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Five Years after WikiLeaks Exposed CIA Identities in Vault 7, UK Moves Closer to Assange Extradition

Last November, in response to an order from Judge Jesse Furman, DOJ said that they were fine with accused Vault 7 leaker Joshua Schulte’s request for a delay before his retrial. In fact, they didn’t think a Schulte retrial could start before March 21.

Although the Government is available for trial at any time in the first or second quarters of 2022, the Government does not believe it would be practical to schedule the trial prior to March 2022. In particular, although the Government believes that the Court’s prior rulings pursuant to Section 6 of CIPA address the vast majority of questions concerning the use of classified information at trial in this matter, it appears likely that the defendant will seek to use additional classified information beyond that previously authorized by the Court. The process for pretrial consideration of that application pursuant to Section 6 is necessarily complex, entailing both briefing and hearings in a classified setting. To the extent the Court authorizes the defendant to use additional classified information, implementation of the Court’s rulings can also take time, such as through either declassification of information or supplemental briefing regarding the application of Section 8 of CIPA (authorizing the admission of classified evidence without change in classification status). The proposed trial date also takes into consideration matters discussed in the Government’s ex parte letter submitted on August 4, 2021. Accordingly, in order to afford sufficient time both for the likely upcoming CIPA litigation and for the parties to prepare for trial with the benefit of any supplemental CIPA rulings, the Government believes that the earliest practical trial date for this matter would be March 21, 2022.

Part of this delay was to revisit the Classified Information Procedures Act decisions from the first trial because, now that he’s defending himself, Schulte likely wanted to use more classified information than Sabrina Shroff had used in the first trial. It turns out March 21 was overly optimistic for CIPA to be done. Because of an extended debate over how to alter the protective order, the government will only file its CIPA motion tomorrow (it just asked to submit a much longer filing than originally permitted, and got permission to file a somewhat longer one).

It’s the other part of the government’s interest in delay — its references to “matters discussed” in a sealed letter from August 4 — that I’ve been tracking with interest, particularly as the Assange extradition proceeded. As I noted earlier, that August 4 letter would have been sent five years to the day after Schulte started searching on WikiLeaks, Edward Snowden, and Shadow Brokers (according to the government theory of the case, Schulte stole and leaked the CIA’s hacking tools earlier, in late April and early May 2016).

Since those mentions of a sealed letter last year, the government has asked for and gotten two meetings to discuss classified information with Judge Fruman under section 2 of CIPA, first for February 8 (after which a sealed document was lodged in Chambers), and the second one for March 9.

Section 2 provides that “[a]t any time after the filing of the indictment or information, any party may move for a pretrial conference to consider matters relating to classified information that may arise in connection with the prosecution.” Following such a motion, the district court “shall promptly hold a pretrial conference to establish the timing of requests for discovery, the provision of notice required by Section 5 of this Act, and the initiation of the procedure established by Section 6 (to determine the use, relevance, or admissibility of classified information) of this Act.”

That second CIPA Section 2 meeting, on March 9, would have taken place days after the five year anniversary for the first Vault 7 publication, and with it the publication of the names or pseudonyms and a picture of several colleagues Schulte had vendettas against.

Schulte acknowledged that publication in a recently-released self-justification he wrote to an associate after the Vault 7 release (it’s unclear when in 2017 or 2018 he wrote it), one he’s making a renewed attempt to suppress.

The names that were allegedly un-redacted were pseudonyms — fake names used internally in case a leak happened. Those of us who were overt never used last names anyway; This was an unwritten rule at the agency — NEVER use/write true last names for anyone. So I was convinced that there was little personal information revealed besides a picture of an old boss of mine that was mistakenly released with the memes.

Not long after he acknowledged the rule against using people’s names in that self-justification, Schulte used the names of the three colleagues he was most angry at: His boss Karen, his colleague “Jeremy Weber,” and another colleague, Amol, names that were also central to his efforts to leak from jail. If the FBI could ever develop evidence that Weber’s name was deliberately left in WikiLeaks’ Vault 7 publication, both Schulte and anyone else involved would be exposed to legal liability for violating the Intelligence Identities Protection Act, among other crimes.

On Monday, one week short of the day DOJ thought might be a realistic start day for the retrial, the British Supreme Court refused Assange’s bid to appeal a High Court decision accepting (flimsy) US assurances that Assange would not be held under Special Administrative Measures, finding that the appeal “does not raise an arguable point of law.”

Given the timing of the sealed filings in the Schulte case and the way the 2020 superseding indictment accuses Assange of “exhort[ing a Chaos Computer Club] audience to join the CIA in order to steal and provide information to WikiLeaks,” effectively teeing up Schulte’s alleged theft, I would be unsurprised if one of the things DOJ was delaying for weren’t this moment, some resolution to the Assange extradition.

To be sure: the Assange extradition is not over, not by a long shot. As a letter from his attorneys explains, this decision will go back to Vanessa Baraitser, who will then refer the extradition to Home Secretary Priti Patel. Assange will have four weeks to try to persuade Patel not to extradite him.

And, as the same letter notes in classically British use of the passive voice, Assange could still appeal Baraitser’s original ruling.

It will be recollected that Mr Assange succeeded in Westminster Magistrates’ Court on the issue subsequently appealed by the US to the High Court. No appeal to the High Court has yet been filed by him in respect of the other important issues he raised previously in Westminster Magistrates’ Court. That separate process of appeal has, of course, has yet to be initiated.

But an appeal on these issues would be decidedly more difficult now than they would have been two years ago.

That’s true, in part, because the Biden Administration’s continuation of Assange’s prosecution has debunked all the bullshit claims Assange made about being politically targeted by Donald Trump.

I also expect at least one of the purportedly exculpatory stories WikiLeaks has been spamming in recent months to be exposed as a complete set-up by WikiLeaks — basically an enormous hoax on WikiLeaks’ boosters and far too many journalist organizations. WikiLeaks has become little more than a propaganda shop, and I expect that to become clearer in the months ahead.

Finally, if the US supersedes[d] the existing indictment against Assange or obtains[ed] a second one in the last seven months, it will badly undermine any remaining claim Assange has to doing journalism. That’s true for a slew of reasons.

As I laid out here, the part of the Baraitser ruling that distinguished Assange’s actions from journalism based on his solicitation of hacks relied heavily on the language that directly teed up the hack-and-leak Schulte is accused of.

Mr. Assange, it is alleged, had been engaged in recruiting others to obtain information for him for some time. For example, in August 2009 he spoke to an audience of hackers at a “Hacking at Random” conference and told them that unless they were a serving member of the US military they would have no legal liability for stealing classified information and giving it to Wikileaks. At the same conference he told the audience that there was a small vulnerability within the US Congress document distribution system stating, “this is what any one of you would find if you were actually looking”. In October 2009 also to an audience of hackers at the “Hack in the Box Security Conference” he told the audience, “I was a famous teenage hacker in Australia, and I’ve been reading generals’ emails since I was 17” and referred to the Wikileaks list of “flags” that it wanted captured. After Ms. Manning made her disclosures to him he continued to encourage people to take information. For example, in December 2013 he attended a Chaos computer club conference and told the audience to join the CIA in order to steal information stating “I’m not saying don’t join the CIA; no, go and join the CIA. Go in there, go into the ballpark and get the ball and bring it out”. [emphasis Baraitser’s]

If the government proves what is publicly alleged, Schulte’s actions have nothing to do with whistleblowing and everything to do with vindictive hacking to damage the CIA, precisely what Assange was eliciting. Plus, even if such a hypothetical superseding indictment added just Vault 7/Vault 8 charges against Assange, it could put extortion and IIPA on the table (the latter of which would be a direct analogue to the UK’s Official Secrets Act), to say nothing of the still unexplained fate of the CIA source code which — as Schulte himself acknowledged — would have provided an unbelievable benefit had Russia had received it.

And that assumes that Vault 7/Vault 8 would be the only thing the US wanted to supersede with. When Jeremy Hammond asked prosecutors why they hadn’t charged Assange for helping Russia tamper in US elections, they appeared to respond by describing the long time it would take to extradite Assange, implying that they still had time to charge Assange. To be sure, Mueller concluded that he “did not have admissible evidence that was probably sufficient to obtain and sustain a Section 1030 conspiracy conviction of WikiLeaks [or] Assange.” But the implication was that Mueller had evidence, just not stuff that could be submitted at trial. The extradition of Vladislav Klyushin — whose lawyer believed the US was particularly interested in his knowledge of the 2016 operation — might change that. (Like Assange, Klyushin’s extradition was also pending when DOJ submitted that first sealed filing; Klyushin’s case has been continued to share more discovery.)

There are several other operations WikiLeaks was involved in in 2015 and afterwards that would undermine any claim of being a journalistic outlet — and would add to the evidence that Assange had, at least by those years, been working closely to advance the interests of the Russian government.

It would be very hard to argue that Assange was being prosecuted for doing journalism if the US unveiled more credible allegations about the multiple ways Assange did Russia’s bidding in 2016 and 2017, even in normal times. All the more so as Russia is continuing its attack on democracy with its invasion of Ukraine.

And that’s what Assange faces as he attempts to stay out of the US.

Putin’s Playmates Trump and Tucker Remind Trumpsters They’ve Been Trained to Love Putin

As I’ve been watching Putin expand his war in Ukraine, I’ve been thinking a lot about his timing. Why launch it now rather than two years ago, when Trump would have facilitated it, or another year from now, when Republicans are expected to control at least one house of Congress?

I suspect there are a lot of things that dictate the timing. Any invasion was going to come in winter. It’s easier for heavy tanks to move, but more importantly, winter temperatures make it easier to use gas prices to impose a cost on Europe.

I think it happened this year, under Biden’s first full winter rather than 2021 or even 2020 because, up until Biden’s inauguration, Putin’s investment in Trump might still have paid off by allowing Putin to achieve his objectives without launching a war. He almost did, in the insurrection, which was undoubtedly led by MAGAts but which included the participation of some key Russian projects (such as Patrick Byrne).

To be sure, there are European reasons, even beyond the gas squeeze. Boris Johnson is fighting to keep power. Angela Merkel’s retirement surely led Putin to hope that the EU would be left without a strong leader (or that he could more easily manipulate Emmanuel Macron, especially in an election year).

But I believe this invasion represents the culmination of a plan not just to reassert what he imagines is Russian greatness, but also to end US hegemony, which Putin has pursued for a decade.

Ukraine has been a part of that and starting in 2010, Paul Manafort was useful to giving his puppets the patina of legitimacy. After Viktor Yanukovych’s ouster, Ukraine was useful as a testing ground for various kinds of hybrid warfare, most spectacularly with the NotPetya attack in 2018.

Ukraine — the partnership of Konstantin Kilimnik and Oleg Deripaska, along with their leverage over Paul Manafort — was also whence Russian launched its 2016 attack (I need to find the reference, but they knew they could place Manafort as campaign manager before the end of 2015). As I have written (in a piece on my understanding of the role of using the Steele dossier as a vehicle for disinformation), Russia’s interference in 2016 is best understood as a win-win. If Hillary won, Roger Stone would have rolled out the same Stop the Steal plan that was used in 2020 back in 2016 to destabilize the US in 2017 rather than 2021, as happened.

Trump’s win was an unexpected bonus.

As part of the 2016 operation, Russia also did unprecedented damage to the NSA (through the Shadow Brokers operation) and the CIA (in the way that WikiLeaks rolled out the Vault 7 release).

The failure of Russia’s attempt to blame its 2016 interference on a false flag thwarted Russia’s best laid plans — which would have involved Kilimnik calling in the quid pro quo made with Manafort on August 2, 2016 and getting Trump to help carve up Ukraine in the same way Russia is currently doing with tanks.

Even still, the Russian investigation paid huge dividends and, given Putin’s long game, to date has surely been more than worth it. That’s because the FBI-led investigation into Trump’s cooperation with Russia, over time, came to train Republicans to trust Putin more than they trust Democrats.

Republicans genuinely believe, falsely, that the FBI deliberately attempted to take Trump out (entirely memory holing Jim Comey’s role in getting Trump elected, much less that the FBI Agents running informants on the Clinton Foundation during the election were explicitly anti-Hillary). The dossier disinformation project proved so wildly successful that most Republicans genuinely believe, falsely, that there wasn’t abundant proof of cooperation between Trump and Russia, including communications directly with the Kremlin during the election that Michael Cohen lied to hide. Republican members of Congress genuinely came to believe — because they had to! — that criticism of Trump’s refusal to spend the money in support of Ukraine they had appropriated was just another Democratic attack on Trump and not an attempt to save the integrity of American democracy. All this culminated in Stop the Steal 2.0, a literal attack on American democracy; Republican fealty to Trump forced them — more reluctantly at first and driven in large part by real terror — to defend an assault on Congress.

By February 13, 2021, the date the Senate voted to acquit Donald Trump of inciting an attack on Congress, Republicans had put loyalty to Donald Trump over defense of the country and the Capitol in which they worked.

Sure, Putin didn’t get Trump to carve up Ukraine as President. But he got so much more from Trump’s presidency.

Putin did get Trump to do real damage to NATO. He got Trump to largely abandon Syria. Trump made a humiliating deal with the Taliban that would result in the US withdrawing its military from Russia’s back door. After years of Russia having to work hard to highlight American hypocrisy on human rights, Trump did things like pardon war criminals, forever tainting America’s claim to be exceptional.

And through it all, Trump created his own authoritarian-supporting militias, heavily armed troops inspired by resentment who have the ability to make the United States ungovernable. Trumpist Republicans are making localized efforts to dismantle democracy. Trump’s Supreme Court nominees have abandoned legal precedent.

Which brings us to this moment.

I think Putin faced a moment of diminishing returns. Republicans are finally beginning to wake up from their Trump cult. If COVID subsides and the US economy takes off, Democrats might surprise at midterms. I wouldn’t be surprised, either, if Russia expected some details of what it has done over the last decade — involving Julian Assange, involving 2016 (with the prosecution of Vladislav Klyushin), possibly even involving Trump — to become public in the near future. And so Putin chose this moment to launch a war to try to solidify the efforts he has made over the last decade.

Thus far, however, things haven’t gone Putin’s way.

I believe that Putin thought he could demonstrate Five Eyes fragility by conducting war games off the Irish coast without inciting the nationalism of a bunch of Irish fisherman. I believe Putin expected the US and/or Europe would fail to fully incorporate Ukraine in its planning, thereby discrediting Volodymyr Zelenskyy. I believe that Putin expected he would be able to peel away France and Germany (after Olaf Scholz’s initial announcement that it is halting Nord Stream 2, there seems to be some hesitation). I believe Putin expected his false flags would work. I believe Putin believed he’d be able to blame someone else for this invasion. I agree with Dan Drezner, thus far Biden has done just about everything right.

I believe that Putin believed his invasion would split NATO, the EU, and the US. Thus far it has had the opposite effect.

Which brings us to the weird pivot that Trump and his top Fox associates: white nationalist Tucker Carlson, Chief of Staff Sean Hannity, and Laura Ingraham.

Yesterday, Trump hailed Putin’s actions as genius.

“I went in yesterday and there was a television screen, and I said, ‘This is genius.’ Putin declares a big portion of the Ukraine — of Ukraine — Putin declares it as independent. Oh, that’s wonderful,” Trump told conservative podcaster Buck Sexton.

I said, ‘How smart is that?’ And he’s gonna go in and be a peacekeeper. That’s strongest peace force… We could use that on our southern border. That’s the strongest peace force I’ve ever seen. There were more army tanks than I’ve ever seen. They’re gonna keep peace all right,” Trump continued. “Here’s a guy who’s very savvy… I know him very well. Very, very well.”

Last night, Tucker did a chilling monologue, suggesting that Americans have been trained to hate Vladimir Putin.

Tucker suggested that Putin’s invasion is just a border dispute. He’s suggesting that Biden is doing this to pay off imagined debts to Ukrainian Oligarchs. Tucker laid out Putin’s plan for costs to impose on Americans, in terms of energy costs. Tucker included every single false claim about Ukraine that Russia has been planting since 2016. Every single one.

This is the monologue you’d expect of a man who believes there are two years of records showing Russian and Hungarian sources trying to set up one meeting between him and Putin.

To win this war, Putin needs to achieve both goals at once: splitting the US so that he can take Ukraine. One goal serves the other.

And in days ahead, Putin undoubtedly plans to take great risks to impose some costs on European and American voters. In gas prices, sure, but probably also with some ambitious cyberattacks and efforts to support another insurrection. Those costs, I imagine Putin plans, will lead American and European voters to lose patience with support for Ukraine, to forget that this is about the ability to enjoy real democracy.

But to get away with that, Putin has to ensure that it won’t backfire by overcoming the polarization he has invested great effort to encourage in the last five years.

Via whatever means last night, Putin’s two biggest assets in the US (speaking in terms of advantages, not recruited assets, but I don’t rule it out) went out and reminded Trump supporters that they’ve been trained to like Putin more than they like their own country.

Update: Philip Bump notes that Republicans like Putin more than Biden.

Josh Schulte Described the Damage Giving Russia Advance Access to the Vault 8 Files Would Have Caused

As part of a fight over whether the government obtained Josh Schulte’s explanation of his FBI interview via Schulte’s prison notebooks or via subpoena from a Schulte associate (probably a family member), the government released a redacted version of that explanation, ostensibly a chapter in his “Presumed Innocent” blog. It’s fascinating for a slew of reasons (including that he lays out that it would be a crime to expose the identities of his colleagues, and then does just that).

For now, though, I want to look at what Schulte claims he told the FBI about the damage sharing the CIA source code files with Russia would do (none of this appears in the 302 of the interview).

I told them the confluence server was the one that seemed to be compromised, and while horrible and damaging at least it wasn’t Stash; At least not at this point–Hopefully they could stop any additional leaks from the network at this point. From the news articles I’ve read, wikileaks claims to have source code, but we don’t know what code or from where. However, at this point, I knew the SOP was a complete stand down on all [redacted] operations. We had no idea what had been leaked, when, for how long, or even who else had seen the materials leaked. Have they been steadily accessing our network every day? Have all our ops been blown since we wrote the first line of code? Perhaps only confluence had been leaked, but the individual(s) responsible are/were planning to exfil the other parts of DEVLAN too? So much still unknown, and with potential (yet unconfirmed) link between wikileaks and Russia–Did the Russians have all the tools? How long? It seems very unlikely that an intelligence service would ever leak a nation’s “cyber weapons” as the media calls them. These tools are MUCH more valuable undiscovered by the media or the nation that lost them. Now, you can secretly trace and discover every operation that nation is conducting. I told them all this was certainly very disturbing and I felt bad for my friends and colleagues at the agency who likely weren’t doing anything and most likely had to completely re-write everything.

I’m frankly shocked that DOJ didn’t use this file in his first trial, as it accurately describes what multiple witnesses testified happened after WikiLeaks first published the leak: everything ground to a halt while CIA tried to mitigate damage. And as Schulte predicted, the Agency did have to rewrite everything. This is powerful evidence that, if Schulte is found guilty, he knew well what kind of damage he would cause.

Particularly given that I was told Schulte himself reached out to Russia at some point (I’m not convinced this is accurate; it may reflect a misunderstanding of discovery), I find what he said about another nation-state — and he named Russia — obtaining the documents to be particularly interesting.

To be fair to Schulte, when he allegedly leaked the documents (in April-May 2016), there was far less understanding of WikiLeaks’ ties to Russia. So these comments may reflect what he understood in March 2017, after WikiLeaks helped Russia tamper in the election.

But what Schulte describes is precisely what the CIA would have been panicking about in summer 2017, as they ratcheted up spying on WikiLeaks associates. What he described with respect to WikiLeaks’ publication is precisely what happened. With just a few exceptions (published at key moments), WikiLeaks published none of the CIA’s source code. Given what we now know of WikiLeaks’ ties to Russia, there’s a real possibility Russia obtained the files even before the US understood the full extent of Russia’s intervention in the 2016 election. As Schulte accurately describes (and I laid out here), Russia could have spent the months in the interim reverse engineering all the US operations targeting Russia and its clients.

This is something that overblown Yahoo article alluded to, but then never really considered. At precisely the moment US intelligence was beginning to understand that Assange was a Russian asset, they were never able to rule out that this is precisely what Russia did with the files.

Mueller Found Probable Cause, but Did Not Charge, Don Jr for Misdemeanor Hacking

I didn’t move quickly enough yesterday to see what correct reading of newly released Mueller Report materials Byron York deleted. But Byron got literally everything wrong with this tweet, purportedly a correction.

Sadly, Byron is not the only one making this error. Daily Beast did so, as well. Even BuzzFeed’s coverage of this is misleading.

Parts of the Mueller Report that BuzzFeed have liberated — both this most recent unsealing and a prior one in November 2020 — now show that:

  • Mueller had sufficient evidence to charge Don Jr with a misdemeanor CFAA charge, but once he ruled out a felony charge, did not charge Jr, because he correctly determined that would be an asinine prosecutorial decision
  • Mueller had outstanding questions about whether Roger Stone conspired with Russia, and so declined to charge him in July 2018 but did refer those questions for ongoing investigation (an investigation which, if claimed exemptions are any guide, was still ongoing in November 2020)

Mueller didn’t charge Jr because his likely crime amounted only to a misdemeanor

As newly unsealed language explains,

The Office also considered whether Donald Trump Jr. intentionally accessed a protected computer without authorization, in violation of [CFAA … by] us[ing] a password, supplied to him by WikiLeaks … to access the website “putintrump.org” in September 2016.

Mueller found that Don Jr’s conduct met each element — (1) access without authorization and (2) obtain information from (3) a protected computer (4) intentionally — of a misdemeanor CFAA violation (meaning, there was probable cause he had committed the crime):

  1. Trump Jr. received the password from WikiLeaks and then wrote to others that “it worked” when he tried it; that evidence would support a conclusion that he “accesse[d] a computer without authorization.”
  2. Trump Jr’s statement in an email that he had seen the website’s contents likely sufficed to demonstrate that he “obtained information” from the computer, since the word “obtain” in this provision “includes mere observation of the data.”
  3. The computer accessed with the password likely qualifies as “protected” under the statute, which reaches “effectively all computers with Internet access.”
  4. The same course of conduct, and Trump Jr’s email admissions afterwards, also suggested that Trump Jr acted “intentionally.”

That language establishes that, contra Byron, Don Jr did probably commit a crime, something that one of the leading experts on CFAA, Orin Kerr, laid out in 2018.

But Mueller didn’t charge it. Legalistically, Mueller didn’t charge it because prosecutors couldn’t prove that Jr’s conduct was serious enough to merit a felony charge because he didn’t get $5,000 of value from the information or try to commit another crime with the information.

In this instance, Trump Jr. accessed the website shortly before it went public using a “guessed” password that, although it was sent to him individually, had also been posted by WikiLeaks to its public Twitter account, such that anyone following WikiLeaks could have gotten the same purview of the website that Trump Jr. did. That fact, among others, would make it difficult to prove that Trump Jr. acted to further any crime or tort or that he obtained information valued at more than $5,000–which are the kind of circumstances that can trigger felony punishment under the statute.

Colloquially, this language means that Mueller determined the conduct was so minor that it would be asinine to charge. That was undoubtedly the correct decision.

Incidentally, this is a perfect example of what I discussed in my Ratfucker Rashomon series about ways the genre of the Mueller Report — a report on prosecutorial decisions — obscures the real significance of the investigative findings. This conduct was interesting for Mueller not because it was ever going to be charged as a crime (though it was one of the things cited to get the contents of Assange’s Twitter account in 2017), but because WikiLeaks and Assange fairly obviously repeatedly cultivated Jr, including:

  • In October 2016 when they tried to conduct outreach to the campaign via him rather than Roger Stone
  • The day after the election, when they pitched Don Jr on ways to contest a Hillary win
  • In December 2016, when they again tried to shift the pardon discussions ongoing with Stone to Jr
  • In July 2017, when Assange encouraged Don Jr to release his own June 9 meeting emails and to reach out to the go-between Stone was using, Margaret Kunstler
  • In November 2017, when Assange implicitly threatened Don Jr with release of more CIA source code

All this is important for understanding how WikiLeaks was pressuring Trump and likely played a huge role in Trump’s pivot on an Assange pardon after he realized Mueller was investigating it. But much of it is not criminal (and it’s not clear whether Jr encouraged it at all). So none of it appears in the Mueller Report, which is limited to prosecutorial decisions.

This misdemeanor CFAA declination, then, hides far more interesting investigative threads Mueller pursued that would never show up in a declinations report.

Mueller didn’t charge Stone because DOJ was still investigating

Because the four pages released yesterday include two of a number of discussions of the prosecutorial decisions regarding Stone, multiple people (including Byron) are stating that Mueller found that Stone did not conspire with Russia’s hack-and-leak campaign. That’s based on this language:

Separately, Russian intelligence officers who carried out the hacking into Democratic Party computers and the personal email accounts of individuals affiliated with the Clinton Campaign conspired to violate, among other federal laws, the federal computer-intrusion statute, and they have been so charged. See United States v. Netyksho, et al., No. 18-cr-215 (D.D.C.). The evidence was not sufficient to charge that former Trump Campaign member Roger Stone joined or participated in the hacking conspiracy.

[snip]

Therefore, the Office did not seek charges against WikiLeaks, Assange, or Stone for participating in the computer-intrusion conspiracy alleged in Count One of the Netyksho indictment.

Both these references discuss a prosecutorial decision made in July 2018.

But a footnote to the CFAA declination released in the material BuzzFeed liberated in November 2020 reveals that Mueller made multiple referrals regarding this issue to DC’s US Attorney Office.

The Office determined that it could not pursue a Section 1030 conspiracy charge against Stone for some of the same legal reasons. The most fundamental hurdles, though, are factual ones.1279

1279 Some of the factual uncertainties are the subject of ongoing investigations that have been referred by this Office to the D.C. U.S. Attorney’s Office.

A warrant targeting Stone after the Netysko indictment in 2018 explained that, “It does not appear that Stone is currently aware of the full nature and scope of the ongoing FBI investigation.” Warrants from this same period (some of which were originally withheld from Stone) make clear the investigation pertained to his foreknowledge of Guccifer 2.0’s operation, not WikiLeaks. The efforts to hide parts of the investigation from Stone appears to have worked, as he appears to have believed that the charges against him for lying, obstruction, and witness tampering pertaining to WikiLeaks was the end point of the investigation, which may have been why Andrew Miller ended his challenge to a Mueller subpoena after the Report was released.

In fact, a number of other declination decisions don’t include all of Stone’s exposure. The most substantive Stone-related declination in the report addresses contacts with WikiLeaks (but not Guccifer 2.0) and addresses campaign finance crimes.

The individual declinations of a conspiracy don’t address the section of the report that addresses Stone’s conduct:

That particular section is silent about declining a conspiracy related to Volume I Section III, which is where everything Stone-related appears, even his contacts with Henry Greenberg, which was effectively another outreach from a Russian, which otherwise should appear in Section IV.

In other places, too, the report discusses “Trump Campaign officials” or members, rather than discussing people associated with it or a former campaign official as it does elsewhere, a distinction with Stone (who left the campaign in 2015) that Mueller sustained.

Further, the evidence was not sufficient to charge that any member of the Trump Campaign conspired with representatives of the Russian government to interfere in the 2016 election.

[snip]

As a result, the Office did not charge Gordon or any other Trump Campaign official with violating FARA or Section 951, or attempting or conspiring to do so, based on contacts with the Russian government or a Russian principal.

All of which is to say that Mueller did not charge Roger Stone in July 2018 when he indicted the Russian hackers. Likewise, he did not charge Stone for receiving an illegal campaign donation by optimizing the WikiLeaks releases. But the other declinations in the report stop short of addressing Stone’s conduct, and a footnote (as well as referrals that were explicitly labeled as Stone-related in the second release of the report) makes clear that the investigation into Stone continued past the end of the Mueller investigation.

That doesn’t mean DC prosecutors ultimately found that Stone committed a crime. He has not been charged (at least not publicly). But at the time the report was written in March 2019, the investigation into whether Stone conspired with Russia remained ongoing.

Trump’s Coup Attempts: A Tale of Five Pardon Dangles

In an analysis piece earlier this week, the NYT reported as newsworthy that,

Over the weekend, Mr. Trump also dangled, for the first time, that he could issue pardons to anyone facing charges for participating in the Jan. 6 attack if he is elected president again — the latest example of a yearslong flirtation with political violence.

Politico followed that with a report that Trump at least considered blanket pardons for those who might be implicated in January 6.

“Is it everybody that had a Trump sign or everybody who walked into the Capitol” who could be pardoned? Trump asked, according to that adviser. “He said, ‘Some people think I should pardon them.’ He thought if he could do it, these people would never have to testify or be deposed.”

Offering preemptive pardons is not a new idea for Trump. According to Michael Cohen, Trump also entertained bulk pardons with the Russian investigation before Jay Sekulow figured out that it would make it easier for people to testify against him.

Q What is – you had a conversation with Jay Sekulow about something called a pre-pardon?

A Yes.

Q How many conversations did you have with him about pre-pardoning

A One or two.

Q And what did he say to you?

A The problem with a pre-pardon is that you have to answer every question because technically you have immunity, so you can’t assert any Fifth Amendment privilege.

Q Let’s back up for a second, because that presupposes that you’ve already discussed the idea of you getting a pardon. Did Jay Sekulow tell you that the President was considering giving you a pardon?

A That’s not the way that he stated it, but we had a conversation, one at least – I believe it may have been two – and I am not 100 percent certain of the exact date that that occurred, but the concept of a pre-pardon was discussed, yes.

Q Okay. So if you said that’s not exactly how he said it, what do you remember him saying about the idea of you getting a pardon?

A Well, it wasn’t just me. It was globally, in order to, I guess, shut down, you know, this investigation. And I had said to him, you know, what .. well, you know, there’s always the possibility of a pre-pardon. And –

Q Let’s take your time, because it’s important for us to understand not just the gist of the conversation but who said what exactly. All right? So you mentioned something called a global pardon. Did he use that term?

A No.

Q Okay. What do you mean by a global pardon?

A Okay. That in order to shut this whole thing down, that this is how they were potentially going to do it, and everybody would just get a pardon. And said, well, it wouldn’t be a pardon, it would be a pre-pardon, because nobody’s been charged yet. So it ultimately just became, that’s not really something that could be accomplished, because then they’d have the right, again, to ask you questions, everyone on the team.

Q So when you say everyone, who do you mean?

A I guess whoever it is that you started to request to come in, testify, subpoenaed.

And in Trump’s last days in office, he considered pre-emptive pardons, but — in part because of Pat Cipollone’s opposition — he did not do so.

It is the case that Trump has now dangled pardons at a time he doesn’t have the power to grant them. Even that is not new, though, given that Roger Stone was brokering a Julian Assange pardon no later than November 15, 2016 and probably starting even before the election, in October 2016.

This latest dangle is more newsworthy, though — and for reporters who don’t want to enable Trump’s authoritarian power, ought to be reported as — an attempt to reclaim power he already lost after reneging on promises of pardons made while he still had the power to grant them.

It is not news that Trump used pardon dangles as one tool to attempt a coup on January 6. At least five people directly involved in the coup attempt benefitted from pardons, some awarded at key times in the planning process, with Steve Bannon’s issued at the last possible moment.

It is not news that Trump is making pardon dangles publicly to try to bend the will and buy the silence of others. This latest pardon dangle comes in the wake of five events, all of which pose a direct threat to Trump:

  • December 15: The Select Committee contempt referral for Mark Meadows that puts him at risk of Presidential Records Act and obstruction prosecution
  • January 12: The indictment on sedition charges of the Oath Keepers whose testimony could most directly damage Trump
  • January 19: SCOTUS’ refusal to reverse the DC Circuit order allowing the Archives to share Trump records
  • January 19: The delivery to prosecutors, on January 19, of a large number of texts and messages from Rudy Giuliani’s phones
  • January 20: The Select Committee request for Ivanka’s testimony, which strongly suggested she has violated the Presidential Records Act
  • January 21: The report from Sidney Powell’s attorney that she is “cooperating” in her own prosecution and the Select Committee

What’s newsworthy is that Trump is trying this tack after reneging on promises to three of the people involved (during the last days of his Administration, there were reports that Meadows, Rudy, and Ivanka all might receive pardons) that Trump made in the course of planning for the coup.

So I’d like to tell the story of five pardons — three granted, and two withheld — in the context of Trump’s attempted coup on January 6.

Michael Cohen pardon dangle

This first pardon necessary to understand what Trump is up to is one that didn’t happen: The pardon dangle to try to silence Michael Cohen. As the Mueller Report described. in the wake of a raid on Cohen, Robert Costello started reaching out as an envoy for Rudy Giuliani, offering pardons.

On or about April 17, 2018, Cohen began speaking with an attorney, Robert Costello, who had a close relationship with Rudolph Giuliani, one of the President’s personal lawyers. 1022 Costello told Cohen that he had a “back channel of communication” to Giuliani, and that Giuliani had said the “channel” was “crucial” and “must be maintained.” 1023 On April 20, 2018, the New York Times published an article about the President’s relationship with and treatment of Cohen. 1024 The President responded with a series of tweets predicting that Cohen would not ” flip” :

The New York Times and a third rate reporter . . . are going out of their way to destroy Michael Cohen and his relationship with me in the hope that he will ‘flip. ‘ They use nonexistent ‘sources’ and a drunk/drugged up loser who hates Michael, a fine person with a wonderful family. Michael is a businessman for his own account/lawyer who I have always liked & respected. Most people will flip if the Government lets them out of trouble, even if it means lying or making up stories. Sorry, I don’t see Michael doing that despite the horrible Witch Hunt and the dishonest media! 1025

In an email that day to Cohen, Costello wrote that he had spoken with Giuliani. 1026 Costello told Cohen the conversation was “Very Very Positive[.] You are ‘loved’ … they are in our corner … . Sleep well tonight[], you have friends in high places.”1027

According to Cohen, Rudy Giuliani and Robert Costello were at the heart of Trump’s efforts to buy silence.

But Cohen couldn’t be silent about his own plight, and so facing prosecution from that and after a privilege review of his files discovered the recording Cohen made of Trump’s hush payments, he started cooperating with Mueller, helping them to understand what Trump was trying to hide about his ties with the Kremlin during the election.

Cohen paid for that decision, too. He did more time, for example, than Roger Stone, who (like Cohen) had kept blackmail material on Trump. As such, Cohen served as a useful example to Trump: if you cooperated against Trump, Trump would ensure that you suffered a worse outcome than those who had sustained the lies to protect him.

Roger Stone commutation

Roger Stone kept a notebook recording every conversation he had with Donald Trump during the 2016 election. After the election, according to an unreliable October 2018 interview that Steve Bannon had with Mueller’s team, Stone got a meeting to which he brought what appears to be that notebook. Trump asked Bannon to attend, it seems, to ensure that Stone would be kicked out after a short time.

While BANNON was at Breitbart in 2013-2015, BANNON had a strong relationship with [redacted]. BANNON heard from [redacted] STONE was still talking to Trump and was an advisor. STONE subsequently made those statements to BANNON as well. BANNON was suspect and upset. BANNON believed you had to eep TRUMP “on program.” While BANNON was on the Trump Campaign he never heard any mention of STONE from TRUMP or anyone else on the campaign. After the win, STONE tried a full court press in order to get a meeting with TRUMP. [redacted] eventually set up a meeting with TRUMP and STONE in early December 2016 on the 26th floor of Trump Tower. TRUMP didn’t want to take the meeting with STONE. TRUMP told BANNON to be in the meeting and that after 5 minutes, if the meeting hadn’t concluded, to throw STONE out. STONE came in with a book he wrote and possibly had a folder and notes. [full sentence redacted] TRUMP didn’t say much to STONE beyond “Thanks, thanks a lot.”. To BANNON, this reinforced STONE [redacted] After five to six minutes, the meeting was over and STONE was out. STONE was [redacted] due to the fact that during the meeting TRUMP just stared.

That was Bannon’s second-to-last interview with Mueller’s team. A week after his last interview, at which Bannon also appeared before the grand jury, the FBI raided Stone’s homes. One of the things they explicitly looked for was that notebook.

53. On May 8, 2018, a law enforcement interview of [redacted] was conducted. [redacted] was an employee of Stone’s from approximately June 2016 through approximately December 2016 and resided in Stone’s previous New York apartment for a period of time. [redacted] provided information technology support for Stone, but was not f0rmally trained to do so. [redacted] was aware that Stone communicated with Trump during the 2016 presidential campaign, and afterward, both in person and by telephone. [redated] provided information about a meeting at Trump Tower between Trump and Stone during the time [redacted] worked for him, to which Sterne carried a “file booklet” with him. Stone told [redacted] the file booklet was important and that no one should touch it. [redacted] also said Stone maintained the file booklet in his closet.

54. On December 3, 2018, law enforcement conducted an interview of an individual (“Person 1 “) who previously had a professional relationship with a reporter who provided Person 1 with information about Stone. The reporter relayed to Person 1 that in or around January and February 2016, Stone and Trump were in constant communication and that Stone kept contemporaneous notes of the conversations. Stone’s purpose in keeping notes was to later provide a “post mortem of what went wrong.”

In November 2019, Stone was convicted for lying about the nature and Trump’s awareness of his back-channel to the Russian operation. Billy Barr went to extraordinary lengths to attempt to minimize the punishment Stone would suffer for covering that up. He went so far as claiming threats against a federal judge by Roger Stone and the Proud Boys, threats which foreshadowed January 6, were a mere technicality.

But in July 2020, the moment when Stone would have to report to prison approached. Stone made several public appearances telling a story that was impossible as told, the gist of which was that prosecutors had promised Stone they would fight for leniency if he would testify about the content of a subset of the conversations he had with Trump during the election. That had the desired effect: Trump commuted Stone’s sentence before he reported for prison, protecting Stone in a way he had not done for Paul Manafort.

Billy Barr minimized the damage this should have done to Trump’s electoral chances. The Attorney General sat on a footnote of the Mueller Report that revealed when all this occurred, Roger Stone was still under investigation for the hack-and-leak with Russia. Barr released that literally on the eve of the 2020 election, and to this day no major outlet has reported that Stone was still under investigation for conspiring with Russia after the Mueller Report was released.

Mike Flynn pardon

As I laid out in this post, Mike Flynn got next to nothing out of his his two year attempt to renege on his plea agreement with Robert Mueller.

  • Replaced competent lawyers with incompetent TV grifters
  • Released evidence he lied to his lawyers doing the FARA filing
  • Consented to waive privilege so DOJ could find more proof he lied
  • Debunked a slew of conspiracy theories
  • Got really damning transcripts released
  • Served 708 days of supervised release
  • Joined a gang
  • Got one of his gang members prosecuted for death threats against Judge Sullivan
  • Got a ruling — and, later, a clear statement from DOJ — that no abuse occurred
  • Exposed his son to further prosecution
  • Exposed DOJ to further scrutiny
  • Proved Judge Sullivan’s point about selling the country out

After 18 months of making repeatedly debunked claims that he had been victimized by DOJ, however, he did get the most expansive pardon Trump gave, one pardoning not just his underlying crimes, but also the crimes he committed during the process of performing that victimization.

Given everything that has happened since, it’s worth considering Flynn’s performance as a victim as part of Trump’s reelection campaign.

That became most evident on September 29, 2020. Earlier in the day, in a status hearing, Sidney Powell confessed that weeks earlier, she had spoken to Trump about the case, and asked him not to pardon Flynn.

More curious still, she admitted she had spoken with Trump’s campaign attorney, Jenna Ellis.

THE COURT: Let me ask you this before you get to your other objections since we’re talking about — since I raised the issue about communications and correspondence with the Department of Justice. Have you had discussions with the President about this case?

MS. POWELL: I have not, Your Honor, while the case was pending pre-motion to dismiss or otherwise other than an update as to what happened in it.

THE COURT: I’m sorry. I’m not sure I understand your answer. The question is whether you’ve had any discussions at all with the President of the United States about Mr. Flynn and about this case. Yes or no.

MS. POWELL: I’m sorry, Your Honor. I can’t discuss that.

THE COURT: What’s the reason why you can’t discuss that?

MS. POWELL: I would think any conversations that I had with the President would be protected by executive privilege.

THE COURT: Well, you don’t work for the government.

MS. POWELL: I don’t think the executive privilege is limited to people who work for the government.

THE COURT: So you’re purporting to invoke executive privilege not to answer the Court’s question about whether you discussed Mr. Flynn’s case with the President of the United States. Is that correct?

MS. POWELL: Yes. Other than the fact that after the government moved to dismiss or at some point in the last month or so, I provided the White House an update on the overall status of the litigation.

THE COURT: How did you provide that update? Was it in writing?

MS. POWELL: No, sir.

THE COURT: How did you provide that update? Who did you speak with?

MS. POWELL: I provided it in person to counsel for the President.

THE COURT: I mean the White House counsel or a deputy or who did you speak to?

MS. POWELL: Your Honor, I spoke with Jenna [Ellis] and I spoke with the President himself to provide a brief update of the status of the litigation within the last couple of weeks.

THE COURT: And did you make any request of the President?

MS. POWELL: No, sir. Other than he not issue a pardon.

THE COURT: All right. Prior to that discussion with the President — how many discussions with the President have you had about this case?

MS. POWELL: That’s the only one I recall.

THE COURT: So you’re not ruling out other — well, certainly, you would recall a discussion with the President of the United States, wouldn’t you?

MS. POWELL: Well, I’ve had a number of discussions with the President of the United States. I think the New York Times reported I’ve had five. So it seems like they probably have a number better than I know.

THE COURT: Are the New York Times’ representations erroneous?

MS. POWELL: I couldn’t tell you the number of times I’ve actually spoken with the President, Your Honor.

THE COURT: All right. About this case. But there’s been more than one though.

MS. POWELL: No, sir. I can tell you I spoke with one time to the President about this case to inform him of the general status of the litigation.

THE COURT: And was that within the last two weeks?

MS. POWELL: Time has a way of getting by for me, but it’s certainly well after the government moved to dismiss and probably if I recall correctly after the writ of mandamus was entered.

THE COURT: All right. Did you ever ask the President of the United States to request his Attorney General to appoint more attorneys in this case?

MS. POWELL: Oh, heavens, no.

THE COURT: All right. So very succinctly just so I have a clear understanding, what precisely — during the first time you spoke with the President of the United States, what precisely did you ask him to do in connection with this case? What did you ask him to do in connection with this case?

MS. POWELL: I never discussed this case with the President until recently when I asked him not to issue a pardon and gave him the general update of the status of the litigation. [my emphasis]

On the same day Powell admitted to speaking, some weeks earlier, to Trump’s campaign attorney Jenna Ellis, Trump delivered a pre-arranged attack against Joe Biden in the first debate.

President Donald J. Trump: (01:02:22)
We’ve caught them all. We’ve got it all on tape. We’ve caught them all. And by the way, you gave the idea for the Logan Act against General Flynn. You better take a look at that, because we caught you in a sense, and President Obama was sitting in the office.

This false claim was based off misrepresentations based on altered Peter Strzok notes released as part of Bill Barr’s efforts to reverse the prosecution of Flynn. There were other altered documents released for wider dissemination in this period, as well, including additional Strzok and Page texts that newly violated the Privacy Act, though after DOJ had to confess that they had altered those documents, any further focus on the altered documents were dropped.

And then, Trump pardoned his Agent of Turkey along with the Thanksgiving bird.

At the moment Trump would have informed Sidney Powell of that news, she was at Lin Wood’s plantation plotting ways to steal the election Trump had lost. If Flynn was not already with Powell plotting away at the moment he learned of his pardon, he would join her within 24 hours.

Within weeks, the recently-pardoned retired General and foreign agent that had been plotting away with Sidney Powell and Patrick Byrne, someone who had been seduced by an admitted Russian agent, was calling for military intervention. Flynn’s calls for insurrection were reported in real time, but the news was buried and the fact that Trump had just pardoned the man calling for a coup did not make the coverage.

Roger Stone pardon

During the first half of December, Roger Stone was palling around with the accused terrorists who would help physically obstruct the vote certification on January 6.

Days later, one of the Oath Keepers that Stone palled around with, Kelly Meggs, bragged of arranging an alliance with other accused terrorists that Stone also palled around with, the Proud Boys that Trump had told to “Stand Back and Stand By” in that same debate on September 29 where Trump had used a campaign attack packaged up by Sidney Powell.

On December 23, Trump pardoned Stone for the crimes of which he was convicted (but not those that were still under investigation).

On Christmas, Meggs specifically tied protection, almost certainly of Stone, and coordination with a Proud Boy, almost certainly Enrique Tarrio, in the same text.

On December 26, Stone associate Kelly Meggs called this an insurrection (albeit in response to Trump’s order) explicitly.

On December 27, Stone went to Mar-a-Lago to thank Trump for the pardon directly and to discuss how he would “ensure that Donald Trump continues as our president.”

Roger Stone, who received a Christmas week pardon from President Donald Trump, delivered a personal thank you to the president on Sunday at the Trump International Golf Club in West Palm Beach.

Stone wrote that he counseled the president on how he could “ensure that Donald Trump continues as our president.”

[snip]

Stone said via text that he deleted the words and images after he was notified the golf club has “a policy of prohibiting photos of club members or guests out of respect for their privacy.” He said he didn’t have any additional comment.

A photo posted and then removed from Roger Stone's Parler social media page shows President Donald Trump, left, Kimberly Guilfoyle, an unidentified man and Roger Stone at the Trump International Golf Club in West Palm Beach on Sunday.
A photo posted and then removed from Roger Stone’s Parler social media page shows President Donald Trump, left, Kimberly Guilfoyle, an unidentified man and Roger Stone at the Trump International Golf Club in West Palm Beach on Sunday.

One picture showed four people talking: Trump; Kimberly Guilfoyle, a senior adviser to the Trump campaign and Donald Trump Jr.’s girlfriend; Christopher Ruddy, the CEO of the website and cable channel Newsmax, which is based in Boca Raton; and Stone.

“I thanked President Trump in person tonight for pardoning me,” he wrote. “I also told the president exactly how he can appoint a special counsel with full subpoena power to ensure that those who are attempting to steal the 2020 election through voter fraud are charged and convicted and to ensure that Donald Trump continues as our president #StopTheSteal #rogerstonedidnothingwrong.”

The next day, Stone deleted the pictures of his face-to-face meeting with Trump.

On January 5 and 6, Stone continued to interact closely with the Oath Keepers (and some Proud Boys). The morning of the insurrection, one of the Oath Keepers since charged with sedition, Joshua James, checked in with the operational leader for the Oath Keepers that day every time that someone — almost certainly Stone — moved.

Two days after the insurrection, Kristin Davis tweeted out a picture of Stone signing his pardon paperwork. (h/t gal_suburban)

Stone never hid it: His pardon was directly tied to his efforts to keep Trump in power. Given that Stone’s pardon was not as expansive as Flynn’s, he remains at some legal exposure for prosecution for his later efforts (including his June 2017 efforts to shut down the investigation into Julian Assange), so he had a real incentive to do anything he could to keep Trump in power.

Steve Bannon

Three days after Trump lost the election, Steve Bannon — in planning for an illegal second Trump term — threatened to assassinate Chris Wray and Anthony Fauci. The same day, his very competent lawyer, Bill Burck (the guy who got him through a bunch of serial lies in the Mueller investigation), fired him as a client, even as he was facing fraud charges for cheating Trump’s rubes.

It wasn’t until December 11, well into the plotting for a coup, that Robert Costello — the very same lawyer who dangled a pardon to Michael Cohen over two years earlier — noticed his appearance. Costello’s representation of Bannon also meant that the same lawyer represented both Rudy and Bannon, two of the masterminds in the Willard War Room.

December 11, when Costello formally filed as Bannon’s lawyer, is around the same time, according to Dustin Stockton and Jennifer Lawrence, that Paul Gosar’s Chief of Staff tied a pardon for their own involvement in Bannon’s fraud to their efforts to overturn the election results.

In December 2020, as the tour rolled around the country, Stockton and Lawrence say they got a call from Rep. Paul Gosar (R-Ariz.) and his chief of staff, Thomas Van Flein. According to Stockton, Van Flein claimed he and the congressman had just met with Trump, who was considering giving them a “blanket pardon” to address the “We Build the Wall” investigation.

“We were just in the Oval Office speaking about pardons and your names came up,” Van Flein allegedly said. Van Flein did not respond to a request for comment.

Gosar suggested the bus tour was helping Stockton and Lawrence build support for a pardon from the caucus and Trump. “Keep up the good work,” Gosar said, according to Stockton. “Everybody’s seen what you’re doing.”

So it was probably assumed that, so long as Bannon kept helping Trump try to steal the election, he would would get a pardon. That was true even though Roger Stone made it clear after his trial that Bannon had testified in the grand jury against him.

But on the last day, among the very last pardons Trump granted, Trump pardoned Bannon not just for the crimes he had already been charged with, but any others that might arise from the Build the Wall project federally.

Rudy Giuliani left dangling

Almost three years after Rudy started helping Trump out of his legal troubles, in part by shamelessly dangling pardons to (at least) Cohen and Paul Manafort, Rudy got nothing. He got no pardon even though he was represented by Robert Costello, who had started the pardon dangles with him. He got no pardon even after working relentlessly — and exposing himself to further criminal exposure — trying to help Trump steal an election. Rudy got nothing, even though it was known that Barr had failed in his efforts to kill the Ukraine influence peddling investigation into Rudy.

While there had been abundant discussion of pardoning people who weren’t yet charged in early 2021, after Trump’s coup attempt, that plan was scotched.

It might not have happened in any case, given the conclusion Jay Sekulow had come to years earlier, the preemptive pardons make witnesses more likely to testify against Trump.

But because of the insurrection, Pat Cipollone got a lot more involved in pardons. And the insurrection made it virtually impossible to pardon the mastermind of the insurrection, Rudy Giuliani, even while making it all the more important to find a way to keep Rudy silent.

Ten days after (we now know) SDNY first obtained a warrant targeting Rudy Giuliani in the investigation used to justify seizing all his phones, Rudy boasted that he had “very, very good insurance.” Rudy certainly believed Trump would protect him.

But he didn’t.

That’s the angle through which Trump’s latest attempt to dangle pardons should be viewed. Rudy may be the most important person Trump needs to silence. But Trump had a chance to pardon Rudy when he had the authority, and he failed to do so.

Update: Added the SCOTUS decision to the list of things that must have Trump worried. h/t Brian Pillion

Key pardons of January 6 participants

February 18. 2020: Bernie Kerik

November 25, 2020: Mike Flynn

December 22, 2020: George Papadopoulos

December 23, 2020: Roger Stone and Paul Manafort

January 19, 2021: Steve Bannon

Liar’s Poker: The Complexity of Julian Assange’s Extradition

There’s a remarkable passage in the High Court ruling granting the US appeal to extradite Julian Assange. It basically judged that the key medical expert who determined that Assange would be at risk of suicide if he were extradited, Michael Kopelman, had deliberately not told the truth in his first report on Assange about his family ties to Stella Morris and their two kids, and had not used available means to correct his falsehood afterwards.

We do not accept that Professor Kopelman was confronted with a dilemma of such difficulty as has been claimed. No reason has been put forward why, if it was felt that concern for Ms Moris’ safety made it necessary to conceal her identity, he could not simply have reported all relevant facts but indicated that he did not think it right to name her. That, indeed, is what Mr Assange’s solicitor seems to have expected him to do: her statement says that she canvassed with Professor Kopelman whether the identification of Ms Moris as Mr Assange’s partner could be deferred, and the report served, without detriment to or qualification of its conclusions or their basis. Thus she was not proposing that the report should contain anything misleading, only that for the time being Ms Moris should not be named.

Nor has any reason been given why an application could not have been made to the court pursuant to rule 19.9 of the Criminal Procedure Rules which enables material to be withheld in appropriate circumstances. But in any event, even making every allowance for his being placed in a difficult situation, we cannot agree with the judge’s view that Professor Kopelman did not fail in his professional duty. As the judge found, he made at least two statements which were misleading; and we see no escape from the inference that he did so deliberately, having decided to obscure certain facts in order to avoid mentioning the obviously-relevant facts of Ms Moris’ recent and continuing relationship and of the children whom she had by Mr Assange. At the conclusion of his first report, and in accordance with rule 19.4 of the Criminal Procedure Rules, he signed a declaration in the form required by paragraph 19B.1 of the Criminal Practice Direction. In this, he stated amongst other things –

“(vii) I have exercised reasonable skill and care in order to be accurate and complete in preparing this report.

(viii) I have endeavoured to include in my report those matters, of which I have knowledge or of which I have been made aware, that might adversely affect the validity of my opinion. I have clearly stated any qualifications to my opinion. …

(x) I will notify those instructing me immediately and confirm in writing if for any reason my existing report requires any correction or qualification.”

In our view, Professor Kopelman plainly did not comply with those statements, because in his first report he chose not to state what he knew of the relationship between Mr Assange and Ms Moris when opining on the effects of Mr Assange’s “solitary confinement” in the Embassy and the risk of suicide; and subsequently he failed to correct his report or to make clear his earlier knowledge of the relationship. We regret to say that declaration (viii) was simply untrue. His second report did nothing to correct the misleading impressions created by the first. On the contrary, it maintained his silence about his knowledge at the time of the first report.

With all respect to the judge, we cannot agree with her implicit finding that Professor Kopelman’s failings could be excused or overlooked merely because his conduct could be viewed as “an understandable human response”. Many people mislead courts for reasons which might be understandable but that does not excuse the behaviour and it is incompatible with the obligations of an expert witness to do so. Nor was it relevant to the judge’s assessment of his evidence that she had learned of Mr Assange’s relationship with Ms Moris before she read the medical evidence: it was no thanks to Professor Kopelman that she had done so.

There were, therefore, substantial reasons for the judge to question the impartiality and reliability of Professor Kopelman’s opinion. With respect to the judge, we would have expected to see a rather fuller analysis than she gave of her reasons for deciding that she could accept his evidence not least because it was central to the success of Mr Assange on the single ground which led to his discharge.

The question for this court, however, is whether she was entitled to accept his evidence. Mr Lewis confirmed that the USA did not submit to the judge that the professor’s evidence was inadmissible and should be excluded but rather that it should be given little weight, particularly where it was not supported by other expert evidence or contemporary medical records. In the end the argument before the judge devolved to one of weight. It is highly unusual for the court to be considering an expert witness whom a judge has found to have given misleading evidence but whose evidence has nonetheless been accepted. [my emphasis]

Because the US did not argue that his testimony was, as a result, inadmissible, but instead argued his testimony should be given little weight, the High Court ruled they were unable to second guess Vanessa Baraitser’s ruling, which relied heavily on Kopelman’s opinion. For that reason, the High Court rejected US’ two bases for appeal tied to Kopelman’s opinion.

Nevertheless, the High Court accepted that US assurances that Assange would not be subjected to solitary confinement unless he does something new to merit it were sufficient to grant the extradition request.

Ground 2: Having decided that the threshold for discharge under section 91 was met, the judge ought to have notified the USA of her provisional view to afford it the opportunity of offering assurances to the court;

[snip]

Ground 5: The USA has now provided the United Kingdom with a package of assurances which are responsive to the judge’s specific findings in this case. In particular, the US has provided assurances that Mr Assange will not be subject to SAMs or imprisoned at ADX (unless he were to do something subsequent to the offering of these assurances that meets the tests for the imposition of SAMs or designation to ADX). The USA has also provided an assurance that they will consent to Mr Assange being transferred to Australia to serve any custodial sentence imposed on him if he is convicted.

[snip]

The first and fourth assurances wholly exclude the possibility of Mr Assange being made subject to SAMs, or detained at the ADX, either pretrial or after conviction, unless, after entry of the assurances, he commits any future act which renders him liable to such conditions of detention. It is difficult to see why extradition should be refused on the basis that Mr Assange might in future act in a way which exposes him to conditions he is anxious to avoid.

The ultimate effect is that, unless Assange succeeds in his own appeal of this or the underlying decision, then Priti Patel will soon face the decision of whether or not to extradite him.

These two issues go to the dubious credibility of both sides. The High Court ruled that Kopelman did not give unvarnished expert opinion (he was in no way the only one of WikiLeaks’ experts to do so), but found that could not, at this point, affect the legal analysis. And it found that US assurances that US jails would treat Assange humanely were sufficient, even though I believe there is a high likelihood that Assange will do something that ends up getting  him put in some form of isolation.

WikiLeaks has lied systematically throughout this extradition process — about why Assange was charged when he was, about what he was charged with, about how strong the case against him is, about what a Yahoo article actually said. I have described how a very close Assange associate ordered me, in advance of the first extradition hearing, to stop doing factual reporting on Joshua Schulte’s case because it would undermine the story about journalism WikiLeaks wanted to tell, which is one way I’m absolutely certain the lying is intentional. They have affirmatively told a story that was most useful to their propaganda effort, one they knew to be false.

It’s bad enough that WikiLeaks has chosen to lie over and over in Assange’s defense.

But out of a combination of sloppiness and willful ethical failures, press organizations and journalists have replicated those lies, claiming to do so in the name of “journalism.” In effect, press NGOs and journalists have spent the last two years stating that the lying and hacking that WikiLeaks does is what they do — a claim that I fear will backfire in the future. You can’t defend journalism by lying, but that is what Assange has induced journalists and their advocates to do, the world over.

That said, the US is little more credible. There’s scant reason to credit US assurances on jail and prison conditions. That’s true — and would be true for all international extradition cases — because our jails and prisons are shamefully inhumane. But it’s also true because a national security defendant like Assange would have little leeway before triggering more severe restrictions.

This is an example where neither side should be credited.

But that doesn’t change the danger. The way in which DOJ has applied the Espionage Act poses a grave threat to journalism.

17 of the 18 charges against Assange criminalize things that journalists also do: soliciting and publishing classified information.

The 18th charge is a hacking conspiracy, one that extends from efforts to hack multiple targets in 2010, including a WikiLeaks dissident, through the Stratfor hack, includes WikiLeaks’ efforts to exploit their role in helping Edward Snowden flee to Russia, right up to WikiLeaks’ efforts to recruit CIA SysAdmins like Joshua Schulte to hack the CIA, though the indictment stops short of WikiLeaks’ publication of those hacked files. There is nothing controversial about the CFAA charge — and, indeed, people who support privacy should be outraged about some of this (and this is not the only surveillance of private citizens I’ve heard about). A lot of people have been duped to cheerlead really invasive hacking and spying, if done by WikiLeaks, in the name of journalism.

The hacking charge parallels the Espionage charges, which is central to underlying extradition ruling. Judge Baraitser used the way these efforts worked in parallel to distinguish Assange from journalists.

[Baraitser] distinguished what Assange does from what journalists do because, as alleged in the indictment and in actual fact, hacking is such a central part of what Assange does. It’s not clear she would have gotten to this ruling without the language included in the superseding indictment (a superseding indictment which, again, virtually all Assange boosters either willfully ignore or are genuinely ignorant exists). But as it happened, she relied heavily on the language in the superseding indictment and very clearly distinguished what Assange does from what journalists do.

Of particular interest (because this is the language in the indictment that I believe sets up adding Vault 7 to the indictment), Baraitser accepted the US government’s description of Assange recruiting people to hack.

Mr. Assange, it is alleged, had been engaged in recruiting others to obtain information for him for some time. For example, in August 2009 he spoke to an audience of hackers at a “Hacking at Random” conference and told them that unless they were a serving member of the US military they would have no legal liability for stealing classified information and giving it to Wikileaks. At the same conference he told the audience that there was a small vulnerability within the US Congress document distribution system stating, “this is what any one of you would find if you were actually looking”. In October 2009 also to an audience of hackers at the “Hack in the Box Security Conference” he told the audience, “I was a famous teenage hacker in Australia, and I’ve been reading generals’ emails since I was 17” and referred to the Wikileaks list of “flags” that it wanted captured. After Ms. Manning made her disclosures to him he continued to encourage people to take information. For example, in December 2013 he attended a Chaos computer club conference and told the audience to join the CIA in order to steal information stating “I’m not saying don’t join the CIA; no, go and join the CIA. Go in there, go into the ballpark and get the ball and bring it out”.

Again, it’s not just that Assange solicited people to share classified information with him (which journalists do), but that he also explicitly encourages people to hack to get it.

She further used European privacy protections to distinguish Assange’s bulk publication of the identities of US and Coalition (therefore, also UK) informants from journalism.

She distinguished Assange’s publication online (in bulk, though that distinction is less clear and not one of great comfort to someone who also publishes online) from traditional journalism.

More importantly, Baraitser talked about the balancing involved in Article 10 (particularly with regards to the right of private life).

The defence submits that, by disclosing Ms. Manning’s materials, Mr. Assange was acting within the parameters of responsible journalism. The difficulty with this argument is that it vests in Mr. Assange the right to make the decision to sacrifice the safety of these few individuals, knowing nothing of their circumstances or the dangers they faced, in the name of free speech. In the modern digital age, vast amounts of information can be indiscriminately disclosed to a global audience, almost instantly, by anyone with access to a computer and an internet connection. Unlike the traditional press, those who choose to use the internet to disclose sensitive information in this way are not bound by a professional code or ethical journalistic duty or practice. Those who post information on the internet have no obligation to act responsibly or to exercise judgment in their decisions. In the modern era, where “dumps” of vast amounts of data onto the internet can be carried out by almost anyone, it is difficult to see how a concept of “responsible journalism” can sensibly be applied.

[comparison with other outlets and their condemnation of him]

The law already constrains in various ways what may be published in order to avoid damage to private interests. For example, the High Court recently awarded damages against the Associated Newspaper Ltd, after the MailOnline website published an article , reporting on the arrest of the claimant in the aftermath of the Manchester Arena bombing, and disclosing details capable of leading to his identification (Alaedeen Sicri v Associated Newspapers Limited, [2020] EWHC 3541 (QB)). Free speech does not comprise a ‘trump card’ even where matters of serious public concern are disclosed (see Stoll above), and it does not provide an unfettered right for some, like Mr. Assange, to decide the fate of others, on the basis of their partially informed assessment of the risks.

This was not necessarily a national security stance. Rather, in language that would apply equally to Assange’s indiscriminate publication of the DNC and Podesta emails (as well as the publication of the Turkish and Saudi emails), Baraitser argued that Assange’s publication in bulk was not protected because it did not and could not properly weigh the risk to others.

That’s scant comfort for the way Assange’s prosecution could be used against actual journalists, though, for several reasons. First, the Espionage Act charges still criminalize actions that journalists do, including the publication of classified information. Plus, the US First Amendment protects publication, not journalists, and so the distinction Baraitser made works less well in the US. And the US has none of the privacy protections that Baraitser used to distinguish his indiscriminate publication of informant identities (though it should).

In other words, unless the charges — or the way they’re presented — change between now and trial, ultimately the application of them to Assange would be a dangerous precedent given US law.

They may well change. The US government may have plans to make an argument that — even key press defenders have said — would make the Espionage Act charges more palatable: by, in effect, declaring Assange a spy. That’s one of the reasons I find the sealed ex parte filing submitted in the Joshua Schulte case on August 4 of such interest, because it seems so reactive to what is going on in the Assange extradition.

To understand why I think this is a possibility, it’s important to understand key details about the timeline leading up to Assange’s charges, details that WikiLeaks has worked very hard to obscure:

  • As CNN reported in a 2017 piece that Julian Assange’s expert professed to be unable to find with Google, “The US view of WikiLeaks and Assange began to change after investigators found what they believe was proof that WikiLeaks played an active role in helping Edward Snowden, a former NSA analyst, disclose a massive cache of classified documents.” Snowden’s own book gave significant reason to believe this went well beyond simply fleeing to Russia. In any case, once Assange helped Snowden flee, WikiLeaks had eliminated the “NYTimes problem” DOJ faced if they prosecuted Assange for things real news outlets also do, because whatever else journalists do to protect their own sources, they don’t help the intelligence officers of one country flee to a hostile country.
  • Just before Obama left office, the review of WikiLeaks’ role in the Russian election operation changed the view of the Obama Administration. It’s impossible to know whether that would have led Obama to charge Assange if he had more time. But there’s reason to believe that developments people like to blame on Trump — like increased surveillance of Assange — were set in motion before Trump came in.
  • The 2017 release of hacked CIA tools — the publication that led Mike Pompeo to call WikiLeaks a hostile non-state intelligence agency and to consider and in some cases implement more onerous steps against Assange — not only involved the same actions currently charged for the Manning leaks (including the apparently selective publication of CIA officer identities), but it also involved efforts to extort the US government and even the President’s son. Additionally, the concern about WikiLeaks’ treatment of the CIA leak was not just or even primarily about the files that got released, but the files that WikiLeaks was hoarding; that’s what the government was really trying to understand when they conducted some of the more aggressive spying on WikiLeaks associates: what WikiLeaks was doing with the CIA’s source code, the vast majority of which is still unaccounted for.
  • In addition to the Vault 7 release, after Roger Stone almost got Trump to shut down the entire Russian investigation in June 2017, later in 2017 DOJ started investigating Assange’s role in the 2016 operation, an investigation that at least by 2018 encompassed the question of whether he was an Agent of Russia. Particularly about these topics, Assange repeatedly foregrounded Russian-favored storylines during his extradition, rather than the truth.
  • The surveillance that ratcheted up starting in summer 2017 and especially in December 2017 reportedly bore fruit. That month, according to even WikiLeaks-friendly sources speaking to Yahoo, Russia tried to exfiltrate Assange. This is a core detail of the Yahoo story that WikiLeaks has otherwise embraced, one that likely affects everything that came later. Julian Assange was not charged in 2016 after he helped Russia tamper in the US election. He was not charged in April 2017 after the Vault 7 release. He was charged the day the Russians tried to exfiltrate him. The Espionage Act charges that pose such a threat to journalism only came in May 2019, at least 8 months after DOJ started investigating whether Assange was a Russian Agent based on his 2016 conduct and two years after they significantly ramped up surveillance of him. The second superseding indictment that Assange boosters like to ignore includes conduct that extends through 2015 and incorporates multiple hacking conspiracies (in a single count) and his actions with regards to Edward Snowden. None of that changes the danger the Espionage Act charges pose to journalism. But it means they post-date the time when Russia came to fetch Assange.

In 2020, as part of a presumptively cynical attempt to coerce Jeremy Hammond to testify against Assange in a grand jury, prosecutors on this case asserted, as fact, that Assange is a Russian spy.

I don’t know whether that’s true or not — or whether the government would ever share its evidence to make the case, much less prove that he was a Russian spy during all the current charged acts going back to 2010. I know of plenty of circumstantial evidence going back even before 2009 that makes it plausible (here’s a compendium of some, but not all, of that evidence I know of). If that were proven, it would suggest Assange is — and may have been since he convinced Chelsea Manning to keep stealing documents, some of which she didn’t personally work with — a spy, using a classic technique of recruiting people using one motive to serve a very different one. It’d be a brilliant way to convince a lot of people to ruin their lives if that were true.

I’m not going to persuade the boosters nor, probably, is anything the US government would be willing to say in unclassified form. But I invite Assange boosters to consider whether they would continue their own activism for him if they were convinced of that fact. (There’s absolutely a case to be made for doing so, particularly for non-Americans.) More importantly, I invite journalists and journalism NGOs, particularly the ones who have been telling partial truths, lies of omissions, or magnifying brazen falsehoods, to consider what that would mean for their profession, if after spending two years proclaiming that what Assange does is what journalists do it were revealed that Assange was not what the deliberate lies WikiLeaks is telling proclaim him to be.

I’d like to protect journalism. That requires opposing the Espionage Act charges against Assange for obtaining classified information and publishing it. But it also requires telling the truth about Julian Assange.

What today’s High Court judgment confirms is that neither side can be trusted.

DOJ’s Ex Parte Classified Plans for Joshua Schulte — and Maybe, Julian Assange

Update: The High Court has overturned Baraitser’s ruling, finding that the US should have had an opportunity to give the assurances it has since given that Assange will not be subjected to solitary confinement. I expect Assange will appeal immediately.

Per a tweet from Stella Morris, the decision in the appeal of a Vanessa Baraitser’s decision denying the US extradition request for Julian Assange on humanitarian grounds will be announced Friday at 10:15 GMT. Because of something that happened in the High Court extradition hearing, I want to point to some things that happened in the Joshua Schulte docket in recent months.

On August 5, DOJ filed notice of an ex parte classified status letter in the Schulte case.

The Government respectfully submits this letter to provide notice of an ex parte, classified status letter submitted yesterday.

By filing an ex parte classified status letter, the government would have informed the judge (then Paul Crotty but the case has since been reassigned to Judge Jesse Furman) something about the case, without sharing it with Schulte or the public. The letter would have been filed five years to the day after the start date, August 4, 2016, for searches DOJ has described that Schulte did on WikiLeaks, Edward Snowden, and (as described elsewhere) Shadow Brokers.

In addition to the numerous searches for “wikileaks” which commenced on August 4, 2016, SCHULTE also conducted multiple related Searches, including: prior to the March 7, 2017 release of the Classified Information, “assange” (Julian Assange is the founder and “editor-in-chief’ of WikiLeaks.org), “snowden its time,” “wikileaks code,” and “wikileaks 2017”-and after the March 7, 2017 release of the Classified Information, “wikileaks public opinion,” and “officials were aware before the WikiLeaks release of a loss of sensitive information.”

On September 23, the government wrote a letter to Judge Crotty, voicing its support for adjourning Schulte’s trial date — which at that point was scheduled for October 25, two days before Assange’s extradition hearing — and revisiting the schedule after November 1, several days after the extradition hearing.

The Government respectfully submits this letter in response to the defendant’s request to adjourn the trial date, currently scheduled for October 25, 2021. (D.E. 495). As discussed at the pretrial conference held on September 15, 2021, the Government consents to the defendant’s request for an adjournment. We respectfully suggest that the Court enter an order adjourning the trial sine die, and the Government will provide an update with respect to our views on an appropriate trial date by November 1, 2021.

On September 26, Yahoo published a story that made claims about assassination discussions that, the story itself revealed, were overblown. The story debunked WikiLeaks’ claims that the charges against Assange were political retaliation pertaining to the Russian investigation from Trump. It corroborated the obvious temporal link between the initial charge against Assange and a Russian exfiltration attempt. And it provided details of CIA’s clandestine plans to limit the damage of the still (then, and now) unreleased Vault 8 source code of CIA’s hacking tools. There’s reason to believe WikiLeaks has known aspects of those damage mitigation plans for at least two years, via means they do not want to disclose.

Since its publication, WikiLeaks has used the story to try to suggest that the DOJ extradition should not go forward, but the British judges who heard the appeal seemed unimpressed by tales of CIA outrage about WikiLeaks’ hoarding CIA’s hacking tools.

As part of the extradition hearing on October 28, according to the WikiLeaks’ Twitter account, the lawyer representing the US in Assange’s extradition hearing, James Lewis, asserted that if this effort to extradite Assange fails, they can just start again with another extradition request.

Note: I looked for a more credible source for this quotation than WikiLeaks, which has been sowing more propaganda than usual in recent months, but did not find it quoted by other credible journalists. For the purposes of this post, though, I will accept this as accurate. A representative for US DOJ said that if this extradition attempt fails, Lewis seemed to suggest, DOJ can ask the UK to extradite on a different indictment.

Shortly after the extradition hearing, on November 5, in response to an order from Judge Furman, DOJ proposed March 21, 2022 as the earliest feasible trial date, largely because of expected CIPA proceedings, but in part because of whatever DOJ discussed in that August 4 ex parte classified status letter.

Although the Government is available for trial at any time in the first or second quarters of 2022, the Government does not believe it would be practical to schedule the trial prior to March 2022.

[snip]

The proposed trial date also takes into consideration matters discussed in the Government’s ex parte letter submitted on August 4, 2021. Accordingly, in order to afford sufficient time both for the likely upcoming CIPA litigation and for the parties to prepare for trial with the benefit of any supplemental CIPA rulings, the Government believes that the earliest practical trial date for this matter would be March 21, 2022.

March 21 would be two weeks after the five year anniversary of the first publication of Vault 7, the less harmful development notes stolen from the CIA, but with them, the names or pseudos of several colleagues that Schulte allegedly scapegoated. That would be the likely date for any statutes of limitation on another CFAA conspiracy to toll.

That is, this timing would provide DOJ an opportunity to learn the fate of Assange’s first, declassified charges through 2015, in case DOJ wanted to ask for extradition on a second case charging actions since 2015.

Admittedly, one explanation for that August 4 filing could be that DOJ obtained new evidence (though if it is evidence Schulte will ultimately get, it should not be ex parte). But given Lewis’ comment and the timing of DOJ’s various updates about trial schedule, one explanation is that DOJ would ask to extradite Assange for the Vault 7 publications (and related actions that have nothing to do with journalism) if the current extradition effort fails.

Ultimately, Schulte’s decisions have created a further delay than the one the government proposed. Because Schulte’s expert, Steve Bellovin, has limited availability due to his teaching schedule, the trial is scheduled to start on June 13, 2022, more than six years after Schulte allegedly stole the files in question.

Depends on what happens tomorrow, though, we may learn sooner what that ex parte filing was.

The Julian Assange Question: True Claims about Prison Conditions or Lies in Service of Martyrdom?

Today and tomorrow, the United States will appeal Judge Vanessa Baraitser’s decision in the Julian Assange case that American prisons are too inhumane to house someone with suicidal tendencies safely. The US will argue several things about the decision, including that Baraitser had wrongly credited testimony of an expert that, like that of several others presented in Julian Assange’s extradition defense, was obviously misleading.

On Wednesday, judges said the weight given to a misleading report from Assange’s psychiatric expert that was submitted at the original hearing in January could form part of Washington’s full appeal in October.

Sitting in London, Lord Justice Holroyde said he believed it was arguable that Judge Vanessa Baraitser had attached too much weight to the evidence of Prof Michael Kopelman when deciding not to allow the US’s appeal.

[snip]

Delivering the latest decision, Holroyde said it was “very unusual” for an appeal court to have to consider evidence from an expert that had been accepted by a lower court, but also found to have been misleading – even if the expert’s actions had been deemed an “understandable human response” designed to protect the privacy of Assange’s partner and children.

The judge said that, in those circumstances, it was “at least arguable” that Baraitser erred in basing her conclusions on the professor’s evidence.

“Given the importance to the administration of justice of a court being able to reply on the impartiality of an expert witness, it is in my view arguable that more detailed and critical consideration should have been given to why [the professor’s] ‘understandable human response’ gave rise to a misleading report.”

The US government had previously been allowed to appeal against Baraitser’s decision on three grounds – including that it was wrong in law. Assange’s legal team had described the grounds as “narrow” and “technical”. The two allowed on Wednesday were additional.

One key issue is whether assurances the US offered to the UK that Assange won’t be held under Special Administrative Measures are worth the paper they were written on (they’re probably not).

The summary of the decision to accept the appeal said that the United States had “provided the United Kingdom with a package of assurances which are responsive to the district judge’s specific findings in this case.”

Specifically, it said, Mr. Assange would not be subjected to measures that curtail a prisoner’s contact with the outside world and can amount to solitary confinement, and would not be imprisoned at the supermax prison in Florence, Colo., unless he later did something “that meets the test” for imposing such harsh steps.

“The United States has also provided an assurance that the United States will consent to Mr. Assange being transferred to Australia to serve any custodial sentence imposed on him,” the summary said.

While the basis for refusing extradition — expanding on a precedent established with Lauri Love, whose Aspergers was far more severe and better established than Assange’s depression — may be controversial, the severe conditions in American prisons are not.

And that’s why the focus of Assange’s team over the past nine months and in the next few days will be so telling.

Assange’s team would need to look no further than Joshua Schulte — the accused source for the stolen CIA hacking tools who has been held under draconian Special Administrative Measures (which sharply curtail Schulte’s ability to communicate with anyone besides his lawyers and immediate family) for over three years — to demonstrate how WikiLeaks associates have been treated in US jails. Judge Paul Crotty recently rejected Schulte’s latest bid to end the SAMs before the case got reassigned — with no public explanation — to Judge Jesse Furman (Crotty must be getting close to going senior status, but Schulte also asked Crotty to recuse). In his order affirming the SAMs on Schulte, Crotty noted that the former CIA developer, “intentionally disclosed information he knows to be classified–including in a recently filed motion seeking declassification of that very information,” and prosecutors just warned that Schulte may face additional consequences for doing so.

In recent weeks, the defendant has, through standby counsel, attempted to file several documents on ECF that appear to contain classified information. Section 5 notices are particularly likely to contain classified information, since the statute requires the defendant to “include a brief description of the classified information” at issue, and prohibits the defendant from “disclos[ing] any information known or believed to be classified in connection with a trial or pretrial proceeding until notice has been given under this subsection” and the United States has had an opportunity to seek a CIPA § 6 hearing and, if applicable, an appeal from the Court’s determination under § 7. Should the defendant knowingly and intentionally publicly file or attempt to publicly file information “known or believed to be classified,” including as part of a § 5 notice, he could be subject to penalties.

Likewise Assange’s team could point to the case of Daniel Hale, who was jailed prior to sentencing because it was feared he would harm himself, but then was placed in the Marion Communications Management Unit, a less harsh regime restricting prisoners’ communications than SAMs, but nevertheless not something known to be justified by anything Hale did during pre-trial release, and something that exacerbates Hale’s isolation in prison.

Rather than focusing on these very uncontroversial issues, Assange’s team has spent the last nine months spinning wildly about topics other than US prison conditions. They did so, first, by falsely claiming that an article in which Siggi Thordarson reaffirmed one of the most damning things he said about Assange would doom the case against Assange, even though as a co-conspirator, Siggi is unlikely to be called as a witness. More recently, Assange’s team has embraced an article showing that CIA Director Mike Pompeo was unable to pursue a variety of measures to attempt to thwart the release of (still substantially unreleased) stolen hacking tools, even though the article proves that Assange lied wildly in his extradition hearing about when and why the US government changed its understanding of his actions and further shows that the US didn’t charge Assange in the face of Pompeo’s pressure, but only did so when Russia attempted to exfiltrate Assange.

Assange has a really good case to make about US jail and prison conditions.

Instead, Assange has spent the last nine months telling wild stories in an effort to make a man credibly accused of conspiring to hack US targets a martyr of journalism.

Ryan Grim’s “Gibberish” about Co-Conspirator Statements

Something remarkable happened the other day when I was debunking (again) Ryan Grim for (again) misrepresenting the Siggi Thordarson story that I debunked long ago.

Ryan twice claimed the Federal Rules on Evidence are “gibberish.”

To be sure, these legal rules are gibberish, especially for those, like Ryan, whose beat has nothing to do with reporting on legal cases and so might not recognize the reference to the hearsay exception.

But Ryan also, obviously, not only didn’t recognize that I was making a factual observation about the way the indictment against Assange was charged and the rules under which evidence against him would be introduced at trial (if one ever happens), but responded based on an apparent assumption I was denying that co-conspirators flip on each other (Siggi did that ten years ago, not this year).

There’s an apparent belief that there would be a dramatic moment at trial where Siggi would take the stand as the single witness testifying that Assange did certain things with LulzSec and Assange’s lawyer Barry Pollock will get Siggi to explain that everything he told first the FBI and then prosecutors about Assange’s knowledge of his efforts to solicit hacks against US targets was a lie at the time, that in fact, Siggi really masterminded all of that and (more importantly for Assange) that Assange knew nothing about it and actively opposed it.

That scenario simply doesn’t understand the significance of the way DOJ charged the hacking, especially, as a conspiracy.

I’ve written about the significance of the parallel conspiracy charges in the Assange indictment before, but for the purposes of explaining the hearsay exception and other reasons it’ll be harder to discredit Siggi (who I agree is a liar) than people think, I’ll try again. Elizabeth de la Vega once provided a succinct eight-point description of how conspiracies get prosecuted that cuts through a lot of the legal gibberish.

CONSPIRACY LAW – EIGHT THINGS YOU NEED TO KNOW.

One: Co-conspirators don’t have to explicitly agree to conspire & there doesn’t need to be a written agreement; in fact, they almost never explicitly agree to conspire & it would be nuts to have a written agreement!

Two: Conspiracies can have more than one object- i.e. conspiracy to defraud U.S. and to obstruct justice. The object is the goal. Members could have completely different reasons (motives) for wanting to achieve that goal.

Three: All co-conspirators have to agree on at least one object of the conspiracy.

Four: Co-conspirators can use multiple means to carry out the conspiracy, i.e., releasing stolen emails, collaborating on fraudulent social media ops, laundering campaign contributions.

Five: Co-conspirators don’t have to know precisely what the others are doing, and, in large conspiracies, they rarely do.

Six: Once someone is found to have knowingly joined a conspiracy, he/she is responsible for all acts of other co-conspirators.

Seven: Statements of any co-conspirator made to further the conspiracy may be introduced into evidence against any other co-conspirator.

Eight: Overt Acts taken in furtherance of a conspiracy need not be illegal. A POTUS’ public statement that “Russia is a hoax,” e.g., might not be illegal (or even make any sense), but it could be an overt act in furtherance of a conspiracy to obstruct justice.

The bold rule, seven, is actually rule 801(d)(2)(E) in the Rules of Evidence describing out of court statements by co-conspirators that aren’t treated as hearsay.

(2) An Opposing Party’s Statement. The statement is offered against an opposing party and:

[snip]

(E) was made by the party’s coconspirator during and in furtherance of the conspiracy.

That means, most basically, that anything Siggi said, “in furtherance of the conspiracy … during the course of the conspiracy” (for example, to recruit others to steal documents that WikiLeaks could publish) can be introduced at any hypothetical Assange trial without Siggi having to take the stand. Several of the statements about which (Assange boosters claim) Siggi has retracted his testimony might well come in as evidence against Assange without Siggi ever having to show up. And the way DOJ has constructed this indictment makes it less likely that he would show up to retract his testimony.

There are five kinds of Siggi statements relevant to the hacking charge against Assange. First, the statements he made online, largely in the chatlogs he provided to the FBI, as a member of WikiLeaks before he left WikiLeaks and sold them out to the FBI on August 23, 2011. Those are what would come in under a hearsay exception.

Then there are statements Siggi made in that initial period as an FBI informant in 2011, and then separately, the statements he made under an immunity agreement before DOJ charged this indictment. As I understand it the terms of those discussions are different, as a confidential human source in the first case but as a co-conspirator testifying with immunity in the second. Assange would undoubtedly point to the terms under which he cooperated with US prosecutors to impeach Siggi’s credibility, using them to say he said what he did only to avoid legal liability himself. But the most useful stories to tell about those two interactions conflict (for example, to undermine Siggi’s motive for sharing chatlogs with the FBI, it serves to claim that Siggi was trying to dodge his own prior crimes in Iceland, but to undermine the second, WikiLeaks is now claiming, Siggi never committed those crimes in Iceland).

Importantly, however, what Siggi told the FBI in 2011 and DOJ in 2019 (as distinct from the legal terms under which he did so) will only be introduced as evidence if he does testify, and in that case, to force him to hew to his earlier stories.

I fail to see any evidentiary basis for Siggi’s more recent comments to Stundin to come in unless he testifies; they’re hearsay. To present evidence that Siggi told FBI and DOJ what they wanted to hear and then went to two Icelandic journalists who hadn’t read the indictment to brag about doing so, you’d have to call Siggi as a witness and get him to say that under oath.

This brings me to what I presume is a prosecutorial strategy; it appears that DOJ gave the opportunity (and went to great lengths in an attempt to coerce, in the case of Chelsea Manning and Jeremy Hammond) for all people described as co-conspirators in the indictment to testify, with immunity, before trial. I suspect they attempted to do so to lock in their testimony in advance of any trial, exposing the witness to perjury charges if the testimony changed (as Assange boosters claim Siggi’s has). I assume that, if prosecutors had a choice, zero of these co-conspirators would be called as witnesses at trial, but instead their co-conspirator statements would be introduced under the hearsay exception (though I expect that Manning would get subpoenaed to appear at any hypothetical trial, but possibly not called, by both sides given that she didn’t testify).

But if Siggi shows up (or anyone else who already provided presumably sworn testimony) as an Assange witness, he would be on the hook for the earlier statements he made to investigators that deviated from his new statements. That is, if Siggi testified contrary to what he already told FBI and DOJ, that would normally entail him being present in the US and therefore readily available for prosecution for a crime — perjury, at least — committed as an adult.

To be fair, Siggi’s arrest by Iceland improves Assange’s chance of calling Siggi as a witness. That’s because he would be otherwise unavailable to Assange (because he’s in prison), so Assange could ask to take a Rule 15 pre-trial deposition of Siggi in jail. While that would still allow prosecutors to demonstrate that Siggi’s hypothetically changed sworn testimony conflicts with his past sworn testimony, his current arrest and the need for extradition would lessen the legal risk for Siggi of reversing his past statements. Still, that that would require Assange wanting to focus even more attention on why he chose to associate with a serial fraudster and convincing a judge his statements were material.

There’s one more rule that bears notice to that explains why not a lot of co-conspirator witnesses are going to want to show up and testify to help Julian Assange, if their truthful testimony would help him. De la Vega’s rule six explains that, “once someone is found to have knowingly joined a conspiracy, he/she is responsible for all acts of other co-conspirators.” That means early co-conspirators who did not take steps to leave the conspiracy are on the hook for any of the later overt acts currently charged or the ones DOJ might charge. It would be child’s play to extend the parallel conspiracies — which currently extend through 2015 — through Assange’s 2016 publication of files GRU stole and through Joshua Schulte’s alleged hacking of the CIA, just the SysAdmin hacking the CIA that Assange used Edward Snowden’s example to solicit in 2013. Because Schulte declared an “Information War” on the US and attempted to leak more classified information from jail, the conspiracy could credibly be claimed to have extended through October 2018, meaning statutes of limitation might not toll until 2023.

The sustained hoax that that Stundin article shows Siggi retracting his testimony which (the claim goes) undermines the CFAA charge against Assange depends on several assumptions: first, that he actually did reverse his testimony (he did, but only on one small issue, and he also reaffirmed the most important claim he made about Assange), second, that there aren’t a slew of more credible witnesses (like Edward Snowden, and even more credible people the indictment doesn’t name) against Assange. But most importantly, the Assange boosters believe that this article — or some other kind of proof that Siggi retracted (a small but not the most damning part of) his testimony against Assange — will be introduced as evidence at the trial.

It’s hard to imagine how this article would. It’s hearsay. The reason claims made by pathological liars (or even more credible witnesses) to journalists can’t be introduced at trial via the article a journalist writes is because those claims can’t be tested in court. Unless Assange wants to argue that he and Siggi remained in a conspiracy when Siggi made the claims to Stundin, and the claims made to Stundin were part of that conspiracy, but that’s probably not going to help Assange.

DOJ has built the indictment against Assange such that they won’t have to rely on many uncooperative witnesses who already pled guilty under oath to participating in the conspiracy. And if those uncooperative witnesses appear as witnesses for Assange, they face the risk of new legal jeopardy, whether perjury charges or renewed exposure to the conspiracy.

I’m not celebrating that fact. I’m observing it. Julian Assange is in no way unique on this front.

But virtually none of the people claiming Siggi’s purported retraction helps Assange are even familiar with the content of the indictment, and fewer still seem to understand that Siggi is highly unlikely to be the dramatic witness at trial they want him to be. If those details appear to be “gibberish” to you, it’s probably a caution against accepting claims you want to be true without first understanding the legal rules behind the gibberish.

DOJ Was Still Working to Access Joshua Schulte’s Phone in September 2019

Glenn Greenwald is making factually unsupported defenses of Russia on Twitter again.

Yesterday, he made an argument about what he sees as one of the most overlooked claims in the Yahoo piece suggesting there was an assassination plot against Julian Assange and then, 100-something paragraphs into the thing, admitting that discussions of killing Assange were really regarded in the CIA as, “a crazy thing that wastes our time.”

Glenn doesn’t, apparently, think the overlooked detail is that the timeline in the story describing the changing US government understanding towards Assange, including Edward Snowden’s central role in that, shows that Assange’s defense lied shamelessly about the timeline in his extradition hearing.

Nor does Glenn seem interested that DOJ didn’t charge Assange during the summer of 2017 after Mike Pompeo started plotting against the Australian, but only did so on December 21, 2017, as the US and UK prepared for what they believed to be an imminent exfiltration attempt by Russia.

Intelligence reports warned that Russia had its own plans to sneak the WikiLeaks leader out of the embassy and fly him to Moscow, according to Evanina, the top U.S. counterintelligence official from 2014 through early 2021.

The United States “had exquisite collection of his plans and intentions,” said Evanina. “We were very confident that we were able to mitigate any of those [escape] attempts.”

[snip]

Narvaez told Yahoo News that he was directed by his superiors to try and get Assange accredited as a diplomat to the London embassy. “However, Ecuador did have a plan B,” said Narvaez, “and I understood it was to be Russia.”

Aitor Martínez, a Spanish lawyer for Assange who worked closely with Ecuador on getting Assange his diplomat status, also said the Ecuadorian foreign minister presented the Russia assignment to Assange as a fait accompli — and that Assange, when he heard about it, immediately rejected the idea.

On Dec. 21, the Justice Department secretly charged Assange, increasing the chances of legal extradition to the United States. That same day, UC Global recorded a meeting held between Assange and the head of Ecuador’s intelligence service to discuss Assange’s escape plan, according to El País. “Hours after the meeting” the U.S. ambassador relayed his knowledge of the plan to his Ecuadorian counterparts, reported El País.

What Glenn thinks is important is that, on April 13, 2017, when Mike Pompeo labeled WikiLeaks a non-state hostile intelligence service, the CIA did not yet have proof that “WikiLeaks was operating at the direct behest of the Kremlin,” though of course Glenn overstates this and claims that they had “no evidence.”

Glenn then claimed that CIA’s lack of proof on April 13, 2017 is proof that all claims about Assange’s ties with Russia made in the last five years — that is, from roughly October 7, 2016 through October 12, 2021 — lacked (any!) evidence. In other words, Glenn claims that CIA’s lack of proof, before UC Global ratcheted up surveillance against Assange in June 2017 and then ratcheted it up much more intensively in December 2017, and before US intelligence discovered the Russian exfiltration attempt, and before they had enough evidence to charge Joshua Schulte in 2018, and before they seized Assange’s computer in 2019, and before Snowden wrote a book confirming WikiLeaks’ intent in helping him flee, is proof that they never acquired such proof in the 1600 days since then.

At the time Pompeo made his comments, FBI was just five weeks into the Vault 7 investigation. They were chasing ghosts in the Shadow Brokers case, which also implicated Assange. Robert Mueller had not yet been appointed and, perhaps a month after he was, Andrew Weissmann discovered that, “the National Security Division was not examining what the Russians had done with the emails and other documents they’d stolen from those servers.” Pompeo’s comments came four months before Mueller obtained the first warrant targeting Roger Stone. They came seven months before Mueller obtained a warrant targeting Assange’s Twitter account. They came sixteen months before Mueller obtained a warrant describing a hacking and foreign agent investigation into WikiLeaks and others. They came 25 months before Mueller released his report while redacting the revelation that multiple strands of the investigation into Stone were ongoing (though also stating they did not have enough admissible evidence to prove Assange knew that Russia continued to hack the DNC). They came three years before DOJ kept the warrants reflecting the foreign agent investigation into WikiLeaks and others largely redacted, presumably because that investigation remained ongoing. They came three and a half years before the government withheld almost all of WikiLeaks lawyer Margaret Kunstler’s two interviews with Mueller’s team because of an ongoing investigation.

And all that’s separate from the long-standing WikiLeaks investigation at EDVA that led to Assange’s charges, which Rod Rosenstein has said never fully moved under Mueller.

On April 13, 2017, the investigation into Assange’s activities in 2016 had barely begun. Yet the fact that CIA couldn’t prove Assange was a Russian agent before most investigation into these things had started, Glenn claims, is proof that Assange is not a Russian agent.

It’s a logically nonsensical argument, but because certain gullible WikiLeaks boosters don’t see the flaws in the argument, I’d like to point to something fascinating disclosed just recently in the Joshua Schulte case: as late as September 2019, DOJ was still trying to get a full forensic image of the the phone Schulte was using when he was first interviewed on March 15, 2017.

That was revealed in the government’s response to a Schulte motion to suppress evidence from the Huawei he used at the time, in the early stages of the FBI’s investigation. We saw many of these warrants from Schulte’s first attempt to get these early warrants suppressed (in which his attorney noted that the government got a second device-specific warrant). But Schulte is challenging the search on a basis that even Sabrina Shroff didn’t raise two years ago.

As the government tells it, FBI agents used a subpoena to get Schulte to hand over his phone during the interview on March 15 before they all returned to his apartment where they had a warrant for all his devices, then got a separate warrant at 1:26AM that night to search the phone specifically. They were unable to do so because it was locked, so in an interview on March 21 — at which time the search warrant was still valid — they got Schulte to open his phone (something his attorney at the time boasted he did voluntarily during a 2017 bail hearing).

Someone must have lost their job at FBI, though, because after Schulte opened the phone, it rebooted, preventing them from obtaining a full forensic copy of the device.

On March 20 and 21, 2021, the defendant, accompanied by his attorneys, was interviewed by the Government and law enforcement agents at the U.S. Attorney’s Office. At the interview on March 21, 2021, the defendant, in the presence of counsel, consented to a search of the Cellphone and entered his password to unlock it. (Id. ¶ 13(b)). When the Cellphone was unlocked, however, it rebooted, and FBI was able to obtain only a logical copy of the Cellphone rather than a complete forensic image. (Id. ¶ 13(c)).

However, in its response to Schulte, the government is relying on two documents that it released for the first time. First, a location warrant/pen register targeting three different phones, which the government submitted to show that Schulte’s Google history obtained on March 14 showed that he searched for ways to delete files in the time period he is accused of stealing the CIA files and deleting evidence of doing so. The affidavit is useful for explaining how Schulte was using phones in that period of 2017. In addition to the Huawei, for example, Schulte had a phone with a Virginia number he used to call at least one of his CIA colleagues between March 7 and when he canceled the phone on March 12. Then, after he gave the FBI his Huawei phone, he bought one that night he used to call Bloomberg (his employer), and another on March 17.

More importantly, the government released the affidavit and warrant from September 9, 2019, providing more explanation why they weren’t able to fully exploit the phone in 2017.

After Schulte unlocked the phone, FBI personnel attempted to forensically image the Subject Device so that the FBI could review its contents. However, because the Subject Device rebooted during that process, the FBI was able to obtain only a logical forensic image of the Subject Device (the “Logical Forensic Image”). Although the Logical Forensic Image contains some content from the Subject Device, the Logical Forensic Image does not contain all data that may be on the Subject Device, including deleted information and data from applications. The data and information from the Subject Device that is missing from the Logical Forensic Image would likely be captured on a complete forensic image of the phone (“Complete Forensic Image”). However, in March 2017, the FBI was unable to obtain a Complete Forensic Image of the Subject Device because the Subject Device locked after it rebooted and the FBI did not know the password to unlock the phone again to attempt to obtain a Complete Forensic Image.

On or about August 12, 2019, FBI personnel involved in this investigation successfully unlocked the Subject Device using a portion of a password identified during the course of the investigation (“Password-1”). Forensic examiners with the FBI believe that they will be able to obtain a Complete Forensic Image of the Subject Device using Password-1.

After unlocking the Subject Device using Password-1, an FBI agent promptly contacted the Assistant United States Attorneys involved in this investigation to inform them of this development, and the decision was made to seek a warrant to search the Subject Device for evidence, fruits, and instrumentalities of the Subject Offense.

The affidavit explains, among other things, that Schulte first obtained the phone on September 21, 2016 and logged into Google right away (somewhere in the vast paperwork released in the case, Schulte admitted that Google was his big weakness — and how!).

In the government response, they describe that the government did search the phone. They say the phone contains images of a woman Schulte lived with that he was charged, in Virginia, with assaulting in 2015.

The FBI searched the Cellphone pursuant to that warrant. The Cellphone contains, among other things, images of an individual identified as Victim-1 in the Government’s prior filings.

It’s an interesting defense of the import of the warrant. As the government explained in 2017 when it first informed Judge Paul Crotty of the Virginia assault charge, the incriminating photos had already been found on one of Schulte’s phones (it’s unclear whether these were found on the Huawei or the phone shut down on March 12), so the State of Virginia presumably doesn’t need any images discovered after 2019 to prosecute him on the assault charge.

As relevant here, the Government discussed several photographs recovered from the defendant’s cellphone that depicted an unknown individual using his hands to sexually assault an unconscious female woman (the “Victim”). (See Exhibit A, Aug. 24, 2017 Tr. at 12-13). At the time, the Government was aware that the Victim knew the defendant and had lived in his apartment as a roommate in the past. (Id.) Magistrate Judge Henry B. Pitman, who presided over the presentment, did not consider the information proffered by the Government regarding the Victim, explaining that “facts have [not] been proffered that . . . tie Mr. Schulte to the conduct in that incident.” (Id. at 48-89). Nevertheless, Judge Pitman detained the defendant concluding that the defendant had not rebutted the presumption that he was a danger to the community. (Id. at 47-49).

[snip]

On or about November 15, 2017, the defendant was charged in Loudoun County Virginia with two crimes: (i) object sexual penetration, a felony, in violation Virginia Code Section 18.2-67.2; and (ii) the unlawful creation of an image of another, a misdemeanor, in violation of Virginia Code Section 18.2-386.1. The Government understands that these charges are premised on the photographs of the Victim. Specifically, the Loudoun County Commonwealth’s Attorneys Office has developed evidence that the defendant was the individual whose hands are visible in the photographs sexually penetrating the Victim.

But whatever they found on the phone, the government made an effort to make clear that even this 2019 search — which might have obtained deleted WhatsApp or Signal texts, both of which Schulte has used — was covered by a search warrant, something Schulte is currently trying to suppress only on a poison fruit claim.

This wasn’t the only evidence the government obtained years after Schulte became the primary suspect, though. They didn’t obtain full cooperation from Schulte’s closest buddy from when he was at the CIA, Michael, until January 2020, just before his first trial (which is one of the reasons the government provided fatally late notice to Schulte that the friend had been placed on leave at CIA). Michael helped Schulte buy the disk drives the government seems to suspect Schulte used in the theft, he also knew of Schulte’s gaming habits, and the CIA believed he might know more about Schulte’s theft from CIA.

So it’s clear that for most of the time that Glenn says the investigation as it stood in April 2017 must reflect all the evidence about Schulte, Assange, and Russia, the government continued to investigate.

None of that says DOJ obtained information from Schulte in that time implicating Assange in ties with Russia (though, as I’ve noted, someone close to WikiLeaks told me Schulte reached out to Russia well before ambiguous references to Russia showed up at Schulte’s trial). But to suggest all the evidence the government might now have was already in their possession on April 13, 2017, requires ignoring everything that has happened since that time.

Timeline

October 7, 2016: In statement attributing DNC hack to Russia, DHS and ODNI include documents released by WikiLeaks; an hour later WikiLeaks starts Podesta release

January 6, 2017: Intelligence Community Assessment assesses, with high confidence, that GRU released stolen documents via exclusives with WikiLeaks

March 7, 2017: First Vault 7 release, including unredacted names of key CIA developers

March 13, 2017: Affidavit supporting covert warrant approving search of Schulte’s apartment, including the devices found there

March 14, 2017: Affidavit supporting overt warrant approving search of Schulte’s apartment, including devices

March 14, 2017: Search warrants for Schulte’s Google account and other electronic accounts

March 15, 2017: 302 from interview with Schulte and testimonial subpoena and cell phone subpoena handed to him at interview

March 16, 2017: Affidavit supporting search warrant authorizing search of Schulte’s Huawei smart phone

March 31, 2017: Warrant and pen register for three different Schulte phones — one serviced by Sprint that he had used through all of 2016 but canceled on March 12, 2017, one he obtained after his phone was seized on March 15, 2017 serviced by Virgin, another he bought on March 17, 2017 serviced by AT&T

April 13, 2017: Mike Pompeo declares WikiLeaks a non-state hostile intelligence service

May 17, 2017: Robert Mueller appointed

August 7, 2017: Mueller obtains first warrant targeting Stone, covering hacking

August 23, 2017: Schulte charged with possession of child pornography

September 6, 2017: Schulte indicted on child pornography charges

September 26, 2017: Roger Stone testifies before HPSCI, lies about source for advance knowledge

October 19, 2017: Stone falsely claims Credico is his intermediary with WikiLeaks

November 6, 2017: Mueller obtains warrant targeting Assange’s Twitter account, citing hacking, conspiracy, and illegal foreign political contribution

November 8, 2017: Schulte claims to have been approached by foreign spies on Subway between his house and court appearance

November 9, 2017: WikiLeaks releases source code, billing it Vault 8

November 14, 2017: Assange invokes CIA’s source code (Vault 8) in suggesting Don Jr should get him named Ambassador to the US

November 16, 2017: Schulte tells FBI story about approach on Subway, accesses Tor

November 17, 2017: Schulte accesses Tor

November 26, 2017: Schulte accesses Tor

November 30, 2017: Schulte accesses Tor

December 5, 2017: Schulte accesses Tor

December 7, 2017: Schulte detained pursuant to charges of sexual assault in VA and violating release conditions

December 12, 2017: Randy Credico invokes the Fifth

December 21, 2017: Assange first charged with CFAA charge

March 6, 2018: Assange indicted on single CFAA charge

June 18, 2018: Superseding Schulte indictment adds Vault 7 leak charges

June 19, 2018: WikiLeaks links to Schulte diaries

August 20, 2018: Mueller obtains warrant describing investigation of WikiLeaks and others into conspiracy, hacking, illegal foreign contribution, and foreign agent charges

September 25, 2018: Schulte posts diaries from jail

October 31, 2018: Second Schulte superseding indictment adds charges for leaking from MCC

April 11, 2019: Assange seized from Embassy

May 23, 2019: Superseding Assange indictment adds Espionage Act charges

August 16, 2019: After FBI interview, CIA places Schulte buddy, “Michael” on leave

September 9, 2019: Affidavit in support of warrant authorizing search of Huawei phone

February 4, 2020: Schulte trial opens

February 12, 2020: Schulte attorneys reveal “Michael” was put on paid leave in August 2019

March 6, 2020: In effort to coerce Jeremy Hammond to testify, AUSA twice tells Hammond that Julian Assange is a Russian spy

March 9, 2020: Judge Paul Crotty declares mistrial on most counts in Schulte case

April 28, 2020: DOJ continues to redact Foreign Agent warrants targeting WikiLeaks and others because of ongoing investigation

June 8, 2020: Third superseding Schulte indictment adds clarification to the charges

June 24, 2020: Second superseding Assange indictment extends CFAA conspiracy through 2015, citing efforts to use Snowden to recruit more leakers

November 2, 2020: BuzzFeed FOIA reveals that Mueller referred “factual uncertainties” regarding possible Stone hacking charge to DC US Attorney for further investigation, but also finding that it did not have admissible evidence that Assange knew Russia continued to hack the DNC

September 3, 2021: Schulte submits motion to suppress cell phone content

September 31, 2021: Schulte’s motion to suppress docketed

October 1, 2021: Government response to Schulte motion to suppress