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Tag Archive for: John Durham

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Eight Things Not Mentioned in the Durham Report

May 16, 2023/57 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

There are a whole lot of gaping holes in the Durham Report (my Twitter thread on the report is here; here’s a ThreadReader version). Here are eight of the most important things that Durham chose to leave out of his report on his four-year investigation.

1. All mention of the Italian referral on Trump. In January, NYT reported on the many problems with the Durham investigation, none of which shows up in his report. Most importantly, NYT reported that on a trip to Italy, the Italians gave Bill Barr and Durham a tip about crimes Trump may have committed.

On one of Mr. Barr and Mr. Durham’s trips to Europe, according to people familiar with the matter, Italian officials — while denying any role in setting off the Russia investigation — unexpectedly offered a potentially explosive tip linking Mr. Trump to certain suspected financial crimes.

Mr. Barr and Mr. Durham decided that the tip was too serious and credible to ignore. But rather than assign it to another prosecutor, Mr. Barr had Mr. Durham investigate the matter himself — giving him criminal prosecution powers for the first time — even though the possible wrongdoing by Mr. Trump did not fall squarely within Mr. Durham’s assignment to scrutinize the origins of the Russia inquiry, the people said.

Mr. Durham never filed charges, and it remains unclear what level of an investigation it was, what steps he took, what he learned and whether anyone at the White House ever found out. The extraordinary fact that Mr. Durham opened a criminal investigation that included scrutinizing Mr. Trump has remained secret.

By regulation, there should be some investigative result from this investigation in Durham’s report. It’s not in there.

2. All mention of the conspiracy theories Durham and Barr chased in Europe. The first year or so of the Durham investigation, Bill and John spend traipsing around the world chasing the conspiracy theories George Papadopoulos had floated in a 2018 House Oversight appearance. Barr has confessed they found nothing. But Durham doesn’t do that — or even mention the conspiracy theories — in his report. That’s important for a number of reasons: because Durham asserts that Congress should have no say in criminal investigations even though they dictated the initial direction of his own, because (as I’ll show) Durham badly whitewashes everything having to do with Papadopoulos, and because Durham also doesn’t mention the investigative steps he failed to take while running off to Italy to get Joseph Mifsud’s blackberries.

3. Durham’s own investigative failures. I’ve written at length about how Durham’s own investigative failures make anything Crossfire Hurricane did look tame by comparison. He failed to get relevant information from DOJ IG or ask Jim Baker to check his iCloud for what happened to be texts proving Michael Sussmann’s defense until after he indicted Sussmann. He never interviewed Papadopoulos, indicted Danchenko relying on what Sergei Millian said on Twitter, and then failed to obtain the messaging app evidence he would need to disprove a call between Millian and Danchenko. Durham focuses, at length, on steps he speculated the FBI didn’t take on the Carter Page FISC, but he had more egregious failures to pursue what turned out to be exculpatory information.

4. The Trump Tower Moscow deal. In a footnote, Durham concedes there are things that the FBI later found that corroborated ties between Trump and Russia that weren’t known when the investigation was opened. The only example he provides, however, is the June 9, 2016 meeting in Trump Tower in New York.

There were also at least some activities involving the Trump campaign and Russians that did not become public, and were not known to the FBI, until much later. For example, on June 9, 2016, senior representatives of the campaign met briefly with a private Russian lawyer, Natalia Veselnitskaya, and others at the Trump Tower. Mueller Report at 110, 117. Veselnitskaya “had previously worked for the Russian government and maintained a relationship with that government throughout this period oftime.” Id. at 110. The initial email to Donald Trump Jr. proposing the meeting said that the Crown prosecutor of Russia was offering to provide the campaign with documents and information that would incriminate Clinton. Id. The meeting at the Trump Tower only became public over a year later. Id. at 121.

Durham leaves out many others — like Manafort sharing campaign strategy and Trump having Manafort order Roger Stone to reach out to WikiLeaks. But because Durham focuses closely on Dmitry Peskov’s role in the Steele dossier and a brief nod he makes towards Russian disinformation in it, Durham’s silence about Michael Cohen’s January 2016 conversation with Dmitry Peskov’s office asking for help on a Trump Tower Moscow deal, using sanctioned banks and a former GRU officer as broker, is the most damning. Olga Galkina and Charles Dolan’s ties to Peskov — an interminable focus of this report — are important especially because Peskov was the one person in Russian who undeniably knew that Cohen had made a secret call to Russia during the campaign that both he and Trump were lying to cover up. Yet Durham simply ignores that critical context.

5. Konstantin Kilimnik’s name. Not only did Durham fail to mention most of the most damning things that Trump and his flunkies did, he also failed to mention some of the key people they did them with. None is more important than Konstantin Kilimnik, with whom Paul Manafort conspired to cover up his past pro-Russian Ukraine lobbying, to whom Manafort provided campaign strategy at a meeting where they also discussed millions in debt relief for Manafort, and about which meeting Amy Berman Jackson found Manafort had lied to prosecutors. Kilimnik is important for two reasons. First, Durham nods to the potential role of “Oligarch 1,” whom he doesn’t reveal was Oleg Deripaska, in disinformation in the dossier. He also confirms that Christopher Steele was working for Deripaska earlier in 2016 (in which discussion Durham does name the now-sanctioned Oligarch). But Durham never mentions that Manafort had direct ties to Deripaska through Kilimnik. And Durham repeatedly claims that, because the Intelligence Community had no record of ties between Trump and Russian intelligence services when the FBI opened Crossfire Hurricane, it’s proof the FBI shouldn’t have opened the investigation. Of course, the IC has since concluded that Kilimnik shared that campaign information from Manafort with Russian spooks and that he is himself a spook. Thus, the IC’s failures to identify Kilimnik’s intelligence ties (and those of other people more loosely tied to Russia and Trump) is not a reflection, at all, of the merit of the investigation, but instead a mark of the IC’s own failures in advance of the operation.

6. Description of Guccifer 2.0’s initial releases. Unlike Kilimnik, Durham at least mentions Guccifer 2.0, the persona GRU officers created as a cut-out through whom to release some of the files they stole. But Durham only mentions the persona in a discussion of what he calls a Clinton Plan to impose a political cost on Trump for cozying up to Russia.

Per FBI verbal request, CIA provides the below examples of information the CROSSFIRE HURRICANE fusion cell has gleaned to date [Source revealing information redacted]: [] An exchange … discussing US presidential candidate Hillary Clinton’s approval of a plan concerning US presidential candidate Donald Trump and Russian hackers hampering US elections as a means of distracting the public from her use of a private email server. According to open sources, Guccifer 2.0 is an individual or group of hackers whom US officials believe is tied to Russian intelligence services. Also, per open sources, Guccifer 2.0 claimed credit for hacking the Democratic National Committee (DNC) this year.

There’s much that is downright noxious about Durham’s treatment of his so-called Clinton Plan. But he fails to distinguish the treatment of whatever report this intelligence made of Guccifer 2.0 and the allegation about Hillary, including when discussing its briefing and dissemination. More problematic still, Durham claims that all this only happened in late July 2016, even though the Democrats identified the hack and its attribution, Guccifer 2.0 started releasing stolen files, and (per Rick Gates, at least) Roger Stone entered discussions with the persona about advance releases in mid-June. Durham’s silence (aside from this quotation) about Guccifer 2.0 not only serves his criminalization of Hillary’s response to being victimized by a nation-state attack, but it permits him to craft a completely false timeline on which his Clinton Plan conspiracy theory depends.

7. The biased FBI Agent running the Clinton Foundation informant. Durham engages in a good deal of false comparisons between how Hillary was treated and how Trump was. Most fall apart. For example, he points to a defensive briefing Hillary got in a different foreign influence investigation to claim that Trump should have gotten a defensive briefing in the Crossfire Hurricane investigation. But his own report shows she didn’t get that briefing until around ten months into the investigation; less than six months into the Russia investigation, Trump got a briefing, about Mike Flynn. Durham’s comparisons of the conduct of the Clinton Foundation investigation and Crossfire Hurricane are even more strained, since he engages in no reflection of how shoddy Clinton Cash was, which (unlike the Steele dossier here) was part of that predication. Nor does he contemplate the rampant leaking, during the campaign, about that investigation. Most dishonest, however, is Durham’s silence about the single informant run during 2016 known to be handled by biased agents, one targeting Clinton Foundation described in the Carter Page IG Report.

We reviewed the text and instant messages sent and received by the Handling Agent, the co-case Handling Agent, and the SSA for this CHS, which reflect their support for Trump in the 2016 elections. On November 9, the day after the election, the SSA contacted another FBI employee via an instant messaging program to discuss some recent CHS reporting regarding the Clinton Foundation and offered that “if you hear talk of a special prosecutor .. .I will volunteer to work [on] the Clinton Foundation.” The SSA’s November 9, 2016 instant messages also stated that he “was so elated with the election” and compared the election coverage to “watching a Superbowl comeback.” The SSA explained this comment to the OIG by saying that he “fully expected Hillary Clinton to walk away with the election. But as the returns [came] in … it was just energizing to me to see …. [because] I didn’t want a criminal to be in the White House.”

On November 9, 2016, the Handling Agent and co-case Handling Agent for this CHS also discussed the results of the election in an instant message exchange that reads:

Handling Agent: “Trump!”

Co-Case Handling Agent: “Hahaha. Shit just got real.”

Handling Agent: “Yes it did.”

Co-Case Handling Agent: “I saw a lot of scared MFers on … [my way to work] this morning. Start looking for new jobs fellas. Haha.”

Handling Agent: “LOL”

Co-Case Handling Agent: “Come January I’m going to just get a big bowl of popcorn and sit back and watch.”

Handling Agent: “That’s hilarious!” [my emphasis]

This exchange is similar to the texts that Durham uses to implicate Peter Strzok, Lisa Page, or Kevin Clinesmith. But in this case, this agent was directly handling an informant targeting the actual candidate during the election.

8. The response to Mike Flynn’s lies about Sergey Kislyak. In retrospect, another significant thing missing from this report is the investigation into how, in early 2017, the FBI responded to Mike Flynn’s lies about speaking with Sergey Kislyak. We know that Durham did investigate this. Much of what he investigated was handed to Jeffrey Jensen to launder into the effort to overturn the Flynn prosecution. But Durham doesn’t even whitewash the ultimate charges against Flynn, as he does, to hilarious effect, with George Papadopoulos. There’s nothing more than a passing reference to discomfort from investigators that could pertain to this investigative effort. I’m not sure what to make of its absence. It’s possible it was too closely related to the blow-up with Nora Dannehy. Possibly, the interim report the team drafted without her knowledge focused on Flynn and she debunked it, meaning there’s a prosecutorial judgment somewhere that undermines the claims Barr and others made. Possibly, the games Barr played after that — including the release of a Bill Barnett 302 that conflicted in key ways with the public record — have made those claims untenable. Whatever the reason, its absence in this report is notable.

There’s a lot more that’s missing from this report. But if Durham were to fill just a few of these critical gaps, the whole thing would crumble.

Update: Added an eighth missing item, the Mike Flynn prong of the investigation. Subsequently fixed Jensen’s first name.

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John Durham Repeats Debunked Claims in Report to Garland

May 15, 2023/136 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

John Durham has, after four years, finally released a report.

It is corrupt. It harms America. It misrepresents FISA.

It also repeats claims that were debunked under oath. I’ll be reading it here. But for those who want to vent, this is your open thread.

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Trophy Documents: The Entire Point Was to Make FBI Obedient

March 6, 2023/68 Comments/in 2016 Presidential Election, 2020 Presidential Election, emptywheel, Leak Investigations, Mueller Probe /by emptywheel

Those who didn’t follow John Durham’s trials closely undoubtedly missed the parade of scarred FBI personnel whose post-Crossfire Hurricane vulnerability Durham attempted to exploit to support his invented claims of a Clinton conspiracy.

Sure, lots of people wrote about Jim Baker’s inability to provide credible answers about the meeting he had with Michael Sussmann in September 2016. Fewer wrote about the credible case that Sussmann’s attorneys made that a prior Durham-led investigation into Baker — for sharing arguably classified information with a reporter in an attempt to forestall publication of a story — made Baker especially quick to cooperate with Durham in 2020. Fewer wrote about Baker’s description of the stress of Jim Jordan’s congressional witch hunts.

It sucked because the experience itself, sitting in the room being questioned the way that I was questioned, was, as a citizen of the United States, upsetting and appalling, to see members of Congress behaving the way that they were behaving. It was very upsetting to me.

[snip]

It sucked because my friends had been pilloried in public, my friends and colleagues had been pilloried in public, improperly in my view; that we were accused of being traitors and coup plotters. All of this was totally false and wrong.

Such a circus was the kind of thing that might lead someone like Baker to prefer the “order” of a prosecutor chasing conspiracy theories, someone whose memory was seared by the firing of Jim Comey.

[Sean Berkowitz]. And this is a pretty terrible experience as well. Right?

A. It’s more orderly.

Q. (Gestured with hand to ear.)

A. This is more orderly. It’s terrible but orderly.

Q. And you’re doing the best you can. Right, sir?

A. Yes, sir.

Q. But it’s hard to remember events from a long time ago, 1snre sez

A. It depends on what the event is. I remember Jim Comey being fired, for example. That’s a long time ago and I have a clear recollection of that. So it depends on what you’re talking about.

But Baker wasn’t the only one who discussed the years of scrutiny. Counterintelligence Special Agent Ryan Gaynor, who worked in DC on the Russian investigations during 2016, described how in October 2020, after he revealed to Durham’s team that he knew a DNC lawyer had brought in the Alfa Bank tip, Durham’s team told him they were no longer treating him as a witness, but as a subject of the investigation.

A. Yeah. There were two thoughts. The first one was that I felt like I had woefully ill prepared for the meeting, because I didn’t know what the meeting was honestly going to be about with this investigation.

The second thought was that I was in significant peril, and it was very concerning as a DOJ employee to be told that now the Department of Justice is interested in looking at you as a subject instead of a witness.

Sussmann lawyer Michael Bosworth got Gaynor to explain that after he told a story more to Durham’s liking, he was moved back to the status of witness.

During his testimony, Curtis Heide (who played a key role in the George Papadopoulos investigation) explained how the FBI Inspection Division investigation into Crossfire Hurricane Agents, including him, remained pending, 6 years after the events in question. He noted that, three years after the DOJ IG Report, he was still being investigated even though he, “didn’t author any of the affidavits or any of the materials related to the applications in question.”

The same was true in the Danchenko case. Brian Auten, a key intelligence analyst on Crossfire Hurricane, described how, after having met with agents from DOJ IG four times, having done a long report for FBI’s Internal Affairs Division, and having met with the Senate Judiciary Committee — all with no concerns raised about his own conduct — the first time he met with Durham’s team, he was told he was a subject of the investigation. After Auten gave testimony that confirmed Danchenko’s reliability — seriously damaging his case — Durham himself raised investigations that undermined his own witness’ testimony.

Q. Do you recall that there was a reporter that the OIG had written concerning the Carter Page FISAs?

A. Yes.

Q. And how would you characterize that report?

A. The report was quite extensive and it discussed characterizing a number of errors and omissions.

Q. And with respect to the errors and omissions, were they tick-tacky kinds of omissions or were they significant omissions and errors that had been committed?

A. I believe the OIG described them as significant.

Q. And then with respect to the investigation done by the OIG, separate and apart from that, would it be a fair statement that you and your colleagues were under investigation by the inspection division by the FBI?

A. Yes.

Q. And would it be a fair statement that your conduct in connection with that is, you, yourself, based on the investigation done by the inspection division of the FBI, have some issues, correct?

A. I — be a little bit more specific. I’m sorry. I don’t — I have issues?

Q. Isn’t it, in fact, true that you’ve been recommended for suspension as the result of the conduct?

A. It is currently under appeal.

That line of testimony immediately preceded a hilarious failed attempt from Durham to get Auten to agree that George Papadopoulos was simply a young man with no contact to Trump who was only investigated for his suspect Israeli ties, not for his Russian ties. But it was a palpable example of the way that Trump’s minions used criminalizing FBI investigations into Trump as a way to create a makebelieve world that negates real evidence of Trump’s corruption.

About the only two FBI agents who weren’t portrayed as somehow tainted by the events of 2016 in Durham’s two failed prosecutions were two agents who fucked up investigations: Scott Hellman, who correctly told a junior agent that she would face zero repercussions of she botched the Alfa Bank investigation, and Ryan James, an FBI agent who started his career in Connecticut, who nevertheless failed to pull the evidence necessary to test Sergei Millian’s claims.

Durham rewarded the incompetence that served his purpose and attempted to criminalize what he considered the wrong answers or at least to use the threat of adverse consequences to invent a false record exonerating Trump.

And Durham came in after Jim Comey, Peter Strzok, Andrew McCabe, and Bruce Ohr had already been fired, and Lisa Page, with Strzok, deliberately humiliated on a global stage serially. He came in and exploited the uncertain status — the Inspection Division review left pending while Durham worked — of everyone involved. Such efforts didn’t end with the conclusive acquittals debunking Durham’s theories of conspiracy. Since then, Jim Baker has been dragged back through the mud — publicly and in Congress — as part of Twitter Files, Chuck Grassley passed on “whistleblower” complaints about Auten identifying Russian disinformation as such, and Timothy Thibault was publicly berated because some of the same so-called whistleblowers feeding Jim Jordan shit had complained to Chuck Grassley he was discouraging GOP conspiracy theories about Hunter Biden.

It was never just Strzok and McCabe. The entire Republican Party has relentlessly focused on punishing anyone involved in the Trump investigation, using both unofficial and official channels. When Trump promised “retribution” the other day at CPAC, this kind of relentless effort to criminalize any check on Trump’s behavior is what he was talking about.

That kind of background really helps to understand the WaPo story that described Washington Field Office FBI agents quaking at the prospect of searching Donald Trump’s beach resort.

[P]rosecutors learned FBI agents were still loath to conduct a surprise search. They also heard from top FBIofficials that some agents were simply afraid: They worried takingaggressive steps investigatingTrump could blemish or even end their careers, according to somepeople with knowledge of the discussions. One official dubbed it “the hangover of Crossfire Hurricane,” a reference to the FBI investigation of Russia’s interference in the 2016 presidential election and possible connections to the Trump campaign, the people said. As president, Trump repeatedly targeted some FBI officials involved in the Russiacase.

[snip]

FBI agents on the case worried the prosecutors were being overly aggressive. They found it worrisome, too, that Bratt did not seem to think it mattered whether Trump was the official subject of the probe. They feared any of these features might not stand up to scrutiny if an inspector general or congressional committee chose to retrace the investigators’ steps, according to the people.

Since I wrote my piece wondering whether the FBI hesitation gave Trump the chance to steal 47 documents, Strzok himself, Joyce Vance, and Jennifer Rubin have weighed in.

Rubin, I think, adopts the position of someone who hasn’t followed the plight of all the people not named Strzok who were targeted for investigating Donald Trump. She attributes the reluctance to investigate Trump (and the intelligence failures leading up to January 6, which I’ll return to) to Wray.

After a debacle of this magnitude, that sort of passivity should alarm all Americans. Imagine if, after the terrorist attacks of Sept. 11, 2001, the national security community did not evaluate how it missed the telltale signs of an imminent attack. The failure of leadership in the Jan. 6 case is inexcusable. Yet Wray has never been held to account for this delinquency.

[snip]

[O]ne is left wondering why the FBI seems disinclined to stand up to right-wing authoritarian movements and figures. Whatever the reason, the pattern reveals an unmistakable lack of effective leadership. And that in turn raises the question:Why is Wray still there?

It is absolutely the case that Wray did far too little to protect FBI agents in the face of Trump’s attacks. Wray created the opportunity for pro-Trump FBI agents and Durham to criminalize investigating Trump. I think Wray attempted to avoid rocking the boat at all times, which led the FBI to fail in other areas (including the investigation of Brett Kavanaugh). Though I’m also cognizant that if Wray had been fired during the Trump administration, he might have been replaced by someone like Kash Patel, and having a Trump appointee in charge right now may provide cover for the ongoing investigations into Trump.

But you could fire Wray tomorrow and not eliminate the effects of this bureaucratic discipline, the five year process to teach everyone in the FBI that investigating Trump can only lead to career disaster, if not criminal charges.

Also under Wray, though, the Bureau had already increased its focus on domestic terrorism, with key successes both before and after January 6. Steven D’Antuono, the chief voice of reluctance to search Mar-a-Lago, presided over the really troubled but ultimately successful effort to prevent a kidnapping attempt targeting Gretchen Whitmer, a plot that arose out of anti-lockdown protests stoked by Trump (though unusually, D’Antuono let a subordinate take credit for the arrests).

I think the specific failures in advance of January 6 lay elsewhere. Wray has not done enough in the aftermath to understand the FBI’s failures, but FBI has also been overwhelmed with the case load created by the attack. But, as I hope to return to, I think the specific failure in advance of January 6 lies elsewhere.

Whatever the merit in blaming Wray for FBI’s failure to prepare for January 6, there’s a bigger problem with Rubin’s attempt to blame him on the MAL search. Strzok sketched out in great detail something I had seen, too. The dispute about searching Trump’s house wasn’t between the FBI and DOJ. It wasn’t just what Vance and Strzok both describe as a fairly normal dispute between the FBI and DOJ with the former pushing the latter to be more aggressive.

It was between the WFO on one side and DOJ and FBI HQ on the other.

[A] careful reading of the Post’s reporting (insofar as the reporting is complete) reveals this was not so much a conflict between DOJ and the FBI as much as a conflict between DOJ and FBI headquarters, on the one hand, and the management of the FBI’s Washington Field Office, on the other.

Indeed, a key part of the drama surrounding the pre-August search meeting described by the WaPo involved the conflict between FBI General Counsel Jason Jones — whom WaPo makes a point of IDing as a Wray confidant, thereby marking him as Wray’s surrogate in this fight — and WFO Assistant Director Steven D’Antuono.

Jason Jones, the FBI’s general counsel who isconsidered a confidant of FBI Director Christopher A.Wray, agreed the team had sufficient probable cause to justify a searchwarrant.

[snip]

Jones, the FBI’s general counsel, said he planned to recommend to Deputy FBI Director Paul Abbate that the FBI seek a warrant for the search, the people said. D’Antuono replied that he would recommend that they not.

This, then, was partly a fight within FBI, one in which Wray’s surrogate sided with prosecutors.

Strzok makes a compelling argument that this story may have come from pushback necessitated by people at WFO floating bullshit claims, not dissimilar from — Strzok doesn’t say this, but I will — the leak by right wing agents to Devlin Barrett about the Clinton Foundation investigation in advance of the 2016 election, which led Andrew McCabe to respond in a way that ultimately gave Trump the excuse he wanted to fire him.

Indeed, Strzok’s post includes a well-deserved dig on the WaPo’s claim about, “the fact that mistakes in prior probes of Hillary Clinton … had proved damaging to the FBI,” an unsubstantiated claim I also called out.

[E]ven journalists can be imprecise or inaccurate. The Post’s article isn’t, for example, the type of comprehensive accounting you’d get in a report produced by an Inspector General, who can compile the statements of everyone involved and review and compare those statements to the written record in all its various forms.

Strzok right suggests that DOJ IG’s Report disproved WaPo’s claim about the Hillary investigation, but he seems to have forgotten that the DOJ IG Report into McCabe’s response on the Clinton Foundation didn’t fully air the FBI spox’s exculpatory testimony.

All of which is to say that, in the same way that WFO agents have an understandable visceral concern about getting involved in an investigation targeting Trump, people at HQ might have an equally visceral concern about stories seeded to Devlin Barrett alleging internal conflict that might create some flimsy excuse for firing.

But there’s something still unexplained about the WaPo story. Vance notes, as I did, that D’Antuono may have given Trump the opportunity to steal 47 documents.

[T]he delay couldn’t be undone. We still don’t know whether that resulted in the permanent loss of classified material. It did result in a delay in the timeline for making prosecutive decisions, ultimately extending the investigation into the period where Trump announced his 2024 candidacy, leading to the appointment of a special counsel to continue the investigation and determine whether to prosecute.

But Vance still accepts WaPo’s specious claim about timing, the claim that the delay (from June to August) in searching Trump’s resort led the investigation to bump up against a Trump campaign announcement that would surely have happened earlier had Trump not gotten an injunction. There’s nothing to support that temporal argument, and the public record on the injunction (which, again, lasted until almost a month after Jack Smith’s appointment) disproves it.

The timing issue is one of many reasons why I keep thinking about this earlier Devlin Barrett story, one that did bump up against the appointment of a Special Counsel. On November 14, the day before Trump formalized his 2024 run and so four days before the appointment of Jack Smith, Barrett and WaPo’s Mar-a-Lago Trump whisperer, Josh Dawsey, published a story suggesting that maybe Trump shouldn’t be charged because he just stole a bunch of highly classified documents to keep as trophies.

Federal agents and prosecutors have come to believe former president Donald Trump’s motive for allegedly taking and keeping classified documents was largely his ego and a desire to hold on to the materials as trophies or mementos, according to people familiar with the matter.

As part of the investigation, federal authorities reviewed the classified documents that were recovered from Trump’s Mar-a-Lago home and private club, looking to see if the types of information contained in them pointed to any kind of pattern or similarities, according to these people, who spoke on the condition of anonymity to discuss an ongoing investigation.

That review has not found any apparent business advantage to the types of classified information in Trump’s possession, these people said. FBI interviews with witnesses so far, they said, also do not point to any nefarious effort by Trump to leverage, sell or use the government secrets. Instead, the former president seemed motivated by a more basic desire not to give up what he believed was his property, these people said.

[snip]

The analysis of Trump’s likely motive in allegedly keeping the documents is not, strictly speaking, an element of determining whether he or anyone around him committed a crime or should be charged with one. Justice Department policy dictates that prosecutors file criminal charges in cases in which they believe a crime was committed and the evidence is strong enough to lead to a conviction that will hold up on appeal. But as a practical matter, motive is an important part of how prosecutors assess cases and decide whether to file criminal charges.

As I showed, that story, like this one, simply ignored stuff in the public record, including:

  • Trump’s efforts, orchestrated in part by investigation witness Kash Patel, to release documents about the Russian investigation specifically to serve a political objective
  • The report, from multiple outlets, that Jay Bratt told Trump’s lawyers that DOJ believes Trump still has classified documents
  • Details about classified documents interspersed with a Roger Stone grant of clemency and messages — dated after Trump left the White House — from a pollster, a book author, and a religious leader; both sets of interspersed classified documents were found in Trump’s office
  • The way Trump’s legal exposure would expand if people like Boris Epshteyn conspired to help him hoard the documents or others like Molly Michael accessed the classified records

Since then, other details have become clear. Not only was that story written after DOJ told Trump they believed he still had some classified documents, but it was written in the period between the time Trump considered letting the FBI do a consensual search and the time he hired people to do the search for him, a debate inside the Trump camp that parallels the earlier investigative fight between WFO and DOJ. Indeed, when DOJ alerted Trump’s lawyers in October that they believed Trump still had classified documents, that may have reflected WFO winning the debate they had lost before the August search: to let Trump voluntarily comply.

That’s important background to where we are now. Trump’s team has misrepresented to the press how cooperative they have been since. First, Trump’s people misleadingly claimed that Beryl Howell had decided not to hold Trump in contempt (rather than just deferred the decision) and Trump lied to the press for several months, hiding the box with documents marked classified and the additional empty classified folder. Those public lies should only make investigators wonder what Trump continues to hide.

We know Trump blew off the subpoena that WFO agents were sure would work in June, and there’s good reason to believe DOJ finds Trump’s more recent claims of cooperation to be suspect as well.

So let’s go back to that earlier Devlin story. As I noted at the time, I don’t dispute that the most classified documents have the appearance of trophies, but that’s because of the Time Magazine covers they were stored with, not because of any halfway serious scrutiny of Trump’s potential financial goals. Particularly given the presence of 43 empty classified folders in the leatherbound box along with the most sensitive documents, no thorough investigator could rule out Trump already monetizing certain documents, particularly given Trump and Jared Kushner’s financial windfalls from the Saudi government, particularly given the way that Trump’s Bedminster departure coincided with Evan Corcoran’s turnover of classified documents, particularly given that the woman who carted a box including some marked classified around various offices had been in Bedminster with Trump during the summer. I don’t dispute that’s still a likely explanation for some — but in no way all — of the documents, but no competent investigator could have made that conclusion by November 14, when Devlin published the story.

Unless Devlin’s sources — perhaps the same or similar to the sources who know that WFO agents were cowed by the treatment of Crossfire Hurricane agents — were working hard to avoid investigating those potential financial ties.

Unless the timing of the story reflected an attempt to win that dispute, only to be preempted by the appointment of Jack Smith. The earlier dispute could not have been impacted by the appointment of Jack Smith. If there was a later dispute about how to make sure Trump wasn’t still hoarding classified documents, though, it almost certainly was.

Someone decided to leak a story to Devlin Barrett suggesting that investigators had already reached a conclusion about Trump’s motive, even though as the story acknowledged, “even the nonclassified documents” — better described as documents without classification marks that not only hadn’t been reviewed yet, which could have included unmarked classified information — “taken in the search may include relevant evidence.” (Note, these are the same unclassified documents that, the recent story  describes D’Antuono, insanely from an investigative standpoint, scoffing at collecting because, “We are not the presidential records police.”) Devlin’s sources decided to leak that story at a time when DOJ was trying to figure out how to get the remaining documents from Trump, and yet his sources presented a working conclusion that it didn’t matter if DOJ got the remaining documents: it had already been decided, Devlin’s sources told him, that Trump was just a narcissist fighting to keep his trophies from time as President and probably that shouldn’t be prosecuted anyway.

The story of the earlier dispute is alarming because it confirms that WFO agents remain cowed in the face of the prospect of investigating Trump, as some did even six years ago. The later story, though, is alarming because leaks to Devlin have a habit of creating political firestorms that are convenient for Trump. But it is alarming because it suggests even after the August search proved the WFO agents’ efforts to draw premature conclusions wrong, someone still decided to make — and force, by leaking to Devlin Barrett — some premature conclusions in November, an effort that genuinely was thwarted by the appointment of Jack Smith.

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James Comer’s Twitter Hearing Confirmed Donald Trump’s Censorship Attempt and Matt Taibbi’s “Censorship” about It

February 20, 2023/13 Comments/in 2016 Presidential Election, 2020 Presidential Election, emptywheel, Mueller Probe /by emptywheel

“When did these guys drink the Kool-Aid, and who served it to them?” the NYT quoted Bob Luskin as saying of John Durham and Bill Barr in last month’s blockbuster, revealing scandalous new details about the Durham investigation.

The answer is clear: both men had pickled in conspiracy theories floated on Fox News, and several specific investigative prongs were laundered through a Mark Meadows House “investigation” and a Lindsey Graham Senate one, to be picked up by Durham as if formally referred.

One of the most alarming disclosures in the NYT blockbuster on the Durham investigation, for example, was that after the Italians provided a tip about Trump’s criminal exposure on a junket that Barr and Durham took together in 2019, someone leaked to the press that a criminal investigation into others, not Trump, had been opened.

The trip to Italy about came after George Papadopoulous aired conspiracy theories — suspicions he explicitly attributed to right wing outlets, not his own personal knowledge — in a House Oversight hearing.

[T]he belief that got Bill Barr to fly to Italy — that Mifsud actually works for Western, not Russian, intelligence — Papadopoulos cited to a Daily Caller article which itself relayed claims Mifsud’s Russian-backed lawyer made he had read the day before.

Q Okay. So, and Mifsud, he presented himself as what? Who did he tell you he was?

A So looking back in my memory of this person, this is a mid-50’s person, describes himself as a former diplomat who is connected to the world, essentially. I remember he was even telling me that, you know, the Vietnamese prime minister is a good friend of mine. I mean, you have to understand this is the type of personality he was portraying himself as.

And, you know, I guess I took the bait because, you know, usually somebody who — at least in Washington, when somebody portrays themselves in a specific way and has credentials to back it, you believe them. But that’s how he portrayed himself. And then I can’t remember exactly the next thing that happened until he decided to introduce me to Putin’s fake niece in London, which we later found out is some sort of student. But I could get into those details of how that all started.

Q And what’s your — just to kind of jump way ahead, what’s your current understanding of who Mifsud is?

A My current understanding?

Q Yeah. A You know, I don’t want to espouse conspiracy theories because, you know, it’s horrifying to really think that they might be true, but just yesterday, there was a report in the Daily Caller from his own lawyer that he was working with the FBI when he approached me. And when he was working me, I guess — I don’t know if that’s a fact, and I’m not saying it’s a fact — I’m just relaying what the Daily Caller reported yesterday, with Chuck Ross, and it stated in a categorical fashion that Stephan Roh, who is Joseph Mifsud’s, I believe his President’s counsel, or PR person, said that Mifsud was never a Russian agent.

In fact, he’s a tremendous friend of western intelligence, which makes sense considering I met him at a western spying school in Rome. And all his interactions — this is just me trying to repeat the report, these are not my words — and when he met with me, he was working as some sort of asset of the FBI. I don’t know if that’s true or not. I’m just reporting what my current understanding is of this individual based on reports from journalists.

[snip]

Q And then at what point did you learn that, you know, he’s not who he said he was?

A Like I said, I don’t have the concrete proof of who this person is. I’m just going with reports. And all I can say is that I believe the day I was, my name was publicly released and Papadopoulos became this person that everyone now knows, Mifsud gave an interview to an Italian newspaper. And in this newspaper, he basically said, I’m not a Russian agent. I’m a Clinton supporter. I’m a Clinton Foundation donor, and that — something along those lines. I mean, don’t quote me exactly, you could look up the article yourself. It is in La Republica. And then all of a sudden, after that, he disappears off the face of the planet, which I always found as odd.

[snip]

I guess the overwhelming evidence, from what I’ve read, just in reports, nothing classified, of course, because I’m not privy to anything like that, and considering his own lawyer is saying it, Stephan Roh, that Mifsud is a western intelligence source. And, I guess, according to reports yesterday, he was working with the FBI

Less than a year after this testimony, Barr and Durham were flying off to Italy together to chase down Papadopoulos’ feverish imaginings.

It’s not that Barr and Durham believed Papadopoulos to be credible; Durham never interviewed the Coffee Boy, not even to assess Sergei Millian’s credibility before indicting Igor Danchenko based on Millian’s hearsay claims. But they nevertheless chased that clear conspiracy theory all the way to Italy together.

The Congressional hearing — a hearing that didn’t even incorporate Papadopolous’ own emails, which would have made it harder for the convicted liar to sustain a number of the claims he made — served as a way to legitimize what were obviously rewarmed frothy rants. The hearing was a messaging vehicle that served to legitimize garbage claims. Had the press called this out as a circus in real time, it might have forestalled some of Barr and Durham’s own stunts.

The same is happening again, with the multiple “investigations” pitched by the new GOP-led House. And much of the press is playing along again, treating the hearings as both-sides disputes about the truth, rather than clear efforts to mainstream conspiracy theories that supplant any hold on the truth.

Consider James Comer’s hearing with former Twitter executives (video, transcript), a hearing called in response to Matt Taibbi’s sloppy rants about files selectively released by Elon Musk, the same kind of conspiracy theories floated during the Russian investigation by right wing outlets and then legitimized by Congressional hearings.

The finding of Comer’s hearing is clear: the witnesses all rebutted any claim that government influence drove the decision to throttle the NYPost report on a laptop that Rudy Giuliani claimed belonged to Hunter Biden. The hearing exposed that the claimed basis for legislative interest in Twitter’s actions was baseless. That should been the headline: James Comer’s conspiracy theory flopped. James Comer exposed, wasting taxpayer dollars.

Worse still for the Congressman from Kentucky, witness testimony revealed just one instance of the federal government affirmatively asking that content be taken down, just one instance of censorship. That demand came from Donald Trump.

As Twitter whistleblower Anika Navaroli explained in response to a Gerry Conolly question, when Chrissy Teigen responded to a Trump  attack on her by calling him a, “pussy ass bitch,” the White House asked Twitter to take the tweet down.

Rep. Gerry Connolly (D-VA):

Okay. On September 8th, 2019 at 11:11 PM Donald Trump heckled two celebrities on Twitter. John Legend and his wife, Chrissy Teigen, and referred to them as the musician, John Legend and his filthy mouthed wife, Ms. Teigen responded to that email at 12:17 AM and according to notes from a conversation with you, Ms. Navaroli’s counsel, your counsel, the White House almost immediately thereafter contacted Twitter to demand the tweet be taken down. Is that accurate?

Anika Collier Navaroli:

Thank you for the question. In my role, I was not responsible for receiving any sort of request from the government. However, what I was privy to was my supervisors letting us know that we had received something along those lines or something of a request. In that particular instance, I do remember hearing that we had a request from the White House to make sure that we evaluated this tweet and that they wanted it to come down because it was a derogatory statement directly towards the President.

Rep. Gerry Connolly (D-VA):

They wanted it to come down. They made that request.

Anika Collier Navaroli:

To my recollection, yes.

Daily Beast was one of the few outlets that reported, accurately, that the hearing showed the opposite of what Republicans claimed: in fact, Trump had been the one to use government power to attempt to silence speech on Twitter. Rolling Stone reported on another pathetic detail from Comer’s hearing, when Byron Donalds got Yoel Roth to explain what was implicit in all of Chairman Comer’s discussions of the scope of the hearing: Republicans were complaining that Twitter took down nonconsensual dick pics of Hunter Biden, some posted as part of a campaign by Steve Bannon associate Guo Wengui.

Comer’s premise was shattered by a “pussy ass bitch” retort and dick pics. That’s the weight of James Comer’s chairmanship. And with it should go the credibility of Taibbi’s consistently shoddy rants.

Five times since then, Taibbi has complained that his own silence about Twitter’s coddling of Trump was exposed in the hearing. In none of those complaints did he issue a correction.

Indeed, in his responses, Taibbi repeated several of his lies, obscuring that those FBI spreadsheets he complained about were part of an FBI effort to protect voting rights or that a request that a CIA colleague get an invite to a publicly listed meeting is some sign of the deep state. Taibbi just keeps repeating claims that have long been exposed as garbage.

Taibbi was exposed as a partisan fraud in the hearing, and that should be one of the takeaways.

Yet much of the rest of the coverage of the hearing was like AP’s, which treated the entire premise as if it were serious, dedicating the first four paragraphs to a (false) claim that this was the first that any of them had admitted throttling the NYP story was a mistake (as the hearing reviewed repeatedly, Roth had already given a deposition on the subject, and while the story quotes Jack Dorsey, it doesn’t mention that he has testified to Congress as well). Nowhere in the AP story does it reveal that Comer’s entire premise was debunked by the hearing. It’s not until paragraphs 18 and 19 that AP mentions that the Twitter files presented no evidence for Comer’s claim.

The issue was also reignited recently after Musk took over Twitter as CEO and began to release a slew of company information to independent journalists, what he has called the “Twitter Files.”

The documents and data largely show internal debates among employees over the decision to temporarily censor links to the Hunter Biden story. The tweet threads lacked substantial evidence of a targeted influence campaign from Democrats or the FBI, which has denied any involvement in Twitter’s decision-making.

Nowhere did AP reveal that Donald Trump was the only one guilty of the crime that Comer wants to pursue. Nowhere did AP reveal other instances where Twitter coddled Trump, as when they rewrote their content moderation standards on attacks on immigrants, which previously had banned the use of the term, “Go back to where you came from,” to retroactively excuse their approval of a Trump attack on AOC and others.

Worse still, AP was silent about the degree to which members like Clay Higgins started baselessly calling for the arrest of witnesses not accused, much less credibly, of a crime.

In other words, AP let James Comer dictate the terms of their story even after the premise of it had been debunked.

That’s not journalism.

And there’s one more reason why the press needs to treat these hearings not as a both-sides affair but as an effort to flip truth upside-down.

While neither have said this outright, both Comer’s hearing and the first hearing of Jim Jordan’s insurrection protection committee attacked the nation’s ability to push back against disinformation, including, but not limited to, Russian disinformation.

And as Roth explained in the Twitter hearing, for example, Republican attacks on Twitter were an attack on efforts that came out of a bipartisan response to Russia’s interference in the 2016 election.

Shontel Brown:

Mr. Roth, in a recent interview you stated, and I quote, beginning in 2017, every platform Twitter included, started to invest really heavily in building out an election integrity function. So I ask, were those investments driven in part by bipartisan concerns raised by Congress and the US government after the Russian influence operation in the 2016 presidential election?

Yoel Roth:

Thank you for the question. Yes. Those concerns were fundamentally bipartisan. The Senate’s investigation of Russian active measures was a bipartisan effort. The report was bipartisan, and I think we all share concerns with what Russia is doing to meddle in our elections.

This is what both hearings explicitly sought to roll back, those bipartisan efforts to protect American democracy.

Comer engaged in his own disinformation as part of the process. He falsely claimed that a letter from 50 former spooks said “Hunter Biden’s laptop was Russian disinformation,” rather than that it bore the hallmarks of disinformation. Jim Jordan and HPSCI Chair Mike Turner are now ratcheting up threats against those spooks for speech they engaged in as private citizens, precisely the thing that Jordan purports to be fighting.

In Jordan’s insurrection protection hearing, he presented three witnesses purporting to talk about the weaponization of government. One, Tulsi Gabbard, presented as evidence of weaponizing government that private citizen Hillary Clinton claimed she was being “groomed” by Russia, something that had nothing to do with weaponizing government and everything to do with the free speech Tulsi purported to be defending. The two others, Chuck Grassley and Ron Johnson, complained that the FBI warned them their own investigation into private citizen Hunter Biden parroted an organized Russian campaign.

Taken together, these efforts are fairly unashamedly complaining that private entities — whether Twitter, Hillary, or former spooks — are exercizing their own right to speak up against Russian disinformation. That is, all three efforts use government resources against those speaking up against Russia.

And against the background of the Durham investigation — which investigated Hillary’s campaign because of the way she responded to being victimized by a Russian attack — this effort continues a GOP-led effort to criminalize opposition to Russian disinformation.

There’s no reason, journalistically, to treat this as a serious pursuit. Particularly not given the abundant evidence that these efforts are premised on false claims and easily debunked propaganda, and are an attempt to legitimize that propaganda to serve as the basis for criminal investigations.

If James Comer and Jim Jordan want to squander their majority by building hearings and investigations around lies, the press should call them on that, not reward it. If they don’t, we’re headed down an increasingly ugly cycle.

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The Blind Spots of CJR’s “Russiagate” [sic] Narrative

February 7, 2023/45 Comments/in 2016 Presidential Election, Press and Media /by emptywheel

Jeff Gerth began his series on the press’ Russia investigation failures by noting that trust in the traditional media collapsed after the 2016 election (a claim based on a statistical error), with a sharp rise in concern about “fake news” and, according to Rasmussen, half of those surveyed thinking the press was the enemy of the people.

Before the 2016 election, most Americans trusted the traditional media and the trend was positive, according to the Edelman Trust Barometer. The phrase “fake news” was limited to a few reporters and a newly organized social media watchdog. The idea that the media were “enemies of the American people” was voiced only once, just before the election on an obscure podcast, and not by Trump, according to a Nexis search.

Today, the US media has the lowest credibility—26 percent—among forty-six nations, according to a 2022 study by the Reuters Institute for the Study of Journalism. In 2021, 83 percent of Americans saw “fake news” as a “problem,” and 56 percent—mostly Republicans and independents—agreed that the media were “truly the enemy of the American people,” according to Rasmussen Reports.

Gerth believes part of the problem stems from an erosion of journalistic norms, which he listed at length in an afterward, starting with the press’ unwillingness to report facts that run counter to the prevailing narrative.

My main conclusion is that journalism’s primary missions, informing the public and holding powerful interests accountable, have been undermined by the erosion of journalistic norms and the media’s own lack of transparency about its work. This combination adds to people’s distrust about the media and exacerbates frayed political and social differences.

One traditional journalistic standard that wasn’t always followed in the Trump-Russia coverage is the need to report facts that run counter to the prevailing narrative.

And in spite of his citation of WaPo’s tracking of the vast number of lies Donald Trump told during his term early in the series, Gerth put great stock in what Donald Trump told him in two interviews, adopting Trump’s attribution of the coverage of Russia for the reality TV star’s decision to start labeling the media, “fake news.”

He made clear that in the early weeks of 2017, after initially hoping to “get along” with the press, he found himself inundated by a wave of Russia-related stories. He then realized that surviving, if not combating, the media was an integral part of his job.

“I realized early on I had two jobs,” he said. “The first was to run the country, and the second was survival. I had to survive: the stories were unbelievably fake.”

This is a critical point: Gerth appears to believe Trump that called the media “fake news” not as part of an effort to manipulate the media or to damage one of the institutions of accountability that might check his power, but instead as part of a good faith response to coverage of him.

From that premise, CJR decided the way to understand the collapse in trust of the media was to focus largely on NYT and WaPo’s performance in their coverage of Russia. 

CJR editor Kyle Pope told me,

What we wanted to do with this piece was focus entirely on the media coverage, without the usual notes about Trump’s failings. Specifically, we wanted to focus largely on the New York Times and the Washington Post, as important leaders of the coverage. This was not intended as a 360-degree roundup of everything written about Trump and Russia.

There are obviously enormous problems with the conception of this project, particularly with media polarization in the US that looks like this (a source Gerth relied on to assess the problem).

Others engaged in the “Russiagate” project correctly recognize the import of cable news in the equation (though most, like Glenn Greenwald, ignore the power of the self-contained bubble around Fox, which doesn’t even attempt to hold itself to standards of truth). In 23,000 words, for example, Gerth never considers whether Fox’s scandalous Seth Rich coverage fostered distrust of the media.

In his series, Gerth spent a great deal of time questioning claims about the impact of Russia’s social media operation in 2016 (which, like many “Russiagate” analysts, he treats as the only possible means by which Russia influenced the election). But he didn’t consider the impact of social media, generally, on this decline in trust, not even in the vast reaches of America where there is no more local news, where news consumers increasingly rely on information fed by algorithms that reward the most inflammatory information, from whatever source.

So even on its own terms, it’s a project designed to fail, because it ignores centrally important parts of the equation.

Worse still, Gerth didn’t even carry out what he claimed to set out to do.

That’s actually one of the reasons I’ve spent so much time dissecting his effort: because the ways in which he claimed to limit his scope, and his deviation from that scope, is itself very telling.

Gerth shows how little WaPo and NYT chased the dossier

Start with his focus on the Steele dossier. The dossier is mentioned or discussed in paragraphs making up over 5,000 words out of Gerth’s 23,000-word series. That’s consistent with the “Russiagate” project, which often treats the dossier as stand-in for the entire Russian investigation (or, here, the coverage of it).

Even regarding the Steele dossier, Gerth’s own summary of their coverage  makes it clear that the NYT and WaPo aren’t the villains of the dossier story. The villains in his account are Michael Isikoff, David Corn, CNN, BuzzFeed, McClatchy, and Jane Mayer.

Gerth struggled to implicate NYT and WaPo in his dossier complaint. He noted that NYT mentioned it, including FBI’s efforts to reach out to its sources, in a February 14, 2017 article he spends  almost 1,000 words attacking.

In the article’s discussion of the dossier, it described Steele as having “a credible track record” and noted the FBI had recently contacted “some” of Steele’s “sources.” Actually, the FBI had recently interviewed Steele’s “primary” source, a Russian working at a Washington think tank, who told them Steele’s reporting was “misstated or exaggerated” and the Russian’s own information was based on “rumor and speculation,” according to notes of the interview released later. The day the Times piece appeared in print, Strzok emailed colleagues and reported that Steele “may not be in a position to judge the reliability” of his network of sources, according to Justice Department documents released in 2020.

But as I note below, the dossier is in no way Gerth’s primary complaint with this article and others in a series of similar reports from NYT.

Gerth also included the dossier in a critique of NYT’s reporting on the Nunes Memo.

At the Times, the coverage of the GOP memo was skeptical while a dueling memo, a few weeks later from the ranking Democrat on the committee, was portrayed more favorably.

The Times, at the start of the piece about the Republican memo, called it “politically charged”; noted, in the next sentence, how it “outraged Democrats”; and did not quote the memo’s allegation of the dossier’s “essential” role in the surveillance. The same day, in a separate piece, the Times again called the GOP memo “politically charged” and quoted the “scathing” criticism by Democrats.

Later that month, the Democrats released their own memo. It said the surveillance warrant “made only narrow use of information from Steele’s sources.” The Times story called it a “forceful rebuttal” to Trump’s complaints about the FBI’s inquiry. In the end, the allegations of abuse by Nunes were confirmed in 2019 when the Inspector General released a report that was a “scathing critique” of the FBI, as the Times told readers at the time.

In a statement to CJR, the Times said: “We stand behind the publication of this story,” referring to its reporting on the Nunes memo.

In doing so, he overstates the extent to which the DOJ IG Report on Carter Page, “confirmed” Nunes’ claims. As I noted in a claim-by-claim assessment after the release of the report, both memos got things wrong and both got things right, and Democrats were right that the dossier was not part of the predication of the Russian investigation. Mostly, though, they were just talking past each other, a problem exacerbated by the secrecy behind which both sides could hide their arguments.

Gerth found a little more to work with in the WaPo.

He made much of the fact that one journalist on a long (and accurate) piece about Trump’s ties to Russia was friends with Glenn Simpson, one of the founders of Fusion GPS, via which the Democrats paid for the Steele dossier.

The lead author of the story, Tom Hamburger, was a former Wall Street Journal reporter who had worked with Simpson; the two were friends, according to Simpson’s book. By 2022, emails between the two from the summer of 2016 surfaced in court records, showing their frequent interactions on Trump-related matters. Hamburger, who recently retired from the Post, declined to comment. The Post also declined to comment on Hamburger’s ties to Fusion.

Here was a tie, Gerth insinuated, that proved journalism collapsed in the face of Hillary’s attempts to push oppo research.

But 1,500 words later in Gerth’s series, he showed that Hamburger pushed back on Fusion tips like the Carter Page one when he couldn’t substantiate them.

[S]ome reporters, aware of the dossier’s Page allegations, had pursued them, but no one had published the details. Hamburger, of the Washington Post, told Simpson the Page allegations were found to be “bullshit” and “impossible” by the paper’s Moscow correspondent, according to court records.

That’s important background to Gerth’s coverage of WaPo’s 2017 story on Sergei Millian. 

The Post landed a long story about Sergei Millian, a Belarusian-American businessman, on March 29. The top of the piece identified Millian as the source behind the dossier’s most serious allegation, a “well-developed conspiracy” between the Trump campaign and the Kremlin, the same ground covered by the Wall Street Journal and ABC in January. The claim that Millian was a key informant whose information was “central to the dossier” was stated without any attribution or sourcing. In 2021 the Post retracted the parts of the story describing Millian as a dossier source after John Durham, a special counsel looking into the origins of the Trump-Russia investigations, indicted Steele’s main source for lying to the FBI. Durham alleged the fact of Millian being a source had been “fabricated.” The Post editor’s note explained that Durham’s indictment “contradicted” information in the March story, and additional reporting in 2021 further “undermined” the account. The Post also deleted parts of a few other stories that repeated the allegation that Millian was a dossier source.

WaPo retracted much of the story after the Danchenko indictment, with this editor’s note:

The original version of this article published on March 29, 2017, said that Sergei Millian was a source for parts of a dossier of unverified allegations against Donald Trump. That account has been contradicted by allegations contained in a federal indictment filed in November 2021 and undermined by further reporting by The Washington Post. As a result, portions of the story and an accompanying video have been removed and the headline has been changed.

The original account was based on two people who spoke on the condition of anonymity to provide sensitive information. One of those people now says the new information “puts in grave doubt that Millian” was a source for parts of the dossier. The other declined to comment.

WaPo’s retraction (like the CNN “reckoning” which Gerth cites approvingly) were themselves problematic, because (as I noted about the CNN piece) they took John Durham’s false statements indictment against Steele’s primary subsource, Igor Danchenko, insinuating — but falling far short of charging — a conspiracy as a source of fact. Worse still, the indictment was obviously problematic. In it, Durham relied on Millian’s claims, made on social media but not to a grand jury, for a key part of his case. After Millian refused to testify at trial, Durham admitted he had little but hearsay to prove his case. 

And as Danchenko attorney Stuart Sears noted at trial, several of Millian’s communications, in which Millian boasted about his ties to Trump, were consistent with Danchenko’s claims about the call he attributed to Millian.

It’s entirely possible it wasn’t Sergei Millian, but even if it was, the caller only said there was coordination between the campaign and Russia and that there was nothing bad about it. Agent Helson told you that. That’s not anti-Trump, and we do know from the government’s own evidence that Millian was at least telling people he was going to meet with Trump campaign people the week before the phone call, the anonymous phone call. 

Gerth cheered retractions based off an indictment alone over three months after a jury acquitted Danchenko of lying about this call, which he told the FBI he believed, but was not certain, came from Millian. 

And Gerth, who complains about transparency, buried that fact: while Gerth emphasized the WaPo and CNN retractions in Part Two of his series, he didn’t get around to informing readers that Igor Danchenko had been acquitted until Part Four, over 9,000 words and two clicks later.

Gerth elsewhere noted that Mueller’s indictments against Yevgeniy Prigozhin and the GRU hackers haven’t been tried, yet when it served his narrative, he applauded these retractions based on an indictment alone.

Meanwhile, Gerth credited WaPo with breaking the news that the Democrats had funded the dossier, which is ample proof that the WaPo wasn’t shielding the project.

Amazingly, Gerth complained that the NYT didn’t retract anything in the wake of the Danchenko indictment, even though he found so little to complain about in the NYT coverage of the dossier and even though, as he describes, WaPo’s Erik Wemple (who might consider whether his own campaign for dossier accountability went too far, in light of the Danchenko acquittal) called out NYT’s Adam Goldman as one of those who approached the dossier responsibly. Gerth even noted that the NYT acknowledged the flimsiness of the dossier’s allegations in real time.

The Times has offered no such retraction, though the paper and other news organizations were quick to highlight the lack of firsthand evidence for many of the dossier’s substantive allegations;

It’s genuinely not clear what Gerth thinks the NYT should retract, a question I posed to Pope that he declined to answer.

And Gerth makes this complaint even though his series was published four days after NYT’s bombshell report of how corrupt the Durham investigation was. Somehow CJR didn’t find time to remove or amend Gerth’s complaints about NYT’s critical reporting on the Durham investigation, including his complaint that Goldman suggested a junket Barr and Durham took to Italy might be chasing a “conspiracy theory,” when the recent NYT report has revealed it was far worse. 

There are other grave problems with Gerth’s treatment of the dossier, all consistent with the ”Russiagate” project more generally. The DOJ IG Report Gerth relies on so heavily laid out abundant reason to suspect that Russia larded the dossier with disinformation, probably with the participation of Manafort associate Oleg Deripaska.

That’s important given the fragments of truth that appear in the dossier. As Durham briefly acknowledged at trial and as I noted in an interview hosted by CJR, the reason Danchenko’s ties to Clinton ally Chuck Dolan were so significant, and led Durham to charge Danchenko for making a “literally true” statement about Dolan to the FBI, was that Dolan established ties between Olga Galkina — the source of the most problematic claims in the dossier, alleging Michael Cohen spoke directly with the Kremlin about election interference — and Dmitri Peskov. The link raises the possibility that someone who knew about Michael Cohen’s January 2016 call to the Kremlin, to Peskov’s office, a call both Cohen and Trump lied to conceal, was behind the dossier allegation that falsely claimed Cohen had other contacts with the Kremlin. Peskov knew that Cohen and Trump were lying to hide that earlier contact, which made the later false allegation more powerful.

Other records show that Russia likely used Steele for a functional role in their operation. In spring 2016, Deripaska is believed to have been the client who hired Steele for intelligence collection targeting Paul Manafort. Then Deripaska used Steele as part of a brutal double game with Manafort. Essentially, Deripaska used the former British spy’s association with the FBI to increase Manafort’s legal vulnerability while he had Kilimnik exploit Manafort’s financial vulnerability, all of which made it easier to obtain inside information on the Trump campaign at the August 2 meeting. 

And, in a story about the dossier that Gerth doesn’t mention, Manafort came back from what we now know to be a meeting with a Deripaska associate and told Reince Priebus to focus on the dossier’s inaccuracies as pushback on the Russian investigation. That is, the focus on the dossier as a substitute for Trump’s real Russian ties seems to have become part of Russia’s plan, if it wasn’t from the start. If the dossier was deliberate disinformation — and the Republican members of Congress who investigated that document insist it was — then it must be considered part of Russia’s attack on US democracy –  in which Gerth and other “Russiagate” participants are enthusiastic participants.

Polarization and trust in the media lie at the center of Gerth’s project. Yet he failed to consider how the dossier, not the coverage of it, might be a key driving factor in polarization. That makes his project part of the problem.

Gerth’s selective coverage of NYT and WaPo’s Pulitzer-winning journalism

Even while Gerth failed to significantly implicate NYT and WaPo in what he portrays as the gravest journalistic crime in Russian coverage, hyping the Steele dossier, he also ignored key parts of their coverage.

For example, he didn’t acknowledge that WaPo reported on Carter Page’s inflammatory comments in Moscow weeks before Steele did. Much of the focus on Page subsequent to WaPo’s report was based on this public source, not the dossier. It’s one of many events that the press covered for its real news value that Gerth, in his own narrative, suggests could only have happened with Hillary’s intervention.

Gerth also ignored large swaths of NYT and WaPo’s award-winning journalism on Russia, although he covered Trump’s attack on that reporting in the third installment of his series. 

NYT won a Pulitzer in 2017 for ten Russia-related articles and NYT and WaPo shared a prize for a combined 20 stories on the Russian investigation in 2018. Trump has sued the Pulitzer Board for defamation relating to the 2018 award. In his coverage, Gerth suggests that Trump’s lawsuit against the Pulitzer Board  for those awards has merit.

Best as I’ve been able to reconstruct, this page lists the newspaper coverage mentioned in Gerth’s series (in numerous ways, CJR’s decision not to link the media Gerth claimed to discuss made it very difficult to assess his claims, and I made one error in my questions to CJR as a result). The page also lists, at the end, some key stories that Gerth did not address. Those with asterisks — both in the stuff he covered and the stuff he did not — were part of the Pulitzer packages for which NYT and WaPo won prizes.

Gerth included just one of the stories for which NYT won a Pulitzer in 2017, the Manafort secret ledger story (the same story,  as Fusion GPS revealed after Barry Meier attacked them in a book, for which Fusion provided research).

But he ignored the rest. 

That had the effect of hiding the general background on Russia’s international assault on its opponents that NYT, as an institution, would have brought into its coverage of Trump’s suspected ties to the Kremlin in 2017: stories about Russia hunting down its enemies in other countries, Russia’s use of disinformation, the elite hackers Russia was recruiting, and Russia’s cultivation of the far right.

Gerth also ignored two stories that were specifically on point to his project: A September 2016 story revealing how often Julian Assange’s Wikileaks releases served Russia’s political  interests (I raised some concerns about the piece here), and a December 2016 epic that described the Russian hack-and-leak from the DNC perspective (I pointed out the DNC’s changing story about being warned by the FBI here). The DNC story should be particularly important to Gerth’s project because it explicitly made the comparison with the Watergate burglary in 1972 that Gerth complains about in his series. It also provided a great deal of information, much publicly available, backing the hack-and-leak attribution to Russia – an attribution that Gerth claims remains “far from definitive.”

I asked Pope why the Assange and the DNC hack stories weren’t included in the series. He pointed to coverage of other NYT stories as proof CJR wasn’t ignoring the (2017, not 2018) Pulitzer stories.

Do you think it fair to ignore all the stories for which WaPo and NYT did get Pulitzers, including the 2017 ones on WikiLeaks and the DNC hack?

We didn’t ignore them. From the piece: “For the Times, Trump’s mess was a pot of gold: two of the Times stories about the meeting and the emails were part of its winning Pulitzer Prize package.

And … “But before that omission, the Times exposed another piece of the FBI’s Russia puzzle. The paper landed a major story at the end of the year, in time to be included in its Pulitzer package that ultimately shared the prize for national reporting.”

But there were a bunch of Pulitzer winners Gerth left out whose omission is still more problematic, particularly given his suggestion that the entirety of the press’ early 2017 focus on Russia in Trump’s administration stemmed from the publication of the dossier.

For example, Gerth barely mentions the coverage of Mike Flynn’s lies and resignation and its central role, starting even before the publication of the dossier, in press coverage in early 2017. He slips discussion of a key David Ignatius column, the first to report on Mike Flynn’s calls with Russian ambassador to the US, Sergei Kislyak, in between his references to the dossier.

The WSJ and the Times stories were not well received by Fusion. At first, they feared for Steele’s safety. Then they felt the Times’ behavior was “improper,” because it had “unilaterally” published material “it had learned off the record,” the founders wrote in their book.

Hours after the Times story ran, the Post upped the temperature on Russia even more. Columnist David Ignatius disclosed that incoming national security adviser Michael Flynn had phoned Russia’s US ambassador “several times” at the end of the year, according to “a senior US government official.” Ignatius noted the talks had come on the day the Obama administration had expelled Russian diplomats in retaliation for the country’s hacking activities, so he questioned whether Flynn had “violated” the spirit of an “unenforced” law barring US citizens from trying to resolve “disputes.”

Ignatius went on to write that it might be a “good thing” if Trump’s team was trying to de-escalate the situation. But Ignatius didn’t know the substance of the conversations. Hours before his story went online, Ignatius appeared on MSNBC and, while not disclosing his upcoming Flynn exclusive, said “it was hard to argue” against the need to “improve relations with Russia.”

The existence of Flynn’s talks with the ambassador was known by Adam Entous, a reporter then at the Post, but he held off writing anything because the mere fact of a contact wasn’t enough to justify a story. “It could have been something innocent,” Entous, now with the Times, said in an interview, “something he would be praised for.”

On the heels of the Ignatius column, the FBI’s “investigative tempo increased,” according to FBI records, and the Senate intelligence panel announced an inquiry into Russia’s election activities. (The House Intelligence Committee announced a similar effort later that month.)

Two days after the Senate announcement, Bob Woodward, appearing on Fox News, called the dossier a “garbage document” that “never should have” been part of an intelligence briefing.

But he doesn’t reveal why the FBI’s investigative tempo increased in the wake of Ignatius’ column. 

Stories that the WaPo published that he ignored did. A Pulitzer-winning WaPo report published the same day revealed that Flynn was denying he had discussed sanctions with the Russian Ambassador, the first of many compromising lies Trump’s associates told in the early days of his Administration. Flynn’s lies (as Mueller confirmed in his congressional testimony) created the risk that he could be blackmailed, which led the FBI and DOJ to respond more aggressively than they otherwise might have. Another Pulitzer-winning WaPo story explained all that on the day Flynn resigned. 

Later in the spring, a Pulitzer-winning NYT report revealed that Trump knew Flynn was under investigation for his secret relationship with Türkiye even before the president appointed him to be National Security Adviser. Gerth’s silence about all these stories is particularly damning, given that he later gets a key detail about Flynn’s prosecution wrong, which I’ll return to.

Other award-winning stories revealed still more Russian ties that Trump and his associates were trying to hide. A March story from WaPo — yet another Pulitzer winner — revealed that Jeff Sessions had failed to disclose some interactions with Sergey Kislyak, the same ambassador  with whom Flynn was undermining Obama foreign policy during the transition. An April Pulitzer-winning story from the NYT revealed that Jared Kushner had omitted transition period meetings with Russians — not just Kislyak, but also the head of a sanctioned bank — in his security clearance paperwork.

While Gerth may have mentioned a May article for which NYT won a Pulitzer, if he did, he did so only as part of his complaint that the NYT repeatedly referred to the line from Trump’s interview with Lester Holt in which he referred to “the Russian thing” in his explanation for firing Comey.

A tweet from the show on May 11 set the narrative for the Holt interview: “Trump on firing Comey: ‘I said, you know, this Russia thing with Trump and Russia is a made-up story.’” Those few words, by suggesting Comey’s firing was aimed at getting the FBI inquiry off his back, provided fresh ammunition to anti-Trumpers.

The full interview, which was available online, presented a more nuanced story, and appeared to reflect what his advisers told him: firing Comey could prolong, not end, the investigation. Trump told Holt, soon after the controversial words, that the firing “might even lengthen out the investigation” and he expected the FBI “to continue the investigation,” to do it “properly,” and “to get to the bottom.”

The media focused on the “Russia thing” quote; the New York Times did five stories over the next week citing the “Russia thing” remarks but leaving out the fuller context.

But Gerth’s account elided the entire reason Trump’s NBC quote was used in that particular NYT article: because Trump told Kislyak and Sergey Lavrov roughly the same thing, privately, on the same day.

President Trump told Russian officials in the Oval Office this month that firing the F.B.I. director, James B. Comey, had relieved “great pressure” on him, according to a document summarizing the meeting.

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

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

Gerth doesn’t address the real concerns presented by Trump privately bragging about firing the FBI director – in charge of counterintelligence – to his Russian visitors.

Indeed, given Gerth’s focus on Trump’s use of “fake news,” he might have at least mentioned the last lines of the NYT story:

At one point, Mr. Trump jokingly asked whether there were reporters in the room.

“No,” Mr. Lavrov said. “No fake media.”

Whether you think that Trump’s adoption of the term “fake news” was merited or not, the answer to Trump’s question, “Russia, if you’re listening,” was yes, they were.

Gerth also appears to have paid no attention to a Pulitzer-winner from WaPo written in the same time frame, revealing that Trump shared highly classified Israeli intelligence with his Russian visitors in the same meeting, another cause for concern that Gerth simply makes disappear. 

Those aren’t the only damning stories Gerth ignored. As Pope emphasized to me, Gerth credited NYT for two of three Pulitzer-winning stories on the June 9 meeting that Don Jr took with a Russian lawyer in hopes of acquiring dirt on Hillary– the July 10 one revealing that Don Jr took a meeting with Russians offering dirt, and the July 11 one revealing Don Jr’s enthusiastic response. But I don’t believe he credited the WaPo for their July 31 Pulitzer-winning story revealing that Trump drafted Don Jr’s misleading statement, claiming a meeting about dirt on Hillary and sanctions relief was about adoption.

The omission is really telling given Gerth’s take on a July 19 story from the NYT (which did not win a prize). In an interview with three NYT reporters, Trump successfully got the NYT to participate in his efforts to obstruct the investigation by airing his threats to fire Jeff Sessions (he had asked Corey Lewandowski to fire Jeff Sessions on the same day). In the interview, Trump also confirmed that he and Putin spoke about the topic of his misleading statement before drafting it, meaning adoptions. But Gerth deemed that interview important primarily because Mike Schmidt asked Trump about the dossier.

A week after the Trump Tower story, the president conducted a serendipitous interview with three Times reporters, including Schmidt, who asked if Comey’s sharing of the dossier with Trump before his inauguration was “leverage.” Trump replied, “Yeah, I think so, in retrospect.”

After the Oval Office sit-down, an aide, worried about the possibility of repercussions from an impromptu interview, sought Trump’s reaction.

“I loved that,” the aide, who requested anonymity, recalled him saying. “It was better than therapy. I’ve never done therapy, but this was better.”

This is a fairly astounding view on the relative newsworthiness of the interview — I’ve pointed out the importance, to Trump’s obstructive purpose, of NYT’s decision to bury the Putin tie rather than dedicate an entire story to it. It’s also a prime example of how the unrelenting focus on the dossier by “Russiagate” adherents diverts attention from far more damning events, both creating in that unrelenting focus the narrative they claim to combat, and in the process burying the real events that “Russiagate” adherents claim could only come as part of a manufactured narrative.

I asked CJR, “Why do you believe a comment on the dossier was more important than a scoop substantiating Trump’s problematic ties to Putin?” but it was another of the questions the magazine’s editor declined to answer.

There are more Pulitzer winners that Gerth left out, including a WaPo story describing both Trump’s refusal to take steps to protect American democracy from Russian interference…

Nearly a year into his presidency, Trump continues to reject the evidence that Russia waged an assault on a pillar of American democracy and supported his run for the White House.

The result is without obvious parallel in U.S. history, a situation in which the personal insecurities of the president — and his refusal to accept what even many in his administration regard as objective reality — have impaired the government’s response to a national security threat. The repercussions radiate across the government.

Rather than search for ways to deter Kremlin attacks or safeguard U.S. elections, Trump has waged his own campaign to discredit the case that Russia poses any threat and he has resisted or attempted to roll back efforts to hold Moscow to account.

… As well as Russia’s assessment of the “staggering return”  achieved by their interference operation.

U.S. officials said that a stream of intelligence from sources inside the Russian government indicates that Putin and his lieutenants regard the 2016 “active measures” campaign — as the Russians describe such covert propaganda operations — as a resounding, if incomplete, success.

Moscow has not achieved some its most narrow and immediate goals. The annexation of Crimea from Ukraine has not been recognized. Sanctions imposed for Russian intervention in Ukraine remain in place. Additional penalties have been mandated by Congress. And a wave of diplomatic retaliation has cost Russia access to additional diplomatic facilities, including its San Francisco consulate.

But overall, U.S. officials said, the Kremlin believes it got a staggering return on an operation that by some estimates cost less than $500,000 to execute and was organized around two main objectives — destabilizing U.S. democracy and preventing Hillary Clinton, who is despised by Putin, from reaching the White House.

The bottom line for Putin, said one U.S. official briefed on the stream of post-election intelligence, is that the operation was “more than worth the effort.”

But the stories from the first half of 2017 that Gerth left out are key. They not only reveal the real reason that the FBI investigation picked up in early 2017, they also show that a great deal of important journalism provided abundant reason to be concerned about all the secrets about Russia that Trump and his aides were keeping, independent of the dossier.

The contacts with Russian spies that were later confirmed

That focus – the ties with Russia that Trump, his National Security Adviser, his Attorney General, and his son-in-law failed to disclose – makes Gerth’s chief complaint about the NYT coverage look very different.

He appears especially peeved over a series of NYT stories in this same time period that described the sheer number of contacts that investigators were discovering with various Russians described by the paper as intelligence officers.

  • January 19, 2017
  • February 14, 2017
  • March 1, 2017
  • March 3, 2017 (including comment from Konstantin Kilimnik)

Gerth’s critique relies heavily on a Peter Strzok annotation of the February 14 story that Strzok shared with top FBI officials (parts of which, detailing how few call records the investigation had yet obtained, explain why early reports Gerth points to to make claims about the investigation, including one from James Clapper, are meaningless). It is absolutely true that Strzok found no basis for the NYT to claim that the Russians with whom Trump and his aides were in contact were Russian spies. 

Gerth also reviews how Comey disavowed such reports in his public testimony to Congress, with support from Devin Nunes.

That section of the series, covering all four stories, is over 2,500 words long.

As Gerth described it, when NYT has been challenged on these stories, they’ve stood by them. I share Gerth’s curiosity regarding NYT’s sources for the stories, but like Gerth himself, the NYT is not about to share their sources. 

It’s worth noting, though, that Gerth seems to believe that the US-based three letter agencies (or the Congressional personnel who’ve been briefed by those agencies) referenced in Strzok’s memo are the only possible sources for these stories. We know that at least five other intelligence services — the UK, the Dutch (from whom the US got a great deal of intelligence on the operation), the Spanish, the Ukrainians, and the Israelis — would have had their own views about which foreign interlocutors with Trump aides were spies. We know of a number of witnesses, not in government at all, who told Mueller they believed one or another interlocutor was a spy. We also know of a number of overt spies (such as Emirati ones) who had a role in the international effort to influence Trump. And we know of contacts – like that between Stone and Guccifer 2.0 – that were legitimately viewed as a spy contact when they started to become known around this time.

The clearest error in the NYT series pertains to the claim that an investigation into Stone had already been opened, but that’s an error SSCI seems to have shared, because on March 16,  Senator Richard Burr told Don McGahn the FBI was investigating Paul Manafort, Roger Stone, Carter Page, and “Greek Guy.”

In the years since, however, the US government has come to believe more of the people known to have been interacting directly with Trump’s aides were Russian spies.

Konstantin Kilimnik — who along with at least two other Deripaska allies have been described as Russian agents in official US documents — is a particularly important one, given Gerth’s complaints that the NYT didn’t call Kilimnik for comment when the record shows they did (including in the March 3 one).

Gerth’s claims about the evidence that Kilimnik was a spy were nothing short of fanciful, including a perennial “Russiagate” favorite — which he credits to John Solomon’s scoop, from a period when Solomon was part of Rudy Giuliani’s outreach to people like Dmitry Firtash – that Kilimnik had been a source for the State Department.

As for Kilimnik possibly being a Russian spy, the only known official inquiry, by Ukraine in 2016, didn’t result in charges. More recent claims that he worked for the Russians, by the Senate intelligence panel in 2020 and the Treasury Department in 2021, offered no evidence. Conversely, there are FBI and State Department documents showing Kilimnik was a “sensitive source” for the latter. (The documents were disclosed a few years ago by John Solomon, founder of the Just the News website. Kilimnik, in an email to me, confirmed his ties with State.)

One primary objective of most spies, of course, is to infiltrate the agencies of other governments.

I asked CJR why Gerth claimed SSCI had no evidence against Kilimnik when their section substantiating their assessment about Kilimnik includes 16 bullet points, over half redacted, and they also included a separate 5-page, largely redacted section showing more fragmentary evidence that Kilimnik had a role in the hack-and-leak. I also asked why Gerth thought the FBI, under Trump, would have issued a $250,000 reward for Kilimnik’s arrest.

Those questions also went unanswered.

So the NYT may well have been ahead of the FBI’s assessment in spring 2017 (and their report that Stone was already part of the investigation has been shown to be wrong). But those reports really aren’t ahead of what the US intelligence community says they have since corroborated. Moreover, many of the Pulitzer stories that Gerth doesn’t mention show that Trump and his associates were aggressively lying to hide their ties to Russians or their interlocutors, and criminally so, in the case of Flynn and George Papadopoulos (and, ultimately, Michael Cohen and Roger Stone, too). That background — the lies that Flynn and Sessions and Kushner were telling about their Russian ties — is important background to these stories Gerth hates, yet he makes no mention of them.

Gerth’s main remaining gripe about the WaPo is even more remarkable. He spent six paragraphs on the WaPo’s scoop reporting the FISA order targeting Carter Page.

In early April, the Post story on Page landed, calling the surveillance “the clearest evidence so far that the FBI had reason to believe during the 2016 presidential campaign that a Trump campaign adviser was in touch with Russian agents. Such contacts are now at the center of an investigation into whether the campaign coordinated with the Russian government to swing the election in Trump’s favor.” It noted Page’s “effusive praise” for Putin and mentioned Schiff’s congressional recitation of the Page allegations in the dossier. Relying on anonymous sources, it gave a vague update on the dossier’s credibility: “some of the information in the dossier had been verified by US intelligence agencies, and some of it hasn’t.”

At the Times, the newsroom was irked about getting beaten by the Post. “Times is angry with us about the WP scoop,” Strzok texted to an FBI colleague, a few days later.

But the Post scoop was incomplete. Its anonymous sources mirrored the FBI’s suspicions but left out the bureau’s missteps and exculpatory evidence, as subsequent investigations revealed. It turns out that the secret surveillance of Page was an effort to bring in heavier artillery to an FBI inquiry that, in the fall of 2016, wasn’t finding any nefarious links, as the Times reported back then. Agents were able to review “emails between Page and members of the Donald J. Trump for President Campaign concerning campaign related matters,” according to an inquiry in 2019 by the Justice Department Inspector General. FBI documents show the surveillance of Page targeted four facilities, two email, one cell, and one Skype.

Still, even with the added surveillance capability, the investigation had not turned up evidence for any possible charges by the date of the Post piece, which came four days after the secret surveillance, called FISA, for the Foreign Intelligence Surveillance Act, was renewed for the second time. (Page was never charged.)

The IG review also found that the FISA warrant process was deeply flawed. It relied heavily on the dossier, including the fabricated Millian allegation of a conspiracy, the IG found. Furthermore, the report said the warrants contained seventeen “significant errors and omissions,” such as leaving out exculpatory information about Page, including his previous work for the CIA and comments he made to an undercover FBI informant. And by the time of the Post piece, the dossier’s credibility was collapsing; the FBI knew the CIA called it “internet rumor,” and on its own the FBI “did not find corroboration for Steele’s election reporting,” according to the IG report.

The Post spokesperson, who would only speak on background, said the article on Page was “fair and accurate” and meant to reflect “how deeply the FBI’s suspicions were about Page.” They acknowledged the story was incomplete, noting that “at that time there was a lot that was not publicly known.” [my emphasis]

This passage commits several errors. The FBI targeted Page not because they were looking for heavier artillery. They did so because Page was about to travel internationally and they wanted coverage of that trip. (The FBI consistently described the FISA targeting of Page as “productive” or “fruitful.”) And Bill Barr’s DOJ didn’t withdraw the probable cause claim for Page’s first two FISA orders. The applications against him, which were based in part on his voluntary sharing of non-public information with known Russian intelligence officers, alleged he knowingly aided and abetted foreign spies.

Over time, there would be more than those four facilities, and in fact one main reason FBI submitted the especially problematic June 2017 application was because the FBI wanted to access financial information and two encrypted messaging apps, the latter out of suspicion that Page had destroyed a phone once he discovered he was under investigation.

The FBI also had concerns about Page’s initial denial in a March 16, 2017 interview that he had sought out some Russian official to identify himself as the Male-1 in court filings for one of the Russians trying to recruit him some years earlier.

There was evidence for possible charges; there was evidence when the FBI first opened an investigation into him in April 2016. Just not enough to charge him.

Errors aside, though, Gerth here adopts a fairly remarkable stance. He complains that the WaPo story confirming the FISA targeting did not include all the problems with the FISA applications that wouldn’t be discovered until much later. I spoke with a Congressional Republican who was privy to the applications targeting Page in summer 2018, for example, and even at that point, the person believed there was abundant other evidence against Page, even without any information from Steele. Crazier still, in April 2017 when the WaPo published that scoop, the worst abuse of all identified in the Page applications – the alteration of an email – hadn’t happened yet.

The WaPo would have needed a time machine to meet Gerth’s strictures.

Gerth’s claims that the NYT and WaPo’s reporting was particularly problematic are, with a few exceptions, extraordinarily weak, and that’s before you consider all the Pulitzer articles he simply ignored. But he also ignores some of the more problematic NYT stories, like the NYT decision to bury Trump’s discussion of adoptions with Putin immediately before he wrote a misleading note claiming the June 9 meeting addressed adoptions. Similarly, Gerth had no problem that the NYT not only parroted Bill Barr’s misleading March 24, 2019 letter about the Mueller Report, but ran entire blocks of his letter on the front page. I asked CJR if they had any problem with this article, which misrepresented court filings in the Manafort case to suggest that his sharing of polling data with Konstantin Kilimnik happened in the spring, not during the general election, and involved only Ukrainian oligarchs, not Deripaska; to this day, the article feeds misunderstanding about that allegation. 

That was another question to which I got no answer.

Gerth has plenty of complaints about the NYT — just not about the stories where they erred on the side of downplaying the discoveries of the Russian investigation.

But as I’ll show in my next post, Gerth’s poor framing of his complaints about the NYT coverage doesn’t end there.

Links

CJR’s Error at Word 18

The Blind Spots of CJR’s “Russiagate” [sic] Narrative

Jeff Gerth’s Undisclosed Dissemination of Russian Intelligence Product

Jeff Gerth Declares No There, Where He Never Checked

“Wink:” Where Jeff Gerth’s “No There, There” in the Russian Investigation Went

My own disclosure statement

An attempted reconstruction of the articles Gerth includes in his inquiry

A list of the questions I sent to CJR

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Billy B and Johnny D Drank Whiskey before the Special Counsel Appointment

January 27, 2023/191 Comments/in 2020 Presidential Election, Mueller Probe /by emptywheel

I’ll have more to say about the NYT piece on the corrupt Durham investigation, though probably not till next week. But many people are commenting about how close Billy Barr was to Durham, as depicted by the way they sipped whiskey together.

While attorneys general overseeing politically sensitive inquiries tend to keep their distance from the investigators, Mr. Durham visited Mr. Barr in his office for at times weekly updates and consultations about his day-to-day work. They also sometimes dined and sipped Scotch together, people familiar with their work said.

In some ways, they were an odd match. Taciturn and media-averse, the goateed Mr. Durham had spent more than three decades as a prosecutor before Mr. Trump appointed him the U.S. attorney for Connecticut. Administrations of both parties had assigned him to investigate potential official wrongdoing, like allegations of corrupt ties between mafia informants and F.B.I. agents, and the C.I.A.’s torture of terrorism detainees and destruction of evidence.

By contrast, the vocal and domineering Mr. Barr has never prosecuted a case and is known for using his law enforcement platform to opine on culture-war issues and politics. He had effectively auditioned to be Mr. Trump’s attorney general by asserting to a New York Times reporter that there was more basis to investigate Mrs. Clinton than Mr. Trump’s “so-called ‘collusion’” with Russia, and by writing a memo suggesting a way to shield Mr. Trump from scrutiny for obstruction of justice.

But the two shared a worldview: They are both Catholic conservatives and Republicans, born two months apart in 1950. As a career federal prosecutor, Mr. Durham already revered the office of the attorney general, people who know him say. And as he was drawn into Mr. Barr’s personal orbit, Mr. Durham came to embrace that particular attorney general’s intense feelings about the Russia investigation.

It is true that Special Counsels, under the regulations, are supposed to have more independence from the Attorney General than this.

But keep in mind that 17 months of whiskey sipping happened before Barr made Durham Special Counsel.

And Barr intervened this closely in many of the other investigations he orchestrated. I wouldn’t be surprised if he sipped whiskey with Scott Brady and Jeffrey Jensen, when they were conducting corrupt projects (accepting Russian-tied dirt on Joe Biden and undermining the Mike Flynn case, respectively) for him, as well.

The timing is significant in another way.

As NYT describes, when Billy and Johnny went to Italy chasing George Papadopoulos’ conspiracy theories, the Italians instead shared alarming information about suspected financial crimes with the two men. Rather than providing the tip to a normal investigator, Barr instead had Durham chase it down.

On one of Mr. Barr and Mr. Durham’s trips to Europe, according to people familiar with the matter, Italian officials — while denying any role in setting off the Russia investigation — unexpectedly offered a potentially explosive tip linking Mr. Trump to certain suspected financial crimes.

Mr. Barr and Mr. Durham decided that the tip was too serious and credible to ignore. But rather than assign it to another prosecutor, Mr. Barr had Mr. Durham investigate the matter himself — giving him criminal prosecution powers for the first time — even though the possible wrongdoing by Mr. Trump did not fall squarely within Mr. Durham’s assignment to scrutinize the origins of the Russia inquiry, the people said.

Mr. Durham never filed charges, and it remains unclear what level of an investigation it was, what steps he took, what he learned and whether anyone at the White House ever found out. The extraordinary fact that Mr. Durham opened a criminal investigation that included scrutinizing Mr. Trump has remained secret.

But in October 2019, a garbled echo became public. The Times reported that Mr. Durham’s administrative review of the Russia inquiry had evolved to include a criminal investigation, while saying it was not clear what the suspected crime was. Citing their own sources, many other news outlets confirmed the development.

The news reports, however, were all framed around the erroneous assumption that the criminal investigation must mean Mr. Durham had found evidence of potential crimes by officials involved in the Russia inquiry. Mr. Barr, who weighed in publicly about the Durham inquiry at regular intervals in ways that advanced a pro-Trump narrative, chose in this instance not to clarify what was really happening.

By description, this tip too appears to precede the time when Durham was appointed Special Counsel. That’s important because, with every other investigation into Trump, Barr attempted to ensure it was shut down during the summer of 2020. If Barr succeeded here, too, then it would mean that it would not fall into the scope of Durham’s Special Counsel activities.

That’s important, because Durham is, by regulation, required to write a report about his prosecution and declination decisions. If Durham wants to see his report made public, we should fairly expect to see this criminal tip on Trump included.

There are a lot of questions about why Durham remains at DOJ. But one potential reasons is that Lisa Monaco believes his report could be a worthwhile thing: basically a long list of conspiracy theories that Barr had Durham chase that turned out to be conspiracy theories.

And this story may put some pressure on DOJ to make sure that happens.

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Judge Sanctions Alina Habba for Misrepresenting Igor Danchenko Indictment

November 11, 2022/55 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

There are a number of reasons why Judge Donald Middlebrook sanctioned Alina Habba and Peter Ticktin for the frivolous claims they made against Chuck Dolan in the omnibus lawsuit against Hillary Clinton and a bunch of other people.

In reverse order, Middlebrook found that the lawsuit was filed for improper purpose: to advance a political grievance.

Every claim was frivolous, most barred by settled, well-established existing law. These were political grievances masquerading as legal claims. This cannot be attributed to incompetent lawyering. It was a deliberate use of the judicial system to pursue a political agenda.

[snip]

The rule of law is undermined by the toxic combination of political fundraising with legal fees paid by political action committees, reckless and factually untrue statements by lawyers at rallies and in the media, and efforts to advance a political narrative through lawsuits without factual basis or any cognizable legal theory.

He ruled that it’s not RICO, it’s never RICO (or any of the other conspiracies Habba alleged, either).

In the RICO count of the Amended Complaint, Plaintiff realleged the previous 619 paragraphs, and it was a mystery who he intended to sue. In the caption to Count II, he named 22 defendants but in the prayer for relief for that count 28 were named. Added were HF ACC, Inc., the DNC Services Corporations, James Comey, Peter Strzok, Lisa Page, and Andrew McCabe. (Am. Compl. ¶ 633). Whoever he intended to sue, Plaintiff alleged that each of them “knew about and agreed to facilitate the Enterprise’s scheme to harm the Plaintiff’s political career, tarnish his electability, and undermine his ability to effectively govern as the President of the United States . . . . ” (Am. Compl. ¶ 627).

The RICO conspiracy claims were entirely conclusory. Moreover, there is no standing to bring a RICO conspiracy claim unless injury resulted from violation of a substantive provision of RICO.

Of greatest interest to me, however, to substantiate a finding that the lawsuit’s allegations against Chuck Dolan lacked any reasonable factual basis, Judge Middlebrook laid out how Habba misrepresented the Igor Danchenko indictment to include Dolan in her conspiracy theories. Middlebrook focused closely on Habba’s claims that the pee tape allegation in the Steele dossier “was derived from Dolan.” He rejected Habba’s defense of the allegations against Dolan by pointing to stuff she left out.

Mr. Trump’s lawyers claim “nearly all” of the allegations against Mr. Dolan were sourced directly from the Indictment brought against Igor Danchenko by special counsel John Durham. (DE 270-2 at 6). But this is simply not so. As was the practice throughout the Amended Complaint, Plaintiff cherry-picked portions which supported his narrative while ignoring those that undermined or contradicted it.1 Mr. Trump’s lawyers persisted in this misrepresentation after being warned by the sanctions motion, and they doubled down on this falsehood in their response to the motion.

[snip]

Even more telling are the portions of the Indictment ignored by Plaintiff. The Indictment alleges that Mr. Dolan and others were planning a business conference to be held in Moscow on behalf of businessmen seeking to explore investments in Russia. (DE 270-2 ¶ 21). Mr. Danchenko was introduced to Mr. Dolan in connection with business activities. (Id. ¶ 18).

Significantly the Indictment alleges two other facts relevant to and, if true, fatal to Plaintiff’s claim of conspiracy.

According to [Mr. Dolan], individuals affiliated with the Clinton Campaign did not direct, and were not aware of, the aforementioned meetings and activities with Danchenko and other Russian nationals.

***

According to [Mr. Dolan], he [Mr. Dolan] was not aware at the time of the specifics of Danchenko’s ‘project against Trump,’ or that Danchenko’s reporting would be provided to the FBI.

And with regard to the allegation about sexual activity, the Indictment alleges that Mr. Dolan and another individual were given a tour of a Moscow hotel in June 2016, told that Mr. Trump had previously stayed in the Presidential suite, and according to both Mr. Dolan and the other individual, the staff member who gave the tour did not mention any sexual or salacious activity. (Id. ¶¶ 60-61). The Indictment does not allege that the information concerning sexual activity was provided by Mr. Dolan.

The May 31, 2022 warning letter told the Trump lawyers that Mr. Dolan had been questioned by the FBI on multiple occasions, that the Danchenko Indictment detailed his contacts with Mr. Danchenko but did not indicate he “discussed any sexual rumors with Mr. Danchenko — because he did not.” (DE 268-1 at 2). The Indictment confirms that Mr. Dolan spoke to the FBI, and not only was he not charged with any falsehood, but his statements are included within the Indictment. The Indictment contradicts rather than supports Plaintiff’s allegations against Mr. Dolan. Far from being “sourced directly” and cited “word-for-word,” (DE 270 at 5), Plaintiff’s use of the Indictment is nothing short of a deliberate disregard of the truth or falsity of their claims. This is a textbook example of sanctionable conduct under Rule 11.

Rather than express any regret, Plaintiff doubled down on his claims: “Plaintiff’s allegation that Defendant was the source of the salacious sexual activity rumor has a legitimate factual basis and is based upon a well-reasoned theory that may well be proven correct during the [Office of Special Counsel’s] upcoming trial of Danchenko.” (DE 270 at 10).

It was never to be. In the Danchenko trial, Mr. Dolan was called as a witness by the government about matters unrelated to the Ritz Carlton rumors. The government never alleged that Mr. Dolan was a source for the Ritz Carlton story. See Order, United States v. Igor Y. Danchenko, Case No. 21-cr-00245-AJT at 5 (Oct. 4, 2022). And Mr. Danchenko was ultimately acquitted by the jury.

1 The “sourced directly” claim is untrue. For example, the Indictment says: “In or about April 2016, Danchenko and [Mr. Dolan] engaged in discussions regarding potential business collaboration between PR Firm-1 and UK Investigative Firm-1 on issues related to Russia.” (DE 270-2 ¶ 23). The Amended Complaint, however, states: “In late April 2016 Danchenko began having discussions with Dolan about a potential business collaboration between Orbis Ltd. and Kglobal to create a ‘dossier’ to smear Donald J. Trump and to disseminate the false accusations to the media.” (Am. Compl. ¶ 96(c)).

The order as a whole generated a lot of attention on the failed birdsite. But there was no self-awareness that the exercise that Habba engaged in with respect to Dolan and the Danchenko prosecution was similar to what a number of journalists (and a great number of right wingers and other frothers) themselves did, when the Danchenko indictment was rolled out last year.

For example, here’s what the WaPo claimed in a still-uncorrected report last year:

Durham says Danchenko [1] made up a conversation [2] he claimed was the source of one of the dossier’s most salacious claims, that Trump paid prostitutes at a Moscow hotel room to urinate on a bed in which President Barack Obama had once slept. The dossier also suggested Russian intelligence agencies had secretly recorded that event as potential blackmail material. Trump has denied any such encounter.

The indictment [3] suggests that story came from Dolan, who in June 2016 toured a suite at a hotel in Moscow that was once occupied by Trump. According to the indictment, Danchenko [4] falsely told Steele and the FBI that the information came from the president of the U.S. Russian-American Chamber of Commerce at the time.

All four of the above claims are not supported by the indictment, much less Danchenko’s published interviews with the FBI, which attributed the pee tape claim to someone else — though it is definitely the case that Durham encouraged such unsupported inferences.

Jonathan Swan condensed the same kinds of claims that Habba just got sanctioned for in one tweet.

Just one “rumor” was attributed to Dolan in the Danchenko indictment, the most provably true one (because it came from media coverage), and one about which — as the trial established — the FBI never once asked Danchenko, in significant part because it had nothing to do with Russia.

And while Middlebrook notes that Danchenko was acquitted, he doesn’t note that Judge Anthony Trenga dismissed the single Dolan count because the allegedly false statement Danchenko made about Dolan was “literally true.” That should not have been a surprising judgment. I noted problems with that charge exactly a year ago, when I catalogued all the sloppy reporting on the Danchenko indictment.

Middlebrook’s order makes for great reading. It’s fun to laugh at Habba getting called out.

But it should bring some reflection from the journalists who made the same kind of logical jumps that Habba did, but who cannot be sanctioned for professional failures.

Middlebrook may not be done. The other defendants have asked for sanctions, as well (though without doing the same preparation in advance to ask for Rule 11 sanctions). So Donald Trump’s lawyers may yet have the privilege of paying Peter Strzok and Hillary Clinton for the privilege of having sued them.

Update: Corrected Middlebrook’s name.

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Bill Barr Complains that His Special Counsel Was Unable to Match Robert Mueller’s Record of Success

October 21, 2022/64 Comments/in 2016 Presidential Election, 2020 Presidential Election, emptywheel, Mueller Probe /by emptywheel

Even before the Igor Danchenko trial, Billy Barr declared victory in defeat — arguing that if John Durham could just “fill in a lot of the blanks as to what was really happening,” the inevitable acquittal would still give Durham an opportunity to spin fairy tales about what Durham imagines happened.

“What these cases show is that these are difficult cases to win,” Barr said. “There’s a reason it takes so long, and you have to build up the evidence because at the end of the day, you’re going before these juries that aren’t going to be disposed to side with the people they view as supporting Trump.”

Danchenko is slated to go on trial next month on charges of lying to the FBI about the Steele dossier, for which he was the main source. The dossier claimed that Trump and members of his campaign and company had established extensive ties to the Russian government and had colluded during the 2016 election.

The trial is widely expected to be the final criminal prosecution from Durham’s investigation before he submits a report of his findings to Attorney General Merrick Garland.

But despite Durham’s limited success in the courtroom, Barr defended the investigation he ordered, saying the courtroom was allowing Durham to establish a record of what had occurred with the so-called Russiagate investigation.

“I think Durham got out a lot of important facts that fill in a lot of the blanks as to what was really happening,” Barr said. “My expectation is … the Danchenko trial will also allow for a lot of this story to be told, whether or not he’s ultimately convicted. I hope he’s convicted, but if he isn’t, I still think it provides an avenue to tell the story of what happened.”

Like an obedient puppy, Durham did use the trial as an opportunity to get extraneous details into the public record. On top of the $1 million dollar offer that Brian Auten said, vaguely, Christopher Steele might have gotten if he had corroborated the dosser — which has been treated like an FBI attempt to bribe a source for dirt on Trump and as the most exonerating possible detail, rather than an effort to investigate a real threat to the country — Durham went out of his way to give the full names of people at various meetings so Carter Page and Donald Trump can add them to lawsuits.

Mind you, along the way, the trial also revealed the FBI’s own assessment of Danchenko’s cooperation, which contributed to 25 investigations and which Barr burned to a crisp by exposing him, with Lindsey Graham’s help, as a source in 2020.

Q. And you were concerned, in July of 2020, when you became aware that Attorney General Barr was going to release a redacted version of Mr. Danchenko’s interview in January of 2017?

A. Yes.

Q. You were upset about that?

A. I was.

Q. You found out about that during a telephone conference, right?

A. I did.

Q. And you disagreed with that decision?

A. I did.

Q. The OIG had already completed a report on that investigation, correct?

A. Yes.

Q. And you thought that the release of that document was dangerous?

A. Yes.

Q. You even wrote up a memo of that phone call you were on in July of 2020 where you learned that they were going to publish a redacted version of his interview, correct?

A. I did.

[snip]

Q. And within an hour of Mr. Danchenko’s January interview being released to the senate judiciary committee, the senate judiciary committee, I won’t say who, released it to the public?

A. They did.

[snip]

Q. So, Agent Helson, you wrote in October of 2020 that from 2017 until present day, Mr. Danchenko had provided information on at least 25 FBI investigations assigned to at least six field offices?

A. Correct.

Q. In addition, he aided the United States Government by introducing the United States Government to a sub-source who had provided additional information separate to his report, correct?

A. Correct.

[snip]

Q. And it’s noted that he — his reporting contributed to at least 25 active FBI investigations.

[snip]

Q. In July of 2020 his identity became public after the release of the redacted version of his interview in January of 2017. Since that public disclosure, he has received threatening messages via social media and email. It’s resulted in significant damage to his reputation from false and baseless claims aimed to undermine his credibility. Those are your words, correct?

A. Correct.

Q. The Washington Field Office had assessed that this will have negative ramifications with respect to his ability to provide for his family via personal income for the foreseeable future, correct?

A. Correct.

Q. And while the FBI cannot promise complete anonymity to anyone who provides information, his identity became public only after the decision was made to release the redacted version of his interview, correct?

A. Correct.

Q. As a result of that act, his ability to continue to provide information viable to the FBI is diminished as is his ability to provide financial support to his family.

After the trial, Barr has been spending time on Fox News declaring — as much of the frothy right has — that this record, of how he deliberately harmed national security for revenge, exposed the corruption of what Barr calls “Russiagate,” the moniker frothers use to distract from the real substance of the Russian investigation.

I was disappointed, obviously. I think they did a good job prosecuting the case. Their ability to put evidence on, in a very difficult case, was limited by some rulings, and they weren’t able to get access to some witnesses overseas. So it was a tough — it was a tough case, so this should show people that it’s hard to win these cases, and sometimes it takes time to … to achieve justice. But as people say — I think Andy McCarthy said — the real public interest being served here was exposing the full extent of the corruption that was involved in Russiagate [sic] and the abuse by the FBI in that whole episode. And I think Durham is going to get a report out that’s gonna lay out all the facts.

Barr and everyone else are pointing to the exposures they and Durham made to justify their actions because they didn’t have evidence to support their claims.

Barr is whining that getting false statements convictions is hard. But Robert Mueller was able to prove that:

  • Alex Van der Zwaan lied to cover up his efforts, in conjunction with Konstantin Kilimnik and Rick Gates, to cover up Manafort’s effort to spin Ukraine’s politicized Yulia Tymoshenko prosecution during the 2016 election
  • George Papadopoulos lied to cover up his advance knowledge of the Russian effort to help Trump
  • Mike Flynn lied to cover up his back channel calls with Sergei Kislyak to undermine Obama Administration policy (and also that he was a paid agent of Turkey during the campaign)
  • Michael Cohen lied to hide the secret negotiations he had directly with the Kremlin about an impossibly lucrative real estate deal
  • Paul Manafort conspired to cover up a front organization he set up with Konstantin Kilimnik and (at a preponderance of the evidence standard) lied to cover up his August 2016 meeting with Kilimnik
  • Roger Stone lied and intimidated Randy Credico to cover up his real back channel to the Russian operation

I mean, Robert Mueller had no problem getting convictions, whether from guilty pleas, jury verdicts, or (in the case of Manafort’s lies about the August 2, 2016 meeting) a judge’s ruling.

One reason he had no problem was that these defendants were generally guilty of a lot more than just lying. It’s a lot easier to get Flynn to admit he lied about his back channel discussions with the Russian Ambassador, after all, when he was also on the hook for secretly being an agent of Turkey. It’s lot easier to get Papadopoulos to admit he lied about his advance warning of the Russian operation when he’s trying to stave off foreign agent charges tied to Israel. It’s a lot easier to get a jury verdict against Stone when he spent months plotting out his lies with multiple people on emails.

Mueller wasn’t able to get false statement verdicts from everyone, mind you. For example, because Steve Bannon and Erik Prince deleted their texts from early January 2017, Mueller did not charge them for false statements made to cover up meetings to set up a back channel with UAE and Russia. That’s one lesson that Durham should have taken to heart: Absent the mobile app records from Sergei Millian and Igor Danchenko, he had no way of knowing whether Millian called Danchenko on July 26, 2016.

That’s not the only evidentiary complaint Barr makes here. He’s complaining that Durham was unable to get hearsay admitted against Danchenko. He’s angry that Durham was not permitted to introduce Millian’s wild Twitter boasts as evidence without requiring Millian to show up and make those claims under oath. And he’s complaining that Durham wasn’t able to introduce his pee tape conspiracies without charging it.

But the most alarming of the former Attorney General’s statements — before and after the trial — embrace the notion that it is a proper goal of failed prosecutions to expose information that does not rise to the level of criminality.

As I’ll show in a follow-up, the Durham fiasco is part of a piece of Barr’s larger actions, both his other failed prosecutions — most notably, that of Greg Craig — but also his efforts to undo the convictions for which there was no reasonable doubt of guilt.

It’s not enough to talk about Durham’s unprecedented failure … it’s not enough to note that Durham and his prosecutors repeatedly failed to take basic investigative steps before embracing and charging conspiracy theories that juries didn’t buy … it’s not enough to note how, in an attempt to prove those conspiracy theories, Durham and his prosecutors and abused the prosecutorial system.

Durham’s entire project is a continuation of Barr’s unprecedented politicization of DOJ, one that not only places Republicans attempting to secretly work for hostile nations above the law, but that has made the country far less safe in many other ways.

It’s not just Durham prosecuted two men without any real hope of winning conviction, all to expose things that aren’t crimes. It’s that Billy Barr hired him to do just that.

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John Durham Avenged Warrants Targeting Carter Page by Getting a Warrant Targeting Sergei Millian

October 19, 2022/9 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

In both his opening and closing statements, John Durham prosecutor Michael Keilty described the materiality of the alleged lies Igor Danchenko told the FBI about Sergei Millian by pointing to the role the Steele report on Millian played in getting FISA warrants targeting Carter Page.

The evidence in this trial will show that the Steele dossier would cause the FBI to engage in troubling conduct that would ultimately result in the extended surveillance of the United States citizens. And the defendant’s lies played a role in that surveillance.

[snip]

So let’s now talk about why the defendant’s lies matter. The defendant’s lies about Sergei Millian mattered because the information he allegedly received from Millian ended up in a FISA warrant against a U.S. citizen, one of the most intrusive tools the FBI has at its disposal. The FBI gets to listen to your calls and read your emails. It’s a really significant thing.

You heard Brian Auten testify that that Millian information — alleged Millian information was contained in every single FISA application on four different occasions. The FBI surveilled a U.S. citizen for nearly a year based on those lies.

Even accepting the problems of the FISA warrants, the claim never made any sense.

According to the trial record, Danchenko’s information didn’t end up in FISA applications. Language Christopher Steele wrote based on Danchenko’s information did. Danchenko claimed that Steele had exaggerated it, and even after interviewing Steele twice, the FBI believed Danchenko.

Keilty was accusing Danchenko of doing something that — no one has contested — that Steele did, not Danchenko.

Plus, two of the alleged lies took place after the FBI had ceased surveilling Page, in October and November 2017. Even if Danchenko did lie, it would defy the laws of physics to blame those alleged lies for surveillance that ended in September.

Crazier still, one reason why DOJ retroactively withdrew the probable cause claims for the last two FISA orders on Page, obtained in April and June 2017, is because FBI didn’t integrate the warnings Danchenko gave them about the report in the applications. Danchenko is the last person you should blame for the FISA surveillance of Page. He claims he didn’t even know the reports were being shared with the FBI!

The obvious problems with this claim have not stopped stupid propagandists like Margot Cleveland from repeating the nonsensical claim.

It all the weirder, though, when you consider that John Durham was himself responsible for obtaining senseless search warrants against two American citizens.

First, there are the warrants Durham served to obtain Chuck Dolan’s communication, as Stuart Sears had Dolan explain on cross examination.

Q You’re aware, Mr. Dolan, aren’t you, that the government was investigating you at some point?

A Yes.

Q You’re aware that they issued search warrants and subpoenas for your email communications?

A Yes.

Q You’re aware that they issued subpoenas for your phone records?

A Yes.

Q Your work email records?

A Yes.

Q Your Facebook records?

A Yes.

As Sears had Dolan explain, those warrants yielded nothing to refute his claim never to have “talked” to Danchenko about anything that appeared in the dossier.

Q And I think you have already testified to this, but even knowing everything that the government has done to look into you, it’s still your testimony today that you’ve never talked to Mr. Danchenko about anything that ended up in the dossier, correct?

A Correct.

Last Friday, in dismissing the single count pertaining to Dolan, Judge Trenga ruled that any evidence these warrants targeting Dolan yielded did not prove a crime.

And Durham also obtained warrants targeting Sergei Millian — one of his purported victims! — who at least in 2016 had dual citizenship. Durham had his case agent, Ryan James, describe all the surveillance Durham did of Millian.

Q With respect to those documents, tell the ladies and gentlemen of the jury whether you personally have been involved in sorting through those records.

A Yes, I have.

Q Travel records, the travel records relating to Sergei Millian was brought to the jury’s attention. Who obtained those records?

A Our team did.

[snip]

Q The jury has heard testimony relating to a number of telephone numbers involved with a fellow by the name of Sergei Millian. Would you tell the jury, sir, whether or not you have any knowledge about records and information being retrieved concerning Sergei Millian.

A Our team requested legal process on some of his numbers that we’ve identified that belong to him.

Q When you say legal process, just so the jurors have an understanding of that, what kind of legal process would typically be involved in getting those records?

A In this particular case, subpoenas.

Q All right. And in addition to subpoenas, do you know if Facebook records and the like were retrieved using the leal process?

A Yes.

Q And what kind of legal process was used to obtain those records?

A Those would be via search warrants.

Even more than the Facebook warrant, Durham’s collection of Millian’s travel records — all the way through current day! — are probably more intrusive on Millian’s privacy.

Q Now, let me start, if I might then. With regard to the records in this matter, you’ve told the jurors that among those records that you obtained were travel records for Sergei Millian, correct?

A Yes.

Q And with respect to Millian’s travel records, how would you describe them? Were they plentiful or there was one or two? What’s your best recollection as to Millian’s travel records?

A I would say he frequently comes in and out of this country.

Q Based on your review of all the travel records, has he been in the country anytime recently?

A No.

It’s too early to say whether any of these records included evidence of a crime. After all, DOJ’s KleptoCapture complaint against Elena Branson shows that one of Millian’s colleagues at the Russian-American Chamber of Commerce viewed the requirement to register under FARA as a “problem” way back in 2013.

But according to an EDVA jury, any evidence the warrants and subpoenas targeting Millian obtained did not prove Danchenko committed a crime.

Durham unpacked the digital lives of two American citizens, plus Danchenko, partly through search warrants that he attacked Mueller’s investigators for not obtaining.

And unless the evidence obtained ends up being used to show that Millian was an illegal foreign agent of Russia, that evidence did not provide that anyone committed a crime.

The right wing is defending John Durham today because he avenged an American who was unfairly targeted by a warrant. And along the way, they seem to have missed that Durham himself obtained a bunch of apparently pointless search warrants targeting American citizens, including Trump fan Sergei Millian.

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Igor Danchenko Acquitted on All Remaining Charges

October 18, 2022/131 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

NYT, Politico, and HuffPo are all reporting that the jury has acquitted Igor Danchenko on all four remaining charges against them.

Shortly before they did so, the jury had asked for a report that had been used to refresh Danchenko handling agent’s memory about why Danchenko had not corrected Christopher Steele’s incorrect memories about their conflicting Millian stories in 2017. There was an extended exchange before Danchenko’s lawyers noted — having won a fight to exclude Christopher Steele’s testimony pre-trial — that this was hearsay.

Q. If you take a look at Government’s Exhibit 103 and see if that refresh your recollection as to whether or not there was yet another occasion that you raised or asked questions of Mr. Danchenko relating to these matters?

A. Yes.

Q. And when was it that you met with Mr. Danchenko and Millian came up again?

A. I’m looking at the wrong —

Do you have Government’s Exhibit 103 there?

A. I have one — oh, here we go, yes.

Q. Okay.

A. So it’s November the 2nd.

Q. Okay. So why don’t you just take a moment and look at that and see if that refreshes your recollection as to the date which you met with Mr. Danchenko and the Millian matter came up yet again?

A. Yes.

Q. And what was the date?

A. November the 2nd, 2017.

Q. All right. And on November 2nd, 2017, was that some kind of telephone connection or was that a face-to-face meeting?

A. That was a face-to-face.

Q. So you are with him? He’s not like — no interference in the phone or anything, right?

A. Correct.

Q. Do you recall, sir, why it was that you had occasion to go back to, yet again, ask about this Millian piece in November of 2017?

A. There had been — this, I think, goes to the fact that Brian was still saying there was inconsistency in what Mr. Danchenko was saying as opposed to what Mr. Steele was saying with respect to Millian’s — his connection or his contact with Millian.

Q. And so tell the ladies and gentlemen of the jury on November 2nd now, of 2017 — on October 24th, he now says that there were a couple of calls. Now, on November 2nd, you’re confronting him now about what he told Steele regarding him actually meeting with Millian, correct?

A. Correct.

Q. And with respect to what you were asking Mr. Danchenko on November 2nd, what is it that Mr. Danchenko told you regarding Steele and what he had told Steele or not told Steele about meeting with Millian?

A. He said that Steele had the idea — that Steele believes that Mr. Danchenko had met in person and he never corrected Mr. Steele’s thought in that, is that he was pretty much tired of talking about it. He — Steele was pressuring him to answer questions that Steele — that Millian could potentially answer. So the pressure was get with Millian, get a report, and Igor was — I let him have what I — I told him what I know and he still believed that I was in — it was an in-person meeting and I never corrected him because I was tired of talking about it.

MR. SEARS: Your Honor, I apologize to interrupt, but to the extent Mr. Steele’s comments are coming in, my understanding is that they would not be for the truth of the matter asserted —

THE COURT: Correct.

MR. SEARS: — just because the agent heard —

THE COURT: Right.

MR. SEARS: It might be appropriate to inform the jury.

And then minutes later they came back with an acquittal on all charges.

Here’s a comparison about Durham’s work compared to Mueller’s:

WaPo has this from a juror:

The jury in Danchenko’s case deliberated for about nine hours over two days. Juror Joel Greene said in an interview that there were no holdouts in the deliberations and that the decision was “pretty unanimous.”

“We looked at everything really closely,” said Greene, who declined to comment on the politics of the case. “The conclusion we reached was the conclusion we all were able to reach.”

And from Danchenko:

After the verdict was announced, Danchenko choked up and embraced his defense attorneys, Stuart A. Sears and Danny C. Onorato. Danchenko declined to comment, but Sears said outside the courthouse “we’ve known all along that Mr. Danchenko is innocent.”

“We’re happy now that the American public knows that as well,” he said.

Politico’s Kyle Cheney caught Durham making the same canned comment after this face-planting loss as he did after the Sussmann acquittal.

emptywheel coverage of the Danchenko case

John Durham’s Last Word: An Outright Lie about the Mueller Conclusions

John Durham’s Missing Signals (and FaceTime and WhatsApp and iPad)

John Durham Created a False Pee Tape Panic Based Off a “Literally True” Alleged Lie

As John Durham Preps for his Closing Report, His Own Withholdings become Key

“It Certainly Sounds Creepy:” John Durham Adopts the “Coffee Boy” Defense

John Durham Twice Misread Steele Dossier Sourcing to Invent a Partisan Claim

John Durham’s Re-Virgined Birth of the Carter Page and Sergei Millian Investigations

Igor Danchenko Would Have Been a Crucial Witness to Understanding the Disinformation in the Dossier

Anthony Trenga Smothers the Frothers’ Hopes for a Pee Tape Trial … But Not the Damage Done by Credulous Press

FBI Approved Igor Danchenko as a Source before It Stopped Doing Back-Door FISA Searches to Vet Informants

John Durham Wants to Lecture EDVA Jurors about Being Played by Foreign Spies

On the Belated Education of John Durham

Durham Admits He Has No Real Evidence on Four Millian Counts against Igor Danchenko

“Desperate at Best:” Igor Danchenko Starts Dismantling John Durham’s Case against Him

John Durham’s Igor Danchenko Case May Be More Problematic than His Michael Sussmann Case

The Disinformation that Got Told: Michael Cohen Was, in Fact, Hiding Secret Communications with the Kremlin

On CIPA and Sequestration: Durham’s Discovery Deadends

In Story Purporting to “Reckon” with Steele’s Baseless Insinuations, CNN Spreads Durham’s Unsubstantiated Insinuations

Aleksej Gubarev Drops Lawsuit after DOJ Confirms Steele Dossier Report Naming Gubarev’s Company Came from His Employee

John Durham’s Cut-and-Paste Failures — and Other Indices of Unreliability

John Durham: Destroying the Purported Victims to Save Them

Source 6A: John Durham’s Twitter Charges

Daisy-Chain: The FBI Appears to Have Asked Danchenko Whether Dolan Was a Source for Steele, Not Danchenko

“Yes and No:” John Durham Confuses Networking with Intelligence Collection

John Durham May Have Made Igor Danchenko “Aggrieved” Under FISA

 

 

 

 

 

 

 

 

 

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