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Three Inconvenient Truths about a Hypothetical Trump Pardon for Julian Assange

For the last several weeks, there have been floated hints that Donald Trump might pardon Julian Assange. Assange’s supporters — from frothy MAGAts to esteemed journalistic outlets — are fooling themselves about a possible Trump pardon on several counts.

Before I lay out what those are, let me reiterate, again, that I believe the Espionage Act charges against Assange pose a serious risk to journalism (though as written, the CFAA charge does not). I agree that the Chelsea Manning disclosures, which make up most but not all of the charges currently pending against Assange, included a large number of important revelations, many I relied on with gratitude. I’d be perfectly fine if Vanessa Baraitser ruled on January 4 that US prisons were too inhumane for Assange. And I agree that EDVA would be a horrible venue for Assange (though unlike other defendants, DOJ is not simply inventing that jurisdiction for the onerous precedents it offers out of thin air; it is the most obvious venue for Assange because of the Pentagon).

So this is neither disagreement on the risks an Assange prosecution poses, nor is it an endorsement of the prosecution of Assange as it exists. But a pardon would necessarily involve other crimes, in addition to the ones for which he has been charged, and those crimes go well beyond journalism. They may even involve crimes that Assange backers want no part in supporting.

A Donald Trump pardon of Julian Assange will be a very good way of making sure Assange comes to symbolize those other crimes, not earlier laudable releases, and it might not even end his imprisonment.

It may not work

If Trump gives Assange a pardon, it’s not actually clear it will end his legal jeopardy. The existing Espionage Act charges, particularly the ones for publishing names of coalition informants (which would include the UK) are actually more obviously illegal in the UK than the US. Two UK defendants have already pled guilty to a CFAA conspiracy that makes up part of the CFAA charge against Assange. And because the Vault 7 damage assessment presented at the Joshua Schulte trial explicitly included damage to foreign partners, that publication may expose Assange to Official Secrets Act charges in the UK as well. Plus, there are other aspects of the Vault 7 publication, including Assange’s efforts — with the help of a lawyer he shared with Oleg Deripaska — to coerce immunity from the US with them, that may pose legal jeopardy in the UK if he is pardoned in the US.

I’ve likened the Assange extradition to that of AQAP graphic designer Minh Quang Pham, and this may be another similarity. In that case, as soon as it became clear that the legal disposition that Theresa May was attempting in the UK might not work, SDNY promptly indicted Pham, ensuring Pham would remain in custody no matter what happened in the UK. I wouldn’t be surprised if the reverse happened in the eventuality of an Assange pardon in the US. That is, DOJ may already have sent the UK the evidence to support prosecution of Assange in the UK for some of the things the US would otherwise like to try him on. Indeed, that is consistent with the way the US charged Assange within a day of when Ecuador applied for diplomatic credentials for Assange; the UK has already proven to be in almost immediate coordination with the US on this.

The UK would surely rather the US do the job, but particularly because of the damage the Vault 7 release caused the Five Eyes, I don’t rule out the UK prosecuting Assange if the US could not.

A Trump pardon would have to pardon everything through current day

Assange’s boosters appear to think a pardon would cover just the existing Espionage charges pertaining to the Chelsea Manning leaks (plus the CFAA charge, which is no longer limited to the password crack attempt, though virtually all his boosters ignore the substance of that charge).

That, of course, wouldn’t work. Unless Assange were immediately whisked away to a country that doesn’t have an extradition treaty with the US, he could quickly be charged in a virtually identical indictment covering Vault 7 (and the US could charge it in any case as a way to pressure whatever country he was in). Only, on every charge, the claims now being made to defend Assange — about newsworthiness, about intentionality of revealing protected identities, about the push to leak entire databases — would be far weaker arguments with respect to Vault 7 than with respect to the Manning leaks. Just as one example, WikiLeaks left the identities of the people Joshua Schulte was angry at unredacted in the Vault 7 release, which would make it easier for prosecutors to show forethought and malice for revealing those identities than is the case in (especially) the Cable leaks. And that, again, ignores how Assange repeatedly used the files in an attempt to coerce immunity from the US.

Several close WikiLeaks associates have told me after the initial indictment they were glad it didn’t include Vault 7, because that’s a lot harder to defend against. The US might prefer it for that reason.

So an Assange pardon would have to include some language like, “all offenses against the United States prior to the pardon” — a pardon akin to what Gerald Ford gave Richard Nixon.

Surely, if Trump is going to pardon Assange anyway, he would be willing to do that. Trump’s gonna make Oprah look stingy in the next few weeks, after all. But legally, for a pardon for Julian Assange to stick, it would have to cover all crimes he committed against the US through the present day.

That of course shouldn’t bother Assange supporters — it accords him even broader protection than Mike Flynn got. But it does mean that the pardon would be assessed on the entirety of Assange’s actions, the record of which remains significantly classified and the public record with which virtually no Assange booster — up to and including extradition hearing “expert” witnesses — exhibit familiarity. In other words, they’re arguing blind, without knowing what they’re asking to pardon.

Because an Assange pardon would need to extend through the present it would be tainted by Trump’s own corruption, possibly including litigation

If a Trump pardon for Assange were written broadly enough to stick, it would almost certainly include a conspiracy involving Trump himself, possibly including Russia’s GRU, granting a pardon for Assange in exchange for the optimization of the Podesta files. The pardon itself would likely be a crime for Trump. And that raises the stakes on it.

When WikiLeaks supporters hear “Assange pardon,” they seem to immediately think, “Dana Rohrbacher.” That’s significantly because Assange’s lawyers, in a deliberate use of Assange’s extradition hearing to sow propaganda (of which this is by no means the only example), had Jen Robinson submit testimony describing how Rohrabacher attempted to broker a pardon for Assange in August 2017, a pardon that was contingent on claiming Russia was not behind the 2016 theft of DNC documents.  The testimony was meant to support Assange’s claim that his prosecution is political, a claim that involved misrepresenting the public record in many ways.

When Assange’s team brought this up in his extradition hearing, the lawyer for the US emphasized that Trump didn’t sanction this offer. That’s credible (and backed by contemporaneous reporting), mostly because at the time John Kelly was assiduously gate-keeping offers like this. So WikiLeaks’ focus on the Rohrabacher pardon dangle, while accurate (Robinson is far too ethical to misrepresent things), also falsely suggests that that pardon dangle was the only, or even the most important, pardon discussion between Trump and Assange. It wasn’t. And WikiLeaks knows that, because key WikiLeaks supporters — Randy Credico and Margaret Kunstler — were involved with the one still under criminal investigation.

It is a fact that the Mueller Report stated that they had referred ongoing investigations into whether Roger Stone took part in Russia’s hacking conspiracy to the DC US Attorney’s Office for further investigation. It is a fact that, when the court unsealed warrants against Stone in April, they revealed an ongoing investigation into Stone for the hacking, for conspiracy, and for serving as a foreign agent of Russia, one that Mueller had hidden from Stone. It is a fact that Randy Credico testified under oath he had put Stone in touch with Margaret Kunstler to discuss a pardon for Assange. Credico is evasive about when this discussion began, including whether the discussion started before the election. Texts submitted at trial show Stone and Credico discussed asylum and Credico’s tie to Kunstler on October 3, 2016, in a period when Stone had multiple phone calls with Credico as well as some presumed to be with Trump. Stone appears to have had lunch with Trump on October 8, the day after the Podesta emails dropped. Mike Flynn testified that after the Podesta files dropped, Trump’s closest advisors discussed reaching out to WikiLeaks. Shortly after that, Stone did reach out to WikiLeaks, and WikiLeaks reached out to Don Jr. WikiLeaks reached out to both after Trump won. And according to affidavits obtained against Stone, he and Kunstler started communicating over Signal starting on November 15, seven days after the election. As of October 1 of this year, significant swaths of Kunstler’s two interview reports with Mueller prosecutors remained sealed with redactions protecting an ongoing investigation.

If Stone is to be believed, he pursued this effort to get Assange a pardon at least through 2018. Two things are clear, however. Days after Stone told Assange he was working with the “highest level of Government” to resolve Assange’s issues, Trump directed Corey Lewandowski to direct Jeff Sessions to shut down the entire retroactive Russian investigation. Trump already took an overt act to respond to Stone’s entreaties to help Assange, one documented in Twitter DMs and notes Trump demanded Lewandowski take down. And after Mueller asked Trump about an Assange pardon, Don Jr’s best buddy Arthur Schwartz told Cassanda Fairbanks, “a pardon isn’t going to fucking happen” (she ultimately flew to London to tell Assange what Schwartz told her in person). Nevertheless, Stone’s buddy Tucker Carlson had Glenn Greenwald on pitching one to Trump — as a great way to get back at The [American] Deep State — in September.

To be clear: If Trump pardons Assange for all crimes against the United States, the pardon will still work for Assange (again, unless the UK decides to file charges against Assange instead). And I expect a great deal of Assange’s most loyal boosters won’t give a shit about what all was included in the pardon. Indeed, WikiLeaks’ most loyal fans believe it was a good thing for Assange to partner with the GRU in 2016 to undermine a democratic election.

But if Trump pardons Assange, these details are virtually guaranteed to come under close scrutiny in the months ahead, all the more so if he tries a self-pardon, because this would be one thing that even the 6 Republican majority on SCOTUS might find unreasonable, and it would be the quickest way to prove that not just Stone, but Trump himself, conspired to optimize the files stolen by Russia.

If all that were to happen after he was safe in Oz, Assange probably wouldn’t care, nor would I if I were in Assange’s position. But those backing an Assange pardon are — because of details that virtually none of them understand — cheering Trump to do one of the most corrupt things he would have done over the course of the last five years.

The Mistaken Presumptions of Virtually All Discussions of a Future Trump Prosecution

Jack Goldsmith has written a piece arguing against a Trump prosecution under the Biden Administration. He’s wrong on a key point that many other people engaging in this discussion also are. He’s wrong about what crime might be prosecuted and whose DOJ investigated it.

Before I get to that, though, I want to critique two smaller issues in his post.

First, he links to the DOJ IG investigation on Carter Page, apparently suggesting it supports a claim that that report found there were inappropriate parts of the investigation into Donald Trump.

The first in this line was the investigation of the 2016 Trump campaign and presidential transition by the FBI and the Obama Justice Department, which continued with the Mueller investigation. Some elements of this investigation were clearly legitimate and some, clearly not.

Except that’s not what that report shows (even ignoring the report’s own problems). It shows that FBI followed the rules on informants and even on including an investigative agent in Trump’s first security briefing (after which Flynn promptly moved to cover up his secret relationship with Turkey). It shows that there were problems with the Carter Page FISA application. But the single solitary thing in the report that would not survive a Franks review is Kevin Clinesmith’s alteration of an email. Every single other thing would meet the Good Faith standard used in Fourth Amendment review. And all that’s separate from the question of whether Carter Page was a legitimate target for investigation, which the bipartisan SSCI investigation has said he was.

I also disagree with Goldsmith’s concerns about the status of the Durham investigation going forward.

But though Durham started out as a credible figure, the review was damaged from the beginning due to Trump’s and Barr’s ceaseless public prejudging of the case (and, for some, Durham’s response to one of Horowitz’s reports). And all of that was before Barr expanded the investigation into a criminal one and then later appointed Durham as a special counsel to ensure that his criminal investigation could continue into the Biden administration. Once again, the nation is divided on the legitimacy of all of this.

The third challenge, exacerbating the first two, is that these investigations—the FBI investigation of the Trump campaign and transition, the Durham investigation, and the Hunter Biden investigation—extended (or will extend) into an administration of a different party. That means that what began as a cross-party investigation where the worry was bias against political opponents will transform, in the middle of the investigation, into an intraparty investigation, where the worry will shift to one party’s desire for self-protection.

I think the Durham investigation is misunderstood by all sides. Even according to Billy Barr, Durham has debunked some conspiracy theories Republicans have floated and he appears to have moved beyond the question of whether the CIA wrongly concluded that Putin wanted to elect Trump. That means if he were to write a report, it would substantially consist of telling the frothy right that their conspiracy theories were just that, and that George Papadopoulos really did entertain recruitment by at least one Russian agent.

That said, the Durham investigation has, unfortunately, been hopelessly biased by Billy Barr’s work in at least two ways. Durham apparently believes that the treatment of partisan bias at DOJ has been equally applied, which is demonstrably false (which also means he’s relying on witnesses who have themselves committed the sins he has used to predicate his own investigation, using FBI devices to speak for or against a political candidate). More troublingly, every single legal document his prosecutors have filed thus far have betrayed that they don’t understand the most basic things about the counterintelligence investigations they’re focusing on. But because of that ignorance, I’m fairly confident that if Durham tried to prosecute people for the theories that Bill Barr has been pushing while micromanaging this, Durham’s prosecutors would get their ass handed to them. Plus, even without Biden’s AG doing anything, I think there’s a possibility that Durham’s independence can be put to good use to investigate the crimes that Barr’s DOJ may have committed in pushing these theories. And there’s an easy way to solve the political nastiness of Barr’s special counsel appointment: by swapping Durham for Nora Dannehy. In short, freed from the micromanaging and mistaken beliefs of Bill Barr, Durham may evolve into a totally useful entity, one that will debunk a lot of the bullshit that the frothy right has been spewing for years.

In any case, the only reason it would be perceived as a cross-party investigation was the micromanagement of Barr. The FBI is not a member of either party, and if Durham finds real crimes — like that of Clinesmith — by all means he should prosecute. Once he is freed of Barr’s micromanagement, though, he may discover that he was given a very partial view of the evidence he was looking at.

Which brings me to Goldsmith’s treatment of whether or not Trump should be prosecuted. Before giving three reasons why one shouldn’t investigate Trump, he lays out what he sees as the potential crime this way:

Many people have argued that the Biden Justice Department should continue this pattern by examining the criminal acts Trump might have committed while in office—some arguing for a full-blown broad investigation, others (like my co-author, Bob Bauer, in “After Trump”) for a measured, narrowly tailored one. I don’t think this is a good idea. I doubt Trump has committed prosecutable crimes in office (I am confident that obstruction of justice prosecution would fail), I doubt he will ever go to jail if he did commit criminal acts in office (which would make the effort worse than useless), Trump will thrive off the attention of such an investigation, and the Biden administration will be damaged in pursuing other elements of its agenda (including restoration of the appearance of apolitical law enforcement). But the main reason I am skeptical is that such an investigation would, in the prevailing tit-for-tat culture, cement the inchoate norm of one administration as a matter of course criminally investigating the prior one—to the enormous detriment of the nation. (I do not believe that federal investigations for Trump’s pre-presidential actions raise the same risk.

There are two problems inherent with Goldsmith’s logic here, problems that virtually all the other people who engage in this debate also make.

First, he assumes that any prosecution of Trump would have to engage in further investigation. Here’s just one of several places where he makes that assumption clear.

The investigation by one administration of the predecessor president for acts committed in office would be a politically cataclysmic event.

Goldsmith doesn’t consider the possibility that such an investigation was begun under Mueller and continued under Bill Barr, waiting for such time as Trump can be charged under DOJ guidelines. It’s odd that he doesn’t consider that possibility, because Mueller laid that possibility out clearly in the report, describing leaving grand jury evidence banked for such time as Trump could be charged (indeed, it’s fairly clear a January 2019 Steve Bannon grand jury appearance included such evidence). If Bill Barr’s DOJ conducted an investigation that shows Trump committed a crime, it would break out of the tit-for-tat that Goldsmith complains about.

Goldsmith also appears to believe, even in spite of Trump’s transactionalism, that any crime Trump committed in office would have begun and ended during his term of office.

Part of these two errors appear to stem from another one. Goldsmith clearly believes the only crime for which Mueller investigated Trump is obstruction and he dismisses the possibility that an obstruction prosecution would stick. I’m agnostic about whether that view of obstruction is true or not. Even just reviewing how the Mueller Report treated the Roger Stone investigation, though, I’m certain there are places where the Mueller Report protected investigative equities. That may be true of the obstruction case as well. If so, then it would suggest the obstruction case might be far stronger than we know.

But it is false that Mueller only investigated Trump for obstruction. That’s because Trump may have entered into a conspiracy with his rat-fucker. In addition to investigating Roger Stone for covering up who his tie to Wikileaks was, Mueller also investigated Roger Stone for entering the CFAA conspiracy with Russia, a part of the investigation that recently declassified information as well as the warrants in the case make clear continued after the close of the Mueller investigation. Not only did Mueller ask Trump about his contacts with Stone on the specific issue for which the rat-fucker remained under investigation after Mueller closed up shop, but Mueller’s last warrants listed Stone’s written record of his communications with Trump during the campaign among the items to be seized in the search of Stone’s homes. If Stone entered into the CFAA conspiracy with Russia and those contacts show that Trump entered into an agreement with Stone on his part of the conspiracy, then Mueller was investigating Trump himself in the conspiracy. There is no way you target Stone’s records of communications with Trump unless Trump, too, was under investigation for joining that conspiracy.

I know I’m the only one saying this, but that’s in significant part because — as far as I know — I’m the single solitary journalist who has read these documents (plus, the unsealed language showing the investigation into Stone on the CFAA charges got buried in the election). But the record makes this quite clear: by investigating Roger Stone, Mueller also investigated Donald Trump for joining the CFAA conspiracy with Russia that helped him get elected. And because Mueller did not complete the investigation into Roger Stone before he closed up shop, he did not complete the investigation into Donald Trump.

And while I’m less certain, abundant evidence tells us what Stone and Trump’s role in the conspiracy may have been: to enter into a quid pro quo trading advance access to select John Podesta files (and, possibly, optimizing their release to cover up the DHS/ODNI Russian attribution statement) for a pardon for Julian Assange.

Stone did something in August 2016 to obtain advance copies of the Podesta files that the frothy right believed would be particularly beneficial in attacking Podesta and Hillary. Days before the Podesta file release in October 2016, Stone and Credico appear to have started talking about a pardon for Julian Assange. After the release of the Podesta files, Trump discussed reaching out to Assange with more people, including Mike Flynn. And no later than 7 days after the election — and given Credico’s refusal to give a straight answer about this, probably before — Stone set out on an extended effort to deliver on that pardon. And Trump took an overt act, as President, to try to deliver on that quid pro quo when he ordered Corey Lewandowski to tell Jeff Sessions to shut down any investigation into the hack-and-leak (which would have shut down the investigation into Assange’s role in it).

I have no idea whether DOJ obtained enough evidence to charge a former president in conspiring with a hostile foreign power to get elected. The investigation into Stone’s role in the conspiracy may have shut down when Barr’s intervention in Stone’s sentencing led all four prosecutors to drop from the case, so it’s possible that a Biden DOJ would need to resume that investigation (and finish it up before statutes of limitation tolled). Still, as of October 1, when DOJ withheld almost the entirety of two interviews with Margaret Kunstler to protect an ongoing investigation, that part of the investigation was ongoing. So if you want to consider the possible universe of Trump charges, this is the possibility you’d need to consider: that after Mueller shut down but before the end of Barr’s tenure, DOJ acquired enough evidence to prosecute Donald Trump once he becomes available to prosecute under DOJ rules.

I think there are other instances where Trump cheated to win in criminal fashion (even ignoring the hush payments for which he got named in Cohen’s charging documents). For example, Barr very obviously violated DOJ guidelines in his treatment of the whistleblower complaint about the Volodymyr Zelenskyy call, and with the evidence that OMB, State, and DOD withheld from the impeachment inquiry and witnesses subject to subpoena (indeed, at least some of whom will likely have no Fifth Amendment privileges after a pardon), the impeachment case is likely far stronger than Goldsmith imagines. Plus, there is an obvious tie to the SDNY investigation into Lev Parnas (where the whistleblower complaint would have been referred had Barr not violated DOJ guidelines). So on that case, it might be a question of Biden shutting down an ongoing investigation, not one of starting a new investigation.

Perhaps the most difficult and controversial decision for a Biden AG will be whether to reopen the investigation into the Egyptian payment Trump may have gotten in 2016 that kept his campaign afloat, one that SCOTUS reviewed (for the Mystery Appellant challenge) and sustained a subpoena for. Per CNN, DOJ doesn’t yet have enough to prosecute that, but that’s because DOJ chose not to subpoena Trump Organization for documents. And a Biden Administration could sanction the Egyptian bank to require it to cooperate in a way they refused to do under Mueller.

But those two instances can’t be shown via the public evidence. The overt act that Trump took in response to Roger Stone’s request — one Stone documented in a DM to Julian Assange — is public. Importantly, this would be a conspiracy that started before Trump got elected and extended into his presidency.

If you want to imagine whether Biden would prosecute Trump, you have to consider the possibility that he would prosecute Trump for crimes Bill Barr investigated.

Joshua Schulte Undermines the WikiLeaks Claim to Publish “Whistleblowers”

In this post, I noted that The Intercept — including Micah Lee — had fairly systematically ignored the most recent superseding indictment against Julian Assange, and as such had ignored the overt acts in it tied to helping Edward Snowden flee. I think the outlet has real ethical responsibility to actually report the truth of that detail — which they should do in any case to address the legally suspect aspects of some of the claims made about Snowden.

I’d like to look at an earlier Micah Lee post, not because of anything it (necessarily) says about The Intercept, but as background for a larger post about WikiLeaks I hope to move towards. In an article subtitled, “The Trump Administration Is Using the Full Power of the U.S. Surveillance State Against Whistleblowers,” Micah laid out how (according to his read of what he claimed were the court filings) the government had found a bunch of “whistleblowers.” Before he gets there, though, he describes the subjects of his post to be “government whistleblowers” who, only after they see something wrong, do they reach out to journalists and share information.

GOVERNMENT WHISTLEBLOWERS ARE increasingly being charged under laws such as the Espionage Act, but they aren’t spies.

They’re ordinary Americans and, like most of us, they carry smartphones that automatically get backed up to the cloud. When they want to talk to someone, they send them a text or call them on the phone. They use Gmail and share memes and talk politics on Facebook. Sometimes they even log in to these accounts from their work computers.

Then, during the course of their work, they see something disturbing. Maybe it’s that the government often has no idea if the people it kills in drone strikes are civilians. Or that the NSA witnessed a cyberattack against local election officials in 2016 that U.S. intelligence believes was orchestrated by Russia, even though the president is always on TV saying the opposite. Or that the FBI uses hidden loopholes to bypass its own rules against infiltrating political and religious groups. Or that Donald Trump’s associates are implicated in sketchy financial transactions.

So they search government databases for more information and maybe print some of the documents they find. They search for related information using Google. Maybe they even send a text message to a friend about how insane this is while they consider possible next steps. Should they contact a journalist? They look up the tips pages of news organizations they like and start researching how to use Tor Browser. All of this happens before they’ve reached out to a journalist for the first time.

Having laid out certain assumptions not just that all these people are whistleblowers, but also about what whistleblowing entails (and made certain claims about motive that don’t necessarily match the claimed motive of some of the subjects of the story, though some of that has become public since Micah wrote this), Micah explains that Joshua Schulte is an exception with regards to how he was caught.

Of the four Espionage Act cases based on alleged leaks in the Trump era, the most unusual concerned Joshua Schulte, a former CIA software developer accused of leaking CIA documents and hacking tools known as the Vault 7 disclosures to WikiLeaks. Schulte’s case is different from the others because, after the FBI confiscated his desktop computer, phone, and other devices in a March 2017 raid, the government allegedly discovered over 10,000 images depicting child sexual abuse on his computer, as well as a file and chat server he ran that included logs of him discussing child sexual abuse images and screenshots of him using racist slurs. Prosecutors initially charged Schulte with several counts related to child pornography and later with sexual assault in a separate case, based on evidence from his phone. Only in June 2018, in a superseding indictment, did the government finally charge him under the Espionage Act for leaking the hacking tools. He has pleaded not guilty to all charges.

He doesn’t return to Schulte’s case for the rest of the piece.

About the rest of the subjects of the story, Micah describes how, whether the subject took some measure to protect himself (such as with Terry Albury and James Wolfe) or did not (such as Reality Winner), they all got caught. What they all have in common is that they were among a very limited circle of people who had access to the stuff that got leaked, and therefore could be ultimately identified with more investigation.

I think Micah’s comment was meant to suggest that Schulte wasn’t identified that same way, but was instead identified only after he was busted for child porn. I texted Micah at the time and let him know that’s not what the court records reflect (he had not, in fact, reviewed the affidavits in the court docket). By that point, a slew of the warrants in the case had been revealed, including the first ones, which showed that Schulte was identified as a suspect almost immediately, in part the same way the others were — because he was one of three people who had access to the files believed to have been leaked. (It would later become clear that at least a few more people had access to the server and that the files were copied on a different, more incriminating date than FBI originally suspected.)

Micah never corrected his post.

Of note, however, even that initial warrant raised real questions about any claim that Schulte was a whistleblower — a claim WikiLeaks made it its first Vault 7 post.

In a statement to WikiLeaks the source details policy questions that they say urgently need to be debated in public, including whether the CIA’s hacking capabilities exceed its mandated powers and the problem of public oversight of the agency. The source wishes to initiate a public debate about the security, creation, use, proliferation and democratic control of cyberweapons.

That first warrant revealed that Schulte,

  • Had already restored his access to the exact files in question without authorization once (FBI would later discover he did this at least two more times)
  • Was pissy about something that had nothing to do with the hacking CIA did with the tools that Schulte wrote, basically a juvenile work dispute with a colleague
  • Had laid a paper trail in the weeks before he left CIA, making a claim to be a whistleblower, but the claim was not backed by any prior record of concern (per the FBI agent who admittedly should not be trusted on face value)

That is, even that first affidavit suggested that Schulte had used the claim to be a whistleblower as cover.

Schulte declined to present much of a defense at his first trial, a decision that (given the hung jury) absolutely was the right decision. So we can’t claim to have fully assessed all his claims to be a whistleblower, claims he made in pro se filings and deceitful Tweets he intended to post from jail. He chose not to make that case personally and he didn’t need to make the case to avoid a guilty verdict.

That said, all the evidence presented at trial strongly backs the initial FBI assessment that he was just an angry shithole who thought he was god, aiming to get back at people at the CIA he thought had dissed him. Indeed, two pieces of evidence submitted seriously undermine his claim to be a whistleblower, because they show he acted in ways that would be inconsistent from someone who genuinely had the concerns Schulte claimed to have — both a concern about the role of contractors and about security.

First, at one point when he was pissy because the CIA had contracted with a consultant to finish off a project that had been taking too long under him, Schulte actually considered become a contractor. Yes, he was pissy that a contractor could take away his project. But considering a job as a contractor is inconsistent with his claims about the use of them. It makes the claims translated into the WikiLeaks statement yet another cover for Schulte’s own resentment.

Then, at trial, the government showed that Schulte himself was responsible for setting up a root password that he allegedly used to steal the files. That is, to the extent the files were totally insecure from someone like Schulte, they were insecure because Schulte set them up to be. So not only was he not complaining to anyone else about the insecurity of these files, he was the one making them insecure.

Again, maybe Schulte could make a persuasive case he leaked these files to expose wrong-doing. But thus far, every piece of evidence suggests not only that Schulte was not a whistleblower, that every time he wrote up a claim to be one he otherwise told identifiable lies, and that he’s mostly just a rage-driven dude who decided to burn the CIA to the ground for spite.

Now, if WikiLeaks is a publisher, as it claims, that doesn’t necessarily matter. Journalists get information from sources operating out of a variety of motives, and personal pique is a common one. Except it raises the stakes on the newsworthiness of the files published. And on that front, WikiLeaks (on Twitter especially) vastly oversold the newsworthiness of the CIA files it published. Yes, it was useful for security firms to have CIA’s files identified publicly. But there was never anything published showing that CIA was operating outside of its mandate, and much of what was published showed tools that would be narrowly targeted. Just as importantly, CIA wasn’t actually doing anything particularly exotic with its hacking files. Spies were spying, news at 11.

I’ve written before about how a close associate of Assange’s sternly asked me to downplay Schulte because he hurt the public case for Julian Assange. I think that’s partly the allegations of child porn, racism, and sexual assault against him. People associated with WikiLeaks also knew before it was public that there was evidence involving Schulte implicating Russia (though the record on what the import of various pieces of evidence about Schulte pertaining to Russia mean is very mixed; Sabrina Shroff argued fairly convincingly that some of what is there stems from work Schulte was doing for his cellmate). Still, that may be another reason WikiLeaks boosters don’t want anyone to talk seriously about Schulte, because in the wake of Julian Assange working with Russia to get harm Hillary, their next big source also had some tie, of uncertain nature, to Russia.

But the existing record on Schulte, at least, not only undermines WikiLeaks’ claim to facilitate whistleblowers. On the contrary, WikiLeaks gave a disgruntled spook an easy way to burn the place down. More importantly, somewhere along the way, Schulte decided to cloak his bitter revenge plot inside a false claim to be a whistleblower.

People can certainly still defend WikiLeaks as an outlet permitting disgruntled spooks to burn their agencies to the ground out of spite. Certainly, if you believe the CIA is inherently, uniquely evil, you might still champion this leak. But on the Vault 7 leak, WikiLeaks boosters should be clear that’s what they’re doing.

The Intercept’s Silence about Edward Snowden’s Inclusion in Julian Assange’s Charges

Back in October, I beat up The Intercept’s Micah Lee for writing a post that purported to cover the “crumbling” hacking case against Julian Assange by working from an outdated indictment rather than the superseding one that added 50-some paragraphs to the overt acts alleged in the single count for conspiracy to hack. Micah made a half-assed and still factually inaccurate “correction” (without crediting me for pointing out the embarrassing error) that utterly misunderstands US conspiracy law, and claimed events since 2011 had tolled whereas the original password hacking attempt had not.

In the 2020 indictment, attempting to portray Assange as a hacker rather than a journalist, the government listed other instances of Assange allegedly directing hacking activity by people other than Manning — but did not add to the charges against him, prompting a discussion of whether the statute of limitations on the alleged new crimes had expired. Assange’s lawyers called the newest evidence “‘make weight’ allegations designed to bring all of this back within the limitation period.” It remains to be seen if the U.S. government will pursue this reaching strategy. At the moment it seems that these supplemental allegations are peripheral to the first, and only clearly chargeable, instance described by the government that could be conceived as a conspiracy to commit a computer crime — providing marginal support for a case which is, at its core, already weak.

In short, having been alerted to the superseding indictment, The Intercept’s resident expert on hacking utterly dodged the allegations made in that expanded charge, not so much as mentioning what they were.

At the time, I promised to return to Micah’s embarrassing piece after I finished some more pressing issues.

It turns out, the problem at The Intercept is broader than just Micah’s piece.

A recent post from Charles Glass suggests that if President Biden were to “remove the Espionage Act charges against Assange,” it would amount to the withdrawal of his extradition application entirely.

WHEN JOE BIDEN becomes president of the United States on January 20, a historic opportunity awaits him to demonstrate America’s commitment to the First Amendment. He can, in a stroke, reverse four years of White House persecution of journalism by withdrawing the application to extradite Julian Assange from Britain to the U.S.

[snip]

By removing the 1917 Espionage Act charges against Assange, Biden would be adhering to the precedent established by the administration in which he served for eight years as vice president. President Barack Obama’s Department of Justice investigated Assange and WikiLeaks for three years until 2013 before deciding, in the words of University of Maryland journalism professor Mark Feldstein, “to follow established precedent and not bring charges against Assange or any of the newspapers that published the documents.” Equal application of the law would have required the DOJ to prosecute media outlets, including the New York Times, that had as large a hand in publicizing war crimes as did Assange himself. If prosecutors put all the editors, publishers, and scholars who disseminated WikiLeaks materials in the dock, there would not be a courtroom anywhere in America big enough to hold the trial. Obama decided against it, knowing it would represent an unprecedented assault on freedoms Americans hold dear.

Glass went on to repeat the grossly erroneous claims about the history of Assange’s prosecution made at the extradition hearing by journalism history professor Mark Feldstein, who literally submitted a filing to the hearing admitting he wasn’t familiar with what the public record actually says about it.

That Glass ignored the hacking charge against Assange is remarkable given that, along with the erroneous piece from Micah, an earlier post from him is one of the few that addressed the (now superseded) CFAA count.

In addition, The Intercept did a Deconstructed show on the hearing in October. It, too, adopted the erroneous fairy tale about why the Trump Administration charged Assange when the Obama Administration did not. And while it introduced the allegation that Assange is a hacker, it then reverted to the so-called New York Times test, suggesting that if the publishing activities of Assange cannot be distinguished from the NYT’s, then it means Assange cannot and should not be prosecuted.

RG: Supporters of the prosecution of Assange make a number of arguments: That Assange is not a “real” journalist. He’s a hacker. He’s a traitor. He recklessly endangered lives and so he deserves no protection as a journalist. All of this is wrong.

The First Amendment isn’t worth the parchment it’s written on if it’s not respected, and defended, in the broader culture of the United States. People have to support it. Once that support erodes, it tends not to come back. That’s why authoritarians, when they want to curtail a particular freedom, usually find the most unsympathetic target they can, hoping nobody will come to his defense. Then once a new precedent is established, all bets are off. With Assange, Trump and Barr think they’ve found just such a man. It’s up to us not to take the bait.

[snip]

Kevin Gosztola: I think the key thing about Trevor Tim[m]’s testimony is destigmatizing the work of WikiLeaks, or even demystifying it. Because what you have through the U.S. government’s targeting of Wikileaks over the past decade is a concerted effort to make it seem like what WikiLeaks does is not journalism. And so the counter to that through the defense’s case is to make it abundantly clear that this is not reasonable; that in fact, everything that WikiLeaks does, from when it accepts the documents, when it tries to authenticate them, to when it makes media partnerships, to also make sure that names are redacted, to make sure that sensitive details are understood fully before the documents are published. And I think you see that this is the way to keep investigative journalism robust in the 21st century.

RG: I thought Trevor’s point was interesting that The New York Times does not get a press badge from the U.S. government. You know, it isn’t, and it shouldn’t be, up to the U.S. government to decide who is and who is not a journalist.

And the idea of who is or is not a responsible journalist is different from what is illegal or legal conduct, which I also thought was important because the prosecution wants to say: Well, he’s an irresponsible person, so therefore, he doesn’t have these protections. And the counter is no, it’s not up to the government to say what’s responsible or irresponsible journalism. You know, the government creates laws, and if the laws are violated, then you can start your prosecution. But if not, you can’t. And it’s never been against the law to publish classified information. It’s against the law to leak it, if you have access to it. But it’s not against the law to publish it.

As I have said over and over, I agree that the Espionage Act charges against Assange, as charged, pose a real threat to journalism (though so do the Trump DOJ’s other prosecutions of Espionage as a conspiracy, including the Henry Kyle Frese case where DOJ used a Title III wiretap to obtain evidence, and the Natalie Sours Edwards case where the Treasury Department attempted to achieve prior restraint on Jason Leopold, prosecutions that have gotten far less attention).

But I also think the sheer amount of shitty propaganda and outright lies people are telling in service of Julian Assange do their own damage to journalism. It is possible to discuss the risk that Assange’s prosecution on the Espionage charges poses without ignoring large swaths of the public record or even, as The Intercept has done in these three pieces and much of their earlier coverage, the actual charges.

The Intercept’s silence on the superseding indictment is all the more notable because of the way its founding act plays a part.

As I laid out here and here, the superseding charge incorporates a number of other overt acts in the CFAA conspiracy, going through 2015 (and seemingly setting up another superseding indictment that covers publications from 2015 through 2017). The new overt acts include a number of things that absolutely distinguish Assange and WikiLeaks from journalists and publishers. Of particular note, they allege that Julian Assange:

  • Entered into an agreement with individuals involved in Gnosis and Lulzsec before those individuals carried out the hack of Stratfor and remained in the agreement during and after the hack. This is a case where five of the people Assange allegedly entered into a conspiracy with have already pled guilty, in both the UK and US (as well as Ireland), making the primary proof required at trial that Assange did enter into agreement with the other co-conspirators, not that the hack occurred.
  • Directed Siggi to hack a WikiLeaks dissident to destroy incriminating evidence implicating Assange. While I’m less certain whether Siggi took steps to advance this conspiracy (and Siggi has credibility problems as a witness), I know of multiple different allegations that dissidents, sources, and competing outlets were similarly targeted for surveillance, with one WikiLeaks dissident claiming to have been hacked and threatened after a political split with the group.
  • Helped Edward Snowden flee, both by sending Sarah Harrison to facilitate his flight and creating distractions, and then using WikiLeaks’ assistance as a means to recruit further hackers and leakers.

The last one seems particularly irresponsible for The Intercept to suppress as they have, particularly given four other details:

  • Snowden’s description of setting up Tor bridges for Iranians with other Tor volunteers in the extended Arab Spring, making it highly likely he had a relationship with Jake Appelbaum before he took his NSA job in Hawaii.
  • Bart Gellman’s description of how Snowden worked to “optimize” his own outcome to encourage others to leak, mirroring Harrison’s stated motive for helping him flee.
  • The government’s suggestion that Daniel Everette Hale — Jeremy Scahill’s alleged source for his drone reporting — was inspired to leak by Snowden.
  • Snowden’s own (recent) treatment of three Intercept sources — along with Hale, Reality Winner and Terry Albury — as a group meriting a Trump pardon, something that will likely make Hale’s defense at trial next year more difficult.

The government’s theory about Snowden as a recruitment tool is really problematic (though I suspect the government plans to make it a lot more specific after inauguration, even before Hale’s trial next year). But it is also the case that publishers don’t usually help their sources flee as a way to ensure they’ll recruit future leakers and hackers (indeed, in his book, Gellman talked at length about how careful he was to avoid crossing that line when Snowden tried to trick him into it).

One can argue that WikiLeaks was heroic for doing so. One can argue that the US empire has what’s coming to it and so WikiLeaks was right to help Snowden flee. But one can’t argue that the overt acts alleged in the CFAA count of the superseding indictment are things that journalists routinely do. And, if proven, that gets the government well beyond the New York Times test.

Importantly, if you’re engaging in a debate about Assange’s fate but ignoring credible allegations that Assange did a bunch of things that journalists do not do, you should not, at the same time, claim you’re serving journalism. You’re serving propaganda (particularly if you’re also telling a fairy tale about what changed in 2016 and 2017).

All the more so if you’re The Intercept. The government has alleged that one thing that distinguishes Julian Assange from journalists — and they’re right — is that he sent someone halfway around the world to save the guy who created the opportunity to create The Intercept in the first place. Unless Assange is pardoned before Trump leaves (and maybe even then, since many of the acts Assange is charged with are more obviously illegal in the UK), this allegation is going to remain out there.

The founding possibility for The Intercept has now been included as an overt act in a hacking indictment. One way or another, it seems The Intercept needs to address that.

On Nappies and Law Enforcement Spying

One of the most scandalous revelations from the Julian Assange extradition hearing — that the company that handled the security for the Ecuadoran Embassy, UC Global, sought to obtain a diaper from one of Stella Morris’ children — may have a very logical explanation: The FBI would need to know whether they had to treat communications between Assange and Morris with spousal privilege. The FBI did precisely the same thing with Roger Stone when they went to some length to figure out whether Kristin Davis’ son was Stone’s child before they interviewed her in the investigation of Stone.

Indeed, once you read through the muddles and inconsistencies, what the two witnesses who submitted testimony about UC Global’s surveillance of Assange (Witness One, Witness Two) described is utterly consistent with FBI surveillance and inconsistent with CIA surveillance.

Witness Two is more detailed and credible than Witness One. That’s easily shown in two ways. First, Witness Two admits that after David Morales got a contract with Sheldon Adelson in 2016, it led to speculation that he was working with US authorities. UC Global employees discussed how he “could” be cooperating with US authorities (a dumb speculation to begin with).

I remember that after David Morales had returned from the United States, at a meeting with the rest of the staff he affirmed that we were moving into “the premier league”. After this I became aware that David Morales was making regular trips to the United States, the context of which my boss, David Morales, repeated to his having “gone to the dark side”. I also recall Morales’s wife’s social media recording the recurring trips to the United States, specifically to New York and Washington, via her Instagram account (with the profile @moda_koko), which prompted ongoing commentary from staff that Mr Morales could be cooperating with US authorities. [my emphasis]

Witness One presents that as fact (unlike Witness Two, Witness One has none of the records or claims he makes documented, another thing that makes Witness Two far more credible).

After returning from one of his trips to the United States, David Morales gathered all the workers in the office in Jerez and told us that “we have moved up and from now on we will be playing in the big league”. During a private conversation with David, I asked him what he was referring to when he said we had moved up into “the big league”. David replied, without going into further detail, that he had switched over to “the dark side” referring to cooperating with US authorities, and as a result of that collaboration “the Americans will get us contracts all over the world”.

In addition to the new contract, after Morales’s return from Las Vegas and his comments about “the big league” and switching to “the dark side”, I learned through my conversation with Davis Morales that he had entered into illegal agreements with U.S. authorities to supply them with sensitive information about Mr. Assange and Rafael Correa, given that UC Global was responsible for the embassy security where Mr. Assange was located.

He does so, even though he didn’t leave UC Global — because Morales was selling everything to “the enemy, the United States” — until 2017 (or possibly even later, after Assange’s arrest).

Thus, I came to realize that David Morales decided to sell all the information to the enemy, the United States, which is the reason I put an end to my professional relationship with him.

If he were certain Morales was working for the dark side in 2016, by his own claims, he would have left then.

Similarly, Witness Two includes the details that explain why Adelson would give Morales a contract when his yacht already had security: it was to protect his kids when they were in Europe.

I remember that Sheldon Adelson himself – who is on the public record as being very close to President Donald Trump—increased his ties with UC Global because at one point David Morales was personally put in charge of the security of the magnate and his children when they visited Europe, in their Summer trips to Nice and Ibiza.

Witness One doesn’t consider such explanations.

That is to say, the contract was to provide security to the luxury boat during the short period during which it found itself in Mediterranean waters. But the most striking thing about it was that the boat had its own security, which consisted of a sophisticated security detail, and that the contract consisted in adding an additional person, in this case, David Morales, for a very short period of time, through which David Morales would receive an elevated sum.

The difference in credibility is important, because Witness One focuses closely on Adelson, whereas Witness Two barely focuses on it. Witness Two — who unlike Witness One had a direct role in the increased surveillance on Assange — mentions it only in passing.

For good reason. Any claim of a connection between the 2016 Adelson contract and surveillance that ratcheted up much later makes no sense.

And that’s important because, while Witness Two describes UC Global being vetted as early as January 2017, he describes (and Witness One agrees) that the increased surveillance started in June or July of that year, with the most intense surveillance starting in December 2017.

I recall that between June and July 2017, I was summoned by David Morales to form a task force of workers at our headquarters in Jerez. The purpose of this unit was to execute, from a technical perspective, the capture, systematization and processing of information collected at the embassy that David Morales requested. So, I was tasked with executing David Morales’s orders, with the technical means that existed in the embassy and additional measures that were installed by order of Morales, in addition to the information gathered by the UC Global employees who were physically present in the diplomatic mission. This unit also had to travel to London every month to collect information.

There are still inconsistencies with Witness Two’s testimony, mind you, including a request in May that he says was part of the task force that didn’t start until a month later. But effectively he provides compelling evidence that, starting in June 2017, the surveillance that UC Global was doing on Assange went up, and then in December it went up considerably.

That’s consistent with the substance — though not the headline claims — of a presentation that Andrew Müller-Maguhn did on this almost a year ago. Add in the report that Morales shared information with an IP in Alexandria, VA, and the surveillance is completely consistent with being part a criminal investigation conducted out of the EDVA grand jury known to be investigating not just Assange, but also accused Vault 7 source Joshua Schulte at the time. Within months, there would be several more investigations predicated against Assange, investigations that would have nothing to do with journalism (and, if DOJ investigated Assange’s attempt to extort immunity using the Vault 7 files, that too would have nothing to do with journalism).

That almost seems like what this paragraph, from the prosecution closing argument, suggests — that, sure, they did have Assange under surveillance but that’s because he was sitting on CIA’s hacking tools and was planning an exfiltration from the embassy to Russia.

Fifth: allegations which Assange makes about being surveilled in the Embassy are not evidence that this prosecution is politically motived. In short, taking the defence evidence at its highest, even if Assange was surveilled by or on behalf of the United States, which is not admitted, that does not demonstrate that this prosecution is politically motivated. Surveillance may evidence wider concern about a risk an individual poses or concern to know their movements. Surveillance may demonstrate a state’s interest in apprehending an individual but that does not make a prosecution for criminal conduct politically motivated.

As I’ve said before, UC Global had a legal presence in the US and as such would be subject to subpoena by a grand jury. Surveillance records are routinely obtained from grand juries. While I imagine they’d get Ecuador’s consent for this, by fall 2016 — and especially after the Vault 7 releases — Ecuador was pretty sensitive about the way Assange was using their embassy as a base for crimes that were pissing off multiple countries.

You can argue this level of surveillance was really overbearing (and you’d be right). But WikiLeaks’ backers keep telling the story without mentioning that it came during precisely the period when the FBI was investigating Assange for a whole bunch of stuff, almost all of which had nothing to do with journalism. You can argue that the 2010 charges are dangerous (they are!). But to argue that Assange shouldn’t be investigated for extortion, conspiring with those who hacked Americans, illegally participating in an American election, and entering into a quid pro quo to get a pardon is not an argument about journalism.

“Looking Forward” Will Be Harder for President Biden than It Was for President Obama

NBC has a story that has caused a bit of panic, reporting that “Biden hopes to avoid divisive Trump investigations, preferring unity.”

The panic is overblown, given that the main point of the story is that Biden is hoping that DOJ will resume a more independent stance than that taken, especially, by Billy Barr.

Biden wants his Justice Department to function independently from the White House, aides said, and Biden isn’t going to tell federal law enforcement officials whom or what to investigate or not to investigate.

“His overarching view is that we need to move the country forward,” an adviser said. “But the most important thing on this is that he will not interfere with his Justice Department and not politicize his Justice Department.”

If there were to be investigations of Trump, everyone should want them to be completely insulated from the White House.

The story raises two more specific types of investigations which are both likely moot.

They said he has specifically told advisers that he is wary of federal tax investigations of Trump or of challenging any orders Trump may issue granting immunity to members of his staff before he leaves office. One adviser said Biden has made it clear that he “just wants to move on.”

Another Biden adviser said, “He’s going to be more oriented toward fixing the problems and moving forward than prosecuting them.”

New York state already has a tax investigation into Trump, so a federal one would be duplicative. And the pardon power is absolute; there’s little likelihood DOJ could investigate the pardons that Trump grants, because doing so would be constitutionally suspect.

All that said, attempting to move forward may not be as easy for President Biden as it was for President Obama.

That’s because there are a number of investigations that implicate Trump that are either pending (as of right now, but I don’t rule out Trump trying to kill them in the interim) or were shut down corruptly, to say nothing of the obstruction charges Mueller effectively recommended (which aforementioned pardons would renew, even in spite of DOJ’s declination prior to pardons). At a minimum, those include:

  • The Build the Wall fraud case against Steve Bannon and others that might, eventually, implicate the failson or his close buddies
  • The Igor Fruman and Lev Parnas graft which clearly implicates Rudy Giuliani and by all rights should always have included Trump’s extortion of Volodymyr Zelensky; given the timing of David Correia’s plea, it’s likely there will be grand jury testimony from him banked
  • Other foreign agent charges against Rudy
  • The investigation into Erik Prince for selling his private mercenary services to China
  • False statements charges against Ryan Zinke that Jeffrey Rosen attempted to kill
  • Various campaign finance and grift charges implicating Roger Stone, Paul Manafort, and Brad Parscale, to say nothing of the hush payments involving Trump personally
  • Possible hack-and-leak charges against Roger Stone from 2016, as well as the related pardon quid pro quo for Julian Assange implicating Trump himself
  • The possible aftermath of Judge Sullivan’s decisions in the Mike Flynn case, which could include perjury referrals or an invitation for DOJ to prosecute Flynn on the foreign agent charges he pled out of

All of these investigations still do or were known to exist, and if they no longer exist when Biden’s Attorney General arrives at DOJ, it will be because of improper interference from Barr.

The last of these might get particularly awkward given that multiple people at Billy Barr’s DOJ, possibly in conjunction with Sidney Powell and Trump campaign lawyer Jenna Ellis, altered documents to concoct a smear targeting Joe Biden in a false claim that he invented a rationale to investigate Flynn for undermining sanctions on Russia. You cannot have an independent DOJ if the people who weaponized it in such a way go unpunished. Except investigating such actions would immediately devolve into a partisan fight, particularly if Republicans retain control of the Senate. (This particular issue will most easily be addressed, and I suspect already is being addressed, via a DOJ IG investigation.)

Still, in the other cases, DOJ may need to decide what to do with investigations improperly closed by Barr, or what to do with investigations where just some of the defendants (such as Fruman and Bannon) get pardons.

And all this will undoubtedly play against the background of the confirmation battle for whomever Biden nominates. I would be shocked if Mitch McConnell (especially if he remains Majority Leader) didn’t demand certain promises before an Attorney General nominee got approved.

So none of this will be easy.

A far more interesting question will pertain to what President Biden does about the ICC investigation into US war crimes in Afghanistan, crimes that occurred during both the Bush and Obama Administrations. Mike Pompeo launched an indefensible assault against the ICC in an attempt to block this investigation, sanctioning ICC officials leading the investigation. Biden’s Secretary of State will have to decide whether to reverse those sanctions, effectively making a decision about whether to look forward to ignore crimes committed (in part) under Barack Obama.

Trump’s Pardon Jenga, Starting with the Julian Assange Building Block

I was going to wait to address Trump’s likely use of his power of clemency in the days ahead until it was clear he was going to leave without a fight and I will return to it once that’s clear. But there have already been a slew of pieces on the likely upcoming pardons:

None of them mentions Julian Assange (though Graff does consider the possibility of a Snowden pardon, which I consider related, not least for the terms on which Glenn Greenwald is pitching a package deal as a way for Trump to damage the Deep State).

I would argue that unless a piece considers an Assange pardon, it cannot capture the complexity facing Trump as he tries to negotiate a way to use pardons (and other clemency) to eliminate his legal exposure itself.

I’m not saying Trump’s decision on whether to give Assange a pardon is his hardest decision. But it may be one a few that could bring any hope of protecting himself falling down.

Trump has talked about pardons, generally, covering a number of crimes in which he himself (or a family member) is implicated:

  • Asking DHS officials to violate the law in order to build the wall
  • Working with the National Enquirer to capture and kill damaging stories during the 2016 election
  • Dodging impeachment
  • Steve Bannon’s Build the Wall grift (which likely implicates Jr)

There are others whom Trump would give a pardon because they’re loyal criminals, like Ryan Zinke or Commerce Officials and others who’ve lied in court. There are hybrid cases; in addition to Bannon, Erik Prince has legal exposure both for his own lies that protected Trump, but also for his efforts to sell mercenary services to hostile foreign governments. And Rudy Giuliani has committed his own crimes as well as possible crimes to protect the President. With the possible exception of Rudy (who still might claim attorney client privilege to refuse to testify about Trump), those pardons create challenges, but they’re highly likely (unless Trump made some pardons contingent on remaining in power).

Then there’s the Mueller Report. In 2019 testimony to HPSCI, Michael Cohen credibly described Jay Sekulow considering mass “pre-pardons” in the summer of 2017 in an attempt to make the Russian investigation go away. But the Mueller Report itself only obviously talks about five pardons:

  • An extensive discussion of the reasons why pardons for Mike Flynn, Paul Manafort, and Roger Stone would amount to obstruction (a sentiment with which Billy Barr once agreed)
  • A discussion of Robert Costello’s efforts to broker silence from Cohen in exchange for a pardon and almost certainly a still-redacted referral of Costello for the same; Costello is currently Rudy Giuliani’s attorney
  • A question about discussions of a Julian Assange pardon, even while the report did not mention or obscured the tie with underlying evidence proving such an effort occurred, possibly as a part of a quid pro quo to optimize the WikiLeaks releases

There are difficulties — albeit surmountable ones — for pardons of Flynn and Manafort, not least because Billy Barr has found other ways for Trump to keep them out of jail (so far), even while issuing a DOJ ruling that his prior pardon dangles are not obstruction. Costello is someone who has no privilege directly with Trump and so might implicate him personally in trading pardons for silence if Trump himself is not pardoned.

But Stone (and quite possibly Don Jr) is indelibly tied to an Assange pardon.

It’s possible something might make this easier between now and January 20. If British Judge Vanessa Baraister rules on January 4, 2021 in favor of Julian Assange’s Lauri Love gambit, arguing that American prisons are not humane for those on the autism spectrum, then there’s a decent chance he’ll beat extradition. If not, his chances are slim. And even if he beats extradition the UK could choose to prosecute him on Official Secrets Act charges tied to Vault 7.

That presents Trump limited choices. He could pardon just Stone (and Don Jr, who will undoubtedly get a broad pardon in any case). But then both could be coerced to testify against Assange under threat of contempt or perjury from a Biden DOJ.

He could pardon all three, including a broad pardon (including Vault 7) for Assange. But if he did that, it could complete the conspiracy, a quid pro quo tied to Russian interference in 2016. That would make a Pence pardon of Trump much more politically costly; it would likewise make a Trump self-pardon much more toxic for even a very partisan SCOTUS to rubber stamp.

But if he doesn’t pardon Assange, he risks pissing of those who helped him in 2016, with whatever repercussions that would have for Trump Organization funding going forward. To sum up:

  • Pardoning just Stone and Jr would expose them to coercion to testify against Assange and maybe others
  • Pardoning all three would make Trump’s own pardons much less defensible to those who would have to ensure he himself got immunity
  • Pardoning Assange at all would complete the conspiracy Mueller never charged
  • Not pardoning Assange might risk ire from Russia

I’m not saying he can’t find a way out of this dilemma. But it is one of the reasons why Trump’s pardon gambit is far more complex than others are accounting for.

Roger Stone’s 2016 “Stop the Steal” Effort May Have Been Coordinated with Russia

CNN has traced out in detail what I’ve been noting for some time: the “Stop the Steal” effort ginning up disinformation and threats of violence in the wake of Donald Trump’s loss is a repackaged version of an effort that Roger Stone rolled out in 2016.

[W]hile Stop the Steal may sound like a new 2020 political slogan to many, it did not emerge organically over widespread concerns about voting fraud in President Donald Trump’s race against Joe Biden. It has been in the works for years.

Its origin traces to Roger Stone, a veteran Republican operative and self-described “dirty trickster” whose 40-month prison sentence for seven felonies was cut short by Trump’s commutation in July.

Stone’s political action committee launched a “Stop the Steal” website in 2016 to fundraise ahead of that election, asking for $10,000 donations by saying, “If this election is close, THEY WILL STEAL IT.”

But CNN — with four journalists bylined — misses several important parts of that earlier story, parts that are critical to understanding the stakes for Steve Bannon and Stone now.

Stone may have mixed his political fundraising

First, there’s good reason to believe that Stone was not segregating the different kinds of campaign finance organizations he was using for his 2016 rat-fucking. Even from what remained of his public infrastructure when I wrote this post, it showed that fundraising for one kind of dark money group went to links associated with a PAC.

[I]t’s clear he wasn’t segregating the fundraising for them, and I wonder whether some of his email fundraising involved other possible campaign finance violations. For example, here’s the Stop the Steal site as it existed on March 10, 2016. It was clearly trying to track fundraising, carefully instructing people to respond to emails if they received one. But it claimed to be TCTRAG (what I call CRAG), even though the incoming URL was for Stop the Steal.

That remained true even after Stop the Steal was formally created, on April 10. Even after the website changed language to disavow Stop the Steal being a PAC by April 23, the fundraising form still went to TCTRAG (what I call CRAG), a PAC.

In other words, people would click a link thinking it would fund one effort (and one kind of legal entity) and any money donated would instead go to another effort (and another kind of legal entity). Since then, we’ve learned more about how everyone associated with Trump — Corey Lewandowski, Paul Manafort, and Brad Parscale, in addition to Stone — set up these entities to get rich off of Trump. It’s one reason the rivalry between Lewandowski and Manafort was so heated: because one’s relative prominence in Trump’s campaign effort was directly related to the amount of money that one could grift from it.

But as Bannon’s indictment for fraud makes clear, telling people they’re donating money for one purpose (to build a wall) but using the money for other purposes (to support Bannon’s pricey lifestyle) can be prosecuted as fraud.

When Andrew Miller was negotiating testimony about Stone, he specifically asked for immunity relating to Stone’s PACs and his texts with Stone that the government subpoenaed after his grand jury appearance overlapped with that campaign slush.

In 2016, Stone was (illegally) coordinating with the campaign

As appears to have been the case for all these efforts to grift off the campaign, Stone was coordinating his PAC and dark money efforts with the campaign.

We learned that, in Stone’s case, starting with a legal debate in the lead-up to Stone’s trial about 404(b) information, which is information about other bad actions (including crimes) that prosecutors are permitted to introduce during a trial to prove something like motive or consistent behavior.

In advance of Stone’s trial prosecutors got permission to introduce evidence that Stone lied about something in his HPSCI testimony, on top of all the lies about who his go-between with WikiLeaks was, only that other lie wasn’t charged.

At the pretrial conference held on September 25, 2019, the Court deferred ruling on that portion of the Government’s Notice of Intention to Introduce Rule 404(b) evidence [Dkt. # 140] that sought the introduction of evidence related to another alleged false statement to the HPSCI, which, like the statement charged in Count Six, relates to the defendant’s communications with the Trump campaign. After further review of the arguments made by the parties and the relevant authorities, and considering both the fact that the defendant has stated publicly that his alleged false statements were merely accidental, and that he is charged not only with making individual false statements, but also with corruptly endeavoring to obstruct the proceedings in general, the evidence will be admitted, with an appropriate limiting instruction. See Lavelle v. United States, 751 F.2d 1266, 1276 (D.C. Cir. 1985), citing United States v. DeLoach, 654 F.2d 763 (D.C. Cir. 1980) (given the defendant’s claim that she was simply confused and did not intend to deceive Congress, evidence of false testimony in other instances was relevant to her intent and passed the threshold under Rule 404(b)). The Court further finds that the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.

Judge Amy Berman Jackson permitted prosecutors to include it because it showed that Stone was trying to cover up all of his coordination with the campaign.

A September hearing about this topic made clear that it pertained to what Stone’s PACs were doing.

Assistant U.S. Attorney Michael J. Marando argued that Stone falsely denied communicating with Trump’s campaign about his political-action-committee-related activities, and that the lie revealed his calculated plan to cover up his ties to the campaign and obstruct the committee’s work.

This debate suggested prosecutors could present the information via just one witness, but unless I’m misunderstanding, it actually came in via two witnesses: There were a number of texts between Rick Gates and Stone where Stone kept demanding lists from the campaign (indeed, this is something that Stone’s lawyers actually emphasized!). And during the period when Bannon was campaign manager, Stone asked him to get Rebekah Mercer to support some of his other activities, designed to suppress the black vote.

Both of these communications show that Stone was at least attempting to coordinate his efforts with the campaign (it’s not clear to what degree Gates responded to Stone’s demands), and the second detail shows that he was coordinating with Bannon, the guy who took over the Stop the Steal effort this year.

This kind of coordination is illegal (albeit common), though Billy Barr’s DOJ refused to prosecute Trump for any of it (and he even appears to have shut down an investigation into what appeared to be a kickback system Manafort used to get paid).

Stone’s Stop the Steal efforts paralleled the voter suppression efforts of the Russian operation

Even back when I examined Stone’s Stop the Steal efforts in 2018 (when I was skeptical about his legal liability with respect to WikiLeaks), it was clear that the steps Stone took happened to coincide with Russia’s efforts.

Stone’s voter suppression effort is not surprising. It’s the kind of thing the rat-fucker has been doing his entire life.

Except it’s of particular interest in 2016 because of the specific form it took. That’s because two aspects of Stone’s voter suppression efforts paralleled Russian efforts. For example, even as Stone was recruiting thousands of “exit pollers” to intimidate people of color, Guccifer 2.0 was promising to register as an election observer, in part because of the “holes and vulnerabilities” in the software of the machines.

INFO FROM INSIDE THE FEC: THE DEMOCRATS MAY RIG THE ELECTIONS

I’d like to warn you that the Democrats may rig the elections on November 8. This may be possible because of the software installed in the FEC networks by the large IT companies.

As I’ve already said, their software is of poor quality, with many holes and vulnerabilities.

I have registered in the FEC electronic system as an independent election observer; so I will monitor that the elections are held honestly.

I also call on other hackers to join me, monitor the elections from inside and inform the U.S. society about the facts of electoral fraud.

More interesting still, the GRU indictment makes it clear that GRU’s information operation hackers were probing county electoral websites in swing states as late as October 28.

In or around October 2016, KOVALEV and his co-conspirators further targeted state and county offices responsible for administering the 2016 U.S. elections. For example, on or about October 28, 2016, KOVALEV and his co-conspirators visited the websites of certain counties in Georgia, Iowa, and Florida to identify vulnerabilities.

Whether or not GRU ever intended to alter the vote, Russia’s propagandists were providing the digital “proof” that Republicans might point to to sustain their claims that Democrats had rigged the election.

This is a line that Wikileaks also parroted, DMing Don Jr that if Hillary won his pop should not concede.

Hi Don if your father ‘loses’ we think it is much more interesting if he DOES NOT conceed [sic] and spends time CHALLENGING the media and other types of rigging that occurred—as he has implied that he might do.

Since that time, we’ve learned that Maria Butina and Sergey Kislyak were also aiming to focus on observing polls in 2016. We’ve learned that the GRU hackers were actually targeting conservative Florida counties in 2016 (including Matt Gaetz’s district), meaning that had Trump lost he might have turned to the hacking of GOP strongholds to claim that that hacking had undermined his vote totals in Florida.

There are also indications that Mueller was pursuing evidence that not only Stone, but also Paul Manafort, had advance notice of all this. For example, Manafort got asked about Russians hacking voting machines in regards to a November 5, 2016 note he sent to the campaign regarding “Securing the Victory” (which admittedly is a slightly different topic but one that might have elicited an answer about hacking the Boards of Election if Manafort were at all inclined to tell the truth, which he was not).

All of which is to say that, had Hillary won narrowly (as Biden won by close margins in enough states to amount to a resounding victory), we probably would have seen Stone’s Stop the Steal effort to be doing precisely what Bannon’s Stop the Steal has been doing this year, both delegitimizing the outcome and sowing violence. But in that case, the effort may have been accompanied by possible foreknowledge that a close investigation of certain GOP strongholds would disclose proof of tampering in the election.

Stone pitched Bannon on a way to win ugly the day he became Campaign Manager

At this point, I’ve come to believe that prosecutors used their live witnesses at Stone’s trial (aside from former FBI Agent Michelle Taylor, who introduced most of the evidence) to make certain testimony public regarding other investigative prongs. For example, prosecutors got Gates to testify publicly that Stone claimed involvement in the release of stolen emails at a time when only Guccifer 2.0 was releasing them, not WikiLeaks. Prosecutors got Randy Credico to confirm publicly that shortly after the election, he helped Stone try to pay off his election debt by pardoning Julian Assange.

And prosecutors got Steve Bannon to — very reluctantly — repeat grand jury testimony that he regarded a pitch that Stone made to him the day after he became campaign manager to be related to dirty tricks and WikiLeaks.

Prosecutors introduced a similar exchange with Steve Bannon, the guy who took over from Manafort weeks later: an August 18, 2016 email exchange  where Stone claimed Trump could “still win” … “but it ain’t pretty,” and Bannon responded by asking to talk ASAP.

Manafort didn’t testify at Stone’s trial. But Bannon did. Prosecutors had Bannon sitting there on the stand, forcing him to repeat what he had said to a grand jury earlier in the year, yet they only asked him to say this much about what all this means, in which he begrudgingly admitted he believed this discussion about using social media to win was about WikiLeaks:

Q. At the bottom of this email Mr. Stone states, “Trump can still win, but time is running out. Early voting begins in six weeks. I do know how to win this, but it ain’t pretty. Campaign has never been good at playing the new media. Lots to do, let me know when you can talk, R.” Did I read that correctly?

A. That’s correct.

Q. Then you respond, “Let’s talk ASAP”; am I correct?

A. That’s correct.

Q. When Mr. Stone wrote to you, “I do know how to win this but it ain’t pretty,” what in your mind did you understand that to mean?

A. Well, Roger is an agent provocateur, he’s an expert in opposition research. He’s an expert in the tougher side of politics. And when you’re this far behind, you have to use every tool in the toolbox.

Q. What do you mean by that?

A. Well, opposition research, dirty tricks, the types of things that campaigns use when they have got to make up some ground.

Q. Did you view that as sort of value added that Mr. Stone could add to the campaign?

A. Potentially value added, yes.

Q. Was one of the ways that Mr. Stone could add value to the campaign his relationship with WikiLeaks or Julian Assange?

A. I don’t know if I thought it at the time, but he could — you know, I was led to believe that he had a relationship with WikiLeaks and Julian Assange.

Even though prosecutors didn’t lay out precisely what happened next — something that other evidence suggests may have implicated Jared Kushner — Stone’s team never challenged the prosecution claim that this email and the subsequent exchanges did pertain to WikiLeaks. Perhaps, because they had reviewed Bannon’s grand jury and more recent testimony, they knew how he would respond and thought better off leaving it unchallenged.

Perhaps, too, they didn’t want to have to explain how long this exchange persisted. For example, the Stone affidavits — starting with one obtained after Bannon’s first testimony — showed this particular email exchange lasted two more days, through August 19 and 20 (the day before the Podesta “time in the barrel” tweet).

On August 19, 2016, Bannon sent Stone a text message asking if he could talk that morning. On August 20, 2016, Stone replied, “when can u talk???”

And those discussions may have continued into face-to-face meetings in September.

On September 4, 2016, Stone texted Bannon that he was in New York City for a few more days, and asked if Bannon was able to talk.

[snip]

On September 7, 2016, Stone and Bannon texted to arrange a meeting on September 8, 2016 at the Warner Center in New York.

On September 7, 2016, Bannon texted Stone asking him if he could “come by trump tower now???”

On September 8, 2016, Stone and Bannon texted about arranging a meeting in New York.

This is a lot of back-and-forth to discuss the “the tougher side of politics.”

Even though they had Bannon there on the stand, prosecutors did not get him to explain what this plan to win ugly entailed. So we don’t know whether it pertained to Stone’s efforts to suppress the black vote, his Stop the Steal effort to discredit a potential Hillary win, or something more (I’ll eventually get around to what that something more might be). But we do know that when Bannon enthusiastically responded to those pitches, he expected Stone’s plan to win ugly would involve dirty tricks and WikiLeaks.

Stone’s real go-between with WikiLeaks was likely Guccifer 2.0

No one involved with the Trump campaign — at least as far as is public — claims to have known who Stone’s claimed tie to WikiLeaks was.

But Rick Gates apparently did testify that Stone claimed to have a tie to Guccifer 2.0 well before the time he was DMing with the persona on Twitter. The FBI had evidence (though how good it is remains inconclusive) that he was searching on both Guccifer 2.0 and dcleaks before those sites went live. When prosecutors wrote the Mueller Report in March 2019, they still had not determined whether any proof they had of Stone’s awareness of Russia’s ongoing hacking — which extended until November 2016 — was sufficient proof beyond reasonable doubt to charge him as part of the hack-and-leak conspiracy.

As I have argued, there is evidence, albeit not conclusive, that Stone’s go-between with WikiLeaks was Guccifer 2.0.

If that’s right, it suggests that Stone’s parallel efforts with Guccifer 2.0’s, efforts that seemingly anticipated hacks that might have served to discredit the vote in 2016, may not have been coincidence or even just a result of the seeming dance via which Trump’s team and Russia followed the same path without any coordination. It may have reflected coordination.

Let me very clear: I’m not making any claims that happened this year. There’s no evidence of it, and those who tracked election tampering efforts have said they found none.

But until Billy Barr intervened in Stone’s sentencing, all this was (at least per FOIA redactions) an ongoing investigation, the investigation that Stone’s prosecution served, in part, as an investigative step in. If you put that together with Bannon’s own legal exposure in the Build the Wall fraud indictment, it changes the stakes on these men’s efforts to curry Trump’s favor (and to ensure he remains in power, via whatever means).

If Trump remains in charge of DOJ, these men will stay out of prison. If he doesn’t, they may not. And for Stone, especially, a Joe Biden DOJ (or a Democratic Congress, with DOJ’s help) may reveal what he has been denying for years, that Stone willingly coordinated during the 2016 election with someone whose ties to Russia were only thinly hidden.

Don Jr’s Demand to “Declassify Everything” and the Secret Grand Jury Information His Buddy Shared about Julian Assange

Yesterday, Don Jr tweeted out a demand that someone — Daddy, maybe? — “declassify everything.”

I guess the failson believes there are secret facts that will change the reality that his Daddy just lost an election by the same Electoral College margin Trump beat Hillary by in 2016, with an even bigger popular vote loss than he suffered in 2016.

Given Jr’s belief that releasing classified information can save him, though, it’s worth revisiting testimony that former Sputnik propagandist Cassandra Fairbanks gave at the Julian Assange extradition hearing.

She testified under oath that, a month after President Trump would have learned that the Mueller team was investigating the Roger Stone-led effort to pardon Julian Assange — an effort that seems to have implicated Don Jr, too — Don Jr’s close friend Arthur Schwartz told Fairbanks that there would be no fucking pardon for Assange. Schwartz proceeded to give Fairbanks accurate, secret information about the grand jury investigation into Assange. She also testified vaguely that Schwartz said “other persons … might be affected” including people he referred to as “lifelong friends,” a reference she took to mean Don Jr.

In early 2019, Fairbanks traveled to London to share this secret grand jury information with Assange in person. So Schwartz’ leak played a role in the target of a criminal investigation learning secret details about that investigation.

Fairbanks implied that Ric Grenell — who inhabited the same far right wing chat room as Fairbanks and Schwartz and who gave Ecuador reassurances that Assange won’t face the death penalty — may have been Schwartz’s source. But if Schwartz knew that Assange might present problems for Don Jr, as Fairbanks implied, it suggests he spoke with the President’s son about it.

At the very least, DOJ must be investigating how grand jury information got leaked and how Schwartz got that information to leak.

The failson might not want to advertise how happy he is to share America’s secrets.

The Mueller Charging Decisions Through Ratfucker Rashomon’s Eyes

As noted, late Monday night, DOJ released a newly unredacted version of the Mueller Report that disclosed that, when Mueller shut down in March 2019, there were ongoing investigations, plural, into Stone’s role in the hack-and-leak. This all accords with what I laid out in my Ratfucker Rashomon series, which read the four different stories of the Stone investigation so as to explain that the Stone prosecution was partly an effort to collect further information in the investigation.

I’d like to look at the newly unsealed charging language through the lens of that series. The introduction to the discussion of the hack-and-leak notes (unlike the IRA indictment) that in addition to those charged in the conspiracy, there were other co-conspirators, defining the conspiracy to include the staged releases of the documents.

On July 13, 2018, a federal grand jury in the District of Columbia returned an indictment charging Russian military intelligence officers from the GRU with conspiring to hack into various U.S. computers used by the Clinton Campaign, DNC, DCCC, and other U.S. persons, in violation of 18 U.S.C. §§ 1030 and 371 (Count One); committing identity theft and conspiring to commit money laundering in furtherance of that hacking conspiracy, in violation of 18 U.S.C. §§ 1028A and 1956(h) (Counts Two through Ten); and a separate conspiracy to hack into the computers of U.S. persons and entities responsible for the administration of the 2016 U.S. election, in violation of 18 U.S.C. §§ 1030 and 371 (Count Eleven). Netyksho Indictment.1277 As of this writing, all 12 defendants remain at large.

The Netyksho indictment alleges that the defendants conspired with one another and with others to hack into the computers of U.S. persons and entities involved in the 2016 U.S. presidential election, steal documents from those computers, and stage releases of the stolen documents to interfere in the election. [my emphasis]

In a curious phrase, the introduction describes the co-conspirators using Guccifer 2.0 to stage releases through WikiLeaks, thereby emphasizing the role of Guccifer 2.0 as middle-man.

The indictment also describes how, in staging the releases, the defendants used the Guccifer 2.0 persona to disseminate documents through WikiLeaks.

As I’ve noted, there’s good reason to suspect that Stone’s tie to WikiLeaks was via Guccifer 2.0.

In a previously unredacted passage, it then describes Jerome Corsi’s claims that Stone had optimized the WikiLeaks release on October 7, 2016.

One witness told the Office at one point that the initial release of Podesta emails on October 7 may have come at the behest of, or in coordination with, Roger Stone, an associate of candidate Trump. As explained in Volume I, Section III.D.1.d, supra, phone records show that Stone called Jerome Corsi on October 7, after Stone received a call from the Washington Post. The Washington Post broke a story later that day about a video recording of Trump speaking about women in graphic terms. According to some of Corsi’s statements to the Office [grand jury redaction] Stone said that he had learned about the imminent release of that tape recording, and it was expected to generate significant negative media attention for the Campaign. Corsi told investigators that Stone may have believed from their prior dealings that Corsi had connections to Julian Assange, WikiLeaks’s founder, and that Stone therefore asked Corsi to tell Assange to start releasing the Podesta emails immediately to shift the news cycle away from the damaging Trump recording. Although Corsi denies that he actually had access to Assange, he told the Office at one point that he tried to bring the request to Assange’s attention via public Twitter posts and by asking other contacts to get in touch with Assange. The investigation did not establish that Corsi actually took those steps, but WikiLeaks did release the first batch of Podesta emails later on the afternoon of October 7, within an hour of the publication of the Washington Post’s story on the Trump tape.

As I laid out in this post from the Rashomon series, the focus on Corsi later in this section — while not inappropriate from the viewpoint of the prosecutorial memo that the Mueller Report served as — appears to have been a head fake, a way to explain why the Report addressed the Podesta emails without ever addressing the substantive evidence that showed Stone did optimize the Podesta release. This passage is the same: a way to explain the focus on the Podesta emails without revealing what prosecutors actually knew, including (as laid out in this post), pretty compelling evidence that Stone and Corsi had the content of some of the Podesta emails by August 15, 2016, ones related to an attack on Podesta that right wingers were pushing even as Stone was working to optimize the release.

Having used the Corsi head fake to introduce the topic, then, the discussion of the charging decision starts by generally nodding to “some evidence that Stone played a role in coordinating the October 7 release of the Podesta materials” and — through that — focusing on WikiLeaks.

Given WikiLeaks’s role in disseminating the hacked materials, and the existence of some evidence that Stone played a role in coordinating the October 7 release of the Podesta materials, this Office considered whether to charge WikiLeaks, Assange, or Stone as conspirators in the computer-intrusion conspiracy under Sections 1030 and 371.1278 The theory of prosecution would be that these actors were liable as late joiners in an already existing conspiracy.

It lays out that two things would be necessary to charge either WikiLeaks or Stone under this theory: proof they agreed to enter into the conspiracy and that they knew about ongoing hacking. It envisions WikiLeaks might have served as a “fence,” marketing goods it knew to be stolen.

In particular, although it did not participate in the hacking itself, WikiLeaks would be liable for ensuring a market for and maximizing the value of the stolen materials—much as someone who holds himself out as a “fence” may be found to have joined a conspiracy to traffic in stolen goods, see United States v. Hess, 691 F.2d 984, 988 (11th Cir. 1982), and an individual who launders drug money can be a member of a drug-trafficking conspiracy when such laundering activities are “integral to the success” of the overall trafficking venture,

This language is interesting not just in this context. The expanded CFAA charge in the second superseding Assange indictment describes how Assange had Siggi reach out to Gnosis and LulzSec and then later, some of those same people were involved in hacking Stratfor. While they were doing so, Assange helped them sort through the stolen emails, and — ultimately — WikiLeaks published them. In that case, then, the government is effectively claiming that Assange did agree to the hack before it happened, and then guaranteed the access to the files once they were hacked. Here, though, the Mueller Report concluded it didn’t have admissible evidence to charge WikiLeaks, in part because the key communications were encrypted.

The Office determined, however, that it did not have admissible evidence that was probably sufficient to obtain and sustain a Section 1030 conspiracy conviction of WikiLeaks, Assange, or Stone.

[snip]

With respect to WikiLeaks and Assange, this Office determined the admissible evidence to be insufficient on both the agreement and knowledge prongs. As to agreement, many of the communications between the GRU officers and WikiLeaks-affiliated actors occurred via encrypted chats. Although a conspiracy is often inferred from the circumstances, see Iannelli, 420 U.S. at 777 n.10, the lack of visibility into the contents of these communications would hinder the Office’s ability to prove that WikiLeaks was aware of and intended to join the criminal venture comprised of the GRU hackers.

I get the feeling the US government has evidence — just not evidence they would want to submit at trial, something from a foreign partner or collection targeted on Russians (temporally, this would not be anything collected via UC Global, which is one of the reasons why the UC Global surveillance is probably not what WikiLeaks supporters claim it is).

The Report also explains that it did not have evidence that Assange knew of the ongoing hacks.

Here, a late-joiner theory would require that the conspirator knew that the computer intrusions that comprise the Section 1030 violation were ongoing, or expected to continue, at the time that he or she joined the conspiracy.

[snip]

Similar problems of proof existed as to knowledge. While the investigation developed evidence that the GRU’s hacking efforts in fact were continuing at least at the time of the July 2016 WikiLeaks dissemination, see Netyksho Indictment ¶¶ 32, 34, the Office did not develop sufficient admissible evidence that WikiLeaks knew of—or even was willfully blind to—that fact. Cf. Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 769-70 (2011) (recognizing that willful blindness can be used to prove the knowledge element of an offense). And absent sufficient evidence of such knowledge, the government could not prove that WikiLeaks (or Assange) joined an ongoing hacking conspiracy intending to further or facilitate additional computer intrusions.

Note the timing: the Report is saying that WikiLeaks would have had to know that GRU was still hacking Democratic targets when it released the first dump in July 2016. It is silent about ongoing after that, even though the hacking did continue through the election.

It then says the legal analysis is similar for Stone. But it doesn’t conduct that analysis in the way it does for WikiLeaks. Instead, it says it still has factual questions about Stone’s knowledge of ongoing hacks, returning to that Jerome Corsi head fake, rather than discussing the actual evidence prosecutors did have.

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 As explained in Volume I, Section III.D.1, supra, Corsi’s accounts of his interactions with Stone on October 7, 2016 are not fully consistent or corroborated. Even if they were, neither Corsi’s testimony nor other evidence currently available to the Office is sufficient to prove beyond a reasonable doubt that Stone knew or believed that the computer intrusions were ongoing at the time he ostensibly encouraged or coordinated the publication of the Podesta emails. Stone’s actions would thus be consistent with (among other things) a belief that he was aiding in the dissemination of the fruits of an already completed hacking operation perpetrated by a third party, which would be a level of knowledge insufficient to establish conspiracy liability. See State v. Phillips, 82 S.E.2d 762, 766 (N.C. 1954) (“In the very nature of things, persons cannot retroactively conspire to commit a previously consummated crime.”) (quoted in Model Penal Code and Commentaries § 5.03, at 442 (1985)).

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.

The question of Stone’s foreknowledge is actually quite different than Assange’s. That’s because (as the Mueller Report barely mentions but affidavits lay out in detail), he seems to have had knowledge from Guccifer 2.0, possibly as early as April and reportedly as early as May, when hackers were still in the DNC servers. The SSCI Report lays out (but the Mueller Report did not) that Stone was scripting pro-Russian Tweets for Trump in the days after he made his “Russia are you listening” comment. If prosecutors found proof that Stone scripted the “Are you listening” quote, then he could be directly tied to the attempted hacking of Hillary that immediately followed. And Manafort, at least, was asked whether he knew that Russian hackers were probing state election infrastructure in the days before the election, so prosecutors may have reason to believe Stone knew of that (certainly, his voter suppression efforts paralleled Russia’s). This is one reason why it was so curious that prosecutors laid out how Stone pitched both Manafort and Steve Bannon on a way to win ugly during the same period he was optimizing the Podesta emails; it’s possible he pitched them on the later Russian voter suppression and. not just the Podesta emails.

Still, aside from the question to Manafort (which he denied) and some suggestions from his contemporaneous writings, there’s no public evidence of that.

Nevertheless and perhaps counterintuitively, there’s more evidence that Stone knew of ongoing hacking than that Assange did (and when Stone has denied such knowledge in the past, the timeline he uses is always bolloxed all to hell, ignoring key parts of the hacking).

That’s most (not not all) of the CFAA decision. But there’s a second passage, one focused on whether WikiLeaks provided an illegal campaign donation to Trump (one that parallels the similar discussion of whether the June 9 meeting amounted to an illegal offer and solicitation of foreign assistance).

Much of this discussion focuses on campaign finance law — whether the stolen emails represented something of value and how foreigners are covered by campaign finance law. I may return to it. The analysis in this section, plus an earlier one of the Bartnicki precedent that says it’s usually not criminal to publish illegally obtained information, could now have dramatically changed given a SCOTUS decision eliminating any claim for foreigners like Julian Assange to rely on a First Amendment defense. Given the other First Amendment issues, I doubt prosecutors would ever revisit this decision, but prosecutors in Assange’s existing indictment may already be planning to rely on that precedent. (I hope to return to the irony that a Trump judge may fuck up Assange’s defense after Assange helped Trump get elected.)

But not all of it.

There’s also a discussion about whether Stone would have criminal liability. It’s particularly interesting not least because it invokes others on the campaign too (in a prosecutorial memo that considers whether Don Jr committed a CFAA crime by using a password he got from WikiLeaks to access a non-public website).

There is also insufficient evidence at the present time to establish beyond a reasonable doubt that Roger Stone or any other persons associated with the Campaign coordinated with WikiLeaks on the release of the emails, which alone would preclude prosecution of them for the WikiLeaks-related conduct even if WikiLeaks had violated campaign-finance law.

[snip]

The Office also considered whether Roger Stone could be prosecuted for any direct or indirect contacts with WikiLeaks about its release of hacked emails for the purpose of influencing the presidential election, and whether any coordination between Stone and WikiLeaks would affect WikiLeaks’s criminal exposure. If WikiLeaks’s release of documents were conducted in coordination with Stone (or others associated with the Trump Campaign), the activity would arguably constitute a “contribution,” rather than an “expenditure.” [my emphasis]

I’ll just leave that repeated invocation of others associated with the Trump campaign for now.

Importantly, though, this section comes as close as any other passage in the Mueller Report does — far closer than the Jerome Corsi head fake sections do — to saying Stone didn’t coordinate with WikiLeaks.

The Office did not pursue that theory [that Stone might be liable], however, because the investigation did not identify sufficient credible evidence that would establish that Stone coordinated with WikiLeaks or that any contacts with WikiLeaks were attributable to the Campaign. See Volume I, Section III.D.1, supra. While the Office cannot exclude the possibility of coordination between Stone and WikiLeaks or that additional evidence could come to light on that issue, the investigation did not obtain admissible evidence likely to meet the government’s burden to prove facts establishing such coordination beyond a reasonable doubt.

Note the reference to “credible evidence,” which I take to be a reference to Corsi.

Two key things about this though: This is all about WikiLeaks. There’s not a word about criminal liability if Stone can be shown to have coordinated with Guccifer 2.0 (Stone, of course, would say he believed Guccifer 2.0 was not Russian, even though prior to August 5, he had said he did believe the persona was Russian). I laid out evidence that that seems to have been the case — that Stone’s go-between was actually Guccifer 2.0, not Corsi or Credico or anyone else. And there’s good reason to believe Mueller expected to find that at the time (which I’ll return to).

The other thing is this WikiLeaks related analysis is all campaign finance related. It doesn’t consider a pardon, about which there was communication between Stone and WikiLeaks, possibly even Don Jr or Paul Manafort and WikiLeaks. There, the question has to do with the terms, whether prosecutors have proof it was part of a quid pro quo. And, as I said before, at least as of early October, that investigation remained open.

As I laid out in my Ratfucker Rashomon series, the Mueller Report has always been misread as a summary of all the things Mueller found. It’s not. It’s the explanation of charging decisions. But the footnote unsealed on Monday confirms that there were multiple charging decisions that Mueller did not make with respect to Stone — he sent those ongoing investigations to DC. And so the story told here, with significant gaps about Guccifer 2.0 and post-election, doesn’t tell the most interesting part of the story.