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The Hack or Attack Debate: Answer Old Questions While Waiting to Learn Enough to Answer That One

As people in government, particularly members of Congress posturing for the cameras, start responding to the SolarWinds compromise, some have adopted a bellicose language unsupported by the facts, at least those that are public. Dick Durbin, for example, called it, “virtually a declaration of war.” That has led to some necessary pushback noting that as far as we know, this is an act of espionage, not sabotage. It’s the kind of thing we do as well without declaring war.

As usual, I substantially agree with Jack Goldsmith on these issues.

The lack of self-awareness in these and similar reactions to the Russia breach is astounding. The U.S. government has no principled basis to complain about the Russia hack, much less retaliate for it with military means, since the U.S. government hacks foreign government networks on a huge scale every day. Indeed, a military response to the Russian hack would violate international law. The United States does have options, but none are terribly attractive.

[snip]

The larger context here is that for many reasons—the Snowden revelations, the infamous digital attack on Iranian centrifuges (and other warlike uses of digital weapons), the U.S. “internet freedom” program (which subsidizes tools to circumvent constraints in authoritarian networks), Defend Forward, and more—the United States is widely viewed abroad as the most fearsome global cyber bully. From our adversaries’ perspective, the United States uses its prodigious digital tools, short of war, to achieve whatever advantage it can, and so adversaries feel justified in doing whatever they can as well, often with fewer scruples. We can tell ourselves that our digital exploits in foreign governmental systems serve good ends, and that our adversaries’ exploits in our systems do not, and often that is true. But this moral judgment, and the norms we push around it, have had no apparent influence in tamping down our adversaries’ harmful attacks on our networks—especially since the U.S. approach to norms has been to give up nothing that it wants to do in the digital realm, but at the same time to try to cajole, coerce, or shame our adversaries into not engaging in digital practices that harm the United States.

Goldsmith’s point about the Defend Forward approach adopted under Trump deserves particular focus given that, purportedly in the days since the compromise became known, Kash Patel is taking steps to split NSA and CyberCommand, something that would separate the Defend Forward effort from NSA.

Trump administration officials at the Pentagon late this week delivered to the Joint Chiefs of Staff a proposal to split up the leadership of the National Security Agency and U.S. Cyber Command. It is the latest push to dramatically reshape defense policy advanced by a handful of key political officials who were installed in acting roles in the Pentagon after Donald Trump lost his re-election bid.

A U.S. official confirmed on Saturday that Joint Chiefs Chairman Gen. Mark Milley — who along with Acting Defense Secretary Chris Miller must certify that the move meets certain standards laid out by Congress in 2016 — received the proposal in the last few days.

With Miller expected to sign off on the move, the fate of the proposal ultimately falls to Milley, who told Congress in 2019 that the dual-hat leadership structure was working and should be maintained.

As Reuters has reported, General Nakasone was pretty hubristic about NSA’s recent efforts to infiltrate our adversaries (Nakasone has, in unprecedented fashion, also chosen to officially confirm efforts CyberCom has made, which he must think has a deterrent effect that, it’s now clear, did not).

Speaking at a private dinner for tech security executives at the St. Regis Hotel in San Francisco in late February, America’s cyber defense chief boasted how well his organizations protect the country from spies.

U.S. teams were “understanding the adversary better than the adversary understands themselves,” said General Paul Nakasone, boss of the National Security Agency (NSA) and U.S. Cyber Command, according to a Reuters reporter present at the Feb. 26 dinner. His speech has not been previously reported.

Yet even as he spoke, hackers were embedding malicious code into the network of a Texas software company called SolarWinds Corp, according to a timeline published by Microsoft and more than a dozen government and corporate cyber researchers.

A little over three weeks after that dinner, the hackers began a sweeping intelligence operation that has penetrated the heart of America’s government and numerous corporations and other institutions around the world.

The failures of Defend Forward to identify this breach may raise questions about the dual hatting of NSA and CyberCommand, but there’s no good reason for these Trump flunkies to take any substantive steps in the last month of a Lame Duck period while it is serially refusing briefings to President Elect Biden’s team. All the more so because the more pressing issue, it seems, is giving CISA, the government’s defensive agency, more resources and authority.

More importantly, while it is too early to determine whether this goes beyond traditional espionage, there are questions that we can identify. For example, one detail that might suggest this was intended to do more than espionage is that the hackers stole FireEye’s Red Team tools. There are information gathering purposes for doing so, but they’re probably not important enough to risk blowing this entire operation, as happened. So we should at least consider whether the SolarWinds compromise aimed to pair intelligence (including that gathered from FERC, one of the agencies targeted) with the means to launch deniable sabotage on key critical infrastructure using FireEye’s tools.

Measurements of whether this is a hack or attack must also consider that the hackers are in a position where they could alter data. Consider what kind of mayhem Russia could do to our economy or world markets by altering data from Treasury. That is, the hackers are in a position where it’s possible, at least, to engage in sabotage without engaging in any kinetic act.

Finally, adopting the shorthand the industry uses for such things, there’s a bit of sloppiness about attribution. The working assumption this is APT 29, and the working reference is that APT 29 works for SVR, Russia’s foreign intelligence agency (even though when it was implicated in key hacks in 2016, it was assumed to work for FSB). I’ve been told by someone with more local knowledge that the relationship between these hackers and the intelligence agencies they work for may be more transactional. The people who’ve best understood the attack, including FireEye, think this may be a new “group.”

While intelligence officials and security experts generally agree Russia is responsible, and some believe it is the handiwork of Moscow’s foreign intelligence service, FireEye and Microsoft, as well as some government officials, believe the attack was perpetrated by a hacking group never seen before, one whose tools and techniques had been previously unknown.

Which brings me to a question we should be able to answer, one I’ve been harping on since the DNC leak first became public: what was the relationship between the hackers, APT 28 (the ones who stole files and shared the with WikiLeaks) and APT 29 (who then, and still, have been described as “just” spying). From the very first — and even in March 2017, after which discussions of the hack have become irredeemably politicized beyond recovery — there was some complexity surrounding the issue.

I have previously pointed to a conflict between what Crowdstrike claimed in its report on the DNC hack and what the FBI told FireEye. Crowdstrike basically said the two hacking groups didn’t coordinate at all (which Crowdstrike took as proof of sophistication). Whereas FireEye said they did coordinate (which it took as proof of sophistication and uniqueness of this hack). I understand the truth is closer to the latter. APT 28 largely operated on its own, but at times, when it hit a wall of sorts, it got help from APT 29 (though there may have been some back and forth before APT 29 did share).

When I said I understood the truth was closer to the latter — that there was some cooperated between APT 28 and 29, it was based on what a firsthand witness, who had been involved in defending a related target in 2016, told me. He said, in general, there was no cooperation between the two sets of hackers, but on a few occasions APT 29 seemed to assist APT 28. That’s unsurprising. The attack in 2016 was ambitious, years in planning, and Putin was personally involved. He would obviously have the ability to demand coordination for this operation, so intelligence collected by APT 29 may well have dictated choices made in where to throw GRU’s efforts.

The point is important now, especially as people like CrowdStrike’s former CTO Dmitri Alperovitch recommends responses based on the assumption that this is SVR and therefore that dictates what Russia intends.

So we should assume this is espionage and therefore avoid escalating language for the moment. But having had our assess handed to us already, with a sophisticated campaign launched as we were busy looking for election hackers, it would be a big mistake IMO to rely on easy old categories to try to understand this.

Update: Corrected to reflect that Alperovitch is no longer with CrowdStrike.

Rudy the Dripper: The Vicious Cycle of Dead-Ender Propagandists Feeding Bullshit to Tribalist Republicans

Not long after the former US Attorney of the Southern District of New York headlined a press conference where he and other lawyers presented insane conspiracy theories to claim that Donald Trump had been robbed of his victory, CNN reported that the FBI continues to investigate Rudy Giuliani for his ties to Russian Agents.

Complicating matters is that Giuliani’s post-election swirl of activity comes as federal investigators renewed their investigative interest into his work that is already the subject of a New York-based investigation.

In recent weeks, FBI agents in New York contacted witnesses and asked new questions about Giuliani’s efforts in Ukraine and possible connections to Russian intelligence, according to a person briefed on the matter. The FBI investigators, who have spoken to at least one witness previously months ago, came back to ask new questions recently about possible origins of emails and documents related to Hunter Biden that appear similar to those that the New York Post reported that Giuliani and others helped provide. CNN has previously reported that the ongoing probe is examining whether Giuliani is wittingly or unwittingly part of a Russian influence operation, according to people briefed on the matter.

But questions about that probe have been out of the spotlight as Giuliani stepped into focus as the campaign’s chief post-election lawyer. One source close to the Trump campaign countered that Giuliani is an overzealous defender of the president.

Meanwhile, the same propagandists who’ve helped Trump survive in recent years — on the left and the right — are claiming that because Democrats and others backed the investigation of Russian efforts to get Trump elected in 2016 (an investigation that attempted to understand why Trump fired Jim Comey, the person most Democrats chiefly blame for Hillary’s loss), it is precedent for Trump’s efforts to disclaim Joe Biden’s resounding win.

This exemplifies the vicious cycle we’ve been on since since August 2016, when Donald Trump authorized his rat-fucker to take desperate measures to find bullshit stories to tell to try to win an election.

After WikiLeaks released the first set of files Russia had stolen as part of its plot to help Trump get elected in July 2016 and someone — it’s not clear who — released damning information about Paul Manafort’s corrupt ties with Russian-backed Ukrainian oligarchs, Donald Trump doubled down. Rat-fucker Roger Stone, desperate to save Trump’s campaign and maybe even the job of his lifetime buddy, made a Faustian bargain for advance access to fairly innocuous John Podesta emails that Stone believed would provide the smoking gun for a conspiracy his allies had been chasing since March. The Faustian deal, by itself, exposed Stone as a co-conspirator in a hack-and-leak operation led by a hostile foreign agency. But the deal also brought ongoing exposure: at least as soon as he was elected, Trump’s rat-fucker (and maybe his eldest son!) started pursuing an effort to pay off Julian Assange with a pardon or some other way out of the Ecuadorian Embassy, thereby implicating Trump in a quid pro quo. After Trump assumed the Presidency, his own exposure through Stone gave him reason to want to shut down the investigation, even the investigation into the hack-and-leak itself. As a result, from very early in his presidency, Trump had obstructed justice to hide the quid pro quo and conspiracy his rat-fucker (and possibly he and his son) had joined to help him get there.

Meanwhile, early on in the investigation, acting on advice that Paul Manafort gave after returning from a meeting with one of Oleg Deripaska’s key deputies, the Republicans defended their President by attacking the credibility of the Steele dossier — one that Deripaska himself likely ensured was filled with disinformation — as a stand-in for the larger investigation itself. Deripaska even has apparent sway at one of the outlets that most relentlessly pursued that synecdoche, the dossier as the Russian investigation. Former hawks on Russia, like Trey Gowdy, were lured into fiercely defending Trump even in the face of overwhelming proof of his compromise by the able gate-keeping of Kash Patel and the discovery of how the use of informants can implicate members of your own tribe, as it did with Carter Page. By the time Billy Barr deceived the nation with his roll-out of a very damning Mueller Report, almost every single Republican member of Congress was susceptible to ignoring damning evidence that their President treated both the pursuit of the presidency and his office as a means for self-benefit, no matter what that did to US interests.

Key to the process of co-opting virtually all Republican members of Congress was the process of villainizing the people who had tried to keep the country safe from Russian compromise, starting with Peter Strzok but also including Andy McCabe. That process easily exploited the same apparatus of Congress’ “oversight” powers — and the same susceptibility to heated rants over logic — that had been used to turn a tragic incident in Libya into a multi-year investigation of Hillary Clinton. Also key to that process were certain propagandists on Fox News, including three of the lawyers that stood with Rudy yesterday: DiGenova and Toensing and Sidney Powell.

The day after Mueller closed up shop, those same propagandists joined with Rudy to pursue a revenge plot for the investigation — they started pursuing a way to frame Joe Biden in anticipation of the 2020 election. Most Democrats didn’t believe that Hillary lost because of Russia, but Trump and his conspiratorially-minded advisors believed they did. And so Rudy, relying on advice Manafort offered from prison, used the same networks of influence to try to frame Biden in a Ukrainian plot that, at the same time, might provide an alternative explanation for the Russian crimes Trump was personally implicated in.

Once again, Trump got personally involved, extorting the Ukrainian president over a series of months, “I’d like you to do us a favor, though.”

There’s no doubt that Trump’s abuse of Congress’ power of the purse in an effort to extort a campaign benefit from a foreign country merited impeachment. There’s also no doubt that it served to heighten the tribalism — and ranting illogic — of Republican members of Congress.

Things snowballed further.

That tribalism, by itself, might have gotten Trump re-elected. But it wasn’t enough for Trump. Instead, the President prepared an attack on the integrity of the vote by dissuading his own supporters from using mail-in ballots, setting up the Equal Protection hoaxes that Rudy has pushed in recent days. Georgia Secretary of State Brad Raffensperger claims that, by itself, the effort to discredit mail-in voting cost Trump the state of Georgia. But partisan attacks are what got Trump where he is, and partisan attacks are what he knows.

Trump also doubled down on what had gotten him elected in 2016: overblown attacks sourced to stolen emails, Hunter Biden’s laptop, in this case rolled out by one guy at legal risk for his ties to Fraud Guarantee, and another under indictment for exploiting the tribalism of Trump’s supporters to commit fraud. According to CNN, the FBI believes these emails may have been packaged up by the Russian agents that have been buying access through Rudy and DiGenova and Toensing.

Trump’s DOJ, working with Sidney Powell, even tried to invent an attack on Joe Biden by altering exhibits in a court proceeding. In that case, the overblown attack was sourced to real notes, albeit notes that actual law enforcement officials had packaged in such a way as to tell a false story. Yet again, however, this was a false story that scapegoated those who’ve protected the interests of the country — adding Joe Biden to the targets along with McCabe and Strzok — to try to cover-up unbelievably damning evidence about Trump’s coziness with Russia. The effort to deny that Mike Flynn was secretly working for Turkey while claiming to work for Trump and to deny that Mike Flynn repeatedly called up the country that had just attacked us to try to obtain further benefits turned into an attack on those who tried to keep the country safe from sell-outs like Mike Flynn.

It’s a false story. But Republicans in Congress believe it with all their being. And so it has succeeded in convincing those Republicans they need to redouble their efforts to defend Trump.

So, yesterday, Rudy and the other propagandists gave a press conference that was, for the first time, broadly labeled as a coup attempt and roundly mocked, even by otherwise true believers. Trump, Rudy, Republicans, they’re all victims of an international plot launched by George Soros, Cuba, China, Venezuela, according to Rudy and the lawyers who spun the last several conspiracy theories on Fox News.

And this propaganda, an attempt to set aside the clear will of the voters, derives its strength not from any basis in fact. Rather, it derives its power from the fact that Republicans have gotten so tribally defensive of Trump, they will set aside the clear good of the country to back him.

Donald Trump, if he leaves office, may face legal consequences for what he did in 2016 to get elected. If Trump leaves office, Rudy may face consequences for the things he has done since to keep Trump in office.

To save themselves, they’re pursuing the same strategy they’ve pursued since 2016: telling bullshit stories by waving documents around and lying about what they say, relying on tribalism and raw power rather than reason to persuade their fellow Republicans. It just so happens that several of these stories got told with the help of Russian foreign agents (though some got told with the help of a corrupted law enforcement). It just so happens that Trump and Rudy (and Stone’s) willingness to rely on Russian help to tell these stories has greatly exacerbated their legal risk, and therefore made the spewing of bullshit stories more urgent.

But the Russian role mostly serves to magnify the desperation of this gambit.

Mostly, this is about weaponizing the tribalism of the Republican party that puts party loyalty over loyalty to the country or Constitution. And while there have been a few defectors from this dangerous tribalism in recent days, for the most part, Republicans in Congress don’t care that Trump is exploiting them like this or even — in some cases — don’t understand that this is all a shoddy set of lies.

Gate-Keeper for Propaganda Kash Patel Failed His First Test as DOD Chief of Staff

Yesterday, six US service members died in a helicopter crash in the Sinai Peninsula.

A UH-60 Black Hawk helicopter belonging to a US-led international peacekeeping force crashed in Egypt’s Sinai region on Thursday, killing eight people, including six Americans, officials said. One wounded US service member was airlifted to a hospital in Israel by Israeli Defense Forces (IDF).

“During a routine mission in the vicinity of Sharm el-Sheikh, Egypt, nine members of the Multinational Force and Observers (MFO) were involved in a helicopter crash,” the force said in a statement posted on its website.

As the WaPo pointed out, Joe Biden offered condolences to their families. Trump did not. He was too busy rage-tweeting and harming democracy.

Meantime, national security actions and requests for briefings from the president are drying up, the person said, and the team preparing updates for Biden and Vice President-elect Kamala D. Harris is “very frustrated.”

It was Biden who offered the first public condolences to the families of the service members who died in Egypt. “I join all Americans in honoring their sacrifice, as I keep their loved ones in my prayers,” he wrote on Twitter in the early afternoon Thursday.

By that time, Trump had issued nearly four dozen critical tweets and retweets about the election results and Fox News, including a baseless conspiracy theory from a far-right television network that alleged votes had been improperly tallied in Pennsylvania. He also found time to thank actor Scott Baio for posting a photo of a craft store’s candle display, which had been arranged to spell out, “Trump is still your president.”

But it’s not just President Trump — who focused his first election campaign on Hillary’s purported negligence during the Benghazi attack that killed four Americans — who let six Americans die with little notice.

It’s also newly installed Secretary of Defense Christopher Miller. As Barbara Starr noted on Twitter yesterday, it took over two hours after the deaths were announced before Miller issued condolences, and the Joint Chiefs did not make a statement until after she first tweeted it.

This is the kind of thing that, in a normal era, works like clockwork in the Pentagon.

But yesterday, days after Devin Nunes flunky Kash Patel was installed as Chief of Staff at DOD, that clockwork failed.

Kash Patel has done a spectacular job, throughout the Trump Administration, of ensuring that accurate information doesn’t get to his principals, whether that’s Nunes, Trump himself (Patel was at NSC pretending to be an expert on Ukraine during impeachment), presumably at ODNI when he led a house-cleaning effort there, and now DOD.

But there’s no reason to believe that preventing people from getting accurate information translates into being an effective Chief of Staff for one of the world’s biggest bureaucracies.

I guess it’s up to the Republicans who are enabling this attack on the country by the Lame Duck President to decide how much damage they want Trump’s flunkies to do in the interim.

Palace Intrigue: Trump Prepares His Consolation Prize for Vladimir Putin

In the last two days, Trump has prepared a coup of sorts. First, he fired Mike Esper and replaced him with Christopher Miller; several of Esper’s top deputies went with him. Then, Trump installed three different Devin Nunes flunkies at several places in the DOD bureaucracy:

  • Mike Ellis — the guy who hid the Ukraine transcript and one source for the unmasking hoax — to NSA as General Counsel
  • Ezra Cohen-Watnick — a key Mike Flynn loyalist and another source for the unmasking hoax — to DOD Undersecretary of Intelligence
  • Kash Patel — who ensured that no HPSCI Republicans got sound intelligence during their Russian investigation, then pretended to be a Ukraine expert during impeachment, and then served to conduct a purge in the Office of Director of National Intelligence — to DOD Chief of Staff

To be clear, unlike these others, Christopher Miller, the Acting Secretary of Defense, reportedly does care about US security, even if he’s several ranks too junior for the job and got appointed over a Senate confirmed Deputy.

But the Nunes flunkies are there, serving as gate-keepers for the hoaxes favored by Trump and Nunes, as they have done so successfully throughout Trump’s term.

Spook-whisperer David Ignatius reports that these changes come amidst a sustained debate about what to do with a piece of likely Russian disinformation that — Trump and feeble-minded partisans like Lindsey Graham believe — will prove that Russia didn’t prefer Trump over Hillary.

President Trump’s senior military and intelligence officials have been warning him strongly against declassifying information about Russia that his advisers say would compromise sensitive collection methods and anger key allies.

An intense battle over this issue has raged within the administration in the days before and after the Nov. 3 presidential election. Trump and his allies want the information public because they believe it would rebut claims that Russian President Vladimir Putin supported Trump in 2016. That may sound like ancient history, but for Trump it remains ground zero — the moment when his political problems began.

CIA Director Gina Haspel last month argued strongly at a White House meeting against disclosing the information, because she believed that doing so would violate her pledge to protect sources and methods, a senior congressional source said. This official said a bipartisan group of Republican and Democratic senators has been trying to protect Haspel, though some fear that Trump may yet oust her.

Rumors have been flying this week about Haspel’s tenure, but a source familiar with her standing as CIA director said Tuesday that national security adviser Robert C. O’Brien and White House Chief of Staff Mark Meadows had both “assured her that she’s good,” meaning she wouldn’t be removed. Haspel also met personally with Senate Majority Leader Mitch McConnell (R-Ky.) Tuesday. She sees him regularly as a member of the “Gang of Eight” senior congressional leaders. But Tuesday’s visit was another sign of GOP support.

Haspel’s most unlikely defender has been Attorney General William P. Barr, who opposed a pre-election push to declassify the sensitive material, according to three current and former officials. At a showdown meeting at the White House, Barr pushed back against revealing the secret information.

Gen. Paul Nakasone, who heads U.S. Cyber Command and the National Security Agency, has also argued vehemently against disclosure, according to a senior defense official and the senior congressional source. Like Haspel, Nakasone took the unusual step of directly opposing White House efforts to release the intelligence, because he feared the damage that disclosure would cause.

With the new changes, General Nakasone reports through Cohen-Watnick and Patel and will have to rely on the legal “advice” of Ellis. So not only does this move put more senior votes in favor of declassifying this intelligence, but it puts them in places where Nakasone might be forced to accede to these demands.

Reporting suggests that Trump is seeking to make the full intelligence behind the reports described here available. Fundamentally, the intelligence shows that the US government obtained a Russian intelligence report that stated in late July 2016 — John Ratcliffe says it was July 26 but by handwriting it appears to be July 28 — Hillary approved of a plan to vilify Trump for his dalliance with Russian intelligence.

Already, this is a stupid hoax from the Republicans. It is public that, in the wake of the DNC release on July 22 — and particularly after Trump’s “Russia are you listening” comment on July 27 — Hillary started focusing on Trump’s coziness with Russia. In other words, the crack Russian analysts would have to do no more than read the paper to come to this conclusion. Nor would there be anything scandalous about Hillary trying to hold Trump accountable for capitalizing on an attack on her by a hostile foreign country.

I think Republicans are trying to suggest — by altering a date (July 26 instead of July 28) again and breathing heavy — that former government official Hillary Clinton was the reason why the FBI opened an investigation into Trump, rather than the Australians informing the US about Coffee Boy George Papadopoulos bragging about Russia offering help back in May. There’s not a shred of evidence for it, of course, but that has never stopped the frothy right.

The far more interesting part of this intelligence comes in the report that Peter Strzok wrote up, which is dated September 7. It makes it clear that Hillary’s alleged attack pertained to Russian hackers, notably Guccifer 2.0.

So a Russian intelligence report the US stole from Russia in late July 2016 claimed that, on July 26 0r 28, Hillary approved an attack on Trump pertaining to having help from Russian hackers, a report that did not get formally shared with the FBI until September 7. And either the report itself or FBI’s interpretation of it focuses on Guccifer 2.0.

Somehow this is the smoking gun — that over a month after opening up Crossfire Hurricane the FBI started investigating a claim that, starting on July 26 or 28, Hillary thought Trump was cuddling up with Russian hackers, interpreted by someone to be Guccifer 2.0 — the FBI learned that fact.

When I first wrote this up, I hadn’t started my Rashomon Rat-Fucker series, to say nothing of my report to the FBI that an American I knew may have served as an American cut-out for the Guccifer 2.0 operation (I’m jumping ahead of myself, but I’m certain the FBI investigated that claim for at least a year). At the time, I focused on how prescient the frothers were making Hillary look for anticipating that Roger Stone would first start doing propaganda for Guccifer 2.0 on August 5; best case for the frothers in this situation is that Stone somehow learned of the Russian report before the FBI did.

But now that I’ve written those posts, it’s clear that not only did the FBI have strong circumstantial evidence that Stone knew of the Guccifer 2.0 operation even before the first Guccifer 2.0 post, because he was searching for it on June 15 before the WordPress site went public, but that Stone probably had a face-to-face meeting with someone at the RNC from whom he got advance notice of the DNC drop.

In July 2016, this report is only mildly interesting, amounting to showing that the Russians read the newspaper like everyone else.

In 2020, after details from the Mueller investigation have become public, the Russian report makes far more sense as deliberate disinformation, an attempt to turn a direct contact with Stone into a hoax about Hillary.

Which makes Trump’s apparent determination to liberate this document all the more telling. It suggests that he wants to make public something, anything, he can use to counter what will be very damning allegations when this all becomes clear.

And, given how shoddy the actual intelligence itself is (at best showing that Russian intelligence officers read public sources and more credibly showing that Russia was building plausible deniability for contacts with Roger Stone in real time), Trump’s insistence on it, whether intentional or not, would serve to blow highly sensitive collection for a third-rate hoax.

I can see why Trump would prioritize this intelligence on his way out that the door. It comes at a time when he can be easily manipulated to burn the IC in ways that can only serve Russian interests.

In other words, one of Trump’s top priorities for the Lame Duck period is to give Vladimir Putin a consolation prize.

Republican Complaints about Phone Records Back Democratic Impeachment Case

Way back in 2001, Victoria Toensing wrote an article justifying the subpoena of phone records of her future client, John Solomon, to find out who leaked details to him that Democratic Senator Robert Torricelli had been picked up on a wiretap of a mob figure. In it, she justified serving limited subpoenas, approved by Robert Mueller, on a third party carrier to find out who had committed a crime. She emphasized there was nothing political about the subpoena of Solomon’s phone records.

By ensuring that journalists not be subpoenaed every time they possess evidence, the department was demonstrating its respect for the press’s constitutional role.

The guidelines set down specific conditions that must be met before a subpoena can be issued for a reporter’s telephone records: There must be reasonable grounds to believe a crime has been committed; the information sought must be essential to a successful investigation; the subpoena must be narrowly drawn; all reasonable alternative steps must have been pursued, and the attorney general must approve the decision. The department has 90 days to notify the reporter of a subpoena to a third party, such as a telephone company.

Were those conditions met in Solomon’s case? Clearly, yes. His articles state that wiretap information was disclosed. The subpoena was limited, asking for home phone records for a period of six days, May 2 through 7. The U.S. attorney, Mary Jo White, certified that all alternative steps had been taken. Then-Acting Deputy Attorney General Robert S. Mueller III (now the FBI director) approved the subpoena — Ashcroft having recused himself. Solomon received his timely notice.

There is one other guideline factor: whether negotiations are required with the reporter before a subpoena is issued. The AP has argued — incorrectly — that the guidelines were violated because there were no negotiations. But negotiations are mandated only when the subpoena goes directly “to the reporter.” The guidelines do not require them if the subpoena is to a third party and the department concludes negotiations might be detrimental to the investigation.

Eighteen years later, Toensing is outraged that her own phone records were collected by the constitutionally appropriate authority in the investigation of multiple crimes.

A table of the April call records described in the report suggests the subpoena apparently targeted Lev Parnas — someone already indicted for crimes related to this investigation — and Rudy Giuliani — who’s a subject of that same investigation. (h/t Kelly for the table)

Nevertheless, in addition to Toensing and Solomon, the subpoena obtained records showing calls with Devin Nunes, several of the staffers most involved in sowing conspiracy theories, and numbers believed to involve the President (who is the subject of this investigation).

Nunes, of course, has made several efforts in recent years to expand the government’s collection of metadata in national security investigations, which this is. Trump also has favored continued, aggressive use of metadata collection in national security contexts.

The apparent fact that Schiff obtained all these records by targeting two suspected criminals hasn’t comforted the GOP, which is trying to claim that he violated the law or norms in issuing a subpoena.

One particularly delectable version of such complaints comes from Byron York. For some inconceivable reason, York decided to contact John Yoo — who, on multiple occasions in the year after Toensing wrote her column justifying a subpoena, wrote legal memos authorizing efforts to collect all phone records in the US with no legal process. York asked Yoo about whether subpoenaing AT&T for the phone records of two people as part of an impeachment investigation was proper.

John Yoo expressed a heretofore unknown respect for privacy. Even while he admitted that this presents no attorney-client problems, he suggested it would be proper for the White House to try to pre-empt any such subpoena.

There is certainly a constitutional privacy issue here, but I don’t think an attorney-client privilege issue. The attorney-client privilege covers the substance of the communication, but it doesn’t protect the fact that a communication took place.

For example, when one party to a lawsuit has to hand over documents to the other party, it can redact the content of the document if it is attorney-client privileged or withhold the document itself, but not the fact of the document’s existence (there is usually a log created that sets out the from, to, date information, etc.).

That is a separate question from whether Giuliani and Nunes had any constitutional rights violated by the House when it obtained these records. I am surprised that Giuliani and the White House did not think this would come up and sue their telecom providers to prevent them from obeying any demands from the House for their calling records.

York then quotes a policy from Reporters Committee for Freedom of the Press that shows this subpoena — which did not target Solomon — does not fall under RCFP’s stated concern for subpoenas used to find out a journalist’s sources.

Courts…have begun to recognize that subpoenas issued to non-media entities that hold a reporter’s telephone records, credit card transactions or similar material may threaten editorial autonomy, and the courts may apply the reporter’s privilege if the records are being subpoenaed in order to discover a reporter’s confidential sources.

The subpoena didn’t discover Solomon’s sources; it just demonstrated Parnas and Rudy’s outlets.

Most remarkable of all, York quotes Rudy providing direct evidence supporting impeachment.

Schiff, Pelosi, Nadler have trashed the U.S. Constitution and are enabled by a pathetic fawning press. They have proceeded without respect for attorney-client privilege, including threats of contempt and imprisonment.

Here’s the thing. Either Rudy Giuliani was acting as a person the President appointed to pursue the foreign policy of the United States — something Republicans have, at times, argued in their attempts to defend the President.

Or, Rudy was acting as the President’s personal lawyer. Here, he asserts he was acting as the President’s lawyer. If that’s the case — and Rudy says it was — it confirms a key allegation made by Democrats: that Trump demanded concessions from Ukraine purely for his own personal benefit.

As Yoo notes, Rudy (and Jay Sekulow and Toensing) would not have an attorney-client claim over metadata in any case. But Rudy nevertheless claims Trump’s privilege has been implicated in these call records.

With that claim, he confirms that his client violated his oath of office.