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The Three Theories of Prosecution for Julian Assange

In this post, I laid out what the 17 new charges against Julian Assange are. In this, I’ll look more closely at three theories of criminalization here:

  • Theory One: Charging Assange for causing Chelsea Manning to leak classified information by soliciting it generally or specifically (and/or discussing its value before she obtained it)
  • Theory Two: Charging Assange for offering to help crack a password and attempting to obtain the documents that would have been available using it
  • Theory Three: Charging Assange for leaking the identities of US government informants in three different databases

Theory One: Obtaining and disclosing documents that were solicited (Counts 2-4 and 6-14)

Effectively, for three sets of documents, they’ve charged Assange for causing Chelsea Manning to obtain (Charges 2 through 4), Assange obtaining himself (Charges 6 through 8), causing Manning to disclose documents she did not have authorized possession of (Charges 9 through 11), and  causing Manning to disclose legally obtained documents (Charges 12 through 13) for three sets of documents: The Gitmo Detainee Assessment Briefs, the State Department Cables, and the Iraq Rules of Engagement.

Assange is not being charged for publishing anything under this theory (that’s not true under Theory Three). He’s being charged with causing Manning to obtain and disclose them to him.

To accuse Assange of causing Manning to do these things, they show how a Most Wanted Leaks list posted on WikiLeaks until September 2010 resembles what Manning looked for on DOD’s networks and what she sent to Assange.

In addition, they show that Manning and Assange discussed some of these leaks before she obtained them.

For example, on March 7, 2010, Manning asked ASSANGE how valuable the Guantanamo Bay detainee assessment briefs would be. After confirming that ASSANGE thought they had value, on March 8, 2010, Manning told ASSANGE that she was “throwing everything [she had] on JTF GTMO [Joint Task Force, Guantanamo] at [Assange] now.” ASSANGE responded, “ok, great!”

[snip]

Manning later told ASSANGE in reference to the Guantanamo Bay detainee assessment briefs that “after this upload, thats all i really have got left.” I

It argued that Manning downloaded the State Department cables in response to the request for bulk databases on the Wish List.

Further, following ASSANGE’s “curious eyes never run dry” comment, and consistent with WikiLeaks’s solicitation of bulk databases and classified materials of diplomatic significance, as described in paragraphs 2,4-5, between on or about March 28, 2010, and April 9, 2010, Manning used a United States Department of Defense computer to download over 250,000 U.S. Department of State cables, which were classified up to the SECRET level. Manning subsequently uploaded these cables to ASSANGE and WikiLeaks through an SFTP connection to a cloud drop box operated by WikiLeaks, with an X directory that WikiLeaks had designated for Marining’s use. ASSANGE and WikiLeaks later disclosed them to the public.

And it showed that the Iraq Rules of Engagement were on the Wish List.

As of November 2009, WikiLeaks’s “Most Wanted Leaks” for the United States included the following:

[snip]

b. “Military and Intelligence” documents, including documents that the list described as classified up to the SECRET level, for example, “Iraq and Afghanistan Rules of Engagement 2007-2009 (SECRET);”

[snip]

Following ASSANGE’s “curious eyes never run dry” comment, on or about March 22,2010, consistent with WikiLeaks’s “Most Wanted Leaks” solicitation of “Iraq and Afghanistan US Army Rules of Engagement 2007-2009 (SECRET),” as described in paragraphs 4-5, Manning downloaded multiple Iraq rules of engagement files from her Secret Internet Protocol Network computer and burned these files to a CD, and provided them to ASSANGE and WikiLeaks.

Thus, for each of these, the government is saying that soliciting specific classified (or protected) materials amounts to Espionage. This is the theory of prosecution I argued would criminalize people like Jason Leopold, who was clearly engaged in journalism when he specifically asked about a specific Suspicious Activity Report from a source.

Theory Two: Attempted hacking to attempt to obtain the documents available via the hack (Counts 5 and 18)

For one vaguely defined set of documents, DOJ has charged Assange for attempting to help Manning crack a password (which was the single previous charge, which is now Charge 18) in order to attempt to obtain unidentified documents on SIPRNet.

15. In furtherance of this scheme, ASSANGE agreed to assist Manning in cracking a password hash stored on United States Department of Defense computers connected to the Secret Internet Protocol Network, a United States government network used for classified documents and communications, as designated according to Executive Order No. 13526 or its predecessor orders.

I believe (though am not certain) that that’s what the documents charged in Count 5 are about.

Between in or about November 2009 and in or about May 2010, in an offense begun and committed outside of the jurisdiction of any particular state or district of the United States, the defendant, JULIAN PAUL ASSANGE, who will be first brought to the Eastern District of Virginia, and others unknown to the Grand Jury, knowingly and unlawfully attempted to receive and obtain documents, writings, and notes connected with the national defense—^namely, information stored on the Secret Internet Protocol Network classified up to the SECRET level— for the purpose of obtaining information respecting the national defense, knowing and having reason to believe, at the time that he attempted to receive and obtain them, that such materials would be obtained, taken, made, and disposed of by a person contrary to the provisions of Chapter 37 of Title 18 of the United States Code.

This theory also doesn’t charge Assange with publishing information. Rather than charging him for soliciting leaks (Theory One), it charges him with helping to obtain documents Manning was not authorized to obtain by attempting to crack a password to get Administrators privileges.

Releasing the names of informants (Counts 15-17)

For each of three sets of US government informants, there’s also a charge tied to the informants’ identities disclosed in bulk databases.

35. Also following Manning’s arrest, during 2010 and 2011, ASSANGE published via the WikiLeaks website the documents classified up to the SECRET level that he had obtained from Manning, as described in paragraphs 12, 21, and 27, including approximately 75,000 Afghanistan war-related significant activity reports, 400,000 Iraq war-related significant activities reports, 800 Guantanamo Bay detainee assessment briefs, £ind 250,000 U.S. Department of State cables.

36. The significant activity reports from the Afghanistan and Iraq wars that ASSANGE published included names of local Afghans and Iraqis who had provided information to U.S. and coalition forces. The State Department cables that WikiLeaks published included names of persons throughout the world who provided information to the U.S. government in circumstances in which they could reasonably expect that their identities would be kept confidential. These sources included journalists, religious leaders, human rights advocates, and political dissidents who were living in repressive regimes and reported to the United States the abuses of their own government, and the political conditions within their countries, at great risk to their own safety. By publishing these documents without redacting the human sources’ names or other identifying information, ASSANGE created a grave and imminent risk that the innocent people he named would suffer serious physical harm and/or arbitrary detention.

For each database, the indictment looks at several instances of the individuals whose identities were released. It then lays out evidence that Assange knew and did not care that by publishing these identities he would be endangering people.

This is the theory of prosecution that does criminalize the publication of true information. And it criminalizes something that journalists do, at times, do.

The government often tries to classify identities that should not be (as they did with Gina Haspel, to hide her role in torture, for example). When journalists learn these identities they sometimes do choose to ignore admonitions against publication, for good reason. That’s what Assange is accused of doing here, but only on a mass scale. But if this is successful, there’s nothing that will prevent the government from charging people for disclosing classified identities at a smaller scale.

I’m also not sure how, as a foreign citizen, this doesn’t invite retaliation against the US for identifying classified identities of other countries.

Two Trajectories: Sleazy Influence Peddler Paul Manafort and Foreign Agent Prosecutor Brandon Van Grack

Like many, while I expected TS Ellis to give Paul Manafort a light sentence, I’m shocked by just how light it was.

Ellis gave Manafort 47 months of prison time for crimes that the sentencing guidelines say should start at a 19 year sentence. Even if Amy Berman Jackson gives Manafort the stiffest sentence she can give him — 10 years — and makes it consecutive, he’ll still be facing less than the what sentencing guidelines recommend. Ellis even declined to fine Manafort beyond the $24 million he’ll have to pay in restitution (Zoe Tillman lays out the money issues here).

There are a number of reasons to be outraged by this.

Ellis explicitly suggested that Manafort’s crimes were less serious than similar organized crime that people of color would commit. In the wake of this sentence, any number of people (especially defense attorneys) have pointed to non-violent criminals facing more prison time than Manafort. That said, I agree with those who suggest we should aim to bring those other sentences down in line with what the civilized world imposes, and not instead bump white collar criminals up to the barbaric levels that come out of the drug war.

Ellis gave this sentence even though Manafort expressed no remorse. Ellis commented that “I was surprised that I did not hear you express regret for engaging in wrongful conduct. In other words, you didn’t say, ‘I really, really regret not doing what the law requires,'” but nevertheless sentenced him as if he had.

Perhaps most infuriating were the backflips Ellis did to spin Paul Manafort as a good man. He emphasized that Manafort was “not before the court for any allegation that he or anybody at his direction colluded with the Russian government to influence the 2016 presidential election,” which is true; but Ellis received the breach determination materials showing that at a time when Manafort was purportedly cooperating, he instead lied about sharing polling data with a suspected Russian asset while discussing a Ukrainian peace deal that he knew amounted to sanctions relief, a quid pro quo. Because those materials go to the issue of whether Manafort took responsibility and was a risk for recidivism, they were fair game for consideration, but Ellis didn’t consider them.

Indeed, because of time served, Ellis effectively sentenced Manafort to an equivalent sentence that Michael Cohen faces having committed an order of magnitude less financial fraud, pled guilty, and provided limited cooperation to the government. Effectively, then, Ellis has sanctioned Manafort’s successful effort to avoid cooperating in the case in chief, on how he and Trump conspired with Russia to exploit our democratic process.

Instead of referring to the materials on Manafort’s refusal to cooperate, Ellis instead just regurgitated defense materials and claimed that aside from stealing millions of dollars from taxpayers and whatever else went on before Amy Berman Jackson, Manafort had “lived an otherwise blameless life.”

And that’s where I step away from a generalized discussion of the barbaric nature of our criminal justice system to look specifically at the barbaric nature of what Paul Manafort has done with his life. I feel much the way Franklin Foer does.

In an otherwise blameless life, Paul Manafort lobbied on behalf of the tobacco industry and wangled millions in tax breaks for corporations.

In an otherwise blameless life, he helped Philippine President Ferdinand Marcos bolster his image in Washington after he assassinated his primary political opponent.

In an otherwise blameless life, he worked to keep arms flowing to the Angolan generalissimo Jonas Savimbi, a monstrous leader bankrolled by the apartheid government in South Africa. While Manafort helped portray his client as an anti-communist “freedom fighter,” Savimbi’s army planted millions of land mines in peasant fields, resulting in 15,000 amputees.

[snip]

In an otherwise blameless life, he spent a decade as the chief political adviser to a clique of former gangsters in Ukraine. This clique hoped to capture control of the state so that it could enrich itself with government contracts and privatization agreements. This was a group closely allied with the Kremlin, and Manafort masterminded its rise to power—thereby enabling Ukraine’s slide into Vladimir Putin’s orbit.

[snip]

In an otherwise blameless life, he produced a public-relations campaign to convince Washington that Ukrainian President Viktor Yanukovych was acting within his democratic rights and duties when he imprisoned his most compelling rival for power.

In an otherwise blameless life, he stood mute as Yanukovych’s police killed 130 protesters in the Maidan.

Paul Manafort invented the profession of sleazy influence peddler. His own daughter once acknowledged, “Don’t fool yourself. That money we have is blood money.” And our democracy, as well as more corrupt regimes around the globe where Manafort was happy to work, are much less just because of Manafort’s life’s work.

Which is why I take more solace in something that happened the night before Manafort’s sentencing: A CNN report that DOJ has put Brandon Van Grack — a prosecutor who, under Mueller, prosecuted Mike Flynn and his sleazy influence peddler business partners — in charge of a renewed effort to crack down on unregistered sleazy influence peddlers.

The initiative at the Justice Department to pursue violations of the Foreign Agents Registration Act, which requires that an entity representing a foreign political party or government file public reports detailing the relationship, will be overseen by Brandon Van Grack, who left Mueller’s team in recent months to rejoin the national security division.

Van Grack’s appointment to the newly created position and the Justice Department’s interest in expanding its pursuit of foreign influence cases stemmed largely from the impact of Russian operations on the 2016 presidential election, John Demers, the head of the national security division, said Wednesday at a conference on white-collar crime.

With Van Grack’s new role, the Justice Department will shift “from treating FARA as an administrative obligation and regulatory obligation to one that is increasingly an enforcement priority,” Demers said.

He also pointed to the impact of a recent settlement with one of the country’s highest-profile law firms — Skadden, Arps, Slate, Meagher & Flom LLP — on the department’s decision to escalate its enforcement in that area.

[snip]

Demers added that the Justice Department is considering seeking congressional authorization for administrative subpoena power to enforce the Foreign Agents Registration Act, which it currently lacks.

“That’s something that we’re taking a hard look at,” he said. Referencing Skadden, he added: “Do I think the firm would have behaved differently if they had received a subpoena versus they had just received a letter? Yes.”

This marks a decision to treat FARA violations — sleazy influence peddling that hides the ultimate foreign customer — as a real risk to our country. As I have laid out in my comparison of Manafort’s “otherwise blameless life” and Maria Butina’s efforts to infiltrate right wing politics, a venal insider with an already rich political network will be far more effective (and insidious) than even a beautiful woman backed by a mobbed up foreign government official and abetted by her own washed out Republican insider.

I don’t know what Mueller is doing with all the evidence of a conspiracy that he continues to protect. I don’t know that he’ll be able to deliver a prosecutorial conclusion that will deliver justice for the sleazy things that Trump did to win the election. Prosecuting very powerful people is very difficult, and we shouldn’t forget that.

But one other point of this entire investigative process was to learn lessons, to make it harder for hostile outsiders to hijack our democratic process going forward.

In letting Manafort off with a metaphorical wrist-slap, TS Ellis did nothing to deter others who, like Manafort, will sell out our country for an ostrich skin jacket. Even ABJ will face some difficult challenges in DC when she tries to sentence FARA crimes (particularly those of Sam Patten, who cooperated) without precedents to do so.

But the way to build those precedents — the way to establish a record that causes a Skadden Arps or a Rob Kelner to treat FARA registration as the official declaration to the government that it is — is to pursue more of these cases, against sleazy influence peddlers working for all foreign entities, not just the ones we despise.

So Manafort may get off easy for helping Russia interfere in our election in a bid to line up his next gig white-washing brutal oligarchs.

But along the way, our justice system may be adapting to the certainty that he did not live an otherwise blameless life

As I disclosed last 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. 

The Boente Resignation and the Reported Charge[s]/Indictment[s]

Back in May, I argued (based on the since proven incorrect assumption that Deputy Attorney General Rod Rosenstein would be unlikely to hire a non-DOJ employee like Robert Mueller as Special Counsel), Dana Boente might be the best solution to investigate the Comey firing.

[T]here’s no reason to believe he isn’t pursuing the investigation (both investigations, into Wikileaks and Trump’s associates) with real vigor. He is a hard ass prosecutor and if that’s what you want that’s what you’d get. His grand jury pool is likely to be full of people with national security backgrounds or at least a predisposition to be hawks.

But — for better and worse — Boente actually has more power than a Special Counsel would have (and more power than Fitz had for the Plame investigation), because he is also in charge of NSD, doing things like approving FISA orders on suspected Russian agents. I think there are problems with that, particularly in the case of a possible Wikileaks prosecution. But if you want concentrated power, Boente is a better option than any AUSA. With the added benefit that he’s The Last USA, which commands some real respect.

Yesterday, at about 6:30, WaPo reported Boente’s resignation. An hour or so later, CNN first reported that Robert Mueller has approved charges against at least one person who might be arrested on Monday. Not long after that, former DOJ spox Matt Miller revealed that Boente told friends this week he was looking forward to returning full time to his US Attorney post after John Demers takes over as the confirmed Assistant Attorney General for National Security.

Miller assumes that means Boente was forced out, rather than chose to announce his departure — he’ll stay until someone is confirmed in his place — after some things he started (such as the investigation into Mike Flynn) are coming to closure.

I don’t believe, contrary to what Rachel Maddow has floated, that Boente is stepping down solely or primarily to be a witness. Mueller already has a list of people who witnessed Trump’s obstruction. He doesn’t need Boente and he’d be better off with Boente at the helm of related investigations than sitting before a grand jury.

So if Boente was forced out, it suggests the charges announced have led to a Trump decision to get rid of Boente, perhaps yet another person he believed would protect him or his close associates.

Or perhaps there’s this. I pointed out two weeks ago that an 2002 OLC memo (one interpreting language that Viet Dinh, who’s a tangential player in this whole affair, wrote) held that the President could order lawyers to share grand jury information with him.

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

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

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

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

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

I argued in that piece that those who currently have visibility onto the investigation — Rod Rosenstein and Boente — would be unlikely to share such information.

But that doesn’t prevent Trump (or Sessions, on his behalf) from asking.

So one possibility is that — as things move towards the next volatile state of affairs — Trump asked Boente to do something he refused.

Update: CNN had the Boente story mid-afternoon, and they say the resignation was long planned. Which may mean the indictment yesterday was something (or things) he had been working on at EDVA for some time.

Update: NBC has yet more conflicting details, reporting that Jeff Sessions’ Chief of Staff told Boente on Wednesday he should submit his resignation so Trump can start the replacement process.