that the FBI Agents who interviewed Flynn in January had none of the evidence since made available largely because Trump tried so hard to protect Flynn that he fired his FBI Director over it. It takes looking at the evidence, which makes it clear why those false statements looked very different as it became clear Flynn, after acting on Trump transition team instructions, got sold out as other senior Trump officials started trying to protect themselves.

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Graham and Grassley Are Seeing Christopher Steele’s Ghost Where Mike Flynn Lurks

February 12, 2018/64 Comments/in 2016 Presidential Election, EO 12333, Mueller Probe, Russian hacks /by emptywheel

I get it. Trump is making us all crazy. But Chuck “Ethanol flipflop” Grassley and Lindsey “Trump’s best golfing buddy” Graham are going nuts not because of Trump but because of Christopher Steele. They’ve just written a letter to Susan Rice asking her why she emailed herself a letter, memorializing a January 5, 2017 meeting about the Russian hack, just before she left the White House.

In this email to yourself, you purport to document a meeting that had taken place more than two weeks before, on January 5, 2017. You wrote:

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 Comey and Deputy Attorney General Sally Yates in the Oval Office. Vice President Biden and I were also present.

That meeting reportedly included a discussion of the Steele dossier and the FBI’ s investigation of its claims. 1 Your email continued:

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.

The next part of your email remains classified. After that, you wrote:

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.

It strikes us as odd that, among your activities in the final moments on the final day of the Obama administration, you would feel the need to send yourself such an unusual email purporting to document a conversation involving President Obama and his interactions with the FBI regarding the Trump/Russia investigation. In addition, despite your claim that President Obama repeatedly told Mr. Comey to proceed “by the book,” substantial questions have arisen about whether officials at the FBI, as well as at the Justice Department and the State Department, actually did proceed “by the book.”

It pains me that two top Republicans on the Senate Judiciary Committee are too fucking stupid to see that, in fact, the FBI proceeded quite cautiously with the Russia investigation, not inappropriately, as they suggest. It pains me still more that they think this is all about the dossier.

7. During the meeting, did Mr. Comey or Ms. Yates mention potential press coverage of the Steele dossier? If so, what did they say?

8. During the meeting, did Mr. Comey describe the status of the FBI’s relationship with Mr. Steele, or the basis for that status?

9. When and how did you first become-aware of the allegations made by Christopher Steele?

10. When and how did you first become aware that the Clinton Campaign and the Democratic National Committee funded Mr. Steele’s efforts?

It’s certainly possible, given what I laid out here, that DOJ was prepping the second FISA application for Carter Page (though if the reauthorization were dated January 9, the application would have had to have been submitted by January 2).

But there are other reasons why you’d expect to have this meeting on January 5 and why Rice would want a record of it for posterity (the meeting generally probably relates to this story about the way Obama protected information on the investigation in the last days of the Administration).

As reporting on the discovery of Mike Flynn’s conversations about Russian sanctions with Sergey Kislyak make clear, the conversation wasn’t discovered in real time. Rather, after Putin didn’t respond to the December sanctions against Russia, analysts sought to figure out why. Only after that did they discover the conversation and Flynn’s role in it.

For Yates and other officials, concerns about the communications peaked in the days after the Obama administration on Dec. 29 announced measures to punish Russia for what it said was the Kremlin’s interference in the election in an attempt to help Trump.

After the sanctions were rolled out, the Obama administration braced itself for the Russian retaliation. To the surprise of many U.S. officials, Russian President Vladimir Putin announced on Dec. 30 that there would be no response. Trump praised the decision on Twitter.

Intelligence analysts began to search for clues that could help explain Putin’s move. The search turned up Kislyak’s communications, which the FBI routinely monitors, and the phone call in question with Flynn, a retired Army lieutenant general with years of intelligence experience.

So it would be right around this time when law enforcement concerns about the incoming National Security Advisor would have arisen.

Update: This story confirms that the January 5 meeting was partly about the Flynn phone call.

On Jan. 5, FBI Director James B. Comey, CIA Director John Brennan and Director of National Intelligence James R. Clapper Jr. briefed Obama and a small group of his top White House advisers on the contents of a classified intelligence report showing that Russia intervened in the 2016 election to help Trump. That’s when White House officials learned that the FBI was investigating the Flynn-Kislyak calls. “The Flynn-Kislyak relationship was highlighted,” a former senior U.S. official said, adding that the bureau made clear “that there was an actual investigation” underway.

And, in a very significant way, the investigation did not proceed by the book, almost certainly because of Mike Flynn’s (and possibly even Jeff Sessions’) potential compromise. Back in March, Jim Comey admitted to Elise Stefanik that the FBI had delayed briefing Congress about the counterintelligence investigation into Trump because it had, in turn, delayed telling the Executive Branch until February.

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

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

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

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

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

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

Because the National Security Advisor was suspected of being compromised (and because the Attorney General had at least a conflict), the FBI couldn’t and didn’t proceed normally.

Plus, there’s one other issue about which Obama should have discussed normal procedure with Yates and Comey on January 5. Two days earlier, Loretta Lynch signed an order permitting, for the first time, the sharing of EO 12333 data in bulk. Among the first things I’m sure FBI would have asked for would have been EO 12333 data to support their Russian investigation. Yet doing so would expose Trump’s people. That’s all the more true given that the rules permit the retention of entirely domestic communications if they have significant counterintelligence value.

So one of the first things that would have happened, after signing data sharing rules the government had been working to implement since Stellar Wind, would have been the prospect that the very first Americans directly affected weren’t going to be some powerless Muslims or relatively powerless Chinese-Americans, but instead the President’s closest associates. Given what we’ve seen from the George Papadopoulos case, the FBI likely bent over backwards to insulate Trump aides (indeed, it’s hard to understand how they wouldn’t have known of Ivan Timofeev’s outreach to Papadopoulos before his interviews if they hadn’t).

Just before this meeting, FBI and DOJ had discovered that Trump’s most important national security aide had had surprising conversations with Russia. That clearly raised the prospect of necessary deviations from normal practices with regards to intelligence sharing.

Yet Grassley and Graham are seeing Christopher Steele’s ghost behind every single solitary action. Rather than the real challenges posed when top officials pose real counterintelligence concerns.

Update: Kathryn Ruemmler, representing Rice, pretty much confirms Grassley and Graham have gone on a wild Steele chase.

“There is nothing ‘unusual’ about the National Security Advisor memorializing an important discussion for the record,” Kathryn Ruemmler, a counsel for Rice, said in a statement. “The Obama White House was justifiably concerned about how comprehensive they should be in their briefings regarding Russia to members of the Trump transition team, particularly Lt. General Michael Flynn, given the concerning communications between him and Russian officials.”

Ruemmler added: “The discussion that Ambassador Rice documented did not involve the so-called Steele dossier. Any insinuation that Ambassador Rice’s actions in this matter were inappropriate is yet another attempt to distract and deflect from the importance of the ongoing investigations into Russian meddling in America’s democracy.”

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Posts

About the Oleg Deripaska Reference in the Mueller Memo

There Are Almost Certainly Other DAG Rosenstein Memos

Mueller is unlikely to have waited two and a half months to memorialize his scope

The memo closely follows two key dates

Mueller may not have revealed the scope of the Manafort investigation at that time

The redactions almost certainly hide two expansions to the investigation as it existed in October 2016

Rosenstein has almost certainly updated this memo since August 2

Buried Amid the John Dowd News, Mueller’s Team Seems to Think Trump Knows about the June 9 Meeting

Flynn’s Firing

Comey’s Firing

Iran-Contra Cover-Up King Doesn’t Address Sessions’ Other Lies, or Conspiracy-in-Chief

“What Did the President Do and What Do His Lawyers Claim He Was Thinking?”

Lordy, There Were Tapes

The Significance of the January 12 Reauthorization of Carter Page’s FISA Order

Republican judges approved the Carter Page FISA orders

The first reapplication came days after the dossier and a second Isikoff article came out

FBI didn’t respond to Isikoff in time for the second application

The submission of the preliminary second application likely coincides with the Obama briefing on the Russian threat

Intelligence from Page’s FISA collection helped support the government’s high confidence that Russia attempted to influence the election

Meanwhile, Over In Turkey . . .

New Right Hook: Mike Flynn Lied When He Admitted to a Judge He Lied to the FBI

Graham and Grassley Are Seeing Christopher Steele’s Ghost Where Mike Flynn Lurks

Interesting links

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