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Bill Clinton Did Not Win an Election By Getting a Blowjob: The Danger of Lindsey Graham’s Willful Ignorance about Russian Interference

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In his statement in Brett Kavanaugh’s confirmation hearing yesterday, Lindsey Graham embodied the problem with Republicans’ deliberate ignorance about Russian interference in the 2016 election.

As part of his statement, he raised the time Joe Biden pointed out what a hypocrite Brett Kavanaugh was for believing presidents should not be investigated during their term but nevertheless thought it necessary to ask Bill Clinton the following questions:

If Monica Lewinsky says that you inserted a cigar into her vagina while you were in the Oval Office area, would she be lying?

[snip]

If Monica Lewinsky says that she gave you oral sex in the Oval Office area, would she be lying?

If Monica Lewinsky says that you ejaculated in her mouth on two occasions in the Oval Office, would she be lying?

Lindsey did so to suggest Biden’s comments about the Clinton investigation refute the claim that Trump picked Kavanaugh to protect himself from investigation, as if the investigation of Clinton for a blowjob was as legitimate as Mueller’s investigation into whether Trump cheated to win the election.

To justify such an absurd claim, Lindsey suggests that the Mueller investigation is only about whether Trump acted improperly when he fired Comey.

When it comes to the pillar of political virtue, Comey. Harry Reid: “That he’s been a supporter of Comey, and led the fight to get him confirmed, as he believed Comey was a principled public servant. With the deepest regret, I now see that I was wrong.” Mr. Nadler, from NY. “The President can fire him for cause and ought to. He violated the guidelines and put his thumb on the scale of an election.” Mr. Cohen, from Tennessee, a Democrat. “Call on Comey to resign his position, effective immediately, I’m sureupon reflection of this action he will submit his letter of resignation for the nation’s good.” To my Democratic friends,  you were all for getting rid of this guy. Now all of a sudden the country is turning upside down cause Trump did it.

The same guy who recently endorsed the idea of Trump firing Jeff Sessions once Kavanaugh gets confirmed then claimed he would do everything to protect the Mueller investigation. He says that even while suggesting he agrees with Kavanaugh that the president shouldn’t be investigated.

There’s a process to find out what happened in the 2016 election. It’s called Mr. Mueller. And I will do everything I can to make sure he finishes his job without political interference. And I’m here to tell anybody in the country that listens, that this is so hypocritical of my friends on the other side. When it was their President, Kavanaugh was right. When you’re talking about Roe v. Wade, it’s okay to promise the nation it will never be overturned. It’s okay to pick a Democratic staff member of this committee, but it’s not okay to pick somebody who’s been a lifelong Republican.

Which brings us to the stunning bit. Having just misrepresented the scope of the Mueller investigation — completely ignoring that the primary investigation is about whether Trump conspired with a hostile foreign power to win the election — Lindsey then suggests that Democrats should have no influence over judges because they lost the election the legitimacy of which Mueller continues to investigate (and about which Mueller has already provided evidence that the scope of Russia’s help for Trump went further than initially known).

People see through this. You had a chance, and you lost. If you want to pick judges from your way of thinking, then you better win an election.

After discussing his support for Sonia Sotomayor and Elena Kagan, Lindsey then suggests that stripping the last limits on presidential power is just a game (even while admitting he likes Trump best of all for getting two SCOTUS picks).

I hope people in the country understand this game. It’s a game that I’m sad to be part of. It’s gotten really bad. The antidote to our problems in this country when it comes to judges and politics is not to deny you a place on the Supreme Court. This is exactly where you need to be, this is exactly the time you need to be there, and I’m telling President Trump, “You do some things that drive me crazy, you do some great things. You have never done anything better, in my view, than to pick Gorsuch and Kavanaugh.  Cause you had an opportunity to put well-qualified conservatives on the court — men steeped in the rule of law — who will apply analysis not politics to their decision-making, and you knocked it out of the park, and I say to my friends on the other side: you can’t lose the election and pick judges.

Lindsey ends, again, by taunting Democrats that they can’t have any input on Supreme Court justices if they lose an election.

An election the investigation of which Lindsey claims to, but is not, protecting. An election the investigation of which may be stymied by the confirmation of Brett Kavanaugh.

Of course, this is only possible because of the way four different efforts in Congress — including Lindsey’s own — have served to obscure the matters under investigation. You’ve got Lindsey’s investigation and Bob Goodlatte’s — both more worried about a single FISA order that even a conservative Republican has told me was based on overwhelming evidence — than whether the guy making lifetime appointments cheated to get that authority. You’ve got Devin Nunes’ investigation, better described as an information gathering effort to help Trump get away with any cheating he engaged in than an investigation of whether he did cheat. Finally, there is Richard Burr’s investigation which, while on its face is more credible, nevertheless is not pursuing leads that support a case that Trump conspired with Russia to win the election.

Lindsey Graham is concerned about lies Christopher Steele may have told under oath in the UK, but not lies Don Jr clearly told his own committee. His big rush to stack SCOTUS suggests the reason for that has everything to do with a need to sustain a fiction that those SCOTUS choices are the result of a legitimate election win rather than willfully conspiring with a foreign adversary to get those choices.

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Would Rod Rosenstein Object to a Mueller Action before Brett Kavanaugh Is Confirmed?

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There’s a lot of discussion about whether or not DOJ’s traditional prohibition on major prosecutorial actions limits Robert Mueller. As I have explained, I personally think the terms of it don’t apply, with the possible exception of Dana Rohrabacher, because no other conceivable subject of Mueller’s investigation is conceivably on the ballot. Quinta Jurecic has a good piece explaining that it is a general practice, not a rule.

Justice Department Inspector General Michael Horowitz spelled out exactly why it’s wrong in three short pages of his recent report on the FBI’s conduct in the Clinton email investigation.

Two years ago, Jane Chong dove deep into the supposed 60-day rule in a Lawfare post on FBI Director James Comey’s October 2016 letter on new developments in the Clinton investigation. As she wrote then, there is no formal rule barring Justice Department action in the days immediately before an election. Rather, the “rule” is more of a soft norm based on what former Attorney General Eric Holder himself described as “long-standing Justice Department policies and tradition.” In a guidanceHolder issued in 2012, the attorney general wrote that, “Law enforcement officers and prosecutors may never select the timing of investigative steps or criminal charges for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party”—which, Chong noted, leaves a wide loophole for actions taken near an election without the purpose of affecting that election. In 2016, Attorney General Loretta Lynch issued a similar memorandum with the same language, as the inspector general report lays out.

Chong’s post was, in fact, cited by the inspector general report in the office’s own analysis of whether Comey had violated the supposed 60-day rule. “The 60-Day Rule is not written or described in any Department policy or regulation,” the report says. Investigators canvassed a range of “high-ranking [Justice] Department and FBI officials” on their own understandings of the guideline, which the report describes as “a general practice that informs Department decisions.”

This short section of the 500-plus-page report shows broad agreement among the current and former Justice Department officials interviewed that there is some kind of principle against taking action in such a way as to potentially influence an election, though the interviewees do not precisely agree on the contours of that principle. Former U.S. Attorney for the Southern District of New York Preet Bharara stated, investigators write, that “there is generalized, unwritten guidance that prosecutors do not indict political candidates or use overt investigative methods in the weeks before an election.” Former Deputy Attorney General Sally Yates located the cutoff more precisely at the 90-day instead of the 60-day mark.

The inspector general’s office also interviewed Ray Hulser, the former deputy assistant attorney general for the Public Integrity Section of the Justice Department, who was involved in the drafting of Lynch’s 2016 election integrity. Interestingly, Hulser told investigators that the Public Integrity Section had actually considered codifying the 60-day rule in the Lynch memo, but had decided not to because such a policy would be “unworkable.”

Yet, even though I don’t believe the 60-day “rule” does apply, my expectation is that Rod Rosenstein — who after is the one who will make any decisions about major Mueller actions — would nevertheless abide by it.

Still, that leaves three more days of this week, before the actual 60-day cut-off.

Which leaves me with another question: Would Rosenstein balk at a major action this week, before Brett Kavanaugh is confirmed to the Supreme Court?

After all, Rosenstein is close to Kavanaugh from when both served on a real witch hunt, the Ken Starr investigation into Bill Clinton’s blowjob (indeed, Kavanaugh seemed to have gotten off on the most scandalous details about that blowjob). Rosenstein has gone to great lengths to make DOJ resources available in support of his confirmation. Rosenstein showed up for the start of today’s hearing.

For Rosenstein, Kavanaugh’s confirmation is personal.

Would he do anything this week to stave off new Mueller revelations, to ensure the Kavanaugh bullet train races forward?

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Don McGahn’s Bullshit Report Covering Up the Flynn Firing

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Murray Waas, who writes about one and only one subject on the Russian investigation, has for the second time written a story claiming that a report Don McGahn wrote on February 15, 2017 — and not Trump’s serial offers to pardon people who are serving as his firewall —  is “the strongest evidence to date implicating the president of the United States in an obstruction of justice” and “the most compelling evidence we yet know of that Donald Trump may have obstructed justice.” Murray then goes on to parrot Rudy Giuliani’s preferred narrative about what would happen next.

Several people who have reviewed a portion of this evidence say that, based on what they know, they believe it is now all but inevitable that the special counsel will complete a confidential report presenting evidence that President Trump violated the law. Deputy Attorney General Rod Rosenstein, who oversees the special counsel’s work, would then decide on turning over that report to Congress for the House of Representatives to consider whether to instigate impeachment proceedings.

Because even people covering the story closely mistake the Flynn firing for an obstruction crime instead evidence of the conspiracy, I’d like to lay out why this story is silly. This will lay out things implicit in this post, which shows that in fact the White House narrative about Flynn is all an effort to treat his firing as obstruction and not “collusion.”

Neither story about Don McGahn’s exoneration of Trump should be credited

Murray claims that because Trump knew that Mike Flynn was under investigation when he asked Jim Comey to let the investigation into Flynn go, it will undercut an explanation offered in January that Trump thought Flynn had been cleared by the FBI.

In arguing in their January 29 letter that Trump did not obstruct justice, the president’s attorneys Dowd and Sekulow quoted selectively from this same memo, relying only on a few small portions of it. They also asserted that even if Trump knew there had been an FBI investigation of Flynn, Trump believed that Flynn had been cleared. Full review of the memo flatly contradicts this story.

The memo’s own statement that Trump was indeed told that Flynn was under FBI investigation was, in turn, based in part on contemporaneous notes written by Reince Priebus after discussing the matter with the president, as well as McGahn’s recollections to his staff about what he personally had told Trump, according to other records I was able to review. Moreover, people familiar with the matter have told me that both Priebus and McGahn have confirmed in separate interviews with the special counsel that they had told Trump that Flynn was under investigation by the FBI before he met with Comey.

Murray repeats a suspect McGahn timeline describing himself, along with Reince Priebus and White House lawyer John Eisenberg, “confronting” Flynn about intercepts showing that he had raised sanctions with Kislyak, contrary to what (they were claiming) he had told them.

On February 8, 2017, The Washington Post contacted the White House to say that it was about to publish a story citing no less than nine sources that Flynn had indeed spoken to Kislyak about sanctions. In attempting to formulate a response, Priebus, McGahn, and Eisenberg questioned Flynn. Confronted with the information that there were intercepts showing exactly what was said between him and Kislyak, Flynn’s story broke down. Instead of denying that he had spoken to Kislyak about sanctions, the timeline said, Flynn’s “recollection was inconclusive.” Flynn “either was not sure whether he discussed sanctions, or did not remember doing so,” the McGahn timeline says.

Priebus then “specifically asked Flynn whether he was interviewed by the FBI,” the timeline says. In response, “Flynn stated that FBI agents met with him to inform him that their investigation was over.” That claim, of course, was a lie. The FBI never told Flynn their investigation of him was over. Shortly thereafter, Vice President Pence, Priebus, and McGahn recommended that Flynn be fired.

According to the story Murray got snookered into repeating, because those three never informed Trump about this confrontation, his understanding of the investigation would remain what Priebus and McGahn had already briefed him — that Flynn was under investigation — and so by asking Comey to back off, he was obstructing justice.

In arguing that the president did nothing wrong, Trump defense attorneys John Dowd and Jay Sekulow, in both informal conversations and later in formal correspondence with the special counsel, relied on the false statements of Flynn to Priebus, McGahn, and Eisenberg that the FBI had closed out their investigation of him. In the attorneys’ reasoning, if Trump had no reason to think that Flynn was under criminal investigation when he allegedly pressured Comey to go easy on Flynn, the president did not obstruct justice. More broadly, Sekulow and Dowd argued in correspondence with the special counsel that the “White House’s understanding” was that “there was no FBI investigation that could conceivably have been impeded” at the time of Trump’s White House meeting with Comey.

But Sekulow and Dowd’s account of these conversations is partial and misleading. In fact, there is no information or evidence that Flynn’s false assertions were ever relayed to the president.

Murray doesn’t ask an obvious question: why, if Priebus and McGahn had already briefed Trump that Flynn was under investigation, they would have to confront Flynn about it. Nor does he mention a lot of other relevant details.

Two narratives

Before I get into the most relevant details, consider what we’re looking at: what Murray claims is his scoop, which provides more details on the original McGahn report, written the day after Trump tried to get Comey to end an investigation into why Mike Flynn lied about his conversation about sanctions on December 29, 2016. As always seemed the case and still appears to be true based on Murray’s claims about the report, the McGahn report misrepresented what Sally Yates said and a bunch of other things, but  in so doing laid out a narrative whereby the firing of Mike Flynn would serve as punishment for something Flynn did wrong.

Murray contrasts that with the letter Trump’s lawyers sent at the end of January but leaked in June in part to feed a narrative — one that had already been debunked — that Mueller was primarily investigating Trump for obstruction. The letter was Jay Sekulow and John Dowd’s attempt, in the wake of Mike Flynn’s cooperation agreement, to use the McGahn narrative to spin the firing of Flynn. In the January 29, 2018 telling, Flynn is not at fault, he’s just confused. And so, in the January letter, is the president. It portrays a story where no one really knew what Flynn said to Kislyak and everything that followed was just a big game of confused telephone for which the participants can’t be held legally liable. If Flynn were confused, of course, then his purported lies to Mike Pence would need to be excused, which is probably why Sekulow and Dowd didn’t address that part of the story.

When this whole process started — before Trump fired Jim Comey and in the process extended the investigation and got Robert Mueller looking into the stories being told — McGahn and Priebus and everyone else probably presumed that firing Flynn would shut everything down. That was the intent, anyway. Fire Flynn, end of investigation about why he lied to the FBI about discussing sanctions with Sergei Kislyak. And if you end the investigation, there would be no further scrutiny into what everyone else knew at the time, nor would anyone ask Comey and Yates their side of the story.

Of course, Trump fucked that all up, and fired Comey, which led to Mueller’s appointment, which led to his convening of a grand jury, which led to all that falling apart.

Bill Burck’s other clients already knew that Flynn had discussed sanctions

Which brings us to the most important of the missing details.

As noted, Trump couldn’t leave well enough alone and so fired Comey which led to Mueller which led to an actual investigation which led, in August, to Mueller obtaining the transition communications of 13 key members of the transition team, unmediated by Trump lawyers, who at the time were just responding to wholly inadequate document requests from Congress and sharing with Mueller.

Specifically, on August 23, 2017, the FBI sent a letter (i.e., not a subpoena) to career GSA staff requesting copies of the emails, laptops, cell phones, and other materials associated with nine PTT members responsible for national security and policy matters. On August 30, 2017, the FBI sent a letter (again, not a subpoena) to career GSA staff requesting such materials for four additional senior PTT members.

Among others, Mueller would have obtained emails that would have revealed that contrary to the story the White House had told in early January 2017 (which Murray repeats in his story), numerous Transition officials were aware of the emails regarding sanctions. Indeed, Reince Priebus, along with Flynn, Steve Bannon, Sean Spicer, and two other people (Kushner’s inclusion is implied elsewhere in the story), got forwarded an email KT McFarland sent Tom Bossert the day that Mike Flynn made his calls with Kislyak, talking about Flynn’s upcoming call with Kislyak and the need to avoid public comment defending Russia. McFarland also relayed what Obama’s Homeland Security Czar, Lisa Monaco, expected from the call, and the expectation Kislyak would respond with threats.

On Dec. 29, a transition adviser to Mr. Trump, K. T. McFarland, wrote in an email to a colleague that sanctions announced hours before by the Obama administration in retaliation for Russian election meddling were aimed at discrediting Mr. Trump’s victory. The sanctions could also make it much harder for Mr. Trump to ease tensions with Russia, “which has just thrown the U.S.A. election to him,” she wrote in the emails obtained by The Times.

[snip]

McFarland wrote, Mr. Flynn would be speaking with the Russian ambassador, Mr. Kislyak, hours after Mr. Obama’s sanctions were announced.

“Key will be Russia’s response over the next few days,” Ms. McFarland wrote in an email to another transition official, Thomas P. Bossert, now the president’s homeland security adviser.

[snip]

Bossert forwarded Ms. McFarland’s Dec. 29 email exchange about the sanctions to six other Trump advisers, including Mr. Flynn; Reince Priebus, who had been named as chief of staff; Stephen K. Bannon, the senior strategist; and Sean Spicer, who would become the press secretary.

[snip]

“If there is a tit-for-tat escalation Trump will have difficulty improving relations with Russia, which has just thrown U.S.A. election to him,” she wrote.

Mr. Bossert replied by urging all the top advisers to “defend election legitimacy now.”

[snip]

Obama administration officials were expecting a “bellicose” response to the expulsions and sanctions, according to the email exchange between Ms. McFarland and Mr. Bossert. Lisa Monaco, Mr. Obama’s homeland security adviser, had told Mr. Bossert that “the Russians have already responded with strong threats, promising to retaliate,” according to the emails.

Flynn took orders on and relayed his results to McFarland, who was in Mar-a-Lago with Trump. And the transition team, when it complained that Mueller obtained these emails, suggested that they would have — perhaps did, in their compliance with congressional requests — treat this one as privileged. The day after Flynn’s calls, Trump hailed the outcome his National Security Advisor appointee had accomplished on the calls the day before.

In other words, a great deal of evidence suggests that Trump not only knew what went on in those calls, but directed Flynn through McFarland to placate the Russians.

Within days after the call, Flynn briefed other members of the transition team on the call. It is highly unlikely that he lied to people who had been informed in advance of his call that he would be discussing sanctions.

FBI may have believed, in January 2017 and even February 2017, when McGahn wrote his memo, that Flynn lied on his own, to hide the contents of his calls from others in the Administration. But by November 2017, they knew that the most important people in the transition — including Bill Burck’s other clients, Steve Bannon and Reince Priebus — knew well what had transpired in the calls with Kislyak.

None of this, of course, shows up in the tale White House sources are telling Murray. As a result, he tells a story that presents the McGahn narrative as more closely matching the “truth” than the later Sekulow and Dowd letter.

The problems with the McGahn narrative

But neither are true, and so while it’s nifty for Murray to claim this is the biggest yet proof of obstruction (it’s not, compared to the pardons promised), that’s not actually what happened, and Mueller would know that.

For example, the entire story about Flynn lying to Pence — which is something Sekulow and Dowd simply ignored in their January letter — is probably not true; and if it is, key White House staffers, including at least two of Burck’s clients, were lying to the nominal Transition head and were parties to Flynn’s lie.

On January 12, 2017, Washington Post columnist David Ignatius disclosed that US intelligence agencies had intercepted the phone calls, although Ignatius’s sources did not disclose the specifics of what either Flynn or Kislyak said. Vice President Mike Pence was immediately enlisted to defend Flynn. Flynn assured Pence that he never spoke to Kislyak about sanctions, whereupon Pence repeated those denials on Fox News and CBS’s Face the Nation. Flynn was then also questioned by the FBI about the phone calls, but once again denied that he had ever spoken to Kislyak about sanctions.

Similarly, the notion that Priebus would have to ask Flynn what he said to Kislyak on February 8 (when he had known it would include sanctions before Flynn made the call) is nonsense.

 On February 8, 2017, The Washington Post contacted the White House to say that it was about to publish a story citing no less than nine sources that Flynn had indeed spoken to Kislyak about sanctions. In attempting to formulate a response, Priebus, McGahn, and Eisenberg questioned Flynn. Confronted with the information that there were intercepts showing exactly what was said between him and Kislyak, Flynn’s story broke down. Instead of denying that he had spoken to Kislyak about sanctions, the timeline said, Flynn’s “recollection was inconclusive.” Flynn “either was not sure whether he discussed sanctions, or did not remember doing so,” the McGahn timeline says.

Both Priebus and Flynn would know better. It’s possible Flynn and Priebus were putting on a show for the lawyers (but if so, that show would likely be just for John Eisenberg, because otherwise Burck would have a major conflict). It’s more likely the McGahn narrative was an attempt to make the internal story consistent with the public claims that only Flynn knew of the content of the calls.

One of the other key pieces of bullshit in the McGahn narrative is the claim that there was any doubt whether Flynn could be fired when Yates first presented her concerns to McGahn.

The McGahn timeline recounts: “Part of [our] concern was a recognition by McGahn that it was unclear from the meeting with Yates whether or not an action could be taken without jeopardizing an ongoing investigation.”

She clearly suggested (and would be backed by Mary McCord) that’s what they should do.

Finally, there’s something else missing from this narrative: that Flynn had spent the weekend between this alleged grilling from Priebus and McGahn in Mar-a-Lago with the President, sitting in on yet more sensitive meetings (in that case, with Shinzo Abe).

McGahn’s narrative may offer an explanation for why Trump fired Flynn, even if it doesn’t accord with known facts. But the entire narrative fails to explain why, if all the players knew and did what they said, Trump didn’t fire Flynn as soon as Yates suggested he should, or after they reviewed the intercepts (showing what they knew the conversation entailed), or after Priebus and McGahn grilled Flynn.

Which is not to say that McGahn’s letter isn’t proof of obstruction (albeit far less damning than Trump’s offers of pardons). It’s just an entirely different model of obstruction, and Murray’s story may be yet more PR from Don McGahn to make sure he’s on the right side of any obstruction charges.

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Andy McCarthy’s Misconception

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I was struck, in reading Andy McCarthy’s review of the Michael Cohen and Paul Manafort guilty outcomes last week (in which he measures Trump via a vastly different standard than he once measured Bill Clinton), by this erroneous claim:

The Trump camp continues to stress that Manafort’s case had nothing to do with the original rationale for Mueller’s investigation, “collusion with Russia.” But as we’ve pointed out any number of times, Mueller took over a counterintelligence investigation of Russia’s interference in the 2016 election. Possible Trump-campaign collusion with Russia was just one thread in the larger probe.

The claim that the Trump-campaign “collusion” was just one thread of what Mueller originally took over is false, but utterly critical for McCarthy’s sustained belief that Mueller has not found evidence of a conspiracy between Trump and Russia. While it is true that when Comey confirmed the investigation, he did not specify the structure of the investigation,
I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts. As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed.
When Rod Rosenstein appointed Mueller, he described Mueller’s scope to include,
  • any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and
  • any matters that arose or may arise directly from the investigation; and
  • any other matters within the scope of 28 C.F.R. § 600.4(a)

Why McCarthy made this error is clear: he uses the existence of and Mueller’s indictments in a broader counterintelligence investigation to sustain his belief that Mueller doesn’t have a “collusion” case against Trump or his associates.

At this point, it does not appear that Mueller has a collusion case against Trump associates. His indictments involving Russian hacking and troll farms do not suggest complicity by the Trump campaign. I also find it hard to believe Mueller sees Manafort as the key to making a case on Trump when Mueller has had Gates — Manafort’s partner — as a cooperator for six months. You have to figure Gates knows whatever Manafort knows about collusion. Yet, since Gates began cooperating with the special counsel, Mueller has filed the charges against Russians that do not implicate Trump, and has transferred those cases to other Justice Department components.

When it comes to the president, I believe the special counsel’s focus is obstruction, not collusion. When it comes to Manafort, I believe the special counsel’s focus is Russia — specifically, Manafort’s longtime connections to Kremlin-connected operatives. Mueller may well be interested in what Manafort can add to his inquiry into the June 2016 Trump Tower meeting (arranged by Donald Trump Jr. in futile hopes of obtaining campaign dirt from Russia on Hillary Clinton). That, however, is not the more serious “collusion” allegation that triggered the Trump thread of the investigation — cyberespionage conspiracy (i.e., Russian hacking of Democratic party emails).

That is, because Mueller indicted trolls and GRU hackers and then spun those prosecutions off to other teams (in the GRU case, back to one of the teams that originally investigated it), it is proof, in McCarthy’s mind, that Mueller isn’t targeting Trump and his associates for conspiring with Russia.

The actual background of the Mueller investigation suggests precisely the opposite. As I noted when Lawfare made precisely the same error in a post on the GRU indictment,

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

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

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

Given that both public reporting (starting in February 2017 and extending into November 2017) and Mueller team changes (not to mention my own reporting about the Philadelphia grand jury’s activity in the second half of May 2017 and my own knowledge about where I interviewed and where my interview materials subsequently got moved to) support this narrative, McCarthy (and the Lawfare crowd) might ask why Mueller decided to integrate the cybersecurity parts of the investigation, only to spin the Russian defendants back to other teams once they were indicted?

We can begin to get an answer from the two indictments that — Andy wants to believe — are themselves evidence that Mueller doesn’t have evidence on Trump’s associates but actually are. The Internet Research Agency indictment actually describes three Florida-based Trump campaign officials inconclusively, as if they were either still under investigation or at some legal risk.

On approximately the same day, Defendants and their co-conspirators used the email address of a false U.S. persona, [email protected], to send an email to Campaign Official 1 at that donaldtrump.com email account, which read in part:

Hello [Campaign Official 1], [w]e are organizing a state-wide event in Florida on August, 20 to support Mr. Trump. Let us introduce ourselves first. “Being Patriotic” is a grassroots conservative online movement trying to unite people offline. . . . [W]e gained a huge lot of followers and decided to somehow help Mr. Trump get elected. You know, simple yelling on the Internet is not enough. There should be real action. We organized rallies in New York before. Now we’re focusing on purple states such as Florida.

The email also identified thirteen “confirmed locations” in Florida for the rallies and requested the campaign provide “assistance in each location.”

[snip]

Defendants and their co-conspirators used the false U.S. persona [email protected] account to send an email to Campaign Official 2 at that donaldtrump.com email account.

[snip]

On or about August 20, 2016, Defendants and their co-conspirators used the “Matt Skiber” Facebook account to contact Campaign Official 3.

And while the GRU indictment (on top of key clauses being misread by virtually everyone who has read it) doesn’t use the same convention to describe Roger Stone’s communications with Guccifer 2.0…

On or about August 15, 2016, the Conspirators, posing as Guccifer 2.0, wrote to a person who wasin regular contact with senior members of the presidential campaign of Donald J. Trump, “thank u for writing back . . . do u find anyt[h]ing interesting in the docs i posted?” On or about August 17, 2016, the Conspirators added, “please tell me if i can help u anyhow . . . it would be a great pleasure to me.” On or about September 9, 2016, the Conspirators, again posing as Guccifer 2.0, referred to a stolen DCCC document posted online and asked the person, “what do u think of the info on the turnout model for the democrats entire presidential campaign.” The person responded, “[p]retty standard.”

It pointed to Russia’s response to Donald Trump’s request that they hack Hillary without referring to him one way or another.

For example, on or about July 27, 2016, the Conspirators attempted after hours to spearphish for the first time email accounts at a domain hosted by a thirdparty provider and used by Clinton’s personal office. At or around the same time, they also targeted seventy-six email addresses at the domain for the Clinton Campaign.

What Mueller has done with both of the counterintelligence indictments that McCarthy takes solace in is lay out the Russian side of a conspiracy (and both are charged as conspiracies) with very clear spots into which American co-conspirators may be dropped when Mueller is prepared to do so. (I laid this out at more length in this post.)

Importantly, the fact that some of this investigation started out in other parts of DOJ but then got moved under Mueller make it clear that something came up in the investigation that Mueller and Rosenstein believed required they be moved under Special Counsel when they weren’t there, originally.

Let’s put it this way: Mueller didn’t subsume investigations located elsewhere at DOJ because the Special Counsel needed to be the one to indict a bunch of Russians. He did it to set up the conspiracies that would — that will — later be occupied by Russians and Americans.

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

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The NYT’s Latest McGahnObstructAPalooza: Sometimes “Cooperation” Is Just Cover Your Ass

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By far the most telling passage in this 2,225+ word story laying out Don McGahn’s “cooperation” with the Mueller inquiry is this passage:

Though he was a senior campaign aide, it is not clear whether Mr. Mueller’s investigators have questioned Mr. McGahn about whether Trump associates coordinated with Russia’s effort to influence the election.

Over two thousand words and over a dozen sources, and Maggie and Mike never get around to explaining whether Don McGahn has any exposure in or provided testimony for the investigation in chief, the conspiracy with Russia to win the election.

Instead, along the way, Maggie and Mike repeat some version of “obstruction” fourteen times –obstruct obstruct obstruct obstruct obstruct obstruct obstruct obstruct obstruct obstruct obstruct obstruct obstruct obstruct — perpetuating the grossly misleading myth, once again, that Trump and his cronies are only at risk for obstruction charges. They do so even while describing a lawyer who represents three high placed witnesses in the case (along with McGahn, William Burck represents Reince Priebus and Steve Bannon) opining that the President’s legal exposure makes cooperation “insane.”

Mr. Burck has explained to others that he told White House advisers that they did not appreciate the president’s legal exposure and that it was “insane” that Mr. Trump did not fight a McGahn interview in court.

Along the way, the story engages in other kinds of spin, all of which happens to make Don McGahn look far better than he should.

White House Counsels have limited attorney-client privilege

A big part of this tale is premised on the notion that McGahn cooperated when he otherwise might not have had to, based on claims like this:

For a lawyer to share so much with investigators scrutinizing his client is unusual. Lawyers are rarely so open with investigators, not only because they are advocating on behalf of their clients but also because their conversations with clients are potentially shielded by attorney-client privilege, and in the case of presidents, executive privilege.

For a story that discusses John Dean explicitly, this claim is sheer malpractice. White House Counsels work for us, not for the President as private citizen, and as such, have limited attorney-client privilege, something that has now been litigated.

The story admits McGahn might have legal exposure, but doesn’t explain what that is

Much of the rest of the story is spun around an admittedly interesting tension, John Dowd’s decision to “cooperate” with the Mueller probe, including to make no executive privilege claims over McGahn’s testimony (which he could have done). As the story makes out, that led McGahn and the lawyer he hired because he thought he might have some criminal exposure, Burck, to worry about his criminal exposure.

Mr. McGahn and his lawyer, William A. Burck, could not understand why Mr. Trump was so willing to allow Mr. McGahn to speak freely to the special counsel and feared Mr. Trump was setting up Mr. McGahn to take the blame for any possible illegal acts of obstruction, according to people close to him. So he and Mr. Burck devised their own strategy to do as much as possible to cooperate with Mr. Mueller to demonstrate that Mr. McGahn did nothing wrong.

And in a piece claiming McGahn worried Trump would blame him for any legally sketchy behavior, this paragraph shows McGahn instead blaming Trump.

In fact, Mr. McGahn laid out how Mr. Trump tried to ensure control of the investigation, giving investigators a mix of information both potentially damaging and favorable to the president. Mr. McGahn cautioned to investigators that he never saw Mr. Trump go beyond his legal authorities, though the limits of executive power are murky.

Yet the NYT doesn’t seem to think about why McGahn and the three-witness lawyer alarmed at the President’s legal exposure might also think he, McGahn, had legal exposure.

The problems with Don McGahn’s Flynn story

One bit of legal exposure that the NYT has provided evidence for — but confused as yet more actual legal discussion — is in McGahn’s role in the Mike Flynn firing (which the NYT inexplicably always treats as obstruction of justice).

Mr. McGahn gave to Mr. Mueller’s investigators, the people said, a sense of the president’s mind-set in the days leading to the firing of Mr. Comey; how the White House handled the firing of the former national security adviser, Michael T. Flynn; and how Mr. Trump repeatedly berated Mr. Sessions, tried to get him to assert control over the investigation and threatened to fire him.

As I have noted, the White House materials published by the NYT actually show that McGahn wrote an obviously misleading explanation for the Flynn firing, one that suppressed transition period emails that would undermine all the claims about Flynn deciding to lie about his discussion with Sergi Kislyak, and one which would conflict in material ways with the contemporaneous reports of Jim Comey, Sally Yates, and a number of other DOJ witnesses.

  • Don McGahn wrote a memo on the lead-up to Flynn’s firing two days after the firing, and one day after Trump’s “let it go” conversation with Jim Comey. It appears to be inconsistent with Transition materials, particularly an email showing (among other things) that Reince Priebus knew in real time what Flynn told Kislyak on December 29. Firing Comey would have been an effort to prevent FBI from discovering those transition period communications.

[snip]

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

Finally, note that this passage cites an email chain dated January 12 — what was treated as campaign production with the Bates stamp “DJTJFP.” This is the only time the letter cites that production; they don’t, for example, cite the email chains referenced in Flynn’s plea that make it clear how hard it would have been to forget the Kislyak call because he was basically acting on orders from the President.

[snip]

After Yates spoke to McGahn, he had a meeting with Trump and Priebus and others.

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

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

McGahn may have spent 30 hours blaming Trump for writing this obvious retrospective CYA piece (one piece of news in this piece is that McGahn has been called by for a third appearance by Mueller’s team, but the story doesn’t reveal when that was). But he wrote it. And he likely has some legal risk for having done so.

Sometimes cooperation is just a failure to obstruct

Which is one of my gripes with this story overall. In spite of describing how McGahn and his lawyer worried about the former’s legal exposure, exposure that led them to embrace the ability to appear before Mueller directly, the whole theme of this story is that McGahn “cooperated” with Mueller’s inquiry. The word, in some legal contexts, may mean “responded to legal requests in a way that limited a person’s own criminal exposure” and in others may mean “helped convict co-conspirators.”

In this story, the former connotation is used though the latter connotation is sold. Because the story doesn’t explain the difference in connotations, it makes McGahn look far more cooperative than he has necessarily been.

I mean, maybe he has been. But to make that case, you’d need to ask that basic question: is he also answering questions about the election conspiracy, questions that likely go beyond his own legal exposure?

Mueller can lay out Trump’s actions in an indictment listing him as a non-indicted witness or an Unindicted Co-Conspirator

There are two other details, regular features of Maggie and Mike’s stories on what White House lawyers tell them to say, that are pure PR.  First (because people on Twitter never understand this point), Maggie and Mike repeat something that Rudy Giuliani appears to have them chanting in their sleep, that the end product of this investigation is going to be a report to Congress.

Mr. Mueller has told the president’s lawyers that he will follow Justice Department guidance that sitting presidents cannot be indicted. Rather than charge Mr. Trump if he finds evidence of wrongdoing, he is more likely to write a report that can be sent to Congress for lawmakers to consider impeachment proceedings.

Thus far, Mueller has obtained four indictments and five guilty pleas, each laying out some potentially criminal conduct of associates. Indeed, the most recent indictment included this language, making it clear that Russian hackers responded to Trump’s request that Russia hack Hillary by … attempting to hack Hillary.

For example, on or about July 27, 2016, the Conspirators attempted after hours to spearphish for the first time email accounts at a domain hosted by a thirdparty provider and used by Clinton’s personal office. At or around the same time, they also targeted seventy-six email addresses at the domain for the Clinton Campaign.

That is, we’ve already seen nods towards Trump’s involvement in a conspiracy, without any report to Congress. Laying out Trump’s criminal actions as unindicted conduct in indictments has several legal advantages over just reporting it to Congress, including it would raise the stakes on pardoning any co-conspirators and potentially force Trump to sit for an interview. Moreover, indictments are how Mueller has communicated thus far, and how Rod Rosenstein has said they intend to communicate. So perhaps the NYT should stop simply repeating Rudy’s spin on this point?

Trump has demonstrably not provided unparalleled cooperation

Finally, Maggie and Mike include these three paragraphs uncritically in their piece.

Mr. Dowd said that cooperation was the right approach but that Mr. Mueller had “snookered” Mr. Trump’s legal team. The White House has handed over more than one million documents and allowed more than two dozen administration officials to meet with Mr. Mueller in the belief that he would be forced to conclude there was no obstruction case.

“It was an extraordinary cooperation — more cooperation than in any major case — no president has ever been more cooperative than this,” Mr. Dowd said, adding that Mr. Mueller knew as far back as October, when he received many White House documents, that the president did not break the law.

As the months passed on, the misinterpretation by Mr. McGahn and Mr. Burck that the president would let Mr. McGahn be blamed for any obstruction case has become apparent. Rather than placing the blame on Mr. McGahn for possible acts of obstruction, Mr. Trump has yet to even meet with the special counsel, his lawyers resisting an invitation for an interview.

As I have laid out, it is simply not the case that Trump has “more cooperation than in any major case.” George Bush’s White House provided similar cooperation in the (less major) CIA leak case, even before you fluff the numbers by counting texts as pages of documents. But that’s assuming something that this passage makes clear you can’t assume: that Trump will ever sit for an interview. Both Dick Cheney and George Bush were willing to sit for interviews; the former even did so under oath.

Compare that to the Plame affair leak investigation, when Bush sat for an interview in June 2004, and Cheney — who himself made some grossly false statements in his tenure — sat for one in May 2004 and a little-known follow-up that August. According to Cheney’s autobiography, “[T]he second session was conducted under oath so that [his] testimony could be submitted to the grand jury.” Zeidenberg, for his part, doesn’t remember any of those interviews requiring a subpoena.

Samborn, the Fitzgerald spokesperson who was famously reticent during the whole CIA leak investigation, offered an expansive rebuttal to Dowd’s claim that this White House has offered unprecedented cooperation. “Trump’s team can claim all the cooperation it wants, and whether justifiably so or not, it seems to me that it all gets negated, if at the end, he personally refuses to be questioned when so much substance depends on what he knew and did, as well as his state of mind.”

Any refusal to sit for an interview, Samborn said, was central evaluating the level of cooperation.

At some point, the NYT might stop repeating breathless stories premised on the notion that Trump will ever sit for an interview and instead report the fact — that Trump has refused the kind of cooperation with a legal investigation his predecessors have offered.

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Twenty Comey Questions Do Not Eliminate Trump’s Obstruction Exposure

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

As Trump’s legal teams shift their efforts to stall Mueller’s investigation, the press is shifting their problematic reporting on what legal exposure Trump has. As part of its report that Trump’s legal team has made a “counteroffer” to have Trump sit for an interview covering just collusion, the WSJ repeats Rudy Giuliani’s bullshit that Trump’s obstruction only covers the Comey firing.

The president’s legal team is open to him answering questions about possible collusion with Moscow, Mr. Giuliani said, but is less willing to have Mr. Trump discuss questions about obstruction of justice. “We think the obstruction of it is handled by Article 2 of the Constitution,” Mr. Giuliani said, referring to the provision that gives the president executive authority to appoint and dismiss members of his administration.

Mr. Mueller is investigating whether Trump associates colluded with Russia’s efforts to interfere in the 2016 U.S. election, and whether Mr. Trump sought to obstruct justice in the firing of former Federal Bureau of Investigation director James Comey in May 2017, while the FBI’s Russia probe was under way. Mr. Trump has repeatedly denied collusion and obstruction, and Moscow has denied election interference.

[snip]

Mr. Giuliani said in an interview Monday that the reasons Mr. Trump has given for firing the former FBI director are “more than sufficient” and that as president, he had the power to fire any member of his administration.

This is just more parroting of Rudy’s spin, just as the old line that Trump was primarily at risk for obstruction.

Here’s the list of questions Jay Sekulow understood Mueller wanting to ask sometime in March, as presented by the NYT. I’ve bolded what I consider collusion questions (including the June 9 statement, as abundant evidence suggests that reflects direct collusion with Putin on the framing of their quid pro quo). I’ve italicized the questions that exclusive address Comey.

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

By my count there are:

Comey obstruction: 17

Other obstruction: 13

Collusion: 14

There aren’t quite 20 Comey questions, but it’s close.

By getting a journalist to uncritically parrot Rudy’s claim that all the obstruction questions pertain to Comey, the White House has buried some of the more egregious examples of obstruction, including (offering pre-emptive pardons to Flynn and Manafort, and whoever else) the gross abuse of the pardon power, and threatening the Attorney General. It also obscures the obstruction for which there are now cooperating witnesses (including, but not limited to, Flynn).

Probably, Trump is trying this ploy because a range of things — Manafort’s imminent trial, Cohen’s likely imminent cooperation, Mueller’s acute focus on Stone, and whatever else Putin told him — give him an incentive to have an up-to-date understanding of the current status of the collusion investigation. If he can do that in a way that makes it harder to charge some of the egregious obstruction Trump has been engaged in, all the better.

Whatever it is, it is malpractice to credulously repeat Rudy’s claim that Trump is only on the hook for obstruction for firing Comey.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Timeline

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

July 31, 2016: Peter Strzok opens up Operation Crossfire

October 21, 2016: Carter Page FISA approved

January 12, 2017: Carter Page FISA reauthorized

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

Early April, 2017: Carter Page FISA reauthorized

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

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

June 29, 2017: Carter Page FISA reauthorized

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

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

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

October 30, 2017: Papadopoulos guilty plea unsealed

Early November, 2017: Mueller adds cyber prosecutor Ryan Dickey

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

December 1, 2017: Mike Flynn pleads guilty

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

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

February 20, 2018: Alex van der Zwaan pleads guilty

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

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

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

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

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

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

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The State of Trump’s Anti-Mueller Strategy

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

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

Forthcoming Peter Strzok testimony

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

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

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

Leak of two anti-Comey letters

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

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

The AP claims that,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Giuliani’s hat trick of Sunday shows

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

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

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

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

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

STEPHANOPOULOS: We have James Comey’s testimony.

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

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

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

BASH: Thank you.

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

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

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

BASH: Right.

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

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

[snip]

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

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

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

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

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

BASH: You have debriefed all of their witnesses?

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

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

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

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

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The Most Irresponsible Thing Michael Horowitz Has Done as DOJ IG

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

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

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

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

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

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

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

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

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

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

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

But here’s the part I find totally irresponsible.

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

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

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

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

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

And they may well have succeeded.

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

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

 

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

Update: This post was edited for flow.

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