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Lindsey Graham, Chuck Grassley, and Mike Lee Exhibit Utter Ignorance about FBI Certification on FISA Applications

September 30, 2020/6 Comments/in 2016 Presidential Election, FISA, Mueller Probe /by emptywheel

Jim Comey’s testimony in Lindsey’s Graham’s purported investigation of FISA — by which Lindsey means using the Carter Page FISA application as a stand-in for the Russian investigation more generally while remaining silent about both DOJ IG findings that the problems identified with the Page application are true more generally, and about ongoing 702 abuses under Bill Barr and Chris Wray — just finished.

As a Comey hearing connoisseur, it wasn’t bad. Notably, he repeatedly refused to answer questions for which the presumptions were false.

But as a connoisseur of hearings on FISA and FBI oversight, it was an atrocity.

This hearing was meant to talk about the dangers of counterintelligence investigations that unfairly treat people as Russian agents, meaning Page. But by my count, on at least 19 occasions, Republicans raised the investigation into Christopher Steele’s primary subsource, Igor Danchenko, for being a suspected Russian Agent. The investigation lasted from 2009 to 2011. It used many of the same tactics used against Page, Mike Flynn, and Paul Manafort. While the FBI closed the investigation in 2011 because Danchenko left the country — meaning they never affirmatively decided he wasn’t a Russian spy — neither did they decide he was.

That makes Danchenko exactly like Carter Page, someone once suspected of and investigated over a period for being a Russian Agent, but about whom the investigation was inconclusive, with remaining unanswered questions.

If you believe in due process in this country, you treat Igor Danchenko exactly like you’d like Carter Page to be treated.

And Republicans — starting and ending with Lindsey Graham — over and over again — stated that Danchenko was a suspected Russian agent in 2016 (which is plausible but for which there is no evidence) and even, repeatedly, stated as fact that he was a Russian spy. Lindsey claimed at one point that “the Primary Subsource was a Russian agent.” He later called Danchenko, “Igor the Russian spy.”

Republicans today did everything they complain was done with Carter Page, but they did so in a public hearing.

Danchenko may very well have been still suspect in 2016; that may very well have been something to consider when vetting the dossier (though as Comey noted, it could either corroborate that Danchenko had the sources he claimed or raise concerns about Russian disinformation). That absolutely should have been a factor to raise concerns about Russian disinformation. But everything in the public record shows that Danchenko was, in 2016, in exactly the same status Page will be in 2022, someone against whom an inconclusive foreign agent investigation was closed years earlier.

Still worse, at a hearing in which Lindsey Graham and other Republican Senators claimed they wanted to fix the problems in the FISA process identified as part of the Carter Page application, one after another — including Graham, Chuck Grassley, Mike Lee, Josh Hawley, and Joni Ernst — betrayed utter ignorance about the role of the FBI Director’s certification in a FISA application.

By statute, the FBI Director (or National Security Advisor) certification requires a very limited set of information, basically explaining why the FBI wants to and can use a FISA warrant rather than a criminal warrant, because they believe the desired information in part pertains to a national security threat.

(6)a certification or certifications by the Assistant to the President for National Security Affairs, an executive branch official or officials designated by the President from among those executive officers employed in the area of national security or defense and appointed by the President with the advice and consent of the Senate, or the Deputy Director of the Federal Bureau of Investigation, if designated by the President as a certifying official–

(A)that the certifying official deems the information sought to be foreign intelligence information;

(B)that a significant purpose of the surveillance is to obtain foreign intelligence information;

(C)that such information cannot reasonably be obtained by normal investigative techniques;

(D)that designates the type of foreign intelligence information being sought according to the categories described in section 1801(e) of this title; and

(E)including a statement of the basis for the certification that—

(i)the information sought is the type of foreign intelligence information designated; and

(ii)such information cannot reasonably be obtained by normal investigative techniques;

Thanks to the declassification of the Carter Page FISA applications, we can see what the declaration Comey signed looked like. In 8 pages tracking the statutory requirement, it explains (in redacted language) what kind of foreign intelligence information FBI hoped to obtain from the FISA, and why normal investigative methods are not sufficient to achieve those objectives.

Not a shred of that declaration pertains to the underlying affidavit.

And Comey tried to alert people to this, over and over, in the hearing, stating that his certification was very limited, even while taking responsibility in the affidavit that he didn’t sign (and once, in response to a question from Lindsey, stating explicitly that he had not signed). Rather than asking him what his certification entailed and how he thought about that responsibility, Republican Senators entrusted with overseeing FISA insinuated over and over, falsely, that he should have known the underlying pieces of evidence used to obtain the FISA.

Maybe he should have. He frankly exhibited some awareness of what was in that.

But that’s not what the law requires. And if the Senate Judiciary Committee wants FBI Directors signing FISA applications to have that kind of granular awareness of case, they need to rewrite the law to mandate it.

Instead, they simply exhibited their utter lack of awareness of what FISA law requires.

Some of these Senators, notably Grassley, have been overseeing FISA for decades. Lindsey heads this committee. Mike Lee is easily among the Senators who is best informed about FISA. And yet none of them know — not even with a declassified application to read — what it is that the FBI Director certifies.

DOJ [or Flynn’s Team] Altered an Exhibit in the Mike Flynn Case to Support a False Smear of Joe Biden

September 29, 2020/22 Comments/in 2016 Presidential Election, 2020 Presidential Election /by emptywheel

As noted, Peter Strzok’s lawyer has confirmed something I laid out earlier: DOJ submitted at least two sets of Strzok’s notes in its effort to blow up the Mike Flynn prosecution that had been altered to add a date that Strzok did not write himself.

This post will lay out why it matters.

I discovered that DOJ [or Flynn’s team] had altered Strzok’s notes because DOJ shared — and Sidney Powell submitted in purported support of her claim of prosecutorial abuse — two sets of those notes.

This set, shared on June 23 (the red rectangle is my annotation).

And this set, shared on September 23. Again, my red rectangle shows where DOJ added a date, January 4-5, 2017.

As Strzok’s lawyer, Aitan Goelman, explained that date is wrong.

On at least one occasion, the date added is wrong and could be read to suggest that a meeting at the White House happened before it actually did.

The correct date is January 5, 2017. The notes could not have been written on January 4 because they memorialize a meeting that happened on January 5.

As I demonstrated here, there was never a doubt about the date of the notes. They were written on January 5, 2017, after the meeting in question. The notes clearly match the known details — as laid out in this contemporaneous memo to the file by Susan Rice and elsewhere — of a meeting in the White House, attended by the President, Sally Yates, Joe Biden, Susan Rice, and Jim Comey, regarding what to do about the discovery that Mike Flynn had secretly called up the Russian Ambassador and undermined the sanctions President Obama imposed, in part, to punish the Russians for tampering in our election.

In spite of the fact that there was never a doubt that the notes were from January 5, 2017, when DOJ shared the notes with Powell, they claimed that DOJ was uncertain of their date, and claimed falsely they could have been from January 3, 4, or 5.

This page of notes was taken by former Deputy Assistant Director Peter Strzok. While the page itself is undated; we believe that the notes were taken in early January 2017, possibly between January 3 and January 5.

Then, having been told, falsely, that the date of the notes was uncertain, Sidney Powell claimed they had been written on January 4, and used that to falsely claim that the idea of investigating Mike Flynn under the Logan Act came from Joe Biden.

Strzok’s notes believed to be of January 4, 2017, reveal that former President Obama, James Comey, Sally Yates, Joe Biden, and apparently Susan Rice discussed the transcripts of Flynn’s calls and how to proceed against him. Mr. Obama himself directed that “the right people” investigate General Flynn. This caused former FBI Director Comey to acknowledge the obvious: General Flynn’s phone calls with Ambassador Kislyak “appear legit.” According to Strzok’s notes, it appears that Vice President Biden personally raised the idea of the Logan Act.

Thus far, all DOJ did was falsely claim not to know key details of this investigation, allowing Powell to set off a frenzy designed to impact the election.

But then DOJ [or Flynn’s team] submitted the second version of the notes and Powell submitted them again, claiming they pertained to a March 2017 meeting.

Now, had DOJ told Powell when they shared the altered notes and told Judge Sullivan, by association, when they filed the notice of discovery correspondence (belatedly) last night that these were annotated copies of Strzok’s notes, they would not be at risk of committing the crime of making false statements by altering a record (the same crime Kevin Clinesmith pled guilty to). Had they just explained, “these come from so-and-so’s investigative notebooks and they show that he, the investigator, [falsely] concluded that the notes could be from January 4, 2017 and that’s why poor Sidney Powell made a false, still-uncorrected attack on Joe Biden in a filing before this court,” then this wouldn’t be a problem. I mean, they’d still have to explain why they submitted an altered copy of the notes, rather than just correcting the record before Sullivan. But it would not amount to a false representation that these were — as Ballantine’s letter to Powell claimed they were — “handwritten notes of former Deputy Assistant Director Peter Strzok (23501 & 23503).”

But now it is the case that the record before Sullivan shows that DOJ [or Flynn’s team] submitted these altered notes while claiming that they were Strzok’s hand-written notes (having already submitted proof that the annotation is not part of the original).

It’s not just that — as Goelman explained — the notes, “could be read to suggest that a meeting at the White House happened before it actually did.”

It’s that DOJ already did read the notes to suggest a meeting happened before it actually did. DOJ, and by association, Flynn’s lawyer, already made that false claim. And they did so specifically to support an attack on Presidential candidate Joe Biden.

Update, 9/30: I’ve altered this to reflect that the alterations to the notes could have come from Flynn’s team, which might explain why Sidney Powell was so nasty about Strzok’s lawyer’s letter yesterday.

Beware DOJ Inspectors General Bearing Investigations, Aaron Zelinsky Edition

September 15, 2020/21 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

When DOJ IG got evidence, in the form of Jim Comey’s memos documenting that every safeguard against White House interference in DOJ and FBI investigations had broken down, DOJ Inspector General Michael Horowitz instead investigated whether Comey had mishandled classified information, ultimately referring Comey for prosecution.

When FBI Inspection Division got evidence that someone kept leaking false information to Sara Carter claiming Andrew McCabe had promised to “fuck Trump,” it turned into a DOJ IG investigation into whether McCabe had lied. After withholding the evidence of a key witness, Michael Kortan, the IG Report was used to justify the firing of McCabe.

When DOJ IG conducted an investigation into the leaks and conduct of various FBI Agents, it ended up being a report that exclusively reported on anti-Trump texts from Agents, and not pro-Trump leaks and texts — it even provided misleading graphics that falsely suggested only anti-Trump leaks happened. That led to the disclosure, during an investigation, of those texts, and ultimately to Peter Strzok’s firing.

That’s why I’m wary about the NBC report today that DOJ’s Inspector General is investigating the Roger Stone sentencing.

The Justice Department inspector general’s office has begun investigating the circumstances surrounding the sentencing recommendation for Roger Stone, a longtime friend of President Donald Trump’s, according to two sources familiar with the matter.

The investigation is focused on events in February, according to the two sources, who spoke on condition of anonymity. Stone’s prosecutors have said that is when they were told to seek a lighter sentence than they had previously considered.

[snip]

A source familiar with the matter said comments Zelinsky made during his testimony triggered the inspector general’s office to open an investigation. It is not known how far the office has proceeded in its investigation, whom it has interviewed or whether it has found any evidence of wrongdoing.

That’s particularly true given Kerri Kupec’s confidence — in a statement to Politico’s Josh Gerstein — that Billy Barr’s DOJ welcomes this review.

A Justice Department spokeswoman confirmed that the agency’s Office of Inspector General is looking into Barr’s move in February to seek a lighter sentence for Stone after rank-and-file prosecutors and an acting U.S. attorney hand-picked by Barr had already submitted a recommendation of seven to nine years in prison for the conservative provocateur, who has been a political sounding board for Trump for more than two decades.

“We welcome the review,” a department spokeswoman, Kerri Kupec, said on Monday evening.

Gerstein further notes that this probe did not come with an announcement to HJC.

In the past, Horowitz has written to members of Congress to confirm that he has launched inquiries in high-profile cases in which lawmakers demanded a review. It was not immediately clear why Horowitz was being more tight-lipped about the investigation into the Stone sentencing decision.

Even aside from past history and the warning sign that Gerstein notes, there’s one more reason to believe that Horowitz’ IG Report will once against serve to damage — if not provide an excuse to fire — someone who investigated Trump.

DOJ IG cannot investigate the actions lawyers take as lawyers. And virtually everything Aaron Zelinsky testified to in the House Judiciary Committee hearing pertains to actions Barr flunky Timothy Shea and others took as lawyers. Moreover, during the hearing, Jim Jordan made a point to get Zelinsky to name precisely who he claimed had accused Barr of politicized decisions. By the end of the hearing, Republicans were claiming that those people had not said what Zelinsky claimed.

DOJ IG can’t investigate why Timothy Shea engaged in unprecedented interference in sentencing. It can, however, investigate whether Zelinsky’s testimony matches that of more complicit supervisors in the DC US Attorney Office. And that’s what’s likely to happen.

Glenn Greenwald Moves to Close the Deal on Trump’s Election Help Quid Pro Quo

September 12, 2020/48 Comments/in 2016 Presidential Election, emptywheel, FISA, Mueller Probe, WikiLeaks /by emptywheel

Two days ago, Glenn Greenwald started teasing a cable appearance where he was going to discuss — he claimed — the dangers an Assange extradition poses to press freedom. He was coy, however, about what outlet it was.

When he announced that his appearance had been postponed, he was again coy about what outlet this was.

The next day he described how “tyrannical” the hawkish civil servants who inhabit the Deep State are.

Last night, shortly before he went on, he revealed the cable outlet was Tucker Carlson’s show, which, he claimed, was “one of the few places on cable” where he could discuss the dangers of the prosecution of Julian Assange and the persecution of Edward Snowden. He excused his appearance on a white supremacist’s show by explaining that he cares more about having an opportunity to speak to “millions of Americans” about the “abuse of power by CIA/DOJ in persecuting those who expose the truth” than he does about the “sentiments of online liberals.”

Here’s the appearance, with my transcription to follow.

Tucker: WikiLeaks’ Julian Assange has been held in a high security prison since his arrest last spring in the Ecuadorian Embassy where he effectively was held for many years, in isolation. His extradition hearing is now finally under way. Assange’s lawyer estimates he could face 175 years in prison if he’s extradited to the United States. He faces Espionage charges here. WikiLeaks exposed all kinds of things, some of which it was good to know — including corruption by the Democratic National Committee in 2016. So what is the story on Julian Assange. Why is the DOJ pursuing this case so aggressively? Glenn Greenwald has followed this from the very beginning. He is of course a journalist, founded The Intercept. And we’re happy to have him tonight. So Glenn, thanks for coming on. I think a lot of people have heard for years that Julian Assange is a bad guy who hurt the United States, now the United States is going to bring justice in this case. What’s your view of this? Tell us what we should know, in 3 minutes, about Julian Assange.

Glenn: Let’s remember, Tucker, that the criminal investigation into Julian Assange began by the Obama Administration because in 2010 WikiLeaks published a slew of documents — none of which harmed anybody, not even the government claims that. That was very embarrassing to the Obama Administration. It revealed all kinds of abuses and lies that they were telling about these endless wars that the Pentagon and the CIA are determined to fight. They were embarrassing to Hillary Clinton, and so they conducted, they initiated a grand jury investigation to try and prosecute him for reporting to the public. He worked with the New York Times, the Guardian, to publish very embarrassing information about the endless war machine, about the Neocons who were working in the Obama Administration. To understand what’s happening here, we can look at a very similar case which is one that President Trump recently raised is the prosecution by the Obama Administration, as well, of Edward Snowden for the same reason — that he exposed the lies that James Clapper told, he exposed how there’s this massive spying system that the NSA and the CIA control, that they can use against American citizens. Obviously this isn’t coming from President Trump! He praised WikiLeaks in 2016 for informing the public. He knows, firsthand, how these spying systems that Edward Snowden exposed can be abused and were abused in 2016. This is coming from people who work in the CIA, who work in the Pentagon, who insist on endless war, and who believe that they’re a government unto themselves, more powerful than the President. I posted this weekend that there’s a speech from Dwight Eisenhower warning that this military industrial complex — what we now call the Deep State — is becoming more powerful than the President. Chuck Schumer warned right before President Obama — President Trump — took office that President Trump challenging the CIA was foolish because they have many ways to get back at anybody who impedes them. That’s what these cases are about Tucker, they’re punishing Julian Assange and trying to punish Edward Snowden for informing the public about things that they have the right to know about the Obama Administration. They’re basically saying to President Trump, “You don’t run the country even though you were elected. We do!” And they’re daring him to use his pardon power to put an end to these very abusive prosecutions. One which resulted in eight years of punishment for Julian Assange for telling the truth, the other which resulted in seven years of exile for Edward Snowden of being in Russia simply for informing the public and embarrassing political officials who are very powerful.

Tucker: So, in thirty seconds, the President could pardon Julian Assange right now, and end this. Is that correct?

Glenn: He could pardon him and Edward Snowden and there’s widespread support across the political spectrum on both the right and the left for doing both. It would be politically advantageous for the President. The only people who would be angry would be Susan Rice, John Brennan, Jim Comey, and James Clapper because they’re the ones who both of them exposed.

As has become the new norm for Glenn, there’s a lot that is exaggerated or simply made up in this rant (I’ve bolded the four main claims above):

It is not the case that the government claims no one was harmed by Assange’s releases (even assuming we’re limiting the discussion to those already charged, and ignoring Vault 7, where the government presented hours and hours of testimony on the subject). The government has repeatedly claimed they caused a great deal of harm, even if they have not released their damage assessments publicly.
The files that Assange has been charged for do include the first (in the case of the Afghan and Iraq War Logs) and the first two years of Obama’s term (in the case of Cablegate). They also include details about Guantanamo that were helpful to Obama’s failed efforts to shut down the gulag set up by Bush. The files did cause grave embarrassment to the Obama Administration, both for some policy stances (Yemen remains, to my mind, one of the most important disclosures), and because the Obama Administration had to explain how candid conversations could leak. But to the extent one wants to (as Glenn appears to) make this about tribalism, they exposed far more about the Bush Administration, and many of the policies exposed (like support for torture and Saudi Arabia) are policies Trump is more supportive of than Obama was.
Glenn insinuates that the spying systems revealed by Edward Snowden were abused in 2016. He suggests that Trump was targeted by them. Glenn has made this error before, in his invention-filled defense of Mike Flynn. But there is no relationship between Snowden’s disclosures of NSA programs and the FBI surveillance that caught Flynn incidentally or FBI’s FISA targeting of Carter Page. And the worst abuses on the Page targeting happened in 2017, under Trump. Crazier still, Trump himself is worse on surveillance issues than Obama was! He has had enemies targeted by contract spies to thwart a peace deal. His DOJ got a Title III warrant on a suspected leaker to capture evidence implicating the journalists he was leaking to. Various of his agencies have been purchasing location data to bypass a Supreme Court prohibition on warrantless surveillance of location. ICE and other agencies have ratcheted up earlier spying on immigrants and those who advocate for them. And Trump’s Attorney General — the guy who unilaterally approved the predecessor of the spying systems Snowden exposed — has said the government doesn’t need Section 215 (one authority Snowden exposed) to conduct the surveillance it had been using it for until March 15, 2020; the suspicion is Barr has resumed reliance on legal claims rejected in 2010. It is, frankly, insane for Glenn to suggest that Trump is better on surveillance than his predecessors.

And while WikiLeaks releases have been embarrassing in certain ways to John Brennan, Jim Comey, and (especially) James Clapper, I’m particularly astounded that Glenn claims that Susan Rice was “exposed” by the releases.

I checked. I found just three Cablegate releases involving Susan Rice. One discusses efforts to remain engaged in the Democratic Republic of Congo. One discusses a meeting between Rice, Dennis Ross, and Ban Ki-moon where Obama’s officials described wanting to establish a bilateral channel with Iran in pursuit of peace.

Ambassador Rice and Special Advisor for the Gulf and Southwest Asia Ambassador Dennis Ross on June 9 met with UN Secretary-General Ban Ki-moon to explain key elements of U.S. diplomatic outreach to Iran and to hear Ban’s assessment. Ambassador Ross explained that President Obama in various fora and particularly from Cairo has made it clear that the USG will engage Iran without any preconditions.

[snip]

Ambassador Ross said the USG values the P5 1 structure for dealing with Iran because it is a statement of the international community’s resolve to deal with the nuclear issue in a coordinated fashion, and he said the USG will be a full participant in the P5 1 structure. Despite its importance, Ambassador Ross said the USG aims to engage Iran bilaterally, because that would allow for a broader treatment of the issues, which is more difficult to achieve in a multilateral context.

And one describes Rice engaging with UN Relief and Works Agency (UNRWA) Director for Gaza John Ging to learn how supporting infrastructure projects in Gaza would counter the growth of Hamas.

In an October 22 meeting with USUN Ambassador Susan Rice, UN Special Coordinator for the Middle East Peace Process (UNSCO) Robert Serry and UN Relief and Works Agency (UNRWA) Director for Gaza John Ging emphasized the need to restart essential infrastructure projects in Gaza, including shelters and schools. As a result of the Israeli “blockade,” both Serry and Ging noted that Hamas now controls Gaza’s tunnel-driven economy, increasing people’s dependency on Hamas. Ging described a population in Gaza suffering from massive physical devastation. He pointed out that while Hamas has all the cement it needs to build a new checkpoint near Erez, the UN cannot get the cement it needs to build a single school. Serry stressed the need for a new strategy on Gaza, suggesting that the current policy has only strengthened Hamas’ position.

In short, purported anti-imperialist Glenn Greenwald claims that Susan Rice was “exposed” because Cablegate revealed her involvement in efforts to make peace in Iran and Gaza.

But Glenn’s lies and exaggerations aren’t the craziest thing about this appearance.

The craziest thing about the appearance is that Glenn doesn’t talk about the danger to journalism of an Assange extradition.

What Glenn does instead of discussing the very real dangers that the Assange extradition poses to journalism is instead push Trump’s buttons — the very same buttons that Sergei Kislyak first started pushing on December 31, 2016, when he called Flynn to tell him that Putin had not retaliated against Obama’s sanctions because, in part, the sanctions were “targeted not only against Russia, but also the president elect.”

KISLYAK: I, I just wanted to tell you that our conversation was also taken into account in Moscow and …

FLYNN: Good

KISLYAK: Your proposal that we need to act with cold heads, uh, is exactly what is uh, invested in the decision.

FLYNN: Good

KISLYAK: And I just wanted to tel I you that we found that these actions have targeted not only against Russia, but also against the president elect.

FLYNN: yeah, yeah

KISLYAK: and and with all our rights to responds we have decided not to act now because, its because people are dissatisfied with the lost of elections and, and its very deplorable. So, so I just wanted to let you know that our conversation was taken with weight.

Glenn’s case — made in an appearance that was transparently an attempt to lobby the President directly — wasn’t about journalism. It was about sticking it to the “tyrannical” civil servants in the Deep State™ who had the audacity to try to protect the country from Russian interference. Glenn pitched this as one more way for Trump to damage Obama (which is presumably why Glenn falsely claimed that Obama was the most embarrassed by the disclosures), spitting out the names — Jim Comey, James Clapper, and Susan Rice’s tyrannical consideration of how to improve life in Gaza — that serve as triggers to the President.

And, remarkably, at a time when all the messaging of WikiLeaks supporters is focused on claiming that Trump has targeted Assange as part of his larger war on the press (a bullshit claim, but politically useful in an effort to mobilize press advocates in support of Assange), Glenn does the opposite, suggesting that Trump wants to pardon Assange (and Snowden), but the Deep State that Trump has been in charge of for 45 months, that Trump has purged of any disloyalty and much competence, is preventing him.

Of course, Tucker knows his audience of one, and so tees this up perfectly, reminding Trump of the only information Assange exposed that Trump cares about: Democratic emails that Russia released to help Trump get elected.

Seven days after the election, Trump’s rat-fucker, Roger Stone, started pursuing a pardon for Julian Assange. I’m increasingly convinced that effort started earlier, as part of Stone’s efforts to optimize the release of the emails in August 2016. Up until now, the overt signs of the effort to pay off Trump’s debt to Assange (and Russia) for help getting elected seemed to cease in 2018, after the nihilistic damage of the Vault 7 releases made such an effort increasingly toxic (and perhaps because the Mueller investigation made it legally dangerous).

But last night, Glenn Greenwald joined Tucker Carlson to renew the effort explicitly, claiming to defend press freedoms but instead pitching it as an opportunity to stick to to a Deep State™ that both Glenn and Trump have inflated so ridiculously that they prefer real tyranny to civil servants pursuing draconian measures within the dregs of law that Trump hasn’t already blown away.

For four years, this campaign debt has been hanging over Trump’s head. And Glenn Greenwald, pushing all the same buttons Russia did starting in 2016, last night moved to close the deal.

Julian Assange’s First Witness, Journalism Professor Mark Feldstein, Professes to Be Unfamiliar with the Public Record on Assange

September 7, 2020/32 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

The first day of the Julian Assange extradition hearing was a predictable circus.

Assange’s lawyers tried two legal tactics.

First, they tried to get parts of the second superseding indictment excluded from the proceedings. They claimed they hadn’t had time to review it with Assange. While I’m sympathetic to the difficulties imposed by Assange’s imprisonment amid COVID measures, WikiLeaks supporters have at the same time been (correctly) complaining that the documents on which the new allegations are based have been public for some time.

In any case, it didn’t work. Judge Vanessa Baraister said that she had offered Assange the opportunity to raise this complaint in the last hearing.

Judge Baraister similarly rejected a bid to delay the hearing until January (not incidentally the period when, if a Trump pardon for Assange would be forthcoming, it would take place), on largely the same basis.

Next, Professor Mark Feldstein — a journalism professor at University of Maryland — tried to present his testimony. Technical problems forced Baraister to delay proceedings until tomorrow.

That has left the public with copies of Feldstein’s prepared testimony and a supplement before he has the opportunity to present it and lawyers for the US to grill him in response. That may be unfortunate, because Feldstein’s original testimony has some key errors and omissions, and in his supplement he professes a lack of familiarity with the public record in this case.

Let me be clear: I wholeheartedly agree with large swaths of Professor Feldstein’s testimony. Donald Trump has waged unprecedented attacks on members of the news media, both verbally and through policy. I agree, too, that the First Amendment is not limited to journalists, and that political advocacy like Assange’s has a storied place in the history of journalism. I agree that some of the stories based off Chelsea Manning’s leaks were blockbusters (Feldstein predictably starts by listing Collateral Murder, which is not charged, and his effort to include all the files that were charged strays much further from the ones that have been most important.) His history of classified leaks is useful, though in some places he seems to misunderstand what was new and what wasn’t revealed until the release of declassified documents. His statement speaks at length about the dire problem with overclassification (though in one case, he cites a John McCain accusation about Obama’s motive for leaking as fact, a claim that hasn’t held up to subsequent events; he later cites McCain as a classification villain). I even agree with some, though not all, of his analysis of how the charges against WikiLeaks threaten normal journalistic activities like soliciting, receiving, and publishing documents, and protecting confidential sources. (Feldstein never goes so far as to defend helping a source hack something.) His testimony is valuable for the background on journalism it offers.

But Feldstein’s account of how the Assange prosecution arose out of Donald Trump’s election — which occurred with Assange’s help!!! — not only invents claims he doesn’t support, but makes several telling errors in citation.

Donald Trump’s election changed the calculus. The month after his inauguration, the president met with FBI director James Comey and brought up the issue of plugging leaks. Comey suggested “putting a head on a pike as a message” and Trump recommended “putting reporters in jail.”83 Three days later, he instructed his attorney general to investigate “criminal leaks” of “fake” news reports that had embarrassed the White House.84 According to press accounts, the new administration soon “unleashed an aggressive campaign” against Assange. CIA director Mike Pompeo publicly attacked WikiLeaks as a “hostile intelligence service” that uses the First Amendment to “shield” himself from “justice.” In private, he briefed members of Congress on a bold counterintelligence operation the agency was conducting that included the possible use of informants, penetrating overseas computers, and even trying to directly “disrupt” WiliLeaks, a move that made some lawmakers uncomfortable.85 A week later, Attorney General Jeff Sessions said at a news conference that journalists “cannot place lives at risk with impunity,” that prosecuting Assange was a “priority” for the new administration, and that if “a case can be made, we will seek to put some people in jail.” 86 The new leaders at the Justice Department dismissed their predecessors’ interpretation that Assange was legally indistinguishable from a journalist and reportedly began “pressuring” their prosecutors to outline an array of potential criminal charges against him, including espionage. Once again, career professionals were said to be “skeptical” because of the First Amendment issues involved and a “vigorous debate” ensued. 87 Two prosecutors involved in the case, James Trump and Daniel Grooms, reportedly argued against charging Assange.88 But in April of 2019, Assange was arrested in London—even though “the Justice Department did not have significant evidence or facts beyond what the Obama-era officials had when they reviewed the case.”89

83 Abramson, “Comey’s wish for a leaker’s ‘head on a pike.’”

84 “Remarks by President Trump in Press Conference,” WH.gov (Feb. 16, 2017); Charlie Savage and Eric Lichtblau, “Trump Directs Justice Department to Investigate ‘Criminal Leaks,’” New York Times (Feb. 16, 2017); Barnes, et al, “How the Trump Administration Stepped up Pursuit of WikiLeaks’ Assange.”

85 CIA, “Director Pompeo Delivers Remarks at CSIS” (April 13, 2017): www.cia.gov/news-information/speechestestimony/2017-speeches-testimony/pompeo-delivers-remarks-at-csis.html.

86 “Sessions Delivers Remarks,” Justice.gov. [sic]

87 Matt Zapotosky and Ellen Nakashima, “Justice Department debating charges against WikiLeaks members,” Washington Post (April 20, 2017); Adam Goldman, “Justice Department Weighs Charges Against Julian Assange,” New York Times (April 20, 2017).

88 Devlin Barrett, Matt Zapotosky and Rachel Weiner, “Some federal prosecutors disagreed with decision to charge Assange under Espionage Act,” Washington Post (May 24, 2019). 89 Barrett, et al, “Prosecutors Disagreed.”

The first citation (83) is to a 2018 story on Jim Comey’s memos memorializing conversations about leaks damaging to Trump, not WikiLeaks. The second (84) refers to an effort to go after those who damaged Trump. The next three sentences are attributed to Mike Pompeo’s designation of WikiLeaks as a non-state hostile actor in April 2017 (85), in the wake of the Vault 7 leaks, but two of those sentences (bolded) are not actually sourced to Pompeo’s comments, but instead to news accounts not specified in the relevant footnote. The next sentence combines what Jeff Sessions said on April 20, 2017 and what he said on August 4, 2017; perhaps Feldstein aims to cover that up by not including a date or a citation in the remarks in question (see footnote 86; Sessions’ April 20 comments don’t appear to be on the DOJ website), but suggesting Sessions’ August comments were about Assange is a move that WikiLeaks has made elsewhere. Importantly, Feldstein does not footnote one of the most widely cited reports of that April 20 speech, a CNN report that describes what changed, already in 2017, since DOJ had earlier decided not to prosecute Assange.

The US view of WikiLeaks and Assange began to change after investigators found what they believe was proof that WikiLeaks played an active role in helping Edward Snowden, a former NSA analyst, disclose a massive cache of classified documents.

[snip]

US intelligence agencies have also determined that Russian intelligence used WikiLeaks to publish emails aimed at undermining the campaign of Hillary Clinton, as part of a broader operation to meddle in the US 2016 presidential election. Hackers working for Russian intelligence agencies stole thousands of emails from the Democratic National Committee and officials in the Clinton campaign and used intermediaries to pass along the documents to WikiLeaks, according to a public assessment by US intelligence agencies.

That is, if Feldstein had reviewed the press coverage more broadly, he would have a ready explanation for why DOJ began to rethink its earlier decision not to charge Assange.

Assange’s own filing may attempt to cover for Feldstein’s citation inaccuracy, claiming that Feldstein cited that April WaPo story rather than ““Sessions Delivers Remarks,” Justice.gov”.

Then came the political statement of Attorney General Sessions on 20 April 2017 that the arrest of Julian Assange was now a priority and that ‘if a case can be made, we will seek to put some people in jail’ [Feldstein quoting Washington Post article of Ellen Nakashima, tab 18, p.19].

But even that April 20, 2017 WaPo article he claims to rely on doesn’t help him. In fact, it disputes Feldstein’s account of Trump’s animus towards WikiLeaks.

Trump has had a fluid relationship with WikiLeaks, depending largely on how the group’s actions benefited or harmed him. On the campaign trail, when WikiLeaks released Podesta’s hacked emails, Trump told a crowd in Pennsylvania, “I love WikiLeaks!” But when it came to the release of the CIA tools, he did not seem so pleased.

“In one case, you’re talking about highly classified information,” Trump said at a news conference earlier this year. “In the other case, you’re talking about John Podesta saying bad things about the boss.”

The actual words cited in part to the WaPo in Feldstein’s testimony (naming Ellen Nakashima, not Matt Zapotosky) don’t appear in the April story but in the NYT story cited. The rest relies on a [Devlin Barret and] Zapotosky story fairly obviously sourced to prosecutor James Trump, whom Zapotosky covered in the Jeffrey Sterling case and other EDVA cases but who — the story admits — wasn’t on the team anymore even when Assange was originally charged (presumably meaning December 2017 on just a CFAA charge that would accord with AUSA Trump’s concerns about an Espionage charge), and who would therefore have no visibility into what went into the May 2018 superseding indictment of Assange, much less the one on the table now.

In short, a key paragraph in Feldstein’s testimony, which is cited repeatedly in both Assange’s briefs on the case (one, two), is a scholarly shit-show.

And that’s before you consider the chronology of it, omitting as it does the Vault 7 leak which all the Assange-specific comments were responding to, which started on March 7, 2017.

That’s not the only problem with Feldstein’s citations. Feldstein also footnotes a claim that Assistant Attorney General for DOJ’s National Security Division John Demers, “declared that ‘Julian Assange is no journalist’ and thus not protected under the free press clause of the US Constitution’s First Amendment” with a citation to news reports on the indictment, rather than the remarks as prepared rolling out the indictment. While the story from Charlie Savage that Feldstein cites responsibly quotes Demers in context, the full statement makes it clear that it’s not only not a comment directly about the First Amendment, but that Demers never mentions the First Amendment.

The Department takes seriously the role of journalists in our democracy and we thank you for it. It is not and has never been the Department’s policy to target them for their reporting.

Julian Assange is no journalist. This made plain by the totality of his conduct as alleged in the indictment—i.e., his conspiring with and assisting a security clearance holder to acquire classified information, and his publishing the names of human sources.

Indeed, no responsible actor—journalist or otherwise—would purposely publish the names of individuals he or she knew to be confidential human sources in war zones, exposing them to the gravest of dangers.

This continues WikiLeaks’ longstanding effort to suggest the government has made First Amendment claims about Assange that obscure what they have actually said. (AUSA Gordon Kromberg does appear to have addressed the First Amendment in ways WikiLeaks has claimed that others have, but his affidavit is not yet public.)

While Kromberg’s testimony is not yet public, in one of the government’s filings made public today, the government hints at what Kromberg may have said at more length, noting that Feldstein only cites part of — but not the entirety — of a news report on Assange.

The principal evidence upon which the defence relies to demonstrate the existence of a such a decision is a newspaper article dated 25 November 2013 [Sari Horowitz, “Julian Assange is unlikely to face US Charges over publishing classified documents”, Washington Post]; Cited by Professor Feldstein at §9 page 18. 39.

Professor Feldstein omits important sections of the report upon which he relies to demonstrate a “decision” not to prosecute:

“The officials stressed that a formal decision has not been made, and a grand jury investigating WikiLeaks remains impaneled, but they said there is little possibility of bringing a case against Assange, unless he is implicated in criminal activity other than releasing online top-secret military and diplomatic documents.

And:

“WikiLeaks spokesman Kristinn Hrafnsson said last week that the anti-secrecy organization is skeptical “short of an open, official, formal confirmation that the U.S. government is not going to prosecute WikiLeaks.” Justice Department officials said it is unclear whether there will be a formal announcement should the grand jury investigation be formally closed”.

So, in response to Kromberg, Feldstein dug himself a very much deeper hole.

In a supplemental filing, Assange expert witness Mark Feldstein claimed and exhibited that he’s not familiar with the public record (though he cleaned up some of his prior citation errors). In it, he claimed the only way to know the truth about the Assange prosecution would be from leaks of grand jury or White House documents. “[T]he reporting I cited by the New York Times and Washington Post is to date the only public source of information about the behind-the-scenes maneuvering to prosecute Assange,” he claimed in a filing submitted on July 5, 2020.

The government insists that the Trump administration’s prosecution of Assange is not politically motivated. It dismisses my contrary conclusion—and that of other expert witnesses—by saying that we “primarily rely on a select number of news articles…and the hearsay within them.”

Indeed, my declaration relied on news accounts that the Obama administration decided not to prosecute Assange because of concerns that doing so would violate the First Amendment. 2 In particular, I cited comments that Matthew Miller, the former spokesman for the Obama Justice Department, made in an interview with the Washington Post: “The problem the department has always had in investigating Julian Assange is there is no way to prosecute him for publishing information without the same theory being applied to journalists. And if you’re not going to prosecute journalists for publishing classified information, which the department is not, then there is no way to prosecute Assange.” The Post reported that prosecutors called this the “New York Times problem”—that if they indicted Assange for publishing the documents leaked by Chelsea Manning, then they would also have to also indict the New York Times for doing the same.3

I also noted that the Trump administration decide to reject this interpretation and cited a New York Times report that its new appointees running the Justice Department began “pressuring” prosecutors to indict Assange, although two career prosecutors argued against doing so on First Amendment grounds. I also cited the article’s finding that “the Justice Department did not have significant evidence or facts beyond what the Obama-era officials had when they reviewed the case”4 and concluded that the decision to indict Assange was not an evidentiary decision but a political one.5

As the government knows, internal prosecutorial deliberations are not a matter of public record. White House and Justice Department documents that would shed further light on the political dimensions of the case—emails, internal memos, grand jury transcripts, and other records—are kept secret by the government. Thus, the reporting I cited by the New York Times and Washington Post is to date the only public source of information about the behind-the-scenes maneuvering to prosecute Assange.

Like so much other questionable conduct by the Trump administration, revelations about the unorthodox nature of this prosecution came to light only because of the vigilance of a free and vigorous press.

1 Gordon D. Kromberg, “Declaration in Support of Assange Extradition,” US v. Assange (Jan. 17, 2020), ¶18-19, pp. 8- 9.

You have got to be fucking kidding me!!

I invite Professor Feldstein to assign his undergraduate journalism students with the task of trying to discover any Trump, White House, and National Security views about WikiLeaks and Julian Assange that might explain why DOJ decided not to prosecute in 2013 but did prosecute in 2017, 2019, and 2020.

His first year undergraduate students might note the proximity between the April 2017 Assange-related announcements (the Jeff Sessions of which he obscures with his dodgy citation) and the release of the Vault 7 files in March 2017, which burned the CIA hacking ability to the ground.

They also might point to Trump’s tweets celebrating WikiLeaks to suggest that while Trump might hate the traditional press, he spent most of the 2016 campaign celebrating WikiLeaks.

Feldstein’s second year undergraduate students might look to the obvious places — like the Mueller Report — for some views about how Trump ordered campaign staff to go chase down WikiLeaks’ releases. Not only do the descriptions completely undermine Feldstein’s claim that Trump treats WikiLeaks like he does traditional media outlets, but it shows that the Department of Justice conducted an extensive investigation implicating WikiLeaks after the 2013 Matthew Miller quote he relies on. Indeed, exceptional sophomores might note that a redaction error in the Mueller Report makes it clear that a Mueller prosecutorial decision about foreign donations pertains to WikiLeaks, a detail released in 2019 that James Trump would not have been privy to.

Junior year journalism students might refer to the Stone trial testimony to see what it said about Trump’s relationship with WikiLeaks. Really astute journalism students would note that Randy Credico testified that Donald Trump’s rat-fucker Roger Stone actually reached out to Randy Credico in an effort to broker a pardon for Assange.

Q. Had you put Mr. Stone directly in touch with Ms. Kunstler after the election?

A. Yes, I did.

Q. And why had you done that?

A. Well, sometime after the election, he wanted me to contact Mrs. Kunstler. He called me up and said that he had spoken to Judge Napolitano about getting Julian Assange a pardon and needed to talk to Mrs. Kunstler about it. So I said, Okay. And I sat on it. And I told her–I told her–she didn’t act on it. And then, eventually, she did, and they had a conversation.

The same astute budding journalists might look at the trial record and discover how long those pardon discussions lasted — continuing well past the time Mike Pompeo and Jeff Sessions were discussing prosecuting journalists and/or Assange.

Senior journalism students might even tie that testimony to a question Robert Mueller asked — but didn’t really get an answer about — regarding whether Trump had considered an Assange pardon.

Donald Trump refused to answer a question under oath about whether he considered pardoning Julian Assange during the transition period between when WikiLeaks releases helped get him elected and his inauguration, something that makes it pretty clear the President treats WikiLeaks and Assange, which helped him get elected, differently than he does journalists who did not.

Professor Feldstein says he’d need a leak to discover that.

There’s a slew more that graduate students might discover but that Feldstein professed to be helpless to discover himself, such as the warrant that makes it clear Stone reached out to WikiLeaks lawyer Margaret Kunstler — to discuss an Assange pardon, WikiLeaks supporter Randy Credico testified to under oath — seven days after Trump got elected.

Or the other Stone warrant making it clear that after several of the media reports Feldstein relies on, Mueller’s team was just beginning to obtain warrants implicating Assange, in part for election-related crimes that have nothing to do with the Espionage Act. Or yet another that suggests DOJ was investigating WikiLeaks, in part, for conspiracy and Foreign Agent charges in August 2018.

Diligent journalism students — budding journalists not intimidated by redaction marks — might even look to the multiple SSCI Reports that address the government’s evolving understanding of WikiLeaks, particularly those that show how the many conflicting views in 2016 came to change to believe that WikiLeaks had been coopted by Russia.

Despite Moscow’s history of leaking politically damaging information, and the increasingly significant publication of illicitly obtained information by coopted third parties, such as WikiLeaks, which historically had published information harmful to the United States. previous use of weaponized information alone was not sufficient for the administration to take immediate action on the DNC breach. The administration was not fully engaged until some key intelligence insights were provided by the IC, which shifted how the administration viewed the issue.

Here, in public view, is indication that not just DOJ but the entire Intelligence Community came to shift their view of WikiLeaks and Assange as they investigated how Russia had attacked US democracy in 2016. But Mark Feldstein testified in his supplemental testimony that he could only discover that if someone leaked it to him.

Finally, Feldstein’s students might seek to understand the workings of a grand jury from the same place journalists always have, from those called to testify before them. Had they done so, they would at a minimum discover the Jeremy Hammond description of how he refused to testify for what would be the last superseding indictment against Assange, in which he described prosecutors twice claiming (without evidence) that Assange is “a Russian spy.”

“What could the United States government do that could get you to change your mind and obey the law here? Cause you know” — he basically says — “I know you think you’re doing the honorable thing here, you’re very smart, but Julian Assange, he’s not worth it for you, he’s not worth your sacrifice, you know he’s a Russian spy, you know.”

[snip]

He implied that all options are on the table, they could press for — he didn’t say it directly, but he said they could press for criminal contempt. … Then he implies that you could still look like you disobeyed but we could keep it a secret — “nobody has to know I just want to know about Julian Assange … I don’t know why you’re defending this guy, he’s a Russian spy. He fucking helped Trump win the election.”

The claims of a prosecutor as he’s trying to coerce testimony don’t affirm the veracity of the claim. Hammond’s claims in no way prove that Assange is a Russian spy or even that DOJ believes he is. But it does indicate what DOJ’s then-current claims were, in March 2020, before the most recent superseding indictment against Assange. They would indicate that the prosecutors asking for the extradition of Julian Assange claim to believe he is a Russian spy.

There is an embarrassment of public documents describing how the US government’s view of Assange changed between 2013 and 2020, as well as plenty that show DOJ was obtaining new legal process well after DOJ decided not to prosecute Assange. That doesn’t mean their view is correct or that it in any way mitigates the risk to journalism. But it does mean their view is discoverable by anyone who wants to check the public record.

And yet journalism Professor Mark Feldstein professes to be helpless to explain why DOJ charged Assange in 2017 and 2019 and 2020 but not in 2013, not unless someone leaks to him what DOJ and Trump and the rest of the US government were really thinking. And so instead, he offered a paragraph that falls apart completely if you simply read his source material, to say nothing of the public record.

Feldstein gives himself a bit of an excuse by claiming that his scholarly statement doesn’t address what happened after 2011 (a focus that may come from WikiLeaks’ lawyers — recall that someone close to Assange scolded me for reporting accurately on what WikiLeaks had done in 2016 and afterwards).

It should be noted that this report addresses only WikiLeaks disclosures in 2010-2011, the time period when Assange is accused of violating the Espionage Act; it does not discuss the website’s previous or subsequent document releases.

But you can’t claim to provide expert testimony about what DOJ was doing in 2017 without considering what WikiLeaks had done in the interim, and how that might change investigative tactics and conclusions (and did, in fact, lead DOJ to reconsider the evidence they had).

The record shows that — far from treating Assange with the disdain Trump harbored towards traditional journalists — Trump’s close associates entertained numerous discussions about pardons, and Trump himself refused to deny that under oath to Mueller. It further shows that the targeting of Wikileaks immediately followed the Vault 7 leaks burned the CIA’s hacking capacity to the ground (a prosecution that Trump himself almost blew up hours before the FBI confiscated Schulte’s passports). Finally, there is an abundance of evidence discoverable in the public record by any diligent journalism student that the understanding of WikiLeaks significantly evolved after the decisions not to charge Assange in 2013, in part because a national security investigation sought to figure out how badly Russians had tampered in our election, and in part because Trump got all kinds of help in the election from foreigners (including Assange).

Mark Feldstein claims in his expert testimony that what is happening to Julian Assange is just part of Trump’s larger assault on the press.

Seen in this light, the administration’s prosecution of Julian Assange is part and parcel of its campaign against the news media as a whole. Indeed, Assange’s criminal indictment under the US Espionage Act is arguably its most important action yet against the press, with potentially the most far-reaching consequences.

But he makes that claim while also admitting zero familiarity about the public record concerning Assange which shows the opposite.

The Julian Assange prosecution presents serious risks to journalism. But none of those excuse shoddy journalism — a failure to even consult the public, official record — in support of his case. That’s what Assange’s first witness is planning to do.

Update: Cleaned up the post and fixed a date.

It’s Not the Four Year Old Counterintelligence Investigation intro Trump We Need to Be Most Worried About — It’s the Ones Bill Barr May Have Killed

September 2, 2020/55 Comments/in 2016 Presidential Election, 2020 Presidential Election, emptywheel, Mueller Probe /by emptywheel

The other day, Mike Schmidt advertised a book by claiming that FBI never did any kind of counterintelligence investigation of Trump in parallel with the Mueller investigation. On Twitter, Andrew Weissmann debunked a key part (though not all) of that claim.

The aftermath has led to ongoing debates about what really happened. My guess is that Schmidt’s sources did not have visibility on the full scope of the Mueller investigation, and he didn’t read the Mueller Report, which would have helped him realize that. And while credible reports say Mueller didn’t investigate Trump’s historical financial ties to Russia (while I’ve read neither book yet, the excerpts of Jeff Toobin’s book adhere more closely to the public record than Schmidt’s), the public record also suggests Mueller obtained Trump-related records that most people don’t realize he obtained.

I reiterate that it is far more troubling that a co-equal branch of government — the one with impeachment power — chose not to pursue the same questions about Trump’s financial vulnerabilities to Russia. If you want to express outrage that no one has investigated whether Trump is beholden to Russia, focus some of it on Richard Burr, who suggested Trump’s financial vulnerability to Russia was irrelevant to a report specifically focused on counterintelligence threats.

Still, there’s something still more urgent, one that is getting lost in the debate about what happened three or four years ago.

There were, as of at least April, at least one and probably several investigations implicating counterintelligence tied to Trump, through his top associates. But they tie to the same cases that Billy Barr has undermined in systematic and unprecedented fashion in recent months. It is a far more pressing question whether Barr has undermined counterintelligence investigations implicating Trump’s ties to Russia by ensuring those who lied to protect him during the Mueller investigation face no consequences than what Rod Rosenstein did forty months ago.

Consider Mike Flynn. The most newsworthy thing Robert Mueller said — under oath — over the course of two congressional hearings is that “many elements of the FBI” were looking into the counterintelligence risks created by Mike Flynn’s lies about his communications with Russia.

KRISHNAMOORTHI: Since it was outside the purview of your investigation your report did not address how Flynn’s false statements could pose a national security risk because the Russians knew the falsity of those statements, right?

MUELLER: I cannot get in to that, mainly because there are many elements of the FBI that are looking at different aspects of that issue.

KRISHNAMOORTHI: Currently?

MUELLER: Currently.

As part of Mueller’s analysis about whether Trump fired Jim Comey to stop the investigation into Flynn, he weighed whether the Flynn investigation implicated Trump personally. But he found — largely because Flynn and KT McFarland, after first telling similar lies to investigators, later professed no memory that Trump was in the loop regarding Flynn’s efforts to undercut sanctions with Sergey Kislyak, and Steve Bannon repeated a White House script saying he wasn’t — that the evidence was inconclusive.

As part of our investigation, we examined whether the President had a personal stake in the outcome of an investigation into Flynn-for example, whether the President was aware of Flynn’s communications with Kislyak close in time to when they occurred, such that the President knew that Flynn had lied to senior White House officials and that those lies had been passed on to the public. Some evidence suggests that the President knew about the existence and content of Flynn’s calls when they occurred, but the evidence is inconclusive and could not be relied upon to establish the President’s knowledge.

[snip]

But McFarland did not recall providing the President-Elect with Flynn’s read-out of his calls with Kislyak, and Flynn does not have a specific recollection of telling the President-Elect directly about the calls. Bannon also said he did not recall hearing about the calls from Flynn. And in February 2017, the President asked Flynn what was discussed on the calls and whether he had lied to the Vice President, suggesting that he did not already know. Our investigation accordingly did not produce evidence that established that the President knew about Flynn’s discussions of sanctions before the Department of Justice notified the White House of those discussions in late January 2017.

We’ve since seen transcripts that show Mike Flynn telling Sergey Kislyak in real time that Trump was aware of the communications between the two (and John Ratcliffe is withholding at least one transcript of a call between the men).

FLYNN: and, you know, we are not going to agree on everything, you know that, but, but I think that we have a lot of things in common. A lot. And we have to figure out how, how to achieve those things, you know and, and be smart about it and, uh, uh, keep the temperature down globally, as well as not just, you know, here, here in the United States and also over in, in Russia.

KISLYAK: yeah.

FLYNN: But globally l want to keep the temperature down and we can do this ifwe are smart about it.

KISLYAK: You’re absolutely right.

FLYNN: I haven’t gotten, I haven’t gotten a, uh, confirmation on the, on the, uh, secure VTC yet, but the, but the boss is aware and so please convey that. [my emphasis]

Certainly, Russia would have reason to believe that Flynn’s efforts to undermine sanctions were directed by Trump.

In January, a sentencing memo that was delayed so it could be approved by the entire chain of command at DOJ, explained why all this was significant.

Any effort to undermine the recently imposed sanctions, which were enacted to punish the Russian government for interfering in the 2016 election, could have been evidence of links or coordination between the Trump Campaign and Russia. Accordingly, determining the extent of the defendant’s actions, why the defendant took such actions, and at whose direction he took those actions, were critical to the FBI’s counterintelligence investigation.

[snip]

It was material to the FBI’s counterintelligence investigation to know the full extent of the defendant’s communications with the Russian Ambassador, and why he lied to the FBI about those communications.

Flynn’s forgetfulness about whether Trump ordered him to undermine sanctions went to the core question of whether Trump worked with Russia in their efforts to throw him the election.

And that sentencing memo was the moment when Billy Barr threw two different lawyers — one a lifetime associate of his — into the project of creating a false excuse to undermine the prosecution of Flynn. More recently, Acting Solicitor General Jeffrey Wall told the DC Circuit that Barr had secret reasons for overturning the prosecution.

The Attorney General of course sees this in a context of non-public information from other investigations.

[snip]

I just want to make clear that it may be possible that the Attorney General had before him information that he was not able to share with the court and so what we put in front of the court were the reasons that we could, but it may not be the whole picture available to the Executive Branch.

[snip]

It’s just we gave three reasons; one of them was that the interests of justice were not longer served, in the Attorney General’s judgment, by the prosecution. The Attorney General made that decision, or that judgment, on the basis of lots of information, some of it is public and fleshed out in the motion, some of it is not.

This secret reason is why, Wall suggested, it would cause irreparable harm for DOJ to have to show up before Judge Emmet Sullivan and explain why DOJ blew up the prosecution.

Then there’s Roger Stone. Stone very loudly claimed (improbably) that he could have avoided prison had he not lied to protect Donald Trump. And Trump rewarded him for it, commuting his sentence to ensure he didn’t spend a day in prison.

But at least as of April, an investigation into whether Stone was part of a conspiracy with Russia and/or was a Russian agent — implicating 18 USC 951, not just FARA — was ongoing. Among the things Stone was involved in that Trump refused to answer Mueller questions about was a pardon for Julian Assange, one Stone started pursuing at least as early as November 15. While no sentencing memo has explained this (as it did with Mike Flynn), whether Trump and Stone used promises of a pardon to get Assange to optimize the WikiLeaks releases goes to the core question of whether there was a quid pro quo as part of 2016.

Finally, there’s Paul Manafort, whose close associates, the SSCI Report makes clear, were part of GRU and appear to have had a role in the hack-and-leak. After securing a cooperation deal, Manafort changed his story, and then shared details of what Mueller’s team knew with the President.

Yet, even with Manafort’s ties to the effort to steal our election, the Attorney General used COVID relief to ensure that Manafort would escape prison.

While it’s not clear whether John Ratcliffe, Barr, or the IC made the decision, the redaction process of the SSCI report denied voters the ability to know how closely tied Trump’s campaign manager is with the people who helped steal the election. What we do know is the effort Manafort started continues in Trump’s efforts to extort Ukraine and spew Russian disinformation.

For all three of the Trump associates where we know Barr intervened (there’s good reason to suspect he intervened in an Erik Prince prosecution, too), those people implicate Trump directly in counterintelligence investigations that were, fairly recently, ongoing.

Whether or not there was a counterintelligence investigation implicating Trump on May 20, 2017, after Rod Rosenstein scoped the Mueller investigation, we know counterintelligence investigations have implicated him since. What we don’t know is whether, in an effort to help Trump get reelected, his fixer Billy Barr squelched those, too.

Update: In an appearance for his book, Schmidt said he considered writing it (in 2020) about just the first 26 days of his presidency. It’s a telling comment given that his description of what happened with counterintelligence doesn’t accord with what the Mueller Report itself said happened around 500 days into Trump’s presidency.

Billy Barr Admits, for the Third and Fourth Time, that He Intervenes without Knowing the Facts

July 28, 2020/127 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

Billy Barr’s statement for his testimony today is here. It is as cynical and dishonest as you might imagine.

In his first paragraph, he pays tribute to John Lewis, without mentioning the ways he personally is trying to roll back the ability for every citizen to vote (most notably, of late, by falsely suggesting that the only safe way to vote during a pandemic is susceptible to fraud).

In his second paragraph, he suggests only politicians are political, and then suggests “mobs” are among those pressuring DOJ to take political decisions.

We are in a time when the political discourse in Washington often reflects the politically divided nation in which we live, and too often drives that divide even deeper. Political rhetoric is inherent in our democratic system, and politics is to be expected by politicians, especially in an election year. While that may be appropriate here on Capitol Hill or on cable news, it is not acceptable at the Department of Justice. At the Department, decisions must be made with no regard to political pressure—pressure from either end of Pennsylvania Avenue, or from the media or mobs.

Then he spends five paragraphs addressing what he calls “Russiagate,” a term used exclusively by those who like to diminish the seriousness of an attack on our country.

Ever since I made it clear that I was going to do everything I could to get to the bottom of the grave abuses involved in the bogus “Russiagate” scandal, many of the Democrats on this Committee have attempted to discredit me by conjuring up a narrative that I am simply the President’s factotum who disposes of criminal cases according to his instructions. Judging from the letter inviting me to this hearing, that appears to be your agenda today.

Four paragraphs later, Billy Barr admits that the sole reason he returned to government was to avenge what he believed — as an admitted outsider!! — to be two systems of justice.

But as an outsider I became deeply troubled by what I perceived as the increasing use of the criminal justice process as a political weapon and the emergence of two separate standards of justice. The Department had been drawn into the political maelstrom and was being buffeted on all sides. When asked to consider returning, I did so because I revere the Department and believed my independence would allow me to help steer her back to her core mission of applying one standard of justice for everyone and enforcing the law even-handedly, without partisan considerations. Since returning to the Department, I have done precisely that. My decisions on criminal matters before the Department have been my own, and they have been made because I believed they were right under the law and principles of justice.

Remember: Billy Barr has repeatedly stated that the investigation into Trump’s associates (not Trump himself) was unprecedented, proving he’s either unaware of or uninterested in the two investigations into Hillary, both of which involved abuses (the ostensible reason for the firing of both Jim Comey and Andrew McCabe) and leaks. The only evidence that a biased FBI Agent was running an informant on a candidate during the election involved the Clinton Foundation investigation which — unlike the Russian investigation — is understood to be entirely predicated on dodgy opposition research. Clinton did sit for an interview in the investigation into her actions; Trump refused.

In other words, every complaint floated about the Russian investigation actually applies more readily to the two Clinton ones, the treatment of investigations which had some effect, however unmeasured, on the election.

Yet the Attorney General of the United States has now admitted that he came into office planning to avenge what he sees as the opposite. Importantly, he admits he formed this conclusion an outsider! That means he formed the conclusion in spite of — by his own repeated admission — not knowing the facts of the investigation. “I realize I am in the dark about many facts,” he admitted in his memo on what he believed Mueller was doing on obstruction. As part of his confirmation process, he told both Dianne Feinstein and the Senate Judiciary that, “As I explained in a recent letter to Ranking Member Feinstein, my memo was narrow in scope, explaining my thinking on a specific obstruction-of-justice theory under a single statute that I thought, based on media reports, the Special Counsel might be considering.”

Billy Barr decided to become Attorney General based off what he admitted then and has proven since to be badly mistaken understanding of what the Russian investigation entailed. That’s it. That’s why he agreed to become Attorney General.

Barr may think he’s working from an independent standpoint (a laughable claim in any case given his outspoken hatred for anything progressive), but he keeps admitting that he’s doing something worse, working from an understanding based off media portrayals rather than an understanding based off the public, much less the investigative, record.

No wonder Reggie Walton ruled that Attorney General Barr had spun the real outcome of the investigation. Barr, by his own admission, formed conclusions when he was “in the dark about many facts.” There’s no evidence he has revisited those conclusions since.

Billy Barr performs his own toxic bias in numerous other ways in his opening statement, for example by focusing on Antifa’s potential threat to law enforcement rather than Boogaloo’s much greater threat.

Most cynical, though, is the way he explains the storm troopers in Portland as an effort to defend not just Federal property (which it is, if counterproductively heavy-handed), but Article III judges.

Inside the courthouse are a relatively small number of federal law enforcement personnel charged with a defensive mission: to protect the courthouse, home to Article III federal judges, from being overrun and destroyed.

Barr has demonstrated his disdain for Article III judges over and over: by overriding the decisions of Emmet Sullivan on the Mike Flynn case, by lying to courts on census cases, by ignoring Supreme Court orders on DACA.

Most importantly, however, on issues pertaining to Trump’s flunkies — even the Roger Stone case that he has twice said was righteous — Barr completely dismissed the seriousness of an actual threat to a Federal judge. As I have noted, contrary to Barr’s repeated claims that Amy Berman Jackson agreed with the sentencing recommendation DOJ made after he made an unprecedented intervention to override a guidelines sentencing recommendation, she did not agree that his revised sentencing included the appropriate enhancements. Not only did Barr dismiss the seriousness of making a violent threat against a witness, but Barr’s revised sentencing memo eliminated the sentencing enhancement for threatening a judge, opining (as Barr has a habit of doing) that DOJ wasn’t sure whether Stone’s actions had obstructed his prosecution and trial under ABJ.

Moreover, it is unclear to what extent the defendant’s obstructive conduct actually prejudiced the government at trial.

This is why we have judges: to decide matters like this! Indeed, that’s the justification for recommending guidelines sentences in the first place — so the actual judge who presided over the case, rather than an Attorney General who has admitted to repeatedly forming opinions without consulting the actual record, makes the decisions based off the broadest understanding of the record. Even in this, his most egregious action, Billy Barr’s DOJ weighed in while admitting it didn’t have the knowledge to do so. And did so in such a way that minimized the danger of threats against Article III judges.

Billy Barr thinks the moms defending protestors in Portland are a threat to judges. But his repeated, acknowledged intervention on matters he knows fuckall about is a bigger threat to the rule of law, up to and including when that record includes threats against judges.

Sidney Powell’s Great Time Machine of Electoral Gaslighting

June 25, 2020/46 Comments/in 2016 Presidential Election, 2020 Presidential Election, emptywheel, Mueller Probe /by emptywheel

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

May 27, 2020/9 Comments/in 2016 Presidential Election, emptywheel, Mueller Probe /by emptywheel

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What are the consequences for these individuals?

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

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

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

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

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

May 19, 2020/28 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

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

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

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

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

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

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

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

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

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

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

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

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

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

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