Posts

The Yahoo Story about All the Things CIA Wasn’t Allowed to Do Against WikiLeaks

When last we saw Zach Dorfman get a big scoop, he managed to present claims about Eric Swalwell appropriately cooperating with the FBI in a counterintelligence investigation so wildly out of context that the story fed false claims about Swalwell for most of a year.

His big story about Mike Pompeo’s vendetta against WikiLeaks — with Sean Naylor and Michael Isikoff — is bound to be a similar example.

Wherein paragraph 100-something debunks paragraphs 1 and 2

The first two paragraphs claim that there were discussions about assassinating Julian Assange.

In 2017, as Julian Assange began his fifth year holed up in Ecuador’s embassy in London, the CIA plotted to kidnap the WikiLeaks founder, spurring heated debate among Trump administration officials over the legality and practicality of such an operation.

Some senior officials inside the CIA and the Trump administration even discussed killing Assange, going so far as to request “sketches” or “options” for how to assassinate him. Discussions over kidnapping or killing Assange occurred “at the highest levels” of the Trump administration, said a former senior counterintelligence official. “There seemed to be no boundaries.”

Paragraph 12 says that lots of those things described in paragraphs one and two weren’t approved.

There is no indication that the most extreme measures targeting Assange were ever approved, in part because of objections from White House lawyers, but the agency’s WikiLeaks proposals so worried some administration officials that they quietly reached out to staffers and members of Congress on the House and Senate intelligence committees to alert them to what Pompeo was suggesting. “There were serious intel oversight concerns that were being raised through this escapade,” said a Trump national security official.

Around about paragraph 67 the piece describes Mike Pompeo asking for “the art of the possible,” something CIA Directors have a history of doing as a way to think outside the box.

Soon after the speech, Pompeo asked a small group of senior CIA officers to figure out “the art of the possible” when it came to WikiLeaks, said another former senior CIA official. “He said, ‘Nothing’s off limits, don’t self-censor yourself. I need operational ideas from you. I’ll worry about the lawyers in Washington.’” CIA headquarters in Langley, Va., sent messages directing CIA stations and bases worldwide to prioritize collection on WikiLeaks, according to the former senior agency official.

Around the 90s, Yahoo claims someone learned second-hand that Trump asked about killing Assange, but then suggests that wasn’t real, then describes top CIA officials talking about killing Assange, then admits such plans may have never gotten to the White House.

Some discussions even went beyond kidnapping. U.S. officials had also considered killing Assange, according to three former officials. One of those officials said he was briefed on a spring 2017 meeting in which the president asked whether the CIA could assassinate Assange and provide him “options” for how to do so.

“It was viewed as unhinged and ridiculous,” recalled this former senior CIA official of the suggestion.

It’s unclear how serious the proposals to kill Assange really were. “I was told they were just spitballing,” said a former senior counterintelligence official briefed on the discussions about “kinetic options” regarding the WikiLeaks founder. “It was just Trump being Trump.”

Nonetheless, at roughly the same time, agency executives requested and received “sketches” of plans for killing Assange and other Europe-based WikiLeaks members who had access to Vault 7 materials, said a former intelligence official. There were discussions “on whether killing Assange was possible and whether it was legal,” the former official said.

Yahoo News could not confirm if these proposals made it to the White House. Some officials with knowledge of the rendition proposals said they had heard no discussions about assassinating Assange.

And then well past paragraph 100, Yahoo admits the plans to assassinate Assange went nowhere, in significant part because doing so would be illegal.

A primary question for U.S. officials was whether any CIA plan to kidnap or potentially kill Assange was legal. The discussions occurred under the aegis of the agency’s new “offensive counterintelligence” authorities, according to former officials. Some officials thought this was a highly aggressive, and likely legally transgressive, interpretation of these powers.

Without a presidential finding — the directive used to justify covert operations — assassinating Assange or other WikiLeaks members would be illegal, according to several former intelligence officials. In some situations, even a finding is not sufficient to make an action legal, said a former national security official. The CIA’s newfound offensive counterintelligence powers regarding WikiLeaks would not have stretched to assassination. “That kind of lethal action would be way outside of a legitimate intelligence or counterintelligence activity,” a former senior intelligence community lawyer said.

In the end, the assassination discussions went nowhere, said former officials.

The idea of killing Assange “didn’t get serious traction,” said a former senior CIA official. “It was, this is a crazy thing that wastes our time.”

As to the discussions of kidnapping Assange, both the UK and NSC nixed those ideas, though White House Counsel lawyer John Eisenberg (who is presented as the hero of the Yahoo story, and who was a national security lawyer at DOJ during the Bush Administration when such things did get approved) worried that CIA would do it without alerting him and others, and so pressed DOJ to indict Assange if they were going to.

“There was a discussion with the Brits about turning the other cheek or looking the other way when a team of guys went inside and did a rendition,” said a former senior counterintelligence official. “But the British said, ‘No way, you’re not doing that on our territory, that ain’t happening.’” The British Embassy in Washington did not return a request for comment.

In addition to diplomatic concerns about rendition, some NSC officials believed that abducting Assange would be clearly illegal. “You can’t throw people in a car and kidnap them,” said a former national security official.

In fact, said this former official, for some NSC personnel, “This was the key question: Was it possible to render Assange under [the CIA’s] offensive counterintelligence” authorities? In this former official’s thinking, those powers were meant to enable traditional spy-versus-spy activities, “not the same kind of crap we pulled in the war on terror.”

In short, this is a very long story that spends thousands of words admitting that its lead overstates how seriously this line of thought, particularly assassination, was pursued.

I will have lots more to say about several things that discredit this story. But for now that’s the important thing: The story admits that the story oversells its lead.

Yahoo describes the changing view regarding WikiLeaks

The story is useful because it lays out a chronology that few people understand, how over years the US view on Assange gradually changed (the view is entirely based on “former” officials and likely doesn’t reflect even what happened with Assange in the last years of the Trump Administration). The events it describes that led to a gradual change in the way the US treated Assange as depicted in this story are:

  • In response to the 2010 releases, the Obama Administration, “restricted investigations into Assange and WikiLeaks”
  • “In the wake of the Snowden revelations, the Obama administration allowed the intelligence community to prioritize collection on WikiLeaks,” no longer requiring a warrant for intel; but when “top intelligence officials” tried to get the White House to deem people like Laura Poitras and Glenn Greenwald “information brokers,” Obama refused
  • In spite of the changes described as occurring in 2013, in 2015 DOJ remained, “very protective,” of its authorities over whether to charge Assange and whether to treat WikiLeaks “like a media outlet”
  • “The events of 2016 ‘really crystallized’ U.S. intelligence officials’ belief that the WikiLeaks founder ‘was acting in collusion with people who were using him to hurt the interests of the United States,’ … But there was still ‘sensitivity on how we would collect on them.'” [Yahoo says NSA “surveilled” Guccifer 2.0’s Twitter accounts but we know that DOJ obtained warrants to read them, as well, which it doesn’t mention]
  • Yahoo presents a series of seemingly conflicting claims about how things changed in 2016, but does say that shortly before Trump took over Obama’s view on WikiLeaks underwent a “sea change”
  • On April 13, 2017, over a month after the first Vault 7 releases, Pompeo declared WikiLeaks a non-state hostile intelligence agency, thereby accessing “offensive counterintelligence” activities to use against WikiLeaks, including disruption efforts (though the article suggests none were ever used); this label did result in far more collection on WikiLeaks associates traveling around the world
  • In summer 2017, Pompeo embraced proposals to kidnap Assange, which was ultimately pitched to the British, but they refused and NSC officials argued it would be illegal
  • In December 2017, the Five Eyes worked together to thwart a believed Russian exfiltration attempt, and on the same day, DOJ charged Assange by complaint
  • In April 2019, Assange was booted from the Embassy and arrested under a single CFAA count, which DOJ has twice superseded (Yahoo makes no mention of the second superseding indictment and the story seems to drop well before the end of the Trump Administration; it makes no mention of whether Gina Haspel continued the policies pursued by Pompeo after he moved to State in 2018)

The timeline laid out here conflicts with virtually everything Assange claimed about the genesis of his charges during his extradition hearing: showing that Assange’s help getting Snowden out of Hong Kong is what started the process of revising views of WikiLeaks, showing that the US changed their understanding of Assange in 2016, not in 2017, as Assange repeatedly claimed in his extradition hearing, and showing that things really started ratcheting up after the Vault 7 release, at a time when Assange was also under investigation for several things unrelated to journalism (though Yahoo doesn’t mention those investigations, even though they are public), and was therefore separate from Trump’s election or Jeff Sessions’ later leak-driven commitment to crack down on journalists.

In short, amidst a jillion words making claims that the article itself discredits, the article proves that Assange lied, repeatedly, in his extradition hearing, and that the precipitating event in originally charging him was credible information about a Russian exfiltration plot.

Roger Stone reporter Michael Isikoff appears to be unfamiliar with the entire Roger Stone case

One thing that this story never explains is why, if the entire Trump Administration were so opposed to Assange as they claim, Pompeo would have to declare WikiLeaks a non-state hostile intelligence service rather than relying on a Presidential finding to spy on WikiLeaks’ associates.

The immediate question facing Pompeo and the CIA was how to hit back against WikiLeaks and Assange. Agency officials found the answer in a legal sleight of hand. Usually, for U.S. intelligence to secretly interfere with the activities of any foreign actor, the president must sign a document called a “finding” that authorizes such covert action, which must also be briefed to the House and Senate intelligence committees. In very sensitive cases, notification is limited to Congress’s so-called Gang of Eight — the four leaders of the House and Senate, plus the chairperson and ranking member of the two committees.

But there is an important carveout. Many of the same actions, if taken against another spy service, are considered “offensive counterintelligence” activities, which the CIA is allowed to conduct without getting a presidential finding or having to brief Congress, according to several former intelligence officials.

Often, the CIA makes these decisions internally, based on interpretations of so-called “common law” passed down in secret within the agency’s legal corps. “I don’t think people realize how much [the] CIA can do under offensive [counterintelligence] and how there is minimal oversight of it,” said a former official.

That’s what gave Pompeo broader authorities to operate on his own (and thereby creating the risk he might try to assassinate Assange without White House knowledge). But it’s also what limited his options legally. Had Pompeo gotten a finding, kidnapping and assassination would be less obviously prohibited, and just the Gang of Eight would have been briefed. But by making this announcement publicly, everyone learned about it. Ron Wyden predictably raised concerns (and there was a perennial battle over whether Congress would agree with Pompeo’s label as a sense of Congress).

Effectively, Pompeo got fewer authorities and more political pushback, literally the opposite of why Yahoo claims why he went this route.

I don’t know the answer. But I do know that this story’s treatment of Trump is bizarre and ignores a lot of known facts, so it’s possible the answer is the most obvious one: Pompeo couldn’t get a Presidential finding because the President wouldn’t sign off.

As noted above, the article does describe that a source heard second-hand that Trump asked for options to kill Assange, though it doesn’t date it more specifically than spring 2017 and dismisses the statement as one of Trump’s routine attacks.

The story describes that Mike Pompeo was terrified of briefing Trump on the Vault 7 breach, the first releases of which were published on March 7, 2017.

Pompeo, apparently fearful of the president’s wrath, was initially reluctant to even brief the president on Vault 7, according to a former senior Trump administration official. “Don’t tell him, he doesn’t need to know,” Pompeo told one briefer, before being advised that the information was too critical and the president had to be informed, said the former official.

It doesn’t explain, then, whether Pompeo, or Jim Comey, was the source of the briefing that Trump promptly shared with Tucker Carlson literally the day when the FBI would first interview suspected Vault 7 source Joshua Schulte in an urgent attempt to prevent him from fleeing the country with his diplomatic passport. It sure as hell doesn’t explain how the President, in his first known big leak of classified information, almost blew the entire Vault 7 investigation, and how that’s consistent with a plan to assassinate Assange.

Even crazier, especially given Michael Isikoff’s participation in the story, is that there’s no mention of the disclosures that came out as part of the Roger Stone investigation and the Mueller investigation more generally.

No later than November 15 (and possibly even before the election), Trump’s rat-fucker was working with Assange’s lawyer brokering a pardon deal.

In April, Stone called on Pompeo to resign for his comments in the wake of Vault 7.

Stone took to InfoWars on April 18, calling on Pompeo to either provide proof of those Russian ties or resign, defending the release of the Vault 7 tools along the way.

The Intelligence agencies continue to insist that Julian Assange is an active Russian Agent and that Wikileaks is a Russian controlled asset. The agencies have no hard proof of this claim whatsoever. Assange has said repeatedly that he is affiliated with no nation state but the Intelligence Agencies continue to insist that he is under Russian control because it fits the narrative in which they must produce some evidence of Russian interference in our election because they used this charge to legally justify and rationalize the surveillance of Trump aides, myself included.

[snip]

President Donald Trump said on Oct, 10, 2016 “I love Wikileaks” and Pompeo who previously had praised the whistleblowing operation now called Wikileaks “a non-state hostile Intelligence service often abetted by state actors like Russia”. Mr. Pompeo must be pressed to immediately release any evidence he has that proves these statements. If he cannot do so ,the President should discharge him.

[snip]

Julian Assange does not work for the Russians. Given the import of the information that he ultimately disclosed about the Clinton campaign, the Obama administration and the deep secrets in the CIA’s Vault 7, he has educated the American people about the tactics and technology the CIA has used to spy on ordinary Americans.

Assange personally DMed Stone to thank him for the article, while claiming that Pompeo had stopped short of claiming that WikiLeaks had gotten the stolen DNC emails directly, thereby making WikiLeaks like any other media outlet.

On or about April 19, 2017, Assange, using Target Account 2, wrote to Stone, “Ace article in infowars. Appreciated. But note that U.S. intel is engages in slight of hand maoevers [sic]. Listen closely and you see they only claim that we received U.S. election leaks \”not directly\” or via a \”third party\” and do not know \”when\” etc. This line is Pompeo appears to be getting at with his \”abbeted\”. This correspnds to the same as all media and they do not make any allegation that WL or I am a Russia asset.”

The Mueller investigation even showed that in the very same time period where Pompeo was considering assassination attempts on Assange, Trump’s rat-fucker was leveraging the “highest level of Government” to address Assange’s issues.

On June 10, 2017, according to affidavits submitted as part of the Mueller investigation, Roger Stone DMed Julian Assange and told him he was doing everything he could to “address the issues at the highest level of Government.”

57. On or about June 10, 2017, Roger Stone wrote to Target Account 2, “I am doing everything possible to address the issues at the highest level of Government. Fed treatment of you and Wikileaks is an outrage. Must be circumspect in this forum as experience demonstrates it is monitored. Best regards R.” Target Account 2 wrote back, “Appreciated. Of course it is!”

Nine days after the rat-fucker who had a notebook that recorded all the communications he had with Trump during the election described working at the highest level of government to help Assange, Trump attempted to shut down the entirety of the hack-and-leak investigation.

On June 19, 2017, according to the Mueller Report, the President dictated a message for Corey Lewandowski to take to Jeff Sessions, telling the (recused) Attorney General to meet with Robert Mueller and order him to limit his investigation only to future election meddling, not the election meddling that had gotten Trump elected.

During the June 19 meeting, Lewandowski recalled that, after some small talk, the President brought up Sessions and criticized his recusal from the Russia investigation.605 The President told Lewandowski that Sessions was weak and that if the President had known about the likelihood of recusal in advance, he would not have appointed Sessions.606 The President then asked Lewandowski to deliver a message to Sessions and said “write this down.” 607 This was the first time the President had asked Lewandowski to take dictation, and Lewandowski wrote as fast as possible to make sure he captured the content correctly.608 The President directed that Sessions should give a speech publicly announcing:

I know that I recused myself from certain things having to do with specific areas. But our POTUS . .. is being treated very unfairly. He shouldn’t have a Special Prosecutor/Counsel b/c he hasn’t done anything wrong. I was on the campaign w/ him for nine months, there were no Russians involved with him. I know it for a fact b/c I was there. He didn’t do anything wrong except he ran the greatest campaign in American history.609

The dictated message went on to state that Sessions would meet with the Special Counsel to limit his jurisdiction to future election interference:

Now a group of people want to subvert the Constitution of the United States. T am going to meet with the Special Prosecutor to explain this is very unfair and let the Special Prosecutor move forward with investigating election meddling for future elections so that nothing can happen in future elections.610

Days after Roger Stone told Julian Assange that he was trying to resolve matters at the highest level of government, the President of the United States tried to issue a back channel order that would shut down the investigation into Assange — and by association, Stone.

And it went on like that for some time, possibly up to the time when Mueller asked Trump about any pardon discussions for Assange. Only after that did Don Jr’s buddy tell former Sputnik employee Cassandra Fairbanks that the pardon discussion was off, whereupon she flew to London to tell Assange herself.

Particularly pertinent to the question of why CIA was working via offensive counterintelligence authorities rather than a Presidential finding, in October, after weeks of prodding from Trump, Pompeo took a meeting with Bill Binney to hear a theory that would have undermined the entire Intelligence Community’s attribution of the DNC hack via which emails shared with WikiLeaks were stolen. According to The Intercept’s report of the meeting, it led others in the Intelligence Community to worry that Pompeo had stopped heeding intelligence, particularly regarding Russia, that Trump didn’t like.

Some senior CIA officials have grown upset that Pompeo, a former Republican representative from Kansas, has become so close to Trump that the CIA director regularly expresses skepticism about intelligence that doesn’t line up with the president’s views. Pompeo has also alienated some CIA managers by growing belligerent toward them in meetings, according to an intelligence official familiar with the matter.

[snip]

[I]ndications of Pompeo’s willingness to support Trump at the risk of tainting the intelligence process have occasionally broken into the open in recent months. In August, the Washington Post reported that Pompeo had taken the unusual step of having the CIA’s Counterintelligence Mission Center, which would likely play a role in any inquiries by the agency into Russian election meddling, report directly to him. That move has raised concerns within the agency that Pompeo is seeking to personally control the CIA’s efforts to investigate accusations of collusion between the Trump campaign and Russia.

At the very least, by fall this put Pompeo in a more precarious position regarding his vendetta against Assange.

The thing is, the hero of this Yahoo story, John Eisenberg, must know parts of this story, because he was a key part of efforts to protect Trump. He played a role in protecting Mike Flynn after he lied to the FBI and an even bigger role in protecting Trump after he tried to coerce election help from Ukraine, so who knows what his motives really are here. But he certainly must know these details … but they don’t show up in the story.

Crazier still, Isikoff must know parts of these stories, because he reported on the Stone case.

Yet not only don’t those details appear in this story, but the depiction of an entire Administration, save for heroes like John Eisenberg, intent on assassinating Julian Assange is inconsistent with those public facts about Trump’s repeated efforts to undermine any attribution implicating Assange to say nothing of discussions of pardons for Assange.

The truth may be somewhere in the middle, with Trump vacillating between wanting to kill Assange and wanting to liberate him (in this story, however, he’s quoted complaining that Assange was treated badly). But what the President did to undermine the investigation targeting Assange seems to be as important a part of this story as the claim that he mouthed off once about the possibility of assassinating Assange, something he has done with a slew of other journalists and perceived enemies.

The UC Global timeline

Among all the 30 sources cited in the story and the reports that CIA ratcheted up spying on WikiLeaks associates under Pompeo, Yahoo didn’t succeed in getting more clarity on the — by the end of 2017 — very intrusive surveillance of Assange inside the Ecuadorian Embassy by a contractor called UC Global, citing just one source confirming the US did have access to video surveillance without even naming UC Global or revealing which agency UC Global was working with.

A former U.S. national security official confirmed that U.S. intelligence had access to video and audio feeds of Assange within the embassy but declined to specify how it acquired them.

So instead of new information from those 30 sources, Yahoo instead relies on the prior reports from some UC Global whistleblowers. As I noted here, based on their Assange extradition hearing testimony, one of them is quite credible while the other is far less so.

It’s important that Yahoo relies on the whistleblowers, because it provides another way, along with the public details they inexplicably leave out, to test their narrative. Yahoo describes, accurately, that UC Global was sharing information with the US by mid-2017 (the credible witness described key developments in June and July).

By late 2015, Ecuador had hired a Spanish security company called UC Global to protect the country’s London embassy, where Assange had already spent several years running WikiLeaks from his living quarters. Unbeknownst to Ecuador, however, by mid-2017 UC Global was also working for U.S. intelligence, according to two former employees who testified in a Spanish criminal investigation first reported by the newspaper El País.

Yahoo doesn’t note, however, that data collection first started to expand in 2016, and formal vetting for what was presumably this relationship started by January 24, 2017, just one day after Pompeo was confirmed.

I also recall that once Donald Trump won the elections, at the end of 2016, the collection of information intensified as Morales became more obsessed with obtaining as much information as possible.

[snip]

On 24 January 2017, once Donald Trump had acceded to the presidency of the United States, David Morales sent a message over Telegram in which he wrote, “Well, I want you to be alert because I am informed that we are being vetted, so everything that is confidential should be encrypted […] That’s what I’m being told. Everything relates to the UK issue. I am not worried about it, just be alert […] The people vetting are our friends in the USA”.

That is, this process started after WikiLeaks’ cooperation with Russia in 2016 caused a “sea change” in US treatment of Assange, but before Pompeo’s vendetta in response to Vault 7.

And while the surveillance absolutely ratcheted up during that summer (so potentially consistent with Pompeo’s vendetta, but also at a time when WikiLeaks was also under several different criminal investigations), Yahoo neglects to mention that the really intrusive surveillance came in December, at the same time (it reports) that the IC had credible reports of an exfiltration attempt.

In early December 2017, I was instructed by David Morales to travel with a colleague to install the new security cameras. I carried out the new installation over the course of several days. I was instructed by Morales not to share information about the specifications of the recording system, and if asked to deny that the cameras were recording audio. I was told that it was imperative that these instructions be carried out as they came, supposedly, from the highest spheres. In fact, I was asked on several occasions by Mr. Assange and the Political Counsellor Maria Eugenia whether the new cameras recorded sound, to which I replied that they did not, as my boss had instructed me to do. Thus, from that moment on the cameras began to record sound regularly, so every meeting that the asylee held was captured. At our offices in UC Global it was mentioned that the cameras had been paid for twice, by Ecuador and the United States, although I have no documentary evidence to corroborate this assertion.

The story Yahoo tells significantly amounts to Mike Pompeo proposing some illegal options to take out Assange, only to be thwarted by (at a minimum) the lawyers in place to prevent such things — though there’s good reason to believe DOJ played a big role in it too. And then, at a time when Pompeo had lost or was losing his bid to pursue illegal activities, the Five Eyes (presumably including Australia) identified and countered a Russian exfiltration attempt.

That presumably changed a lot of things about how the IC dealt with Assange. But those details don’t appear in this story. Aside from the mentions of DOJ successfully retaining the gatekeeper role on these questions in 2015 and 2017 (something I have some, albeit limited, reason to believe continued through 2019), the story doesn’t consider — at all! — the various criminal investigations at the time, not even the one that Isikoff has covered in the past.

Crazier still, it presents this as a story about the Trump Administration, while ignoring public details about a key player in that Administration — some guy named Trump — was doing that at the least conflicted with Pompeo’s actions.

Pompeo is and was batshit crazy and I’m glad, for once, the lawyers managed to rein in the CIA Director. But this seems to be, largely, a story about crazy Mike Pompeo being reined in by lawyers.

A Tale of Two National Security Advisors

As you no doubt heard, in addition to suing John Bolton for breach of contract over his Trump book, the Trump Administration has also asked for a Temporary Restraining Order against Bolton, purportedly with the goal of getting him to do things that are no longer in his control. At one level, the legal actions seem designed to make Bolton’s book even more popular than it would otherwise be — while starving him of any royalties for the book. Judge Royce Lamberth, who has a history of pushing back against Executive abuse (including claims involving classification) has been assigned the case; he scheduled a hearing for tomorrow.

I agree with the bulk of the analysis that these legal efforts will fail, to the extent they’re really trying to prevent Bolton from releasing the book. I also agree with analysis about the uphill climb Bolton faces to avoid having his profits seized.

That said, I can’t help but notice the way the filings set Bolton up — possibly, even for prosecution (which LAT reports remains under consideration), but also for a remarkable comparison with Trump’s first National Security Advisor, Mike Flynn.

Legally, the filings do what they need to do to seize Bolton’s profits, and will probably succeed (meaning you can buy the book and your money will go to the US Treasury). But, as noted, they’re not written to actually win an injunction, most especially against Bolton’s publisher, Simon & Schuster.

The filings do something else, though. They tell how Bolton apparently shared drafts of his manuscript before it had been cleared, which in turn got shared with the press.

35. On January 26, 2020, the New York Times published an article describing information purportedly “included in drafts of a manuscript” that Defendant, apparently without any protections for classified national security information, had “circulated in recent weeks to close associates.” The article set forth information allegedly contained in “dozens of pages” of the manuscript. A true and correct copy of this article is attached hereto as Exhibit F.

36. On information and belief, the January 26, 2020 article led to a tremendous surge in publicity for the pre-sales of the book, including hundreds of news articles, discussion on major television networks, statements by members of Congress, and widespread circulation of the article’s content on social media.

37. On January 27, 2020, the Washington Post published a separate article describing content contained in The Room Where it Happened, relying on the statements of “two people familiar with the book,” indicating, on information and belief, that Defendant had disclosed a draft of the manuscript to others without receiving prior written authorization from the U.S. Government. A true and correct copy of this article is attached hereto as Exhibit G.

38. Thus, notwithstanding this admonition, in late January 2020, prominent news outlets reported that drafts of Defendant’s manuscript had been circulated to associates of Defendant. These articles included reports from individuals supposedly familiar with the book, which indicates, on information and belief, that Defendant had already violated his non-disclosure agreements while purporting to comply with the prepublication review process. See supra ¶¶ 27, 29; see also Exhs. E & F

They lay out evidence that Bolton specifically knew the dangers of disclosing classified information, most ironically with a citation of his complaints about Edward Snowden (who also had his profits seized).

Defendant knows well the threat posed by disclosing classified information that might benefit the Nation’s adversaries. See John Bolton, “Edward Snowden’s leaks are a grave threat to US national security,” The Guardian, https://www.theguardian.com/commentisfree/2013/jun/18/edwardsnowden-leaks-grave-threat (June 18, 2013). Congress does as well, as reflected in its decision to criminalize the unauthorized disclosure of classified information. See, e.g., 18 U.S.C. §§ 641, 793, 794, 798, 952, 1924.

They provide multiple declarations — from Mike Ellis, the Trump hack who has politicized classified information in the past, from National Counterintelligence Director Bill Evanina claiming this is the kind of information our adversaries look for, from Director of NSA Paul Nakasone talking about the specific vulnerability of SIGINT, and from Director of National Intelligence John Ratcliffe, whose name the TRO misspells and whose experience looks exceedingly thin compared to the others, along with classified declaration from Ellis. Even though the declarations were obviously carefully curated by Ellis, these are nevertheless the kinds of things courts usually bow to, when the government makes claims about classification. While neither we nor Bolton or his lawyer will get to review the actual claims being made, such declarations are usually sufficient to get the desired recourse.

Perhaps notably, the filings include a letter from John Eisenberg (whose shenanigans regarding the Ukraine call Bolton made more significant), written on June 11, at a time when the White House already knew Bolton was moving to publish, accusing Bolton of publishing this information for financial gain.

Fourth, your self-serving insinuations that the NSC review process has been directed at anything other than a good faith effort to protect national security information is offensive. Your client has taken classified information, including some that he himself classified, and sold it to the highest bidder in an attempt to make a personal profit from information that he held in trust as a public servant–and has done so without regard for the harm it would do to the national security of the United States.

Effectively, this package of filings does nothing to prevent the book from coming out. But it very carefully lays a record to meet the elements of an Espionage charge. Given this notice, the government would be in a position to point to the publication of the book (that Bolton couldn’t stop now if he wanted) and prove that Bolton had an obligation to keep these things secret, he knew the damage that not doing so could cause, and yet nevetheless published the information.

Whether they will prosecute or not is unclear. But these filings make it far easier to do so.

The White House is preparing to claim that John Bolton is akin to Edward Snowden, solely because he aired Trump’s dirt in a book.

This all comes at the same time as the government is making extraordinary efforts to prevent Mike Flynn from being punished for secretly working for a frenemy country while getting classified briefings, and calling up the country that just attacked us in 2016 and discussing how Russia and the Trump Administration had mutual interests in undermining Obama’s policies.

The same DOJ that is magnifying Bolton’s risk for an Espionage prosecution found nothing inappropriate in Flynn calling up the country that had just attacked the US and teaming with that hostile country against the current government of the United States.

Nor was anything said on the calls themselves to indicate an inappropriate relationship between Mr. Flynn and a foreign power. Indeed, Mr. Flynn’s request that Russia avoid “escalating” tensions in response to U.S. sanctions in an effort to mollify geopolitical tensions was consistent with him advocating for, not against, the interests of the United States. At bottom, the arms-length communications gave no indication that Mr. Flynn was being “directed and controlled by … the Russian federation,” much less in a manner that “threat[ened] … national security.” Ex. 1 at 2, Ex. 2 at 2.

Indeed, the Attorney General even claimed the call was “laudable,” even while lying that it didn’t conflict with Obama’s policies.

But it’s not just in the courts where DOJ is working hard to protect the guy who really did harm the US. In an effort to sow the propaganda case for Mike Flynn, the Trump Administration has been on a declassification spree, including — by Ratcliffe — the transcripts of some (but not all) of Flynn’s calls with Sergey Kislyak, something that has never been done before. Significantly, the claims that Nakasone and Ratcliffe make in their declarations in the Bolton case, especially with regards to disclosing SIGINT burns the collection going forward, were clearly violated when Ratcliffe declassified the transcripts.

To be honest, I won’t weep if Bolton is prosecuted. He would have had more legal protection had he testified during the impeachment inquiry, which would have done more good for the country. It would be an abuse, but such abuse has been directed against far more vulnerable and admirable people.

But the comparison of the claims Mike Ellis is making about Trump’s third National Security Advisor with the treatment given his first — the guy who actively sold out his country rather than did so with his inaction — only serves to emphasize how Trump subjects what traditionally gets called national security to loyalty.

The greatest “national security” sin a Trump Administration official can commit, this comparison shows, is disloyalty to Donald Trump.

Damning New Details from Mary McCord and Sally Yates

I wanted to point to some details from documents — the Sally Yates and Mary McCord 302s — submitted by DOJ yesterday in their bid to get out of the Mike Flynn prosecution. DOJ presumably submitted them for the way they show Jim Comey acting like Jim Comey, taking actions without approval from political leadership at DOJ in a failed attempt to politicize something. That he had done so was known, these 302s provide DOJ’s side of that story.

The 302s provide a bit more detail about how alarming the Mike Flynn transcripts were, though. For example, before McCord saw the transcripts, she assumed Flynn’s calls were simply an incoming Administration reaching out to foreign counterparts.

It seemed logical to her that there may be some communications between an incoming administration and their foreign partners, so the Logan Act seemed like a stretch to her. She described the matter as “concerning” but with no particular urgency. In early January, McCord did not think people were considering briefing the incoming administration. However, that changed when Vice President Michael Pence went on Face the Nation and said things McCord knew to be untrue. Also, as time went on, and then-White House spokesperson Sean Spicer made comments about Flynn’s actions she knew to be false, the urgency grew.

But when she actually read them, she realized they were worse than that. Specifically, she was surprised that Flynn had raised sanctions himself; the discussion didn’t come from Sergey Kislyak.

McCord did not recall exactly when she saw the transcripts of the Flynn calls, but believed she asked to see them after Pence’s statements about Flynn on Face the Nation. [Agent note: Pence was on Face the Nation on January 15, 2017.] McCord believed she probably had the transcripts by January 19, 2017, possibly having come over SIPRnet from Strzok. After reading them, she felt they were “worse” than she initially thought; she noted that her recollection of them is that Flynn proactively raised the issue of sanctions, and she feels it is hard to believe he would forget talking about something he raised himself.

When Yates talked to Don McGahn about it, she described that one of the problems with the calls but that Flynn made specific requests of Kislyak. Given these redactions, they must include stuff beyond the two issues that appear in Flynn’s own 302: the sanctions and the UN request.

And it wasn’t just McCord who took this more seriously when she saw the transcripts themselves. Her 302 adds details (which were secondhand from McCabe) to this description from the Mueller Report:

Based on the evidence of Flynn’s contacts with Kislyak, McGahn and Priebus concluded that Flynn could not have forgotten the details of the discussions of sanctions and had instead been lying about what he discussed with Kislyak.202 Flynn had also told White House officials that the FB[ had told him that the FBI was closing out its investigation of him,203 but Eisenberg did not believe him.204

McCord describes how Pence went and got the transcripts from his Face the Nation appearance to compare with the Flynn transcripts. And Reince Priebus walked out of the room.

Pence, while reviewing, directed his Chief of Staff to get the transcript of his (Pence’s) Face the Nation interview, which he then compared to [redacted] transcripts. At one point in the meeting, Priebus said he’d seen enough and left the room.

And there are two more details about the White House response of interest. McCord specifically said, “Neither McGahn or Burnham gave any indication they had talked to anyone about the information.” She described that they had seemed “dumbstruck” by the news the previously day. But the following day, according to Yates, there was a very different tone to the meeting.

The second meeting was a distinct “tenor change” from the first. While the first meeting didn’t feel adversarial, McGahn started the second meeting with something like, “What’s it to DOJ if one White House official lies to another?” Yates was a little taken aback by that and explained again the same reasons for their concern that she had the day before. She told McGahn that there was more to this than one official lying to another, and Flynn’s actions themselves were problematic, especially when followed by lies and the public getting a false statement.

Of course, McGahn had talked to other people about the warning. He had spoken with Trump.

Finally, the day after Yates and McCord spoke to Don McGahn about it the second time, John Eisenberg emailed McCord using Flynn’s phone.

On January 28, 2017, McCord received an email from Flynn’s email account, but signed by John Eisenberg, Deputy Counsel for the President for National Security Affairs. The email stated it was a follow-up to McCord’s interactions with McGahn, and asked for a time to have a secure call. Given that the email was from Flynn’s email account, McCord opted not to reply to the email directly.

[snip]

When McCord and Eisenberg connected on the telephone on January 29, 2017, Eisenberg told McCord he had been in Flynn’s office prior to his sending the email to McCord and an assistant had switched his and Flynn’s telephones when giving them back. He explained they had the same password, so Eisenberg accidentally sent the email to McCord from Flynn’s phone.

While the phone confusion is easily explained — Flynn’s office would be a SCIF, so phones would be left outside — the claim they shared passwords is inconceivable.

And, of course, it makes it clear that once Eisenberg got involved, he (the same guy who hid Trump’s Ukraine transcript) started working directly with Flynn on the pushback.

Will Hurd

Will Hurd’s Sparkle Pony Approach to the Solemn Duty of Upholding the Constitution

There was yet another stunning impeachment hearing, with Fiona Hill and David Holmes laying out yet more evidence that Trump subordinated the national security of the United States to his own personal needs.

But that didn’t sway Will Hurd, who used his minutes at the end not to ask the question he has asked of many other witnesses, for a list of Ukrainians close to Volodymyr Zelensky with whom Rudy was interacting (Holmes had already made clear the list is much longer than the list Hurd had previously used to dismiss the inquiry).

Instead, he used his time to:

  • Grossly misrepresent the totality of the inquiry to two words in Trump’s call
  • Admit that this is a terrible precedent (one that Trump has already repeated with other countries)
  • Affirm that Trump’s actions harmed national security
  • Grossly misrepresent crystal clear messages to Ukraine, pretending they were unclear to the Ukrainians
  • Call willful actions for personal benefit a “bungling” foreign policy
  • Accuse Democrats (and nonpartisan witnesses) of undermining Ukraine for observing its reliance on us
  • Falsely claim there were differences of opinion about the call: no witness expressed having no concern about it
  • Call an investigation in which not a single witness was a partisan Democrat (just Tim Morrison, as a Congressional staffer, and Jennifer Williams, as a George W Bush campaign worker expressed any partisan affiliation) an extremely partisan process
  • Completely ignore Trump’s violation of the Budget Impoundment Act to create his extortion, effectively blessing the usurpation of his own power as a Congressman
  • Remain silent about the Administration’s refusal to cooperate at all in the inquiry, withholding every senior official’s testimony

Most cynically, though, Hurd blamed the focus on the President’s crimes for the distraction from Ukraine, not the President’s crimes itself. He blamed Democrats for the shift of focus, not the Administration’s refusal to respond to very simple, bipartisan requests about Ukraine, most notably on funding.

Then he suggested this investigation was rushed.

The delay is hurting Ukraine (and our own national security), but the inquiry has been rushed, said the former CIA officer.

And then, he laid out what he needed to assess whether this was really a crime: more testimony. Not from Mike Pompeo, Rick Perry, Mick Mulvaney, or John Eisenberg, all of whom can answer key questions that remain unanswered.

But from three people who should not testify:

  • Rudy Giuliani (because he is being criminally investigated for this activity and it’d be insane for him to do so–which is probably why he refused Lindsey Graham’s request for testimony)
  • Hunter Biden (because there has been no credible claim he did anything that Trump’s children aren’t currently doing)
  • The whistleblower (because every other witness has corroborated the whistleblower’s complaint and the President has already been retaliating against him for a month)

In short, Hurd offered up these three impossible witnesses, knowing that neither Democrats nor Republicans would agree to the request, as his condition to consider the matter further.

Hurd admitted in his statement that this is a gravely serious duty under the Constitution. And, having admitted that seriousness, he asked for a Sparkle Pony — something he knew he would not get — to excuse his own cowardice for refusing to do anything about Trump’s abuse of office.

The Conflict between the GOP’s “Hearsay” and “Whistleblower” Defenses

Sometimes Byron York is useful because he clarifies just how stupid and contradictory right wing talking points are.

Today, he claims that, for both the Russian investigation and impeachment, Democrats don’t want anyone to know how the investigation started.

Should the whistleblower have connections to prominent Democrats, exposure of his identity could be embarrassing to the party. And perhaps most of all, reading through the impeachment inquiry depositions that have been released so far, it’s clear that cutting off questions that could possibly relate to the whistleblower has also allowed Democrats to shut off any look at how the Trump-Ukraine investigation started. Who was involved? What actions did they take? Why did some government employees think President Trump’s July 25 call to Ukrainian President Volodymyr Zelensky represented a lost opportunity, or poor judgment, while others thought it represented wrongdoing requiring congressional investigation?

Democrats do not want the public to know. And in that, their position is familiar to anyone who has watched Washington for the last two years: The Democrats’ determination to cut off questions about the origins of the Trump-Ukraine investigation is strikingly similar to their determination to cut off questions about the origins of the Trump-Russia investigation. In both cases, they fought hard to keep secret the origins of investigations that have shaken the nation, deeply divided the electorate, and affected the future of the presidency.

Regarding the Russian investigation, Byron (like most denialists) can’t seem to get his head around the fact that a crime happened — a hostile foreign government hacked political targets — and the FBI started to investigate. They honestly appear to believe the FBI should not investigate hacks, generally, or maybe just not those attributed in real time to hostile foreign actors.

But the claim is even stupider with regards to the impeachment inquiry for reasons laid out right there in the middle of his argument.

It’s not the whistleblower who responded to the July 25 call with shaking anger. It’s not the whistleblower who recognized it was so incriminating, the call record had to be censored and hidden on a Top Secret server.

The people who started the investigation that led to impeachment were all on the July 25 call. Republicans suspect that Alexander Vindman was one of them; they suspect that he was the person who went, “visibly shaken,” and shared details about a ‘crazy,’ ‘frightening’ and ‘completely lacking in substance related to national security'” call with  a colleague who then wrote up his concerns rather than just sharing them with John Eisenberg, who was finding several ways to bury the damning report. But the whistleblower complaint itself describes that “multiple White House officials with direct knowledge of the call” shared their impression of it with the whistleblower. We know, for example, that Mike Pence aide Jennifer Williams agreed with Vindman.

Even Tim Morrison, a fire-breathing Republican who claims he doesn’t think Trump committed a crime, recognized the call was problematic.

Mike Pompeo, the Secretary of State, responded to publicity about the call by lying about being on it, then refusing to testify about it, which isn’t exactly a sign that he thinks it’s a “perfect” call.

This investigation could not have been “started” by the whistleblower, contrary to what dullards like Byron claim, for the same reason they complain that George Kent and Bill Taylor and Marie Yovanovtich weren’t appropriate witnesses because they weren’t on that call. That’s because the whistleblower wasn’t on the call. Someone — multiple people, as it turned out — had to share details of the call with him before he put all the other dots together in his complaint.

Mind you, the claim of hearsay is false, as all the witnesses have direct knowledge of the wider operation to extort Ukraine. In the case of the whistleblower, for example, Republicans continue to falsely claim he had no direct knowledge of these matters; his description of the July 18 call where OMB announced a hold on aid is not cited to other people.

Still, it’s the larger point that Byron helpfully demonstrates is so stupid. It cannot be true that we need to learn about the whistleblower to understand how all this started and also be true that the whistleblower’s view is meaningless because he was operating exclusively from hearsay. The claim itself underscores that multiple people on the call itself objected when they heard the president extort a foreign leader.

But something more basic is true: This investigation started because the president extorted a foreign leader while a dozen witnesses were listening.

People Who Illegally Withheld Duly Appropriated Funding Refuse to Explain to Congress Why

CNN reported this morning that all four witnesses who were called to testify today blew off the request under both Executive Privilege claims (for John Eisenberg) and other complaints that the Administration won’t be able to have a lawyer present.

All four White House officials who are scheduled to give depositions on Monday during the House’s impeachment inquiry won’t show up, as a source with knowledge of the situation tells CNN that National Security Council lawyers John Eisenberg and Michael Ellis will not testify.

The two officials will join Robert Blair, assistant to the President and senior adviser to the acting White House chief of staff Mick Mulvaney, and Brian McCormack, associate director for natural resources, energy & science at the Office of Management and Budget, in not testifying on Monday, CNN reported earlier. Energy Secretary Rick Perry, who was scheduled to appear Wednesday, will not participate in a closed door deposition, an Energy Department spokesperson said Friday.
An administration official says Eisenberg isn’t showing up due to executive privilege while Blair, Ellis and McCormack aren’t going to appear because they won’t be able to have an administration lawyer present.

This is being treated like other refusals to show up, but I think it’s not.

First, if Eisenberg is claiming only Executive Privilege, those claims will quickly expose the President to evidence of guilt that Senators are busy trying to explain away. That’s because he should only have Executive Privilege for stuff that actually involves the President. And given that he wasn’t on the call with Volodymyr Zelensky, he shouldn’t have it, at all, here, unless the President wants to claim that before Eisenberg engaged in a cover-up of Trump’s extortion, he asked the President for guidance first.

In fact, if Eisenberg showed up, he’d likely have to invoke the Fifth Amendment rather than Executive Privilege. And once someone does that, it’s usually child’s play to force that person to resign from government service.

As for the others, Robert Blair and Brian McCormack were being called to explain how the funds duly appropriated by Congress got withheld.  Withholding those funds is a crime, as Mick Mulvaney helpfully admitted (in public discussions that likely void any Executive Privilege claims over the decision to withhold the funds). But it’s also a crime not to explain to Congress why you withheld funds they told you to spend.

In other words, for at least three of these men, the excuses for not testifying probably amount to crimes in and of themselves, either for the President (if he really were to claim Executive Privilege over Eisenberg’s efforts to cover-up his crime) or for the men themselves.

So while this seems like the same old obstruction, I think it may be a new kind of criminally problematic obstruction.

Which may be why Adam Schiff says the first public witnesses are going to be those who illegally withheld this funding.

The Ellipses and the Recordings, Plural, of Joe Biden

Before I get into the NYT report on Alexander Vindman’s testimony that the White House removed damning things from the transcript of the July 25 call, I want to note something from his opening statement. At the end of his description of who he is and what he does, Vindman warned that the impeachment inquiry should carefully balance the need for disclosure against national security concerns.

Most of my interactions relate to national security issues and are therefore especially sensitive. I would urge the Committees to carefully balance the need for information against the impact that disclosure would have on our foreign policy and national security.

Then, when discussing the July 25 call, Vindman emphasized that, because the transcript is in the public record, “we are all aware of what was said.”

On July 25, 2019, the call occurred. I listened in on the call in the Situation Room with colleagues from the NSC and the office of the Vice President. As the transcript is in the public record, we are all aware of what was said.

I was concerned by the call. I did not think it was proper to demand that a foreign government investigate a U.S. citizen, and I was worried about the implications for the U.S. government’s support of Ukraine. I realized that if Ukraine pursued an investigation into the Bidens and Burisma, it would likely be interpreted as a partisan play which would undoubtedly result in Ukraine losing the bipartisan support it has thus far maintained.

Yet immediately following his statement that “we are all aware of what was said,” Vindman asserts that the call was about investigating the Bidens and Burisma. But Burisma doesn’t appear in the TELCON. It is one of the things that, according to the NYT, the White House removed — where it says “the company” in this passage — and he recommended it be put back in.

I understand and I’m knowledgeable .about the situation. Since we have won the absolute majority in our Parliament; the next prosecutor general will be 100% my person, my candidate, who will be approved, by the parliament and will start as a new prosecutor in September. He or she will look into the situation, specifically to the company that you mentioned in this issue. [my emphasis]

NYCSouthpaw had said once this had to be a reference to Burisma — he was absolutely correct.

According to NYT, the ellipsis in this passage of the TELCON,

Biden went around bragging that he stopped the prosecution so if you can look into it …

… Took out a reference to Joe Biden talking about getting Viktor Shokin fired.

The omissions, Colonel Vindman said, included Mr. Trump’s assertion that there were recordings of former Vice President Joseph R. Biden Jr. discussing Ukraine corruption,

[snip]

The rough transcript also contains ellipses at three points where Mr. Trump is speaking. Colonel Vindman told investigators that at the point of the transcript where the third set of ellipses appear, Mr. Trump said there were tapes of Mr. Biden.

Mr. Trump’s mention of tapes is an apparent reference to Mr. Biden’s comments at a January 2018 event about his effort to get Ukraine to force out its prosecutor general, Viktor Shokin. [my emphasis]

The NYT and other outlets have asserted that this is a reference to a video that Rudy Giuliani has been publicly shopping for some time, and it undoubtedly is that, at least.

But I want to suggest the possibility that it’s a reference to more.

The NYT goes to absurd lengths to make this appear as innocuous as possible, seemingly offering up the possibility that the words “the company” appeared because of a failure of the voice recognition software (though the TELCON itself notes that such a possibility would be marked by “inaudible” in the transcript).

It is not clear why some of Colonel Vindman’s changes were not made, while others he recommended were, but the decision by a White House lawyer to quickly lock down the reconstructed transcript subverted the normal process of handling such documents.

The note-takers and voice recognition software used during the July 25 call had missed Mr. Zelensky saying the word “Burisma,” but the reconstructed transcript does reference “the company,” and suggests that the Ukrainian president is aware that it is of great interest to Mr. Trump.

Which is one reason I find it notable that the NYT suggests the reference to recordings refers solely to a single publicly known recording of Biden even though both times they refer to Vindman’s testimony, they refer to tapes or recordings, plural.

The thing is, there are undoubtedly are tapes, plural, of Biden talking about firing Shokin. Indeed, in the recording in question, Biden even says that he had already gotten a commitment from Petro Poroshenko to fire Shokin.

I had gotten a commitment from Poroshenko and from Yatsenyuk that they would take action against the state prosecutor. And they didn’t.

So at the very least, there are the US versions of prior communications in which Biden would have emphasized the importance of firing Shokin. And there may well be other recordings reflecting that the ask happened, for example of Poroshenko talking to Arseniy Yatsenyuk about it. Given that getting Poroshenko to act on corruption was a key focus of Obama’s policy, it would have been a key focus of SIGINT collection. So if we had the ability to collect such conversations, we would have done so. And if we did, those recordings would still be sitting at NSA available to anyone with the need to know.

Trump would have legal access to all of that and, given his focus on Ukraine and “corruption,” an excuse to pull it up. Given that this purported concern about “corruption” is part of the official, stated policy of the US, it is not at all crazy to assume that his aides have pulled existing intercepts pertaining to past discussions of corruption and if they did, they would have, by definition, involved Joe Biden, because he was the one Obama tasked to take care of such issues.

And if there were — and if Trump’s comment reflected knowledge of that — it would explain two other details.

First, Vindman clearly doesn’t think all of the details about this call should be aired publicly. It’s certainly possible that he just didn’t want it to become public that Zelensky had parroted Trump’s demand to investigate Burisma. As I noted, by releasing the transcript, Trump has already made it clear that he succeeded in corrupting Zelensky, who ran on a platform of ending corruption. Revealing that Zelensky was literally repeating the script that Gordon Sondland had dictated for him would make that worse.

It’s also possible that whatever the other two ellipses in the TELCON hide are things he believes should remain secret. Vindman certainly would know what those ellipses hide, even if he didn’t recommend adding those details back in, and surely got asked about it yesterday.

But a national security professional like Vindman would also want to keep any details about intercepts classified. Even just the fact — not at all controversial but not something spoken of in polite company — that the US was sitting on records of Poroshenko’s resistance to dealing with corruption would be the kind of thing Vindman might want to keep secret.

Again, it may be that Vindman’s concerns about airing this dirty laundry involve nothing more than an effort to minimize the damage already done to Zelensky. But it may reflect more specific concerns about sources and methods.

And if the original transcript did reflect sources and methods, it might provide an excuse for John Eisenberg to insist it be stored on the Top Secret server. Again, his decision to do so may extend no further than a desire to cover up the President’s crime. But if the call reflected more sensitive collection, then it would need to be stored on a more secure server. That also might explain why everyone else — except the whistleblower, who wasn’t on the call — treated these details as Top Secret.

The existing TELCON does not hide that Trump was discussing right wing propaganda with Zelensky. So there would be no reason to remove Trump’s reference to another piece of right wing propaganda. But the treatment of it suggests that the TELCON as released removed classified information (the document is titled “Unclassified,” suggesting that if the TELCON included the statements reflected in the ellipses, it’d be Classified). In which case, there may be other recordings, recordings that are classified and aren’t known to every frothy right winger spouting propaganda.

For some reason, the NYT thinks Trump referred to more than one recording of Biden talking corruption. It is not at all unreasonable to imagine he knows of classified recordings.

How DOJ Worked Overtime to Avoid Connecting the Dots in the Whistleblower Complaint

As the legal saga of Lev Parnas and Igor Fruman plays out against the background of an impeachment inquiry launched when DOJ tried to bury a whistleblower complaint, DOJ has been forced to offer a series of increasingly inconsistent explanations about who at DOJ knew what when. I’ve been working on a timeline examining What Did Bill Barr Know and When Did He Know It (that work in progress appears below). While I’m not ready to answer that question, one thing is clear: the personnel under Brian Benczkowski who reviewed and dismissed the complaint in August could not have followed normal process on assessing a referral if NYT’s reporting and Benczkowski’s most recent claims are true.

Benczkowski tries to prevent Rudy Giuliani from implicating him in his crimes

I’m speaking of a comment that Benczkowski had released to NYT for an October 20 story explaining why Benczkowski and fraud investigators would be willing to hear Rudy Giuliani pitch a client’s case when he was under active investigation for influence peddling in SDNY himself.

“When Mr. Benczkowski and fraud section lawyers met with Mr. Giuliani, they were not aware of any investigation of Mr. Giuliani’s associates in the Southern District of New York and would not have met with him had they known,” said Peter Carr, a department spokesman.

That comment was a response to this Rudy-sourced Ken Vogel story that revealed the meeting, though without any of the answers as to Who What When questions that normally appear in finished news stories. The story may have been Rudy’s attempt to do the same thing he did as his shenanigans at State became public, raise the costs of making him the sole scapegoat by making it clear that his activities had high level knowledge and approval by Trump officials at the agency in question. That is, Rudy may have been making sure that if he gets in trouble for influence peddling, Brian Benzckowski will be implicated as well.

Importantly, both NYT stories on the meeting say the meeting happened a few weeks before October 18, a timeline that DOJ sources may be walking back in time considerably to “earlier this summer” included in this CNN article. One of the only ways for all these descriptions of timing be true is if the meeting took place around September 20, which would make it highly likely it involved Victoria Toensing, since Rudy was pictured meeting her and Lev Parnas across the street from DOJ that same day. (h/t DK for that insight) If it did (or if the descriptions of the meeting taking place a few weeks before October 18 are correct), then it means the meeting happened after DOJ reviewed and dismissed the whistleblower complaint about Trump’s July 25 call with Volodymyr Zelensky in late August.

As I’ll show below, the Peter Carr quote to the NYT might be true. But if it is, it means that well-connected Republicans can get a meeting with the Assistant Attorney General with almost no due diligence.

But if the Carr quotation is true (and if the timing of the meeting described to NYT is correct), then it is an on-the-record admission on behalf of Benczkowski that investigators working underneath him who reviewed and dismissed the whistleblower complaint did not follow procedures designed to keep our nation safe that have been codified since 9/11.

Benczkowski’s claim he didn’t know ignores what DOJ knew

Benczkowski’s explanation in the October 20 NYT story is based on a further one that suggests the only way he could have known about the criminal investigation into Parnas, Fruman, and Rudy is if a subordinate informed him directly.

While the Southern District of New York has been investigating Mr. Giuliani’s associates — an inquiry that may be tied to a broader investigation of Mr. Giuliani himself — prosecutors there had not told Mr. Benczkowski of the Criminal Division of the case, as he does not oversee or supervise their work. The United States attorney’s offices report to the deputy attorney general, Jeffrey A. Rosen.

Prosecutors in Manhattan informed Attorney General William P. Barr about the investigation of Mr. Parnas and Mr. Fruman soon after he was confirmed in February, according to a Justice Department official.

DOJ has locked into a statement that Bill Barr had been briefed on this investigation shortly after he was confirmed in February and repeatedly thereafter since the day the arrest of the Ukrainian grifters became public. But Benczkowski claims he didn’t know about it because he’s not in that chain of command. SDNY reports to the Deputy Attorney General, which would have been Rod Rosenstein when Barr was initially briefed, but would be Jeffrey Rosen in any of the briefings DOJ has admitted to since.

This table attempts to summarize what DOJ learned of Parnas, Fruman, and Rudy when. It’s incomplete in at least one important respect, as I’ll show. But it captures most of the ways DOJ and FBI would have been informed about parts of the Ukrainian grift.

Remarkably, we don’t yet know how the SDNY came to open the investigation. It could have been a Mueller referral, SDNY could have discovered the grift from something that happened in NYC (though the venue that ultimately got laid out in the indictment suggests the obvious signs of corruption took place in FL), or it could have stemmed from a Campaign Legal Center complaint filed with the FEC on July 25, 2018. But by the time Barr was briefed in February, we should assume that DOJ knew at least as much as CLC knew the summer before, which is that Parnas and Fruman had set up a shell company, Global Energy Producers, that they were using to make big donations to Republicans, including a $325,000 donation to a Trump SuperPAC just days after Parnas and Fruman met with Trump at the White House. That’s what Barr would have learned when he got briefed shortly after he was confirmed on February 14: that these Ukrainian-Americans were giving straw donations to Republicans in apparent coordination with key meetings with the recipients.

Here’s where the gap in this table comes in. Someone trying to spin the CNN for its version of the Benczkowski quote claimed that Rudy was not yet a focus of the SDNY investigation at the time Barr was briefed (the claim is silent, however, about all the other times Barr was briefed, per an October 10 statement from DOJ). Nevertheless, as CNN lays out, that claim is probably not true, because a NY lawyer was already getting questions from FBI counterintelligence agents by that time.

A person familiar with the matter said that at the time, Giuliani wasn’t a central figure in the case as he is now. That emerged in recent weeks, the person said.

Still, New York federal prosecutors had their eyes set on Giuliani months ago. A New York lawyer told CNN that FBI counterintelligence agents asked him questions in February or March related to Giuliani and his associates.

The day after the Ukrainian grifters’ arrest became public, NYT reported that Rudy was under investigation for FARA (for activities that extend well beyond his Ukraine work). Particularly given that the National Security Division is setting up a unit to prosecute FARA violations, that, plus the involvement of CI agents, should involve NSD and therefore would suggest that NSD head John Demers would know of the focus on Rudy. That can’t be guaranteed, however, because SDNY often does its own thing. So that’s the gap: We don’t know when Demers would have first learned that Rudy’s under investigation for his sleazy influence peddling.

We do know, however, that sometime in May, State Department’s Inspector General Steve Linick sent FBI (we don’t know which unit) the “Rudy Dossier,” the disinformation developed as part of his Ukraine work. Among the things that dossier includes is an email via which John Solomon sent a draft of this article to Rudy, Victoria Toensing, and Lev Parnas. Whoever received that dossier should have immediately identified that Parnas and Rudy were under active criminal investigation in SDNY for influence peddling, a topic on which that email would be directly relevant. In addition to Victoria Toensing and Rudy, the packet would also directly implicate the White House and Mike Pompeo, because the packet was sent under White House imprimatur to the Secretary of State. So by May, that dossier should have been in Parnas and Rudy’s investigative file. Except that, when Linick asked FBI if they were cool with him sharing the dossier with Congress, they were, which suggests it may not have been added to the investigative file.

Assuming that the vaunted SDNY is at least as sharp as a small campaign finance NGO, then by the time CLC updated their SEC complaint on June 20, SDNY would have known what that GEP’s straw donations (including a $325,000 donation to a Trump SuperPAC) came immediately after Parnas got a $1.2 million infusion from a lawyer who helps foreigners launder money through real estate, something that should have raised further counterintelligence and foreign campaign donation concerns.

After that, the whistleblower complaint comes into DOJ, in two different forms. The first time, it comes when CIA General Counsel Courtney Simmons Elwood and White House Associate Counsel John Eisenberg inform John Demers (who, remember, may or may not know about a FARA investigation into Rudy by this point). Demers went to the White House and reviews the transcript, which would have informed him that multiple people were concerned about the call, that Trump invoked both Rudy and Demers’ boss, Bill Barr, on the call, and that Trump was soliciting dirt related to both the investigation into the Russian operation in 2016 (ongoing parts of which Demers still oversees) and Trump’s imagined 2020 opponent, Joe Biden. If Demers did know that Rudy was under investigation for FARA at this time, Trump’s request that Ukraine share dirt with Rudy would have been directly relevant to that investigation, but in a way that implicated Demers’ boss as well. In any case, a simple database search would have revealed that, along with the $1.2 million cash transfer raising additional concerns about foreign money backing those campaign efforts.

Demers’ reported response to reading the transcript was to tell Brian Benczkowski (who claims not to have known about Parnas and Fruman, but whose Peter Carr quote was silent about whether he knew of any investigation into Rudy) and Jeffrey Rosen (who was probably confirmed after Barr’s first briefing on Parnas and Fruman, but who is currently Geoffrey Berman’s supervisor and so should be in the loop in the subsequent briefings that DOJ admitted Barr had after that initial briefing.

According to public reports, DOJ did nothing with this initial complaint.

DOJ avoids (admitting to) reviewing the full whistleblower complaint based off a false claim it doesn’t include direct knowledge

But then the whistleblower tried again, going to the Intelligence Community Inspector General and writing up his complaint, which then got referred to Brian Benczkowski and some public integrity investigators. According to Kerri Kupec, here’s what happened next.

In August, the Department of Justice was referred a matter relating to a letter the director national intelligence had received from the inspector general for the intelligence community regarding a purported whistleblower complaint. The inspector general’s letter cited a conversation between the president and Ukrainian President Zelensky as a potential violation of federal campaign finance law, while acknowledging that neither the inspector general nor the complainant had firsthand knowledge of the conversation,” Kupec said.

“Relying on established procedures set forth in the justice manual, the department’s criminal division reviewed the official record of the call and determined based on the facts and applicable law that there was no campaign finance violence and that no further action was warranted. All relevant components of the department agreed with this legal conclusion, and the department has concluded this matter,” Kupec concluded.

In another statement, Kupec said that Barr had not spoken with Mr. Trump about Ukraine investigating Biden, and that the president had not asked Barr to contact Ukraine or Giuliani.

In explaining how DOJ came to dismiss this complaint, Kupec cites not from the complaint itself, but from Michael Atkinson’s letter conveying the complaint. Kupec cites from the letter, which notes the whistleblower “was not a direct witness to the President’s telephone call,” and uses that to treat only the transcript of the call — not the broader whistleblower complaint itself, which does include firsthand knowledge — as the official record. And, having referred to just the call, DOJ viewed this as exclusively a campaign finance matter, and therefore dismissed it (DOJ ignores another crime laid out in Atkinson’s letter, a crime Mick Mulvaney has now confessed to, but I’ll come back to how they managed to ignore that).

In fact, parts of the whistleblower complaint make it clear that he was a direct witness to aspects of his complaint, and so DOJ should have treated the complaint itself as an official document (this is why the frothy right invested so much energy into the goddamned whistleblower form, to rationalize DOJ’s decision not to read the actual complaint).

Had DOJ read the complaint and done the most basic investigative work on the materials included in the complaint, they (including Benczkowski) would have known that Trump’s call related directly to matters under active investigation in SDNY.

While the whistleblower complaint does not mention Parnas and Fruman by name, it repeatedly invokes this OCCRP profile (see footnotes 4, 9, 10, 11), The profile would have made it crystal clear — if DOJ’s investigators couldn’t figure it out for themselves — how the evidence that SDNY was already reviewing (including the campaign finance stuff and the Rudy dossier) connected directly with the July 25 call.

Since early last year, the men have emerged from obscurity to become major donors to Republican campaigns in the United States. They have collectively contributed over half a million dollars to candidates and outside campaign groups, the lion’s share in a single transaction that an independent watchdog has flagged as a potential violation of electoral funding law.

The men appear to enjoy a measure of access to influential figures. They’ve dined with Trump, had a “power breakfast” with his son Donald Jr., met with U.S. congressmen, and mixed with Republican elites.

Months before their earliest known work with Giuliani, Parnas and Fruman also lobbied at least one congressman — former U.S. Rep. Pete Sessions, a Texas Republican — to call for the dismissal of the United States’ ambassador to Ukraine, Marie Yovanovitch. She stepped down a year later after allegations in the conservative media that she had been disloyal to Trump.

While setting up meetings for Giuliani with Ukrainian officials, the men also promoted a business plan of their own: Selling American liquefied natural gas to Ukraine to replace Russian imports disrupted by war.

Three days before the call itself, OCCRP and BuzzFeed had already laid out parts of the crime that SDNY has since indicted. And that profile was part of the whistleblower complaint provided to DOJ, in which DOJ claimed they could find no evidence of a crime.

FBI’s three investigative levels are Full Investigations (opened once FBI has evidence that a crime has occurred), Preliminary Investigations (opened once FBI has reason to believe a crime has been committed), and Assessments (the work FBI does to assess the credibility of tips). FBI Agents are expected — encouraged, explicitly, as a matter of national security — to do searches of FBI’s existing investigative databases at the Assessment level. They do this not just to make sure that suspected foreign agents like Parnas and Fruman aren’t allowed to insinuate themselves into top tiers of power unnoticed, but also for deconfliction, to make sure DOJ knows precisely which part of DOJ is investigating which people.

Had FBI followed its DIOG based on the information included in the whistleblower complaint, it would have been crystal clear that the July 25 call related to an ongoing Full Investigation, and the July 25 call — and the President’s extortion — would have been made part of that investigative record.

The Criminal Division Chief has confessed it did not follow protocols in reviewing this complaint

All of which brings me full cycle to DOJ’s efforts to pretend they didn’t know that Rudy was a suspected criminal when they met with him to discuss the accused criminals he represents.

Brian Benczkowski, the head of the Criminal Division (and yet, someone who has never prosecuted a case), claims that he had no way of knowing that Rudy Giuliani’s clients and co-conspirators were about to be indicted when he met with Rudy on some date no one wants to reveal. That may be true — though if it is, it means either his staffers did almost no due diligence before setting up that meeting, or the fact that Rudy, in addition to Parnas and Fruman, was under active investigation did not dissuade Benczkowski from taking the meeting.

But, if the meeting took place after the whistleblower review, as multiple reporters at NYT seem to believe it did, for him to claim that he didn’t know about Parnas and Fruman also amounts to an explicit confession that the investigators reviewing the whistleblower complaint did not follow FBI guidelines requiring them to look up all the names in a tip to see if the FBI already knows about them.

That is, Brian Benczkowski, in trying to claim ignorance of Rudy’s own legal problems in advance of that meeting, confessed that his division, hiding behind whatever false excuses, did not properly investigate the whistleblower complaint.


February 14: Barr sworn in.

February, undated: Barr and Public Integrity lawyers reporting to Brian Benczkowski briefed on investigation into Lev Parnas and Igor Fruman, though NYT reported lawyer questioned about Rudy in that time period.

March 5: Barr briefed on Mueller investigation.

March 22: Mueller investigation concludes.

March 24: Barr releases misleading “summary” of Mueller Report.

March 26: John Solomon posts column first reviewed by Joe DiGenova, Victoria Toensing, and Lev Parnas

April 19: DOJ releases redacted Mueller Report.

May, undated: State IG Steve Linick receives Rudy dossier, passes on to FBI.

May 31: Barr does interview explaining his Durham investigation without once explaining any irregularities to justify investigation.

June 20: Campaign Legal Center submits supplemental complaint to FEC.

July 18: OMB informs Departments that Trump has ordered suspension of all aide to Ukraine.

July 25: Trump-Zelensky phone call.

Week after call: Whistleblower informs CIA General counsel Courtney Simmons Elwood, who speaks several times to NSC lawyer John Eisenberg.

August 12: Date of whistleblower complaint.

August 14: Elwood and Eisenberg inform National Security Division head, John Demers.

August 15: Demers reads transcript of call. Senior DOJ officials, including Jeffrey Rosen, Brian Benczkowski, and Barr informed.

The deputy attorney general, Jeffrey A. Rosen, and Brian A. Benczkowski, the head of the department’s criminal division, were soon looped in, according to two administration officials.

Department officials began to discuss the accusations and whether and how to follow up, and Attorney General William P. Barr learned of the allegations around that time, according to a person familiar with the matter. Although Mr. Barr was briefed, he did not oversee the discussions about how to proceed, the person said.

August 26: IG Michael Atkinson hand delivers message on whistleblower complaint to Acting DNI Joseph Maguire.

September 3: Original classified OLC memo deeming the whistleblower complaint “not urgent,” treating Barr’s involvement as Top Secret.

September 20: Rudy, Parnas, Victoria Toensing and Joe DiGenova lunch at Trump International across the street from DOJ. Rudy also attends State Dinner for Australia.

September 24: Declassification of Telcon. Version of OLC memo hiding Barr’s involvement as classified issue.

September 26: Release of TelCon and whistleblower complaint. Justice Department explains non-prosecution:

In August, the Department of Justice was referred a matter relating to a letter the director national intelligence had received from the inspector general for the intelligence community regarding a purported whistleblower complaint. The inspector general’s letter cited a conversation between the president and Ukrainian President Zelensky as a potential violation of federal campaign finance law, while acknowledging that neither the inspector general nor the complainant had firsthand knowledge of the conversation,” Kupec said.

“Relying on established procedures set forth in the justice manual, the department’s criminal division reviewed the official record of the call and determined based on the facts and applicable law that there was no campaign finance violence and that no further action was warranted. All relevant components of the department agreed with this legal conclusion, and the department has concluded this matter,” Kupec concluded.

In another statement, Kupec said that Barr had not spoken with Mr. Trump about Ukraine investigating Biden, and that the president had not asked Barr to contact Ukraine or Giuliani.

September 29: AP claims Barr was “surprised and angry” when he learned he had been lumped in with Rudy. His further denials include a lot of wiggle room (including unofficial contacts).

Barr has not spoken with Trump about investigating Biden or Biden’s son Hunter, and Trump has not asked Barr to contact Ukranian officials about the matter, the department said. Barr has also not spoken with Giuliani about anything related to Ukraine, officials have said.

October 1: State IG Steve Linick briefs Congress on opposition packet routed to him from Pompeo. Preservation letters to Parnas and Fruman.

October 4: Initial rough date for Rudy meeting with Benczkowski.

October 9: Parnas and Fruman lunch with Rudy at Trump Hotel across from DOJ, later that eventing they are indicted and arrested.

October 10: Lev Parnas and Igor Fruman arrest unsealed. Anonymous DOJ sources report that Barr was briefed in February and “in recent weeks.”

Attorney General William Barr was briefed on the case in February, shortly after he was confirmed. Barr has received additional briefings in recent weeks and fully supports the case.

October 11: NYT reports that Rudy under investigation for Ukraine work.

October 18: NYT reports that Rudy was lobbying Brian Benczkowski and lawyers from Fraud section “a few weeks ago” about a very sensitive bribery case.

October 20: NYT story with on-the-record quote from Peter Carr states Benczkowski and fraud section lawyers would not have met with Giuliani if they had known of the investigation of his associates; it describes the meeting as taking place “several weeks ago.”

October 21: CNN adds DOJ clarification that Rudy was not central to investigation briefed to Barr in February, even though CI Agents were questioning witnesses by March, and that Public Integrity lawyers (who report to Benczkowski) were briefed.

The Significance of Fiona Hill’s Testimony: “Whatever Drug Deal Sondland and Mulvaney Are Cooking Up”

A number of people on Twitter have asked me to elaborate on some comments I’ve made about the significance of Fiona Hill’s testimony before the Ukraine impeachment team yesterday.

It’s unclear whether she shared details of her testimony or whether most of the reporting comes from Jamie Raskin (who notably got the import of the State IG’s urgent briefing utterly wrong). But NYT has thus far offered the key description (citing at least two other people beyond Raskin).

Force Bolton to shit or get off the pot

First, the NYT describes Hill citing the abrasive John Bolton saying two fairly stunning things which were bound to make headlines. First, she described Bolton saying Rudy was a “hand grenade” who would blow everyone up (a quote Rudy has already responded to).

Mr. Bolton expressed grave concerns to Ms. Hill about the campaign being run by Mr. Giuliani. “Giuliani’s a hand grenade who’s going to blow everybody up,” Ms. Hill quoted Mr. Bolton as saying during an earlier conversation.

Then, after a July 10 meeting where it became clear Trump was withholding security assistance for campaign propaganda, according to reports of Hill’s testimony, Bolton asked her to tell Deputy White House Counsel John Eisenberg that he was not part of “whatever drug deal” Trump’s flunkies were pursuing.

“I am not part of whatever drug deal Sondland and Mulvaney are cooking up,” Mr. Bolton, a Yale-trained lawyer, told Ms. Hill to tell White House lawyers, according to two people at the deposition.

It was clear even before the July 25 call that kicked off this whole scandal that Bolton was on the outs. Tellingly, Bolton was specifically excluded from the call.

But since then, Bolton has (like James Mattis) been talking about writing a book, telling his story for history, rather than for the present and the sake of the Constitution.

By including these two quotes in her testimony, Hill not only ensured that Bolton will be the target of Trump’s ire (after all, Hill didn’t say these things, Bolton reportedly did). But it will force Bolton to either deny them (if he’s certain Hill didn’t take contemporaneous notes), or take a stand against activities he clearly recognized were wrong.

And if Bolton testifies in the impeachment inquiry about his concerns, it will represent someone about whom there can be no doubts as to Republican partisan loyalty. If Hill’s inclusion of Bolton’s comments leads Trump’s former National Security Advisor to provide damning testimony to the impeachment inquiry, it will change both the profile of the inquiry and the possible response attacks.

Force Sondland to rewrite his ever-evolving testimony

Hill’s testimony about that July 10 meeting also provided damning testimony about Gordon Sondland, who is scheduled to testify on Thursday.

One of the most dramatic moments she described came in the July 10 meeting in Mr. Bolton’s office that included Mr. Sondland; Kurt D. Volker, then the special envoy for Ukraine; Rick Perry, the energy secretary; and two Ukrainian officials.

The purpose of the meeting was to talk about technical assistance to Ukraine’s national security council. The Ukrainians were eager to set up a meeting between Mr. Trump and Mr. Zelensky, who was elected on a promise to clean up corruption and resolve the country’s five-year war with Russian-armed separatists.

Mr. Bolton was trying to not commit to a meeting, according to Ms. Hill’s testimony. Mr. Sondland got agitated, Ms. Hill testified, and let out that there was an agreement with Mr. Mulvaney that there would be a meeting if Ukraine opened up the investigations the White House was seeking.

Mr. Bolton immediately ended the meeting abruptly. As the group moved toward the door, Mr. Sondland said he wanted them to come down to the ward room next to the White House mess to discuss next steps. Mr. Bolton pulled Ms. Hill aside to instruct her to go to the ward room and report to him what they talked about.

When she got downstairs, Mr. Sondland was talking with the Ukrainians and specifically mentioned Burisma, the Ukrainian energy firm that had Hunter Biden, the former vice president’s son, on its board.

Sondland has already test driven two drafts of his intended testimony, much as Michael Cohen did two years ago before he gave false testimony to Congress. Even the most recent of those drafts appears to be rendered inoperative by Hill’s testimony.

I’m sure Adam Schiff would have preferred that Sondland not get another chance to craft his testimony (and I suspect Sondland’s lawyer is trying to convince him that the possibility of being named Secretary of State is not worth perjuring himself for, which is why he’s probably not yet planning on invoking the Fifth).

But thus far, Sondland doesn’t seem to have discovered a story that he can tell that coheres with the other known testimony.

Hill ties Sondland’s actions to Trump

Hill also provided testimony — testimony we know that is backed by other witnesses — that Sondland was playing the role he was playing because the President wanted him to be.

At one point, she confronted Mr. Sondland, who had inserted himself into dealings with Ukraine even though it was not part of his official portfolio, according to the people informed about Ms. Hill’s testimony.

He told her that he was in charge of Ukraine, a moment she compared to Secretary of State Alexander M. Haig Jr.’s declaration that he was in charge after the Ronald Reagan assassination attempt, according to those who heard the testimony.

According to whom, she asked.

The president, he answered.

This will tie Trump directly to this scheme and make Sondland’s later denials about whether he knew Trump to be lying about a quid pro quo even more obviously false than they already are. This is not Rudy freelancing, or State ordering him to, but Trump ordering everyone to.

Hill implicates John Eisenberg

I noted the central role of John Eisenberg in attempts to cover this quid pro quo up weeks ago (and noted that he succeeded in preventing any record of an early quid pro quo from being being made).

Eisenberg is the guy who decided to put the transcript of the July 25 call on the Top Secret server. Eisenberg had a role in framing the crimes, as described to DOJ, such that they could shunt them to Public Integrity and dismiss them, rather than open up another Special Counsel investigation into the President’s extortion.

But Hill’s testimony makes it clear Eisenberg was told of what Bolton analogized to crimes well before the call.

Ms. Hill went back upstairs and reported the encounter to Mr. Bolton, who promptly instructed her to report the issue to John A. Eisenberg, a deputy White House counsel and the chief legal adviser for the National Security Council, along with his line about the drug deal, which he meant metaphorically.

Mr. Eisenberg told Ms. Hill he would report it up his chain of command, which would typically mean Pat Cipollone, the White House counsel.

Eisenberg (whose FBI 302 from the last Trump criminal investigation DOJ is trying to withhold) would have been on the hook anyway for a clear attempt to cover up Trump’s crime. But the revelation that he had advance warning that a crime was in process — and apparently did nothing to prevent it — changes his exposure significantly.

It was the OMB Director, misappropriating funds, in the National Security Advisor’s office

Finally, Hill puts Mick Mulvaney at the scene of the crime.

As I’ve said before, one part of this scandal that has gotten far too little attention is that, to extort Ukraine, Trump withheld funds appropriated by Congress, funds about which there was bipartisan agreement.

Last week, CNN and WSJ reported that to do this, OMB changed the way the funds were distributed, putting a political flunkie in charge, also a detail that has gotten far too little attention.

Not only does that raise the Constitutional stakes of the Executive’s refusal to spend the funds Congress had duly appropriated, but it shows consciousness of guilt.

And per Hill’s testimony Mick Mulvaney, serving in the dual role of OMB chief and Chief of Staff, knew that those funds were being withheld for a quid pro quo or (as John Bolton described it) a drug deal.

Senate Republicans might not ever convict Trump for demanding foreign countries invent propaganda on his political allies. They might feel differently once it becomes clear that the crime involves refusing to do what Congress, with its power of the purse, told him to, without even telling Congress he was doing so (or why). They may not care about Trump pressing for any political advantage for their party, but they may care about Trump neutering their most important authority.

How Twelve Years of Warning and Six Years of Plodding Reform Finally Forced FBI to Do Minimal FISA Oversight

Earlier this week, the government released the reauthorization package for the 2018 Section 702 certificates of FISA. With the release, they disclosed significant legal fights about the way FBI was doing queries on raw data, what we often call “back door searches.” Those fights are, rightly, being portrayed as Fourth Amendment abuses. But they are, also, the result of the FISA Court finally discovering in 2018, after 11 years, that back door searches work like some of us have been saying they do all along, a discovery that came about because of procedural changes in the interim.

As such, I think this is wrong to consider “FISA abuse” (and I say that as someone who was very likely personally affected by the practices in question). It was, instead, a case where the court discovered that FBI using 702 as it had been permitted to use it by FISC was a violation of the Fourth Amendment.

As such, this package reflects a number of things:

  • A condemnation of how the government has been using 702 (and its predecessor PAA) for 12 years
  • A (partial — but thus far by far the most significant one) success of the new oversight mechanisms put in place post-Snowden
  • An opportunity to reform FISA — and FBI — more systematically

This post will explain what happened from a FISA standpoint. A follow-up post will explain why this should lead to questions about FBI practices more generally.

The background

This opinion came about because every year the government must obtain new certificates for its 702 collection, the collection “targeted” at foreigners overseas that is, nevertheless, designed to collect content on how those foreigners are interacting with Americans. Last we had public data, there were three certificates: counterterrorism, counterproliferation, and “foreign government,” which is a too-broadly scoped counterintelligence function. As part of that yearly process, the government must get FISC approval to any changes to its certificates, which are a package of rules on how they will use Section 702. In addition, the court conducts a general review of all the violations reported over the previous year.

Originally, those certificates included proposed targeting (governing who you can target) and minimization (governing what you can do once you start collecting) procedures; last year was the first year the agencies were required to submit querying procedures governing the way agencies (to include NSA, CIA, National Counterterrorism Center, and FBI) access raw data using US person identifiers. The submission of those new querying procedures are what led to the court’s discovery that FBI’s practices violated the Fourth Amendment.

In the years leading up to the 2018 certification, the following happened:

  • In 2013, Edward Snowden’s leaks made it clear that those of us raising concerns about Section 702 minimization since 2007 were correct
  • In 2014, the Privacy and Civil Liberties Oversight Board (which had become operational for the first time in its existence almost simultaneously with Snowden’s leaks) recommended that CIA and FBI have to explain why they were querying US person content in raw data
  • In 2015, Congress passed the USA Freedom Act, the most successful reform of which reflected Congress’ intent that the FISA Court start consulting amicus curiae when considering novel legal questions
  • In 2015, amicus Amy Jeffress (who admitted she didn’t know much about 702 when first consulted) raised questions about how queries were conducted, only to have the court make minimal changes to current practice — in part, by not considering what an FBI assessment was
  • In the 2017 opinion authorizing that year’s 702 package, Rosemary Collyer approved an expansion of back door searches without — as Congress intended — appointing an amicus to help her understand the ways the legal solution the government implemented didn’t do what she believed it did; that brought some (though not nearly enough) attention to whether FISC was fulfilling the intent of Congress on amici
  • In the 2017 Reauthorization (which was actually approved in early 2018), Congress newly required agencies accessing raw data to submit querying procedures along with their targeting and minimization procedures in the annual certification process, effectively codifying the record-keeping suggestion PCLOB had made over two years earlier

When reviewing the reauthorization application submitted in March 2018, Judge James Boasberg considered that new 2017 requirement a novel legal question, so appointed Jonathan Cederbaum and Amy Jeffress, the latter of whom also added John Cella, to the amicus team. By appointing those amici to review the querying procedures, Boasberg operationalized five years of reforms, which led him to discover that practices that had been in place for over a decade violated the Fourth Amendment.

When the agencies submitted their querying procedures in March 2018, all of them except FBI complied with the demand to track and explain the foreign intelligence purpose for US person queries separately. FBI, by contrast, said they already kept records of all their queries, covering both US persons and non-US persons, so they didn’t have to make a change. One justification it offered for not keeping US person-specific records as required by the law is that Congress exempted it from the reporting requirements it imposed on other agencies in 2015, even though FBI admitted that it was supposed to keep queries not just for the public reports from which they argued they were exempted, but also for the periodical reviews that DOJ and ODNI make of its queries for oversight purposes. FBI Director Christopher Wray then submitted a supplemental declaration, offering not to fix the technical limitations they built into their repositories, but arguing that complying with the law via other means would have adverse consequences, such as diverting investigative resources. Amici Cedarbaum and Amy Jeffress challenged that interpretation, and Judge James Boasberg agreed.

The FBI’s querying violations

It didn’t help FBI that in the months leading up to this dispute, FBI had reported six major violations to FISC involving US person queries. While the description of those are heavily redacted, they appear to be:

  • March 24-27, 2017: The querying of 70K facilities “associated with” persons who had access to the FBI’s facilities and systems. FBI General Counsel (then run by Jim Baker, who had had these fights in the past) warned against the query, but FBI did it anyway, though did not access the communications. This was likely either a leak or a counterintelligence investigation and appears to have been discovered in a review of existing Insider Threat queries.
  • December 1, 2017: FBI conducted queries on 6,800 social security numbers.
  • December 7-11, 2017, the same entity at FBI also queried 1,600 queries on certain identifiers, though claimed they didn’t mean to access raw data.
  • February 5 and 23, 2018: FBI did approximately 30 queries of potential sources.
  • February 21, 2018: FBI did 45 queries on people being vetted as sources.
  • Before April 13, 2018: an unspecified FBI unit queried FISA acquired metadata using 57,000 identifiers of people who work in some place.

Note, these queries all took place under Trump, and most of them took place under Trump’s hand-picked FBI Director. Contrary to what some Trump apologists have said about this opinion, it is not about Obama abuse (though it reflects practices that likely occurred under him and George Bush, as well).

These violations made it clear that Congress’ mandate for better record-keeping was merited. Boasberg also used them to prove that existing procedures did not prevent minimization procedure violations because they had not in these instances.

As he was reviewing the violations, Boasberg discovered problems in the oversight of 702 that I had noted before, based off my review of heavily redacted Semiannual Reports (which means they should have been readily apparent to everyone who had direct access to the unredacted reports). For example, Judge Boasberg noted how few of FBI’s queries actually get reviewed during oversight reviews (something I’ve pointed out repeatedly, and which 702 boosters have never acknowledged the public proof of).

As noted above, in 2017 the FBI conducted over three million queries of FISA-acquired information on just one system, [redacted]. See Supplemental FBI Declaration at 6. In contrast, during 2017 NSD conducted oversight of approximately 63,000 queries in [redacted] and 274,000 queries in an FBI system [redacted]. See Gov’t Response at 36.

Personnel from the Office of Intelligence (OI) within the Department of Justice’s National Security Division (NSD) visit about half of the FBI’s field offices for oversight purposes in a given year. Id at 35 & n 42. Moreover OI understandably devotes more resources to offices that use FISA authorities more frequently, so those offices [redacted] are visited annually, id at 35 n. 42, which necessitates that some other offices go for periods of two years or more between oversight visits. The intervals of time between oversight visits at a given location may contribute to lengthy delays in detecting querying violations and reporting them to the FISC. See, e.g., Jan. 18, 2019, Notice [redacted] had been conducting improper queries in a training context since 2011, but the practice was not discovered until 2017).

He also noted that the records on such queries don’t require contemporaneous explanation from the Agent making the query, meaning any review of them will not find problems.

The FBI does not even record whether a query is intended to return foreign-intelligence information or evidence of crime. See July 13, 2018, Proposed Tr. at 14 (DOJ personnel “try to figure out” from FBI query records which queries were run for evidence of crime purposes). DOJ personnel ask the relevant FBI personnel to recall and articulate the bases for selected queries. Sometimes the FBI personnel report they cannot remember. See July 9, 2018, Notice.

Again, I noted this in the past.

In short, as Boasberg was considering Wray’s claim that the FBI didn’t need the record-keeping mandated by Congress, he was discovering that, in fact, FBI needs better oversight of 702 (something that should have been clear to everyone involved, but no one ever listens to my warnings).

FISC rules the querying procedures do not comply with the law or Fourth Amendment

In response to Boasberg’s demand, FBI made several efforts to provide solutions that were not really solutions.

The FBI’s first response to FISC’s objections was to require General Counsel approval before accessing the result of any “bulk” queries like the query that affected 70K people — what it calls “categorical batch queries.”

Queries that are in fact reasonably likely to return foreign-intelligence information are responsive the government’s need to obtain and produce foreign-intelligence information, and ultimately to disseminate such information when warranted. For that reason, queries that comply with the querying standard comport with § 1801 (h), even insofar as they result in the examination of the contents of private communications to or from U.S. persons. On the other hand, queries that lack a sufficient basis are not reasonably related to foreign intelligence needs and any resulting intrusion on U.S. persons’ privacy lacks any justification recognized by§ 1801 (h)(l). Because the FBI procedures, as implemented, have involved a large number of unjustified queries conducted to retrieve information about U.S. persons, they are not reasonably designed, in light of the purpose and technique of Section 702 acquisitions, to minimize the retention and prohibit the dissemination of private U.S. person information.

But Boasberg was unimpressed with that because the people who’d need to consult with counsel would be the most likely not to know they did need to do so.

He also objected to FBI’s attempt to give itself permission to use such queries at the preliminary investigation phase (before then, FBI was doing queries at the assessment stage).

The FBI may open a preliminary investigation with even less of a factual predicate: “on the basis of information or an allegation indicating the existence of a circumstance” described in paragraph a. orb. above. Id. § II.B.4.a.i at 21 (emphasis added). A query using identifiers for persons known to have had contact with any subject of a full or preliminary investigation would not require attorney approval under § IV.A.3, regardless of the factual basis for opening the investigation or how it has progressed since then.

Boasberg’s Fourth Amendment analysis was fairly cautious. Whereas amici pushed for him to treat the queries as separate Fourth Amendment events, on top of the acquisition (which would have had broad ramifications both within FISA practice and outside of it), he instead interpreted the new language in 702 to expand the statutory protection under queries, without finding queries of already collected data a separate Fourth Amendment event.

Similarly, both Boasberg and the amici ultimately didn’t push for a written national security justification in advance of an actual FISA search. Rather, they argued FBI had to formulate such a justification before accessing the query returns (in reality, many of these queries are automated, so it’d be practically impossible to do justifications before the fact).

Boasberg nevertheless required the FBI to at least require foreign intelligence justifications for queries before an FBI employee accessed the results of queries.

The FBI was not happy. Having been told they have to comply with the clear letter of the law, they appealed to the FISA Court of Review, adding apparently new arguments that fulfilling the requirement would not help oversight and that the criminal search requirements were proof that Congress didn’t intend them to comply with the other requirements of the law. Like Boasberg before them, FISCR (in a per curium opinion from the three FISCR judges, José Cabranes, Richard Tallman, and David Sentelle) found that FBI really did need to comply with the clear letter of the law.

The FBI chose not to appeal from there (for reasons that go beyond this dispute, I suspect, as I’ll show in a follow-up). So by sometime in December, they will start tracking their backdoor searches.

FBI tried, but failed, to avoid implementing a tool that will help us learn what we’ve been asking

Here’s the remarkable thing about this. Something like this has been coming for two years, and FBI is only now beginning to comply with the requirement. That’s probably not surprising. Neither the Director of National Intelligence (which treated its intelligence oversight of FBI differently than it did CIA or NSA) nor Congress had demanded that FBI, which can have the most direct impact on someone’s life, adhere to the same standards of oversight that CIA and NSA (and an increasing number of other agencies) do.

Nevertheless, 12 years after this system was first moved under FISA (notably, two key Trump players, White House Associate Counsel John Eisenberg and National Security Division AAG John Demers were involved in the original passage), we’re only now going to start getting real information about the impact on Americans, both in qualitative and quantitative terms. For the first time,

  • We will learn how many queries are done (the FISC opinion revealed that just one FBI system handles 3.1 million queries a year, though that covers both US and non US person queries)
  • We will learn that there are more hits on US persons than previously portrayed, which leads to those US persons to being investigated for national security or — worse — coerced to become national security informants
  • We will learn (even more than we already learned from the two reported queries that this pertained to vetting informants) the degree to which back door searches serve not to find people who are implicated in national security crimes, but instead, people who might be coerced to help the FBI find people who are involved in national security crimes
  • We will learn that the oversight has been inadequate
  • We will finally be able to measure disproportionate impact on Chinese-American, Arab, Iranian, South Asian, and Muslim communities
  • DOJ will be forced to give far more defendants 702 notice

Irrespective of whether back door searches are themselves a Fourth Amendment violation (which we will only now obtain the data to discuss), the other thing this opinion shows is that for twelve years, FISA boosters have been dismissing the concerns those of us who follow closely have raised (and there are multiple other topics not addressed here). And now, after more than a decade, after a big fight from FBI, we’re finally beginning to put the measures in place to show that those concerns were merited all along.