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Trump Administration Still Gaming Intelligence on Election Interference

Last month, I tracked a disturbing exchange between Dan Coats and Martin Heinrich regarding whether any of the efforts to tamper with this year’s election succeeded.

At the Global Threats hearing on January 29, Heinrich asked Coats whether the committee was going to get the results of the assessment of whether any of the tampering had had an effect. A week later, DOJ and DHS issued a report saying “no harm no foul.” Then 10 days later, the entire Senate Intelligence Committee wrote Coats a letter asking for DNI’s findings.

That troubling exchange took place against another one, revealed in a letter sent yesterday from Heinrich, Ron Wyden, and Kamala Harris.

On September 26, 2018, Trump mucked up a UN meeting by claiming, without evidence, that China was tampering in the 2018 midterms. The Democratic Senators apparently asked Dan Coats about it, and he issued a classified response on October 31. During the same Global Threat Hearing where Heinrich raised the general assessment in open session, the Senators raised the China accusation in the closed session. In response, Coats sent a letter on February 8, basically covering for Trump.

As early as August, during a press conference, I stated that Russia was not the only country that had an interest in trying to influence our domestic political environment and that we knew others had the capability and may be considering influence activities. On October 19, 2018 and again on November 5, 2018 my office, in conjunction with the Federal Bureau of Investigation, Department of Justice, and Department of Homeland Security, released public statements detailing ongoing campaigns by Russia, China, and other foreign actors, including Iran, to influence public sentiment and government policies and undermine democratic institutions.

But that’s not what the Senators were getting at in their request. In yesterday’s letter, they noted,

The October 31, 2018, letter includes important information about the 2018 elections, as well as the 2016 elections, which your February 8, 2019 letter did not address.

That is, there’s something — apparently about both the 2018 and the 2016 elections — that Coats is hiding, information that surely would embarrass Trump.

And Coats isn’t giving it to us.

Given that just Democratic Senators are on the request (unlike the earlier request), this one seems to amount to Coats running partisan interference to prevent Trump from being embarrassed. Which, if true, would mean that the head of the Intelligence Community is using classification to hide the fact that the President is making bullshit claims about our elections.

Let Them Eat (Starbucks’ Coffee) Cake

A couple of older billionaire white dudes have been shooting off their mouths. One of them is partially clued in. The other one apparently lives on a different planet where the sky is a groovy coffee-colored plaid.

I’m sure I’m preaching to the choir when I point out these facts:

The links above include scolding by financial experts who say Americans need to do a better job of saving. But…

Don’t get me started on what college tuition and subsequent debt does to Americans’ ability to save.

We all know that health care costs have not improved and remain the leading cause of bankruptcy in the U.S. even though more Americans have health insurance under ACA.

And rich older white dudes are completely, utterly, hopelessly out of touch about the financial facts of life for nearly half of Americans let alone the next 2-3 deciles.

Like Wilbur Ross — our Commerce Secretary who lied about his assets and clearly knows nothing about Americans’ daily commerce — struggled to comprehend why federal employees might need to use a food bank after missing a paycheck.

Just get a loan, Ross thinks. Sure, sure, banks give signature loans to people without any collateral let alone a source of income all the time. Come on, Wilbur: would you invest in a bank offering those kinds of terms to the average Joe/Josephine off the street?

And then there’s Trump, who thinks we can just ask the grocer to extend some credit for an unspecified period of time. Right — a nationwide grocery chain clearing 1-3% a year in profits can afford to extend credit.

So goddamned clueless he is. I’m only surprised he didn’t tell furloughed federal workers he’d give them a 5% discount to play golf at one of his courses during their free time.

76-year-old billionaire Michael Bloomberg, who thinks he’s still young enough to run for president in 2020, trashed Sen. Elizabeth Warren’s wealth tax proposal as “probably unconstitutional,” thereby revealing his brain’s atrophy. If taxing higher levels of income wasn’t unconstitutional under Hoover, Roosevelt, Truman, Eisenhower, Kennedy, Johnson, Nixon, Carter, then it probably isn’t unconstitutional.

And then Seattle coffee magnate Howard Schultz popped off at Rep. Alexandria Ocasio-Cortez’ proposals to increase marginal tax rates on the uber-wealthy, calling her “a bit misinformed” and her proposal “un-American.”

Except the U.S. had higher tax rates on the wealthy, for most of the 20th century. The country could afford to build more infrastructure; it built a successful public school system and went to the moon. How nice for Schultz that he could grow up and become a young entrepreneur in that economic environment.

(Put a pin in here for future reference, as a reminder that Schultz not only called AOC “un-American” but Sen. Kamala Harris, too. It’s as if he has a problem with women of color…)

Schultz thinks he has become a billionaire all on his own, as if the increasingly fascist political system with its active suppression of younger, marginalized citizens played no role in his wealth accumulation.

As if the last two decades of stagnant wages due to employment monopsony, repressive Federal Reserve policies, and the real estate market haven’t helped line his pockets by assuring low-wage workers get locked in and unable to move to better paying jobs.

Schultz has been able to accumulate massive amounts of wealth on the backs of people who aren’t being paid living wages, out of the wallets of those whose limited resources allows them to buy a coffee but not a house or health care. He’s rolling in a sea of cash because minimum wage workers are living in little more than indentured servitude.

You know what’s really un-American?

An ungrateful and narrow-minded billionaire white dude who doesn’t think living wages and health care for everyone are fair, who thinks that higher taxes after his first $50 million are theft.

A purveyor of luxury beverage products unable to grasp the unselfish commitment it will take to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty for all the people.

At least Bloomberg sees the danger Schultz’s presidential candidacy poses to this country.

But Schultz isn’t in it for the country’s benefit. He’s in the race for himself. It’s clear he’s done the number crunching and determined that it’s cheaper to run for POTUS even if he were to cause Trump to win re-election. (I’ll bet he’s even figured out how to write off his exploratory trips around the country as a business expense.)

Because the campaign expenses are less than the cost to his personal wealth if he were taxed at a higher rate and if he were also forced to pay living wages to his workers.

What a pity Schultz hasn’t calculated how much more overpriced, excessively roasted coffee minimum wage workers can buy if they didn’t have to worry about health care expenses on top of their rent.

 

Treat this as an open thread.

Gina Haspel’s Fluid Moral Compass

I expected to dislike Gina Haspel, but be impressed with her competence (the same view I always had about John Brennan). But she did not come off as competent in her confirmation hearing, in large part because the lies surrounding her career cannot be sustained.

Let’s start with the questions she didn’t answer (usually offering a non-responsive rehearsed answer instead). She refused to say:

  • Whether she believes, with the benefit of hindsight, torture was immoral.
  • If a terrorist tortured a CIA officer, whether that would be immoral.
  • Whether the torture program was consistent with American values.
  • Whether she oversaw the torture of Abd al Rahim al-Nashiri.
  • Whether she was in a role supervising torture before she became Jose Rodriguez’ Chief of Staff.
  • Whether she pushed to keep the torture program between 2005 and 2007 (see that question here).
  • Whether she would recuse from declassification decisions relating to her nomination.
  • Whether Dan Coats should oversee declassification decisions regarding her nomination.
  • Whether she has been alone with President Trump.
  • Whether she would tell Congress if he asked her for a loyalty oath.

She also answered that she didn’t think torture worked, but then hedged and said she couldn’t say that because we got evidence from it.

She did answer one question that went to the core of her abuse when she participated in the destruction of the torture tapes. She said she would consider it insubordination today if an officer bypassed her for something as substantive as destroying the tapes, as Jose Rodriguez did. But she as much as said she would have destroyed the tape much earlier, because of the security risk they posed to the officers who appeared in the videos.

Then there was the logical inconsistency of her presentation. Several Senators, including Mark Warner, Dianne Feinstein, Ron Wyden, and Kamala Harris, complained about the selective declassification of information surrounding her confirmation. Haspel explained that she had to abide by the rules of classification just like everyone else. Not only was that transparent bullshit on its face (as Harris noted, the CIA released a great deal of information that revealed details of her operations), during the course of the hearing she provided details about her first meeting with an asset, Jennifer Matthews’ life and assignments, and a counter-drug program that also must be classified, and yet she was willing to simply blurt them out.

Perhaps most remarkable, though, is a key claim she made to excuse the destruction of the torture tape.

She claimed she did not recall which of the long list of entities that opposed the destruction of the torture tape she knew about at the time. That includes a move by Carl Levin to form a congressional commission to investigate torture. But on several occasions, she said that because the torture was covered in cable traffic, no other evidence needed to be kept.

That assumes, of course, that both the specific CIA cable and CIA cables generally are a fair rendition of any event CIA does (it’s not; in this case, and some videos were destroyed before the reviews finding them to match).

But when the Senate Intelligence Committee did a 6.700 page report based on the cables CIA used to describe their own torture, CIA wailed because SSCI didn’t interview the individual officers. Haspel effectively suggested that cables, in the absence of the torture tapes, would be sufficient for a congressional commission. Yet when Congress used cables to do an investigation of torture, CIA then claimed that was invalid.

When asked whether torture was moral, Haspel instead repeatedly insisted she has a sound moral compass. Except what her testimony made clear is that her idea of moral compass has everything to do with what is good for the CIA and its officers. It has absolutely nothing to do with traditional moral values. That’s not actually surprising. That’s what we ask of clandestine CIA officers: to break the rules normal people adhere to, in the name of serving our country, and to remain absolutely loyal to those whose lives are exposed in doing so.

Except today, Haspel proved unable to move beyond the fluid moral compass of a CIA officer to adopt a more stringent moral code of an official serving a democracy.

2018 Senate Intelligence Global Threat Hearing Takeaways

Today was the annual Senate Intelligence Committee Global Threat Hearing, traditionally the hearing where Ron Wyden gets an Agency head to lie on the record.

That didn’t happen this time.

Instead, Wyden gave FBI Director Christopher Wray the opportunity to lay out the warnings the FBI had given the White House about Rob Porter’s spousal abuse problems, which should have led to Porter’s termination or at least loss of access to classified information.

The FBI submitted a partial report on the investigation in question in March. And then a completed background investigation in late July. That, soon thereafter, we received request for follow-up inquiry. And we did that follow-up and provided that information in November. Then we administratively closed the file in January. And then earlier this month we received some additional information and we passed that on as well.

That, of course, is the big takeaway the press got from the hearing.

A follow-up from Martin Heinrich shortly after Wyden’s question suggested he had reason to know of similar “areas of concern” involving Jared Kushner (which, considering the President’s son-in-law is under investigation in the Russian investigation, is not that surprising). Wray deferred that answer to closed session, so the committee will presumably learn some details of Kushner’s clearance woes by the end of the day.

Wray twice described the increasing reliance on “non-traditional collectors” in spying against the US, the second time in response to a Marco Rubio question about the role of Chinese graduate students in universities. Rubio thought the risk was from the Confucius centers that China uses to spin Chinese culture in universities. But not only did Wray say universities are showing less enthusiasm for Confucius centers of late, but made it clear he was talking about “professors, scientists, and students.” This is one of the reasons I keep pointing to the disproportionate impact of Section 702 on Chinese-Americans, because of this focus on academics from the FBI.

Susan Collins asked Mike Pompeo about the reports in The Intercept and NYT on CIA’s attempts to buy back Shadow Brokers tools. Pompeo claimed that James Risen and Matt Rosenberg were “swindled” when they got proffered the story, but along the way confirmed that the CIA was trying to buy stuff that “might have been stolen from the US government,” but that “it was unrelated to this idea of kompromat that appears in each of those two articles.” That’s actually a confirmation of the stories, not a refutation of them.

There was a fascinating exchange between Pompeo and Angus King, after the latter complained that, “until we have some deterrent capacity we are going to continue to be attacked” and then said right now there are now repercussions for Russia’s attack on the US.

Pompeo: I can’t say much in this setting I would argue that your statement that we have done nothing does not reflect the responses that, frankly, some of us at this table have engaged in or that this government has been engaged in both before and after, excuse me, both during and before this Administration.

King: But deterrence doesn’t work unless the other side knows it. The Doomsday Machine in Dr. Strangelove didn’t work because the Russians hadn’t told us about it.

Pompeo: It’s true. It’s important that the adversary know. It is not a requirement that the whole world know it.

King: And the adversary does know it, in your view?

Pompeo: I’d prefer to save that for another forum.

Pompeo later interjected himself into a Kamala Harris discussion about the Trump Administration’s refusal to impose sanctions by suggesting that the issue is Russia’s response to cumulative responses. He definitely went to some effort to spin the Administration’s response to Russia as more credible than it looks.

Tom Cotton made two comments about the dossier that Director Wray deferred answering to closed session.

First, he asked about Christopher Steele’s ties to Oleg Deripaska, something I first raised here and laid out in more detail in this Chuck Grassley letter to Deripaska’s British lawyer Paul Hauser. When Cotton asked if Steele worked for Deripaska, Wray said, “that’s not something I can answer.” When asked if they could discuss it in a classified setting, Wray said, “there might be more we could say there.”

Cotton then asked if the FBI position on the Steele dossier remains that it is “salacious and unverified” as he (misleadingly) quoted Comey as saying last year. Wray responded, “I think there’s maybe more we can talk about this afternoon on that.” It’s an interesting answer given that, in Chuck Grassley’s January 4 referral, he describes a “lack of corroboration for [Steele’s dossier] claims, at least at the time they were included in the FISA applications,” suggesting that Grassley might know of corroboration since. Yet in an interview by the even better informed Mark Warner published 25 days later, Warner mused that “so little of that dossier has either been fully proven or conversely, disproven.” Yesterday, FP reported that BuzzFeed had hired a former FBI cybersecurity official Anthony Ferrante to try to chase down the dossier in support of the Webzilla and Alfa bank suits against the outlet, so it’s possible that focused attention (and subpoena power tied to the lawsuit) may have netted some confirmation.

Finally, Richard Burr ended the hearing by describing what the committee was doing with regards to the Russian investigation. He (and Warner) described an effort to bring out an overview on ways to make elections more secure. But Burr also explained that SSCI will release a review of the ICA report on the 2016 hacks.

In addition to that, our review of the ICA, the Intel Committee Assessment, which was done in the F–December of 06, 16–we have reviewed in great detail, and we hope to report on what we found to support the findings where it’s appropriate, to be critical if in fact we found areas where we found came up short. We intend to make that public. Overview to begin with, none of this would be without a declassification process but we will have a public version as quickly as we can.

Finally, in the last dregs of the hearing, Burr suggested they would report on who colluded during the election.

We will continue to work towards conclusions  on any cooperation or collusion by any individual, campaign, or company with efforts to influence elections or create societal chaos in the United States.

My impression during the hearing was that this might refer to Cambridge Analytica, which tried to help Wikileaks organize hacked emails — and it might well refer to that. But I wonder if there’s not another company he has in mind.

Eleven (or Thirteen) Senators Are Cool with Using Section 702 to Spy on Americans

The Senate Intelligence Committee report on its version of Section 702 “reform” is out. It makes it clear that my concerns raised here and here are merited.

In this post, I’ll examine what the report — particularly taken in conjunction with the Wyden-Paul reform — reveals about the use of Section 702 for domestic spying.

The first clue is Senator Wyden’s effort to prohibit collection of domestic communications — the issue about which he and Director of National Intelligence Dan Coats have been fighting about since June.

By a vote of four ayes to eleven noes, the Committee rejected an amendment by Senator Wyden that would have prohibited acquisition under Section 702 of communications known to be entirely domestic under authority to target certain persons outside of the United States. The votes in person or by proxy were as follows: Chairman Burr—no; Senator Risch—no; Senator Rubio—no; Senator Collins—no; Senator Blunt—no; Senator Lankford—no; Senator Cotton—no; Senator Cornyn—no; Vice Chairman Warner—no; Senator Feinstein—aye; Senator Wyden—aye; Senator Heinrich— aye; Senator King—no; Senator Manchin—no; and Senator Harris—aye.

It tells us that the government collects entirely domestic communications, a practice that Wyden tried to prohibit in his own bill, which added this language to Section 702.

(F) may not acquire communications known to be entirely domestic;

This would effectively close the 2014 exception, which permitted the NSA to continue to collect on a facility even after it had identified that Americans also used it. As I have explained is used to collect Tor (and probably VPN) traffic to obtain foreigners’ data. I suspect that detail is what Wyden had in mind when, in his comments in the report, he said the report itself “omit[s] key information about the scope of authorities granted the government” (though there are likely other things this report hides).

I have concerns about this report. By omitting key information about the scope of authorities granted the government, the Committee is itself contributing to the continuing corrosive problem of secret law

As the bill report lays out, Senators Burr, Risch, Rubio, Collins, Blunt, Lankford, Cotton, Cornyn, Warner, King, and Manchin are all cool using a foreign surveillance program to spy on their constituents, especially given that Burr has hidden precisely the impact of that spying in this report.

Any bets on whether they might have voted differently if we all got to know what kind of spying on us this bill authorized.

That, of course, is only eleven senators who are cool with treating their constituents (or at least those using location obscuring techniques) like foreigners.

But I’m throwing Feinstein and Harris in with that group, because they voted against a Wyden amendment that would have limited how the government could use 702 collected data in investigations.

By a vote of two ayes to thirteen noes, the Committee rejected an amendment by Senator Wyden that would have imposed further restrictions on use of Section 702-derived information in investigations and legal proceedings. The votes in person or by proxy were as follows: Chairman Burr—no; Senator Risch—no; Senator Rubio—no; Senator Collins—no; Senator Blunt—no; Senator Lankford—no; Senator Cotton—no; Senator Cornyn—no; Vice Chairman Warner—no; Senator Feinstein—no; Senator Wyden— aye; Senator Heinrich—aye; Senator King—no; Senator Manchin— no; and Senator Harris—no.

While we don’t have the language of this amendment, I assume it does what this language in Wyden’s bill does, which is to limit the use of Section 702 data for purposes laid out in the known certificates (foreign government including nation-state hacking, counterproliferation, and counterterrorism — though this language makes me wonder if there’s a Critical Infrastructure certificate or whether it only depends on the permission to do so in the FBI minimization procedures, and the force protection language reminds me of the concerns raised by a recent HRW FOIA permitting the use of 12333 language to do so).

(B) in a proceeding or investigation in which the information is directly related to and necessary to address a specific threat of—

(i) terrorism (as defined in clauses (i) through (iii) of section 2332(g)(5)(B) of title 18, United States Code);

(ii) espionage (as used in chapter 37 of title 18, United States Code);

(iii) proliferation or use of a weapon of mass destruction (as defined in section 2332a(c) of title 18, United States Code);

(iv) a cybersecurity threat from a foreign country;

(v) incapacitation or destruction of critical infrastructure (as defined in section 1016(e) of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001 (42 U.S.C. 5195c(e))); or

(vi) a threat to the armed forces of the United States or an ally of the United States or to other personnel of the United States Government or a government of an ally of the United States.

Compare this list with the one included in the bill, which codifies the use of 702 data for issues that,

“Affects, involves, or is related to” the national security of the United States (which will include proceedings used to flip informants on top of whatever terrorism, proliferation, or espionage and hacking crimes that would more directly fall under national security) or involves,

  • Death
  • Kidnapping
  • Serious bodily injury
  • Specified offense against a minor
  • Incapacitation or destruction of critical infrastructure (critical infrastructure can include even campgrounds!)
  • Cybersecurity, including violations of CFAA
  • Transnational crime, including transnational narcotics trafficking
  • Human trafficking (which, especially dissociated from transnational crime, is often used as a ploy to prosecute prostitution; the government also includes assisting undocumented migration to be human trafficking)

[snip]

Importantly, the bill does not permit judicial review on whether the determination that something “affects, involves, or is related to” national security. Meaning Attorney General Jeff Sessions could decide tomorrow that it can collect the Tor traffic of BLM or BDS activists, and no judge can rule that’s an inappropriate use of a foreign intelligence program.

The bill report’s description of this section makes it clear that — in spite of its use of the word “restriction,” — this is really about providing affirmative “permission.”

Section 6 provides restrictions on the Federal Bureau of Investigation’s (FBI’s) use of Section 702-derived information, so that the FBI can use the information as evidence only in court proceedings [my emphasis]

That is, Wyden would restrict the use of 702 data to purposes the FISC has affirmatively approved, rather than the list of 702 purposes expanded to include the most problematic uses of Tor: all hacking, dark markets, and child porn.

So while Feinstein and Harris voted against the use of 702 to collect known domestic communications, they’re still okay using domestic Tor commuincations they say they don’t want to let NSA collect to prosecute Americans (which is actually not surprising given their past actions on sex workers).

Again, they’re counting on the fact that the bill report is written such that their constituents won’t know that this is going on. Unless they read me.

Look, I get the need to collect on Tor traffic to go after its worst uses. But if you’re going to do that, stop pretending this is a foreign surveillance bill, and instead either call it a secret court bill (one that effectively evades warrant requirements for all Tor wiretapping in this country), or admit you’re doing that collection and put review of it back into criminal courts where it belongs.

Senate Intelligence Committee Tried to Say WikiLeaks Constituted — Not Just Resembled — A Spy

The bill report for the Intelligence Authorization is out. Among other things, it provides more details on the Senate Intelligence Committee’s efforts to get WikiLeaks treated as a non-state hostile intelligence service. It reveals that the original language of the bill

By voice vote, the Committee adopted a second-degree amendment by Senator King to an amendment by Senator Wyden that would have stricken Section 623 of the bill. Section 623 originally provided a Sense of Congress that WikiLeaks and its senior leadership constitute a non-state hostile intelligence service.

By a vote of 13 ayes to 2 noes, the Committee adopted the amendment by Senator Wyden that would have stricken Section 623 of the bill, as modified by the second-degree amendment by Senator King, to provide a Sense of Congress that WikiLeaks and its senior leadership resemble a non-state hostile intelligence service. The votes in person or by proxy were as follows: [my emphasis]

Chairman Burr–aye;

Senator Risch–aye;

Senator Rubio–aye;

Senator Collins–aye;

Senator Blunt–aye;

Senator Lankford–aye;

Senator Cotton–aye;

Senator Cornyn–aye;

Vice Chairman Warner–aye;

Senator Feinstein–aye;

Senator Wyden–no;

Senator Heinrich–aye;

Senator King–aye;

Senator Manchin–aye;

Senator Harris–no.

As you can see, Kamala Harris is the only one, besides Ron Wyden, who voted against this troubling amendment.

Here’s her statement from the report:

In particular, I have reservations about Section 623, which establishes a Sense of Congress that WikiLeaks and the senior leadership of WikiLeaks resemble a non-state hostile intelligence service. The Committee’s bill offers no definition of “non-state hostile intelligence service” to clarify what this term is and is not. Section 623 also directs the United States to treat WikiLeaks as such a service, without offering further clarity.

To be clear, I am no supporter of WikiLeaks, and believe that the organization and its leadership have done considerable harm to this country. This issue needs to be addressed. However, the ambiguity in the bill is dangerous because it fails to draw a bright line between WikiLeaks and legitimate journalistic organizations that play a vital role in our democracy.

I supported efforts to remove this language in Committee and look forward to working with my colleagues as the bill proceeds to address my concerns.

Are Trump’s Associates Forgoing Lawyers because They Expect Pardons?

One of the numerous topics over which Attorney General Jeff Sessions invoked non-executive executive privilege when he testified earlier this month was whether the Trump Administration has started discussing pardoning those who might be criminally exposed for their ties with Russia.

WARNER: To your knowledge, have any Department of Justice officials been involved with conversations about any possibility of presidential pardons about any of the individuals involved with the Russia investigation?

SESSIONS: Mr. Chairman, I’m not able to comment on conversations with high officials within the white house. That would be a violation of the communications rule that I have to —

WARNER: Just so I can understand, is the basis of that unwilling to answer based on executive privilege?

SESSIONS: It’s a long standing policy. The department of justice not to comment on conversations that the attorney general had with the president of the united States for confidential reasons that rounded in the coequal branch.

WARNER: Just so I understand, is that mean you claim executive privilege?

SESSIONS: I’m not claiming executive privilege because that’s the president’s power and I have no power there.

WARNER: What about conversations with other Department of Justice or White House officials about potential pardons? Not the president, sir.

SESSIONS: Without in any way suggesting I had any conversations concerning pardons, totally apart from that, there are privileges of communication within the department of justice that we share all of us do. We have a right to have full and robust debate within the Department of Justice and encourage people to speak up and argue cases on different sides. Those arguments are not — historically we have seen they shouldn’t be revealed.

WARNER: I hope you agree since you recused yourself that if the president or others would pardon someone during the midst of this investigation while our investigation or Mr. Mueller’s investigation, that would be problematic.

After I watched this testimony I predicted Trump would pardon someone — probably Mike Flynn — within three months of the day I made the prediction (which was roughly June 14).

I said that, in part, because of Sessions’ sheer arrogance when he was providing obviously false answers (most especially to Kamala Harris). Sessions had the giddy look of someone who knew he’d get away with whatever he was pulling, even beyond the kind of a look you’d expect from a southern white man talking to a woman of color.

But I also say that because some of the people most exposed in this affair have had at least initial conversations with the FBI without a lawyer. That’s true of Mike Flynn in his first interview with the FBI at the White House. (Flynn has since retained Robert Kelner.)

WHITEHOUSE: Do you know where that interview took place or under what circumstances?

YATES: I believe it took place at the White House.

WHITEHOUSE: The Flynn interview?

YATES: Yes.

WHITEHOUSE: OK. Do you know if Flynn was represented by council at the time?

YATES: I don’t believe he was.

And — according to a new WaPo story — that’s true of the 10 hours of questioning that Carter Page underwent in March.

Over a series of five meetings in March, totaling about 10 hours of questioning, Page repeatedly denied wrongdoing when asked about allegations that he may have acted as a kind of go-between for Russia and the Trump campaign, according to a person familiar with Page’s account.

The interviews with the FBI are the most extensive known questioning of a potential suspect in the probe of possible Russian connections to associates of President Trump. The questioning of Page came more than a month before the Russian investigation was put under the direction of Special Counsel Robert S. Mueller III.

Page confirmed Monday that the interviews occurred, calling them “extensive discussions.” He declined to say if he’s spoken to investigators since the March interviews.

[snip]

Because it is against the law for an individual to lie to FBI agents about a material issue under investigation, many lawyers recommend their clients not sit for interviews with the bureau without a lawyer present. Page said he spoke without a lawyer and wasn’t concerned about the risks because he told the truth.

Now, it may be that after getting these men to incriminate themselves, the FBI encouraged them to lawyer up so they could be flipped. Certainly, Sheldon Whitehouse appears to believe Flynn has done just that.

Still, the kind of arrogance that would lead men as exposed as they are to forgo a lawyer makes me wonder whether they’ve already been promised pardons?

Update: Meanwhile, the most likely Trump associate to get a pardon, father of his grandchildren Jared Kushner, just hired Abbe Lowell, while still retaining Jamie Gorelick.

Sessions Recusal: Election And/Or Russia?

Back when Jeff Sessions recused from the investigation into Trump, I noted that it was actually fairly narrow. He recused from election-related issues, but said nothing about Russia.

[T]he only thing he is recusing from is “existing or future investigations of any matters related in any way to the campaigns for President of the United States.”

There are two areas of concern regarding Trump’s ties that would not definitively be included in this recusal: Trump’s long-term ties to mobbed up businessmen with ties to Russia (a matter not known to be under investigation but which could raise concerns about compromise of Trump going forward), and discussions about policy that may involve quid pro quos (such as the unproven allegation, made in the Trump dossier, that Carter Page might take 19% in Rosneft in exchange for ending sanctions against Russia), that didn’t involve a pay-off in terms of the hacking. There are further allegations of Trump involvement in the hacking (a weak one against Paul Manafort and a much stronger one against Michael Cohen, both in the dossier), but that’s in no way the only concern raised about Trump’s ties with Russians.

Which is why I was so interested that Jim Comey emphasized something else in his testimony (see this post on this topic) — issues pertaining to Russia. [my emphasis throughout]

We concluded it made little sense to report it to Attorney General Sessions, who we expected would likely recuse himself from involvement in Russia-related investigations. (He did so two weeks later.)

This came up in his hearing yesterday, as well. First Wyden asked why Sessions was involved in Comey’s firing if he got fired for continuing to investigate Mike Flynn’s ties to Russia.

WYDEN: Let me turn to the attorney general. In your statement, you said that you and the FBI leadership team decided not to discuss the president’s actions with Attorney General Sessions, even though he had not recused himself. What was it about the attorney general’s interactions with the Russians or his behavior with regard to the investigation that would have led the entire leadership of the FBI to make this decision?

COMEY: Our judgment, as I recall, is that he was very close to and inevitably going to recuse himself for a variety of reasons. We also were aware of facts that I can’t discuss in an opening setting that would make his continued engagement in a Russia-related investigation problematic. So we were convinced — in fact, I think we’d already heard the career people were recommending that he recuse himself, that he was not going to be in contact with Russia-related matters much longer. That turned out to be the case.

WYDEN: How would you characterize Attorney General Sessions’s adherence to his recusal? In particular, with regard to his involvement in your firing, which the president has acknowledged was because of the Russian investigation.

COMEY: That’s a question I can’t answer. I think it is a reasonable question. If, as the president said, I was fired because of the Russia investigation, why was the attorney general involved in that chain? I don’t know.

Then Kamala Harris asked whether there had been any official guidance on recusal.

HARRIS: Thank you. As a former attorney general, I have a series of questions in connection with your connection with the attorney general while you were FBI director. What is your understanding of the parameters of Attorney General Sessions’ recusal from the Russia investigation?

COMEY: I think it’s described in a written release from DOJ which I don’t remember sitting here but the gist is he will be recused from all matters relating to Russia or the campaign. Or the activities of Russia and the ’16 election or something like that.

HARRIS: So, is your knowledge of the extent of the recusal based on the public statements he’s made?

COMEY: Correct.

HARRIS: Is there any kind of memorandum issued from the attorney general to the FBI outlining the parameters of his recusal?

COMEY: Not that I’m aware of.

In every comment, Comey emphasized the Russian aspect. Indeed, most of his comments only mention Russia; just one instance mentions the election.

Indeed, yesterday’s hearing made it clear that Comey believed Sessions should be recused from Russia-related issues because of unclassified issues that include his undisclosed two (now three) conversations with Russian Ambassador Sergey Kislyak.

After yesterday’s hearing, DOJ issued a statement (reproduced in its entirely below), and also released an email that appears to serve as the written guidance on Sessions’ recusal. Yesterday’s statement makes the limitation to election-related issues even more explicit.

Given Attorney General Sessions’ participation in President Trump’s campaign, it was for that reason, and that reason alone, the Attorney General made the decision on March 2, 2017 to recuse himself from any existing or future investigations of any matters related in any way to the campaigns for President of the United States.

So while the email directive does state Sessions’ recusal “extends to Department responses to Congressional and media inquiries related to any such investigations,” not a single thing from DOJ ever mentions the word Russia.

There are actually many important potential implications of this.

It may mean, for example, that Sessions feels he had every right to help Trump fire Comey for his aggressive investigation in Russian issues — even in spite of the fact that his own actions may be reviewed in the Russian investigation — because the Flynn investigation pertained to issues that happened after the election.

More alarmingly, it may mean that there will be a squabble about the scope of Robert Mueller’s special counsel investigation, which has already started digging into matters of Russian corruption that go back years, because Rod Rosenstein overstepped the scope of his own authority based on the limits of Sessions’ recusal.

Jim Comey thinks that as soon as February 14, it was clear that Sessions had to recuse from Russian related issues. Instead (all the evidence suggests) he recused only from election related issues.

The difference in understanding here is troubling.

Update: A friend notes that Jeff Sessions basically relied on Rod Rosenstein’s letter in recommending Trump fire Comey.

[F]or the reasons expressed by the Deputy Attorney General in the attached memorandum, I have concluded that a fresh start is needed at the leadership of the FBI.

The friend suggested that because Comey’s actions implicated the election, that means Sessions intervened in matter pertaining to the election (albeit for Trump’s opponent).

I’m not so sure. The phrasing of Rosenstein’s letter here is critical. Democrats may be angry at Comey for reopening the investigation (and sending a sure-to-leak letter to a stable of GOP Committee Chairs) days before the election. So to Democrats, Comey’s handing of the Hillary investigation pertains to the election.

But Rosenstein frames the issue in terms of “usurp[ing] the Attorney General’s authority” and “supplant[ing] federal prosecutors and assum[ing] control of the Justice Department.” While Rosenstein cites Eric Holder and Donald Ayer describing how Comey’s actions violated long-standing policies pertaining to comments in advance of elections, the Deputy Attorney General himself pitches it as insubordination.

Update: On Twitter Charlie Savage suggested the scope of the recusal could be taken from the language of Comey’s confirmation of the investigation in a HPSCI hearing on March 20, arguing that on March 2, when Sessions recused, the investigation and its ties to campaign members who spoke to Russians had not yet been disclosed.

I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts. As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed.

Except this statement says nothing about Jeff Sessions’ recusal, and in Thursday’s testimony, Comey said he was unaware of a memo aside from Sessions public statement. As noted above, the email that DOJ has now pointed to says nothing about Russia.

Plus, even if the recusal originally intended to include the secret Russia investigation, the statement written on Thursday, very clearly in response to Comey’s testimony and repeated claims that Sessions had to recuse from Russia-related issues, said the only reason Sessions recused was because of the campaign tie. And as I noted in my original post on the scope of Sessions’ recusal, he played games in his admission of conversations with Sergey Kislyak as to whether they pertained to Russia.

Update: In a March 6 letter to SJC claiming he didn’t need to correct his false testimony on conversations with Sergey Kislyak, Sessions said that his recusal should cover Russian contacts with the Trump transition and administration.

The March 3, 2017, letter also asked why I had not recused myself from “Russian contacts with the Trump transition team and administration.” I understand the scope of the recusal as described in the Department’s press release would include any such matters.

This would seem to conflict with Thursday’s statement.

______________________________________________________________________________

FOR IMMEDIATE RELEASE

THURSDAY, JUNE 8, 2017

DEPARTMENT OF JUSTICE ISSUES STATEMENT ON TESTIMONY OF FORMER FBI DIRECTOR JAMES COMEY

 

WASHINGTON – In response to testimony given today by former FBI Director James Comey, Department of Justice Spokesman Ian Prior issued the following statement:

  • Shortly after being sworn in, Attorney General Sessions began consulting with career Department of Justice ethics officials to determine whether he should recuse himself from any existing or future investigations of any matters related in any way to the campaigns for President of the United States.

Those discussions were centered upon 28 CFR 45.2, which provides that a Department of Justice attorney should not participate in investigations that may involve entities or individuals with whom the attorney has a political or personal relationship. That regulation goes on to define “political relationship” as:

“[A] close identification with an elected official, a candidate (whether or not successful) for elective, public office, a political party, or a campaign organization, arising from service as a principal adviser thereto or a principal official thereof ***”

Given Attorney General Sessions’ participation in President Trump’s campaign, it was for that reason, and that reason alone, the Attorney General made the decision on March 2, 2017 to recuse himself from any existing or future investigations of any matters related in any way to the campaigns for President of the United States.

  • In his testimony, Mr. Comey stated that he was “not *** aware of” “any kind of memorandum issued from the Attorney General or the Department of Justice to the FBI outlining the parameters of [the Attorney General’s] recusal.” However, on March 2, 2017, the Attorney General’s Chief of Staff sent the attached email specifically informing Mr. Comey and other relevant Department officials of the recusal and its parameters, and advising that each of them instruct their staff “not to brief the Attorney General *** about, or otherwise involve the Attorney General *** in, any such matters described.”
  • During his testimony, Mr. Comey confirmed that he did not inform the Attorney General of his concerns about the substance of any one-on-one conversation he had with the President. Mr. Comey said, following a morning threat briefing, that he wanted to ensure he and his FBI staff were following proper communications protocol with the White House. The Attorney General was not silent; he responded to this comment by saying that the FBI and Department of Justice needed to be careful about following appropriate policies regarding contacts with the White House.
  • Despite previous inaccurate media reports, Mr. Comey did not say that he ever asked anyone at the Department of Justice for more resources related to this investigation.
  • In conclusion, it is important to note that after his initial meeting with career ethics officials regarding recusal (and including the period prior to his formal recusal on March 2, 2017), the Attorney General has not been briefed on or participated in any investigation within the scope of his recusal.

# # #

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The SCOTUS Merrygoround: Is Ginsburg Shuffle Coming?

The UPI has an article up with the startling headline “Ruth Bader Ginsburg stepping down in 2015”. The article, which is really more of a pondering question, is bylined today by Michael Kirkland and paints the scenario of a Ruth Bader Ginsburg retirement in 2015 so that Obama has sufficient time left in his second term to appoint and confirm a successor.

Although referenced rather obliquely in his article, Kirkland’s basis is premised entirely on the thoughts and predictions of SCOTUS, AND SCOTUSblog, longtime pro Tom Goldstein in a SCOTUSblog post he did last Tuesday, February 14th. Goldstein may be only one voice thinking out loud, but he carries the bona fides to warrant serious consideration here.

Goldstein points to the confluence of Ginsburg’s age, health, and personal career tracking with that of Justice Louis Brandeis. And the thought that Ginsburg will want to see that her replacement is chosen by a Democratic President. Goldstein’s thought process, originally laid out in the comprehensive February 14th entry at SCOTUSblog, is worth reading. Assuming Obama is reelected, which is still a pretty decent bet at this point (certainly capable of changing though), it is hard to find fault with Goldstein’s logic; in fact, it is rather compelling. I also agree with Tom that none of the current conservative bloc, including swing man Tony Kennedy, are going anywhere anytime soon.

Where I do differ from Goldstein, however, is in his prediction for what would transpire upon the theorized Ginsburg tactical retirement:

Assuming that President Obama is re-elected and that Justice Ginsburg does retire at some point in the next Administration, who will be the next nominee? One thing is certain: it will be a woman. It is inconceivable that a Democratic administration with any reasonable choice would cause the gender balance of the Supreme Court to revert to seven men and two women. Relatedly, appointing three women in a row to the Court is excellent politics.

President Obama will also have a strong desire to pick an ethnically or racially diverse nominee. It would be disappointing for the nation’s first African-American President to make two white appointments, leaving the Court with seven white members. A more diverse Court is a better legacy. Given that the President already appointed the first Latina Justice, most likely is an African-American or Asian-American nominee. That said, I think race and ethnicity are plus factors, rather than an imperative like gender.

I am not sure I buy Goldstein’s certainty of yet another female Supreme Court nominee from Barack Obama. I am just not convinced Obama appoints a third woman in a row, color or not. It sure makes it easier that it would be to fill a “female seat”, Ginsburg’s, I guess, and Obama clearly wanted to see three women justices on the court. But he crossed said threshold, and knowing one of them may not be there so long into the future likely played into the strength of his desire to appoint a second woman after Sonia Sotomayor. Such is quite a different thing from having an abiding determination to insure there are always three women on the Supreme bench.

Further, it really restricts the pool of potential nominees and plays into a plethora of counter Read more

What Do You Call a “Cornhusker Kickback” for California?

Remember the “Cornhusker Kickback“? That was the $45 million in expanded Medicaid funding Ben Nelson demanded from the Obama Administration before he’d support Health Insurance Reform. The special treatment for Nebraska gave the reform effort a tawdry feel.

And just as importantly, it did nothing to improve Nelson’s popularity in his own state. When he announced he would not run for reelection in December, reporters pointed to the Cornhusker Kickback as one issue that was making his reelection increasingly unlikely.

Nelson obtained a huge controversial provision in that legislation — derisively called the “Cornhusker Kickback” by GOP opponents — that called for the federal government to pay Nebraska’s costs for Medicaid expansion, potentially saving the state tens of millions of dollars annually. The provision was ultimately killed, but Nelson still paid a political price. Nelson adamantly denied that he traded his support for the Democratic health plan in exchange for the special provision, yet his standing back home took a big hit. Nelson proved to be the 60th and deciding vote for the Democratic health-care package.

Yet it seems like Obama’s trying something similar in his effort to get CA’s Kamala Harris to join in his foreclosure settlement, with $10 billion in aid slated for CA’s struggling homeowners.

Banks and government negotiators have cleared a big hurdle in efforts to resolve allegations of widespread mortgage-related misdeeds, agreeing on terms for a settlement that are being circulated to the 50 US states for approval, state officials and a bank representative say.

The proposed pact would potentially reduce mortgage balances and monthly payments by more than $25bn for distressed US homeowners, these five people said.

The tentative agreement still must be approved by all 50 state attorneys-general, and negotiators have previously missed proposed deadlines. Participants described the proposal terms as set, meaning the states will be asked either to agree to them or decline to participate.

The amount of potential aid is contingent on state participation and would decrease significantly if big states do not sign the agreement. New York and California are among several states that have voiced concerns about the terms of the proposed deal with Bank of America, JPMorgan Chase, Wells Fargo, Citigroup and Ally Financial. New York and California are particularly concerned with the part of the deal that would absolve the banks of civil liability for allegedly illegal mortgage-related conduct.

California borrowers would be eligible to receive more than $10bn in aid if the state were to agree to the terms, according to several people involved in the talks.

Don’t get me wrong. In this case, there’s good reason to give CA a disproportionate part of the settlement funds. Read more