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Shorter DOJ: We Made Shit Up … Please Free Mike Flynn

Congratulations to the lawyers who worked all weekend to meet Judge Emmet Sullivan’s deadline to certify all the documents (with just eight explicit caveats and then another slew built in) submitted in the Mike Flynn motion to dismiss proceeding. I doubted you could pull it off time-wise.

In your rush you seem to have provided Judge Sullivan even more evidence that nothing about this proceeding is normal. Indeed, some of this submission almost makes Sidney Powell’s submissions look tidy by comparison.

The slew of caveats

Effectively, the certification (signed by Jocelyn Ballantine, with individual declarations signed by three others, in part because there are things that Ballantine almost certainly knows are inaccurate or include material omissions), says there have been no material alterations to the documents submitted in the proceeding except for:

  1. Redactions done in the name of classification, law enforcement sensitive, or privacy that serve to hide material information pertaining to Brandon Van Grack, Bill Barnett, and the reason a third document was altered by adding a date (at a minimum)
  2. A set of texts where “irrelevant information and excess metadata” was excluded and an error introduced in the process of creating a table showing “corrected date, corrected time,” which raises far more questions about the provenance of the document
  3. The Bill Barnett interview report that DOJ had submitted to Sullivan as “a 302” is instead a “report” that is not being certified in normal fashion, in part, because DOJ is hiding redactions that withhold material information about Brandon Van Grack
  4. An NSL declaration done by Jocelyn Ballantine that may hide the existence of at least one earlier financial NSL served on Mike Flynn that WDMO didn’t ask her to summarize
  5. A new set of text messages between Peter Strzok and Lisa Page that DOJ admits they’re not relying on (but nevertheless committed an additional Privacy Act violation in releasing), which was not redacted to hide personal information
  6. Three documents submitted by Sidney Powell that DOJ won’t certify (two of which, however, are probably more accurate than what DOJ has submitted)
  7. “Unintelligible” markings in transcripts of notes where DOJ was unsuccessful at getting the author or their lawyer to conduct a last minute review over a matter of hours on a Sunday (DOJ does not specify how many of their transcripts this includes); some of these appear significant
  8. Inconsistencies on how redactions and unintelligible text were marked in transcriptions which, in some cases, is affirmatively misleading
  9. Lots of documents where the certification doesn’t list the Bates numbers, with some hilarious results
  10. Inconsistencies on whether DOJ certifies all copies of a particular document that got submitted multiple times, which in one case would raise questions about the production of these documents
  11. An admission that, for some reason, the motion to dismiss didn’t rely on the final 302 of Flynn’s January 24, 2017 interview
  12. A new inaccurate date, ironically describing a Kevin Clinesmith email
  13. A claim that both Strzok and McCabe’s lawyers have confirmed their clients’ notes were not altered, but only Strzok’s lawyer is quoted

For all of the exhibits that accompanied the motion to dismiss, DOJ uses the docket number, not the exhibit number, even though Sullivan is supposed to be ruling on that MTD that uses exhibit numbers. That’ll make it a lot harder for him to use the transcriptions, which otherwise would make it more obvious that DOJ misrepresented what some of these documents say, including their “smoking gun,” the Bill Priestap notes.

In addition, in a lot of the documents with problems (including all undated notes to which dates were added), DOJ doesn’t include Bates numbers in its certification, even though it does elsewhere. There’s good reason for this. In the case of the re-altered altered documents, those new exhibits should have new Bates stamps, but don’t. In other cases, DOJ submitted multiple versions of the same document with different Bates stamps, in others, when they resubmitted exhibits they retained the Bates stamp. That’s … not a legal process reflecting any regularity.

DOJ still pretends to have no fucking clue about documents they relied on in the motion to dismiss

Perhaps the most pathetic (and by that I mean, I would hate to be the lawyer banking my bar membership on this ploy) detail in this package is the way they try to deal with the fact they’ve made false misrepresentations about Strzok’s January 5, 2017 notes. In one place in the table of documents, they describe the date of the notes this way:

In another, they describe it — the very same notes, just repackaged so they could submit them with the wrong date — this way:

Above both transcriptions, DOJ includes the following note.

I understand why DOJ is still claiming to be unsure about the date. It’s an attempt to minimize the damage from previously providing false dates so as to avoid being punished for knowing misrepresentations in their alterations (they’re still at risk though, because they’re incorrect dates kept changing). But this will just make it very easy for Sullivan to point out that the people making this representation are therefore confessing to being completely unfamiliar with documents on which the MTD heavily relies, which means he shouldn’t take the MTD all that seriously.

The shell game behind the actual declarations

As noted, this declaration is a filing signed by Jocelyn Ballantine, submitting declarations from three other people:

  • Executive Assistant Director John Brown, whose job it is to submit declarations like this
  • EDMO AUSA Sayler Fleming, one of the AUSAs conducting this irregular investigation
  • Keith Kohne, one of the FBI Agents conducting the investigation

Brown starts by excluding three documents from his general certification (these are the ones that Fleming and Kohne will be on the hook for):

5. To the best of my knowledge, and based on the information provided to me, the Government Exhibits described in Exhibit A, 9 with the exception of ECF Nos. 198-8 and 249-1, are true and correct copies of documents and records, including copies of select pages of a larger record, maintained by the FBI pursuant to the applicable records retention policy. See ECF Nos. 198-2, 198-3, 198-4, 198-5, 198-6, 198-7, 198-9, 198-10, 198-11, 198-12, 198-13, and 198-14 9 9

6 To the best of my knowledge, and based on the information provided to me, the Discovery Documents described in Exhibit B, with the exception of ECF Nos. 228-3, are true and correct copies of documents and records maintained by the FBI pursuant to the applicable records retention policy. See ECF Nos. 231-1, 237-1. 251-1, 9 257-1. 259-1, 9 259-2, 259-3, and 264-1

Effectively, he is saying these documents are real and that Ballantine’s claims about the reasons for classification are valid.

He then says this about Ballantine’s own summary, which purports to be a summary of all the NSLs used against Mike Flynn, but which may not include one or more financial NSLs obtained in 2016.

One of the Discovery Documents is a summary substitution of classified materials that were provided to DC-USAO by the FBI. See ECF 257-2. This summary substitution was prepared by AUSA Jocelyn Ballantine, and was reviewed, approved, and declassified by the FBI To the best of my knowledge, and based on the information provided to me, the information contained therein truly and correctly summarizes the underlying classified information provided by the FBI and maintained by the FBI pursuant to the applicable records retention policy.

He’s saying that her summary accurately summarizes what she says it does, but he’s not saying that her description of it is accurate (which it wouldn’t be if EDMO told her to leave out 2016 NSLs).

Then it’s Fleming’s turn. After reviewing her role in this shoddy review and asserting that she has no reason to believe that the documents she got from FBI were irregular, she then explains why she did a summary of the texts that Strzok and a bunch of other people sent in early 2017: Just to get rid of unnecessary metadata, she says.

3. Among the documents and records that I reviewed were spreadsheets of electronic messages exchanged between FBI personnel involved in the Michael T. Flynn investigation and prosecution. The spreadsheets produced to EDMO contained messages and metadata that were not relevant to my review.

4. I created Government Exhibit ECF 198-8 and Discovery Document ECF 228-3. These exhibits truly and correctly reflect excerpts from documents and record maintained by the FBI pursuant to the applicable records retention policy that were provided to EDMO/DC-USAO for review.1

Then she admits someone — she doesn’t say who — made an error.

1 There is a single typographical error in these exhibits. A single message (“Will do.”) from DAD Peter Strzok, sent on 4-Jan-17, is incorrectly identified as having been sent at 2:17PM; the message was actually sent at 2:18PM.

What she doesn’t explain, though, is why her table has two headings that show she or someone else had to “correct” the dates and times in the spreadsheet (which may be where the typo got introduced, or retained).

Given that heading, she has no business treating the data she got as reliable, because either she or someone upstream from her had to fix it.

Then Keith Kohne steps in, the guy who conducted an incompetent interview (and possibly one of the guys who altered dates on government exhibits). He doesn’t provide any explanation of why he’s making the declaration — not even the standard boilerplate you’d find in an affidavit. He says only,

 I, Keith Kohne, hereby declare, pursuant to 28 U.S.C. § 1746, that the document attached as Exhibit 1 to the Government’s Supplemental Filing in Support of Motion to Dismiss … is a true and correct copy of the report of the interview of William J. Barnett conducted on September 17, 2020.

Understand that this declaration lacks the certification afforded by the rules of FBI record-keeping. It lacks Brown’s certification that the data in was redacted properly (this was not). And it doesn’t explain why it wasn’t finalized as a 302 and submitted into FBI record-keeping systems.

Collectively, then, these declarations stop well short of certifying those texts, Ballantine’s summary, or the Barnett’s interview.

We already know that the Barnett interview is withholding material information. I guess we should assume there are problems with the other two documents as well.

Documents and comments

Here are the documents:

Draft closing communication (198-2) [Docket 2, Exhibit 1]

In the certification but not the exhibit referenced, DOJ redacts Bill Barnett’s name, who wrote the document, as well as that of Joe Pientka, who approved it. That serves to make it harder to figure out that the closing EC materially conflicts with unredacted claims Barnett made in his interview, particularly with regards to Barnett’s awareness that the investigation was a counterintelligence investigation considering 18 USC 951 charges.

It’s all the more problematic given that DOJ has submitted two versions of this document with the same Bates numbers; the earlier one does have the names redacted.

Opening Electronic Communication (198-3) [Docket 3, Exhibit 2]

This doesn’t include Bates numbers.

Mary McCord 302 (198-4) [Docket 4, Exhibit 3]

As with other documents, this one was specially declassified for this release. Another copy has been released under BuzzFeed’s FOIA.

Sally Yates 302 (198-5) [Docket 5, Exhibit 4]

Flynn got a summary of this before he allocuted his guilty plea before Sullivan.

170302 Jim Comey Transcript (198-6) [Docket 6, Exhibit 5]

As DOJ notes, HPSCI used a court reporter on this, so they didn’t have to certify it.

170214 Draft Flynn 302 (198-7) [Docket 7, Exhibit 6]

For some reason (I’ll return to this), DOJ submitted a draft version of the 302, rather than the final one (both have previously been submitted in this docket, and a less-redacted version of the 302 was released prior to this in BuzzFeed’s FOIA). Nowhere in the motion to dismiss does Timothy Shea acknowledge that he wasn’t relying on the final 302.

Text massages and electronic messages (198-8) [Docket 8, Exhibit 7]

The certification doesn’t include Bates stamps.

This is the document that has an admittedly minor error in one of the time stamps, saying that Strzok texted “Will do” at 2:18 instead of 2:17. But the error is interesting given that the table’s headings read, “Corrected Date, Corrected Time,” meaning these aren’t just copied, the times (and dates) were “corrected” (which is presumably where the error was introduced), raising questions about what they were corrected from. [My annotation.]

This is one of the documents that FBI EAD John Brown did not certify, which ought to raise questions about how these dates and times got “corrected.” Instead, the authentication reads:

Truly and correctly reflects information contained in documents and records maintained by the FBI, pursuant to the applicable records retention policy that were provided to EDMO.

Without an explanation of how why this data needed to be corrected, I think there are real questions whether this fulfills the requirement here.

Emails about the Logan Act (198-9) [Docket 9, Exhibit 8]

The certification doesn’t include Bates numbers.

170121-22 Emails about providing briefings (198-10) [Docket 10, Exhibit 9]

This certification doesn’t include Bates numbers.

170124 Emails of questions Flynn might ask (198-10) [Docket 10, Exhibit 9]

This certification doesn’t include Bates numbers. This matters both because they’re mixing docket number and exhibit number, but also because there are two copies of the identical document with a different Bates number in the docket.

Emails about 1001 warnings (198-10) [Docket 10, Exhibit 9]

This certification doesn’t include Bates numbers. This matters both because they’re mixing docket number and exhibit number, but also because there are two copies of the identical document with a different Bates number in the docket.

170124 Bill Priestap Notes (198-11) [Docket 11, Exhibit 10]

This certification doesn’t include Bates numbers. This matters both because they’re mixing docket number and exhibit number, but also because there are two copies of the same document with a different Bates number in the docket, yet both have the blue sticky that is hidden in later documents (raising questions about why there are two separate direct scans).

170124 Andrew McCabe write-up (198-12) [Docket 12, Exhibit 11]

This document doesn’t have a Bates stamp on it at all, which is especially problematic given that another less redacted version of the document is in this docket, with a Bates stamp of the same series as other documents submitted with the motion to dismiss.

The May version, with the Bates stamp, makes it clear that McCabe agreed with Flynn that leaks were a problem. [My annotations.]

The motion to dismiss version redacts that.

McCabe’s comment about leaks in no way qualifies under any claimed basis for redaction stated in certification.

It also appears to redact the prior declassification stamp.

One thing DOJ did by submitting this without a Bates stamp is avoided admitting that the document is not at all new, as the Motion to Dismiss suggested.

170124 Strzok and Pientka Notes of Flynn interview (198-13) [Docket 13, Exhibit 12]

These were released as the same exhibit, which given that they don’t use Bates numbers to identify which is which, effectively means they haven’t told Judge Sullivan which Agent’s notes are which, something that Sidney Powell wailed mightily about the last time it happened. They do, however, get it right in the transcript.

In the Pientka notes, however, there are numerous examples of things that are clear, at least from the context, that don’t get transcribed properly.

170822 Strzok 302 (198-14) [Docket 14, Exhibit 13]

This had already been produced in this docket.

200917 “Report” of Bill Barnett’s interview (249-1)

In the Government Supplemental Filing accompanying this interview, they claim that this is, “The FBI 302” of the Barnett interview. Here, they’re correctly noting that it’s not actually a 302, which makes it even more problematic than it already was.

The certification makes it clear that this “report” is maintained differently than normal 302s. Rather than certifying it as,

True and correct copy of a document or record maintained by the FBI pursuant to the applicable records retention policy.

It is instead certified as,

True and correct copy of the report of that interview.

I’m not sure Sullivan is going to be that thrilled that FBI itself is not treating this interview with the regularity of other investigative documents.

This “report” is probably one of the reasons why DOJ included this language in the filing.

There have been no material alterations made to any of the 14 Government Exhibits filed in support of the motion to dismiss and the supplement to the motion to dismiss. Several of the documents contain routine redactions made by the FBI to protect classified information, and/or law enforcement sensitive information, and/or made to comply with the Local Rule to remove Privacy Act information.

As I have laid out, DOJ withheld material information — most notably, all the nice things Barnett said about Brandon Van Grack — by redacting information that would otherwise be unsealed.

This is one of the documents that EAD John Brown did not certify; instead, one of the agents who did the interview did, which suggests it could not be certified properly. It also suggests that Ballantine, who knows it is withholding material information, doesn’t want to be in a position where she can see it (even though she sent an unredacted copy to Flynn).

Text messages (228-3)

The certification notes these are identical to the 198-8 text messages, with the error under heading, “corrected time.” It’s unclear why, in this one case, DOJ admitted to the same exhibit being filed multiple times, since in other cases they don’t note it.

170105 Strzok Notes (231-1)

The transcription of these notes don’t note the redactions. That’s significant because the only difference between this set of notes and the later, altered ones, is that they declassified a bit more information in the latter case.

170125 Gauhar Notes (237-1)

The transcription is inconsistent about whether it treats cross-outs as unintelligible or not, in one place treating a heading “Intro” as intelligible, but not references to “Thanksgiving” and “He said.”

170125 Strzok Notes (237-1)

By labeling these notes as Strzok’s, DOJ makes it more clear that they redacted information that must match other sets of notes from the same meeting.

170130 [Draft] Executive Summary of Flynn investigation (237-1)

The certification doesn’t reveal that this is a draft document, not a finalized one.

170330 Dana Boente Notes (237-1)

Undated McCabe Notes (248-2/259-1)

The transcription doesn’t note that McCabe crossed off his notes on Flynn. Nor does it admit that it redacted what appears to be a continuation of the discussion of Flynn.

The authentication notes that it is,

True and correct copy of a document or record maintained by the FBI pursuant to the applicable records retention policy (ECF 259-1)

That means they’re only certifying that this is something in FBI records (which it shouldn’t be, since it’s a re-altered altered document).

They also leave out Bates numbers, which is problematic because the re-altered document is technically a new document, but it retains the same Bates stamp.

170105 Strzok Notes (248-3/259-2)

The transcription reveals that two of the three new things revealed in the new copy were unintelligible to DOJ, which raises real questions about why they left it unredacted.

The authentication notes that it is,

True and correct copy of a document or record maintained by the FBI pursuant to the applicable records retention policy (ECF 259-2)

That means they’re only certifying that this is something in FBI records (which it shouldn’t be, since it’s a re-altered altered document).

They also leave out Bates numbers, which is problematic because the re-altered document is technically a new document, but it retains the same Bates stamp.

Undated Strzok Notes (248-4/259-3)

As with some others, the transcription doesn’t note all the redactions, which in this case raises questions about why they included notes from the day before.

In addition, they leave out a scribble in front of the word “willfullness” meaning Strzok switched what they were measuring with regards to whether Flynn’s lies about Turkey were deliberate.

The authentication notes that it is,

True and correct copy of a document or record maintained by the FBI pursuant to the applicable records retention policy (ECF 259-3)

That means they’re only certifying that this is something in FBI records (which it shouldn’t be, since it’s a re-altered altered document).

They also leave out Bates numbers, which is problematic because the re-altered document is technically a new document, but it retains the same Bates stamp.

170306 Jim Crowell Notes (251-1)

As expected, DOJ was thoroughly dishonest with this document. They don’t reveal that they’ve redacted something — either a date, or names — where they indicate that they’ve added a date. One way or another, this transcription is false.

Plus, if they’ve redacted the names of non-senior people in the meeting (which is the non-suspect excuse for the redaction), then they need to note that in the transcription. The alternative, of course, is worse, that they knowingly altered the date.

This is one instance where not revealing whether DOJ consulted with the author is especially problematic. But since Crowell is now a DC judge just next door to Sullivan’s courthouse, maybe he can just go ask.

170329 Gauhar Notes (251-1)

180119 Schools Notes (251-1)

161226 Clinesmith NSL Email (257-1)

The certification provides the wrong date for this email, labeling it 12/26/16. [My annotations.]

it was 12/23/16.

Unlike some of the other things here, I think this is just a sloppy error, not an affirmative misrepresentation. But it is ironic that they made the error with Clinesmith.

200924 Ballantine Summary Substitution of NSLs issued in Crossfire Razor (257-2)

In her notice of discovery correspondence accompanying this, Ballantine doesn’t note that she wrote this summary for EDMO to review for them to, in turn, give back to her to give to Flynn. That’s important, because it’s unclear whether the summary shows all NSLs, or only NSLs for the period in question. Both Barnett’s testimony and the Kevin Clinesmith email included suggest the latter.

170125 OGC Notes (264-1)

This doesn’t include Bates numbers, which is interesting because an older 2019 Bates stamp not seen elsewhere is included (possibly indicating that this was previously shared with DOJ IG).

McCabe Casts Doubt on the Date Added to His Notes, Too

In my coverage of the way DOJ has added dates to undated notes, I’ve always said that I have no reason to believe that the date DOJ added to Andrew McCabe’s notes was erroneous.

Now I do.

In a letter that McCabe’s lawyer, Michael Bromwich sent to Judge Sullivan last week, he explains why the May 10, 2017 date added to McCabe’s notes couldn’t be remotely credible. That’s because he was busy cleaning up the Jim Comey firing.

The date “5/10/17” that appears on Exhibit B is not in Mr. McCabe’s handwriting and he did not enter the date that now appears there. Further, contrary to counsel’s claim, Mr. McCabe did not brief the Senate Intelligence Committee on anything on May 10. That was the day after President Trump had fired FBI Director Comey and Mr. McCabe was consumed with various other responsibilities. Mr. McCabe did participate in a public Senate Select Committee on Intelligence hearing and closed briefing on worldwide threats, along with other intelligence community officials, on May 11. Neither the public hearing nor the secret briefing had anything to do with Mr. Flynn. Counsel did not seek to confirm the accuracy of its claims with Mr. McCabe or us about Mr. McCabe’s notes before filing the Third Supplement.

Update: Bromwich is not saying that the date is not correct. He’s saying that the implication, created by the redaction, that McCabe briefed Flynn to SSCI on May 10, 2017 is incorrect.

These appear to be notes tracking McCabe’s day. The top half, redacted save the time and description, explains that at 5:15 PM on whatever day this was, McCabe was doing World Wide Threat hearing prep.

Then, on the same day but in no way related to it, he reviewed the Flynn case in some way or another.

The redaction also almost certainly splits the Flynn related information in half (note the bracket starting at “closed” and extending well into the redaction).

In any case, nothing in these notes suggest this happened after Comey’s firing, which is the point they’re trying to make of it.

Update: According to McCabe’s book, nothing happened after he attended a WWT prep session on May 10, because that took several hours, he had already been in two draining meetings at the White House that day, and he was pooped.

As the president requested, I went back to the White House that afternoon. When I arrived, at 2 P.M., the bodyguard Keith Schiller came down again and greeted me like I was his buddy, like someone he sees every day—Hey, what’s going on?

[snip]

When I left the Oval Office, I went straight to a prep session at the Bureau. Jim Comey had been preparing for two weeks to testify at the Senate Intelligence Committee’s Worldwide Threats Hearing—an annual event where the director of national intelligence and the heads of the FBI, CIA, National Security Agency, and Defense Intelligence Agency share their assessments of the most urgent threats to U.S. national security and answer questions from senators about those threats. Preparation for the hearing typically involves a number of lengthy background sessions with staff and a review of hundreds of pages of briefing material; it also requires drafting an official statement for the record.

[snip]

So when I left the Oval Office, I went straight back to a prep session that night. I had been to a lot of these meetings for Comey and Mueller—when I was involved in the prepping. Usually I had been the guy sitting at the right hand of the director, listening to everyone else’s contributions and trying to distill it all into better formulations.

Chiming in when you have a shapely little idea, I quickly discovered, is very different from sitting at the head of the table while a dozen people to your right and left argue the pros and cons of issue after issue, firing ideas and comments at you nonstop—all of which you have to take in while also assessing how those answers will be interpreted and processed by members of Congress, the president, and the media. I had never fully appreciated the complexity of that task. After two and a half hours of this, my tank was full. I had to get some sleep.

The passage makes clear that he had been a part of Comey’s prep before Comey was fired, and that prep had been going on for two weeks. Which suggests that McCabe could have attended a WWT hearing any time in the previous two weeks.

That’s not definitive, of course (though it was almost certainly written with the benefit of McCabe’s notes). But this passage suggests the date is wrong, and the Flynn briefing took place before Comey’s firing.

In Letter Confirming DOJ Altered Peter Strzok’s Notes, His Lawyer Identifies Additional Privacy Act Violations

Among a slew of last minute documents submitted in advance of today’s hearing in the Mike Flynn case, Peter Strzok’s lawyer, Aitan Goelman, confirmed what I laid out here and here: DOJ altered some of the exhibits submitted in their effort to blow up Flynn’s prosecution.

Some of Mr. Strzok’s notes included in this attachment appear to have been altered. On at least two occasions, there were handwritten additions, not written by Mr. Strzok, inserting dates, apparently designed to indicate the date or dates on which the notes were written. On at least one occasion, the date added is wrong and could be read to suggest that a meeting at the White House happened before it actually did.

Goelman included those both altered records pertaining to Strzok (there may be one related to Andrew McCabe as well), including the one that shows someone wanted to implicate Joe Biden in all this.

That may not be the most important thing Goelman established, however.

Among the things DOJ released the other night was yet another version of the Strzok and Lisa Page texts. When she sent them to Flynn’s lawyers, Jocelyn Ballantine admitted the relevant texts had been provided to Flynn in 2018, before he allocuted his guilty plea a second time.

We are also providing you with additional text messages between former DAD Strzok and Lisa Page (23516-23540). As you know, some of these messages were originally made available to Flynn’s former attorneys on March 13, 2018 through a publicly available link to a Senate webpage. On June 24, 2018, the government provided a link to a second website that contained additional text messages. In an abundance of caution, we are providing you additional text messages in this production; please note that purely personal messages have been deleted from this production.

DOJ seems to have re-released the texts in an effort knit together unrelated actions to suggest they all related to Mike Flynn. Among the texts included in this release, purportedly in support of blowing up Mike Flynn’s prosecution, I can identify texts pertaining to:

  • The investigation into Russia’s attack on the US
  • The Mid-Year Exam investigation into Hillary’s server
  • The general Crossfire Hurricane investigation
  • Extensive efforts to ensure the Crossfire Hurricane investigation remained secret
  • Efforts to ensure that Obama officials didn’t politicize the Mike Flynn intercepts
  • Specific Crossfire Hurricane sub-investigations, including substantial threads pertaining to Carter Page and George Papadopoulos
  • The opening of the Jeff Sessions false statements investigation
  • The bureaucratic set-up of the Mueller investigation
  • References to Kevin Clinesmith (and possibly some references to other Kevins)
  • Substantive critiques of Donald Trump (for example, pertaining to his desire to blow up NATO)
  • Discussions of Trump sharing highly classified Israeli intelligence with the Russians
  • Proactive ethical discussions about how to deal with the appointment of Rudolph Contreras, whom Strzok was friends with, to the FISA Court
  • Leak investigations, both into stories pertaining to Flynn or Trump and stories not related to Trump
  • Unrelated FISA applications
  • 702 reauthorization
  • Apparently unrelated cases, including things like CFIUS reviews

There are long swaths with half the side of the conversation left out, hiding what are clear changes of topic.

Then there are personal details, like talks about showers and anniversaries, as well as some emotional chatter and one declaration of love.

That makes Ballantine’s claim that, “purely personal messages have been deleted from this production,” utterly damning, particularly given the timing, September 23, and the fact that unlike past productions, this was not noticed to the docket in real time.

“Did your anniversary go ok? I don’t really want a lot of deta[]” is by any sane measure a purely personal message. It was not deleted or redacted from this production.

What DOJ decided to do, just days before a decision in the parallel lawsuits Strzok and Page have against DOJ alleging a violation of the Privacy Act for the release of personal information, was to release more personal information, information that had — in the past, under an earlier purported ethics review of what was releasable — been deemed personal information.

DOJ knit together a bunch of texts that DOJ admits were already public before Flynn allocuted his guilty plea a second time, but threw in yet more personal texts.

And then, on September 25, Amy Berman Jackson ruled that Page and Strzok should both get discovery to prove their Privacy Act (and in Strzok’s case, other claims) cases. That makes all of this — all the decisions that led up to to the release of these texts — discoverable in what I assume will be an expanded Privacy Act lawsuit.

It’s unclear what malicious thinking led DOJ to include more texts attempting to humiliate Strzok and Page (even while providing a slew of other information making it clear that Strzok did not have it in for Flynn). But they just likely made this entire process subject to discovery in a lawsuit overseen by Amy Berman Jackson.

The Jeffrey Jensen “Investigation:” Post-It Notes and Other Irregularities

I noted the other day that Jeffrey Jensen had not asked William Barnett some basic questions (such as the import of Mike Flynn’s lies to the decision to interview Flynn or the names of colleagues who had purportedly joked about “wiping” their phones) that you would expect from a half-serious investigation. That’s ironic, since one of Barnett’s allegations about Mueller’s investigators is that they didn’t ask basic follow-up questions (the public record conflicts with a number of Barnett’s claims about the Mueller investigation).

Given my discovery about differences between two versions of Peter Srtzok’s notes purportedly “discovered” in the Jensen investigation, I want to look more closely at what the Bates stamps and Post-It note practices of the investigation suggest about it. I believe I have put all the documents released under the guise of the Jensen investigation here (though have not finished annotating them). I’ve put what delivery correspondence got released explaining those documents below (I’ve updated these on 9/29).

Both Bates series are labeled SCO documents even when they’re not SCO documents

There are actually two sets of Bates stamps among the exhibits submitted in an effort to blow up the Flynn prosecution.

One series includes Bates stamps DOJSCO700021192-21198 (Joe Pientka and Peter Strzok’s notes from Flynn’s interview), DOJSCO700021201-21205 (Peter Strzok’s July 19, 2017 302). and DOJSCO 700022308-12 (a version of the January 24, 2017 Flynn 302). Here’s what the typeface of that Bates stamp looks like:

These reflect documents turned over to Flynn in discovery before Barr started blowing up the prosecution (see this Strzok 302 and his notes included as part of this exhibit). These were all submitted with the Motion to Dismiss on May 7, 2020. The inclusion of documents with an earlier stamp is not at all nefarious. Indeed, it helps to distinguish three different types of documents submitted with the Motion to Dismiss:

  • Documents already turned over to Flynn, which were submitted accompanying the MTD with their original Bates stamp
  • Documents Sidney Powell had asked for but which Emmet Sullivan rejected as Brady discovery; these have no Bates stamp (though Sullivan has reviewed some of these documents)
  • Documents that were “discovered” as “new” to justify the Motion to Dismiss; they have the later Bates stamp

Here’s an example of the Jensen typeface:

Remember: these weren’t new to the FBI Agents or prosecutors on the team. They were just “new” to Jeffrey Jensen, who was brought in from St. Louis just to provide the documents a virgin birth.

The one “tell” about this Bates stamp is that it incorporates documents that well precede the Mueller investigation, and probably weren’t part of the Mueller investigation, under an SCO stamp.

I guess “BillyBarrBlowsUpBobby3Sticks” would be too obvious.

Bill Priestap’s original notes, with sticky note, has two Bates numbers

Once you get into the Jensen Bates stamp, documents often get submitted over and over. The most remarkable example of that are Bill Priestap’s notes from a January 24, 2017 meeting prior to the Flynn interview. Bates DOJSCO 700023464 was submitted twice (because Flynn’s lawyers screwed up the upload), once as part of Docket #188 and again as part of Docket #190. Then, the exact same document was submitted as DOJSCO 700022702 as part of the Motion to Dismiss.

This is interesting for two reasons. It’s common to find the same document with two different Bates stamp numbers. For example, if four people have received the same email, it may show up in discovery four times, with four different Bates stamps. But that’s more common with electronic files, for obvious reasons.

But this is not multiple digital versions of the same document. Both copies have the same blue sticky note on it, meaning both exhibits were scanned (or were from the same scan).

That wouldn’t be all that weird if the digital exhibits submitted with the Motion to Dismiss had different Bates numbers. But they generally don’t. For example, William Barnett’s draft Closing Communication has Bates stamp DOJ SCO 700023466 in both the exhibit Flynn’s team released on April 30 and the version submitted with the Motion to Dismiss.

The most curious detail of the two instances of the original copy of Priestap’s notes is that the one submitted later, with the Motion to Dismiss, has a much earlier (762 pages) Bates stamp. My eyes are beginning to blur, but I think the one other instance of this involves three documents involving Peter Strzok in advance of the Mike Flynn interview.

The earlier Bates notes might suggest that those select documents from January 23 and 24 were found — perhaps even before Jensen began work — and the disclosure theater in service of the Motion to Dismiss all followed it.

If that’s true, DOJ’s failure to release Priestap’s 302 explaining all this is fairly damning, given that DOJ is suppressing his explanation even while re-releasing the same documents.

DOJ falsely presents annotations as unaltered hand-written notes, misleadingly so with one set of Strzok notes

Which brings me to where I started this rabbit hole: with Jensen’s treatment of hand-written notes. I’ll probably miss something but I think the hand-written notes released by Jensen include:

The interview notes are a different animal (though remember that FBI got the mixed up and no one figured it out for months, possibly until I pointed it out).

Whoever took the Boente notes added a date in real time. That’s likely, though not certain, in the case of Gauhar. Priestap almost certainly dated his own notes (though it’s unclear who put that blue sticky on them).

In the unredacted bits, there is no date on Strzok’s January 25 notes. As noted, the originally released version of Strzok’s notes, which is a scan of the original, has no date (and Jeffrey Jensen provided Sidney Powell a range rather than the obvious date of January 5 for them, so she could make a false claim about Joe Biden).

The copy of Strzok’s March 28, 2017 notes, Bates Stamp 700023501 has the date added. It appears to have been added with a Post-It (annotated in yellow). It also appears that you can see Post-It note tabs (annotated in red) picked up on the copy, some with notes on them.

It appears, then, that someone simply made a copy of the notes without taking them out of a notebook. I have no reason to believe the date is inaccurate, though I am intrigued by the way the redaction obscures what would be the edges of the date Post-It.

The date on Andrew McCabe’s notes, with a Bates stamp 700023502, the next in the series, appears to have been added after the fact by someone other than the person who took the notes. While it has some similarities with the date on the Strzok notes, it doesn’t cross the 7 as one of the two Strzok annotations did, and could easily have been added by whoever filed the notes in real time.

 

Finally, the new version of Strzok’s January 5, 2017 notes, with a Bates stamp 700023503 and so the next in a series, include the added date and some newly unredacted content (inside the red rectangle).

As noted, there is absolutely no doubt that these notes were written on January 5, 2017 (indeed, the newly unredacted details match other versions of this meeting). But after having released an unannotated version of this document, Jensen (or whoever is running this rodeo) decided to release another version that affirmatively misleads about that certainty.

The other instances of these date annotations are not nefarious, as far as I understand it. But pretending there was confusion about the date of these notes served to support an attack on Joe Biden. And rather than clearing all that up, DOJ has done what Kevin Clinesmith faces prison time for having done: alter a record.

It is inaccurate to say these are “Peter Strzok’s hand-written notes” (and, if the McCabe date was added after the fact, those too). Rather, this is a copy of Strzok’s hand-written notes that appear as a page in someone’s investigative notebook, and the date reflects an alteration — not identified to the court — to Strzok’s notes, an alteration that introduces an error.

Let me clear: I don’t think the dates change the investigative significance of these notes. I believe the January 5 notes have zero investigative significance, taken in context. I think the redaction of Brandon Van Grack’s name — if that’s what happened in William Barnett’s 302 — is a far graver example of abuse, because it serves to hide the baselessness of DOJ and Flynn’s complaints.

Rather, all these details reflect what an amateur effort Barr’s effort to blow up Flynn’s prosecution is. These irregularities, while not dramatically affecting the underlying evidentiary claim (excepting Powell’s attack on Joe Biden), suggest that no one is conducting a real investigation that would have to sustain future judicial review. They’re doing nothing except producing propaganda.


April 24: Jocelyn Ballantine files notice of discovery correspondence along with that correspondence.

Beginning in January 2020, at the direction of Attorney General William P. Barr, the United States Attorney for the Eastern District of Missouri (“USA EDMO”) has been conducting a review of the Michael T. Flynn investigation. The review by USA EDMO has involved the analysis of reports related to the investigation along with communications and notes by Federal Bureau of Investigation (“FBI”) personnel associated with the investigation.

The enclosed documents were obtained and analyzed by USA EDMO in March and April 2020 and are provided to you as a result of this ongoing review; additional documents may be forthcoming. These materials are covered by the Protective Order entered by the Court on February 21, 2018.

April 24: Powell submits two documents obtained from Covington & Burling, a Rob Kelner email indicating that C&B has an understanding that Mueller is unlikely to charge Jr, and another letter making it quite clear that Mueller did not make promises.

April 29: Ballantine files notice of discovery correspondence along with that correspondence.

As we disclosed by letter dated April 24, 2020, beginning in January 2020, at the direction of Attorney General William P. Barr, the United States Attorney for the Eastern District of Missouri (“USA EDMO”) has been conducting a review of the Michael T. Flynn investigation. The enclosed documents were obtained and analyzed by USA EDMO in March and April 2020, and are provided to you as a result of this ongoing review; additional documents may be forthcoming.1 These materials are covered by the Protective Order entered by the Court on February 21, 2018.

1 Note that the enclosed spreadsheet (DOJSCO-700023473 – DOJSCO700023475), which contains messages between and among various Bureau personnel, is an index and another detailed version of these messages is forthcoming.

May 5: Ballantine files notice of discovery correspondence along with that correspondence.

 As we disclosed by letter dated April 24, 2020, beginning in January 2020, at the direction of Attorney General William P. Barr, the United States Attorney for the Eastern District of Missouri (“USA EDMO”) has been conducting a review of the Michael T. Flynn investigation. The enclosed documents were obtained and analyzed by USA EDMO in March, April and May 2020; additional documents may be forthcoming. These materials are covered by the Protective Order entered by the Court on February 21, 2018.

May 18: Ballantine files notice of discovery correspondence along with that correspondence.

As we disclosed by letter dated April 24, 2020, beginning in January 2020, at the direction of Attorney General William P. Barr, the United States Attorney for the Eastern District of Missouri (“USA EDMO”) has been conducting a review of the Michael T. Flynn investigation. The enclosed documents were obtained and analyzed by USA EDMO in March, April and May 2020; additional documents may be forthcoming. These materials are covered by the Protective Order entered by the Court on February 21, 2018.

June 23: Ballantine files notice of discovery correspondence along with that correspondence.

As we have previously disclosed, beginning in January 2020, the United States Attorney for the Eastern District of Missouri has been conducting a review of the Michael T. Flynn investigation. The enclosed document was obtained and analyzed by USA EDMO during the course of its review. This page of notes was taken by former Deputy Assistant Director Peter Strzok. While the page itself is undated; we believe that the notes were taken in early January 2017, possibly between January 3 and January 5. These materials are covered by the Protective Order entered by the Court on February 21, 2018; additional documents may be forthcoming.

June 24: Powell accuses Biden of starting the Logan Act investigation based off false date on Strzok notes.

July 7: Ballantine files notice of discovery correspondence along with that correspondence.

As we have previously disclosed, beginning in January 2020, the United States Attorney for the Eastern District of Missouri has been conducting a review of the Michael T. Flynn investigation. The enclosed documents were obtained and analyzed by USAO EDMO during the course of its review. The documents include handwritten notes of former Deputy Assistant Attorney General Tashina Gauhar from a January 25, 2017 meeting (23487-80), notes of former Deputy Assistant Director Peter Strzok from that same meeting (23491-92), an internal DOJ document dated January 30, 2017 (23493-97), and handwritten notes of then Acting Attorney General Dana Boente, dated March 30, 2017 (23498-500). These materials are covered by the Protective Order entered by the Court on February 21, 2018; additional documents may be forthcoming.

September 23: Ballantine sends Powell notice of new exhibits without noticing Judge Sullivan of the correspondence.

As we have previously disclosed, beginning in January 2020, the United States Attorney for the Eastern District of Missouri has been conducting a review of the Michael T. Flynn investigation. The enclosed documents were obtained and analyzed by USAO EDMO during the course of its review. The documents include handwritten notes of former Deputy Assistant Director Peter Strzok (23501 & 23503) and former Deputy Director Andrew McCabe (23502); and internal text messages between FBI analysts who worked on the Flynn matter (23504- 23516).

We are also providing you with additional text messages between former DAD Strzok and Lisa Page (23516-23540). As you know, some of these messages were originally made available to Flynn’s former attorneys on March 13, 2018 through a publicly available link to a Senate webpage. On June 24, 2018, the government provided a link to a second website that contained additional text messages. In an abundance of caution, we are providing you additional text messages in this production; please note that purely personal messages have been deleted from this production.

September 24: Powell files supplement quoting notice.

The documents include handwritten notes of former Deputy Assistant Director Peter Strzok (23501 & 23503) and former Deputy Director Andrew McCabe (23502); and internal text messages between FBI analysts who worked on the Flynn matter (23504- 23516); . . . additional text messages between former DAD Strzok and Lisa Page (23516-23540).

September 24: Ballantine sends Powell notice of new exhibits without noticing Judge Sullivan of the correspondence.

As we have previously disclosed, beginning in January 2020, the United States Attorney for the Eastern District of Missouri has been conducting a review of the Michael T. Flynn investigation. The enclosed documents were obtained and analyzed by USAO EDMO during the course of its review. Attached hereto is a summary of the National Security Letters issued by the FBI (23541-42) and a related email (23543-44).

September 24: Ballantine sends Powell notice of the William Barnett 302 without noticing Judge Sullivan an unclassified version was shared with Flynn’s team.

As we have previously disclosed, beginning in January 2020, the United States Attorney for the Eastern District of Missouri has been conducting a review of the Michael T. Flynn investigation. On September 17, 2020, United States Attorney Jeffery Jenson conducted an interview of Special Agent William J. Barnett. A copy of the report of that interview is attached to this letter. The government is filing a redacted version of this report of interview as an attachment to its supplemental motion to dismiss tonight.

The unredacted version of the report of interview is covered by the Protective Order entered by the Court on February 21, 2018, and is designated “sensitive.”

September 27: Ballantine sends Powell notice of new exhibits without noticing Judge Sullivan of the correspondence.

As we have previously disclosed, beginning in January 2020, the United States Attorney for the Eastern District of Missouri has been conducting a review of the Michael T. Flynn investigation. The enclosed documents were obtained and analyzed by USAO EDMO during the course of its review. Attached hereto is are notes of three ODAG attorneys, numbered 23559- 23562

September 28: Ballantine files four different notices of discovery correspondence at once (resulting in delayed notification to John Gleeson).

 

Billy Barr Releases 302 that Proves View of Pro Mike Flynn Agent Held Sway in Mueller Report Conclusions

Before I do a deep dive of the 302 that Billy Barr had released in yet another attempt to blow up the Mike Flynn prosecution, let me review the conclusion of the Mueller Report was with regards to whether President Trump even knew about Mike Flynn’s calls with Sergey Kislyak, much less ordered them.

Some evidence suggests that the President knew about the existence and content of Flynn’s calls when they occurred, but the evidence is inconclusive and could not be relied upon to establish the President’s knowledge.

[snip]

Our investigation accordingly did not produce evidence that established that the President knew about Flynn’s discussions of sanctions before the Department of Justice notified the White House of those discussions in late January 2017.

The conclusion is central to the finding that there was no proof of a quid pro quo. If Trump had ordered Flynn to undermine sanctions — as a sentencing memo approved by Main DOJ explained — it would have been proof of coordination.

The defendant’s false statements to the FBI were significant. When it interviewed the defendant, the FBI did not know the totality of what had occurred between the defendant and the Russians. Any effort to undermine the recently imposed sanctions, which were enacted to punish the Russian government for interfering in the 2016 election, could have been evidence of links or coordination between the Trump Campaign and Russia. Accordingly, determining the extent of the defendant’s actions, why the defendant took such actions, and at whose direction he took those actions, were critical to the FBI’s counterintelligence investigation.

That means the conclusion adopted by the Mueller Report is precisely the one that the FBI Agent who investigated Flynn, William Barnett, held, as described repeatedly in the interview done by Jeffrey Jensen in an attempt to undermine the Mueller prosecution.

With respect to FLYNN’s [redacted] with the Russian Ambassador in December 2016, BARNETT did not believe FLYNN was being directed by TRUMP.

The Mueller Report reached that conclusion in spite of the fact that — as Barnett describes it — in his second interview, Flynn said that Trump was aware of the calls between him and the Russian Ambassador.

During one interview of FLYNN, possibly the second interview, one of the interviewers asked a series of questions including one which FLYNN’s answer seemed to indicate TRUMP was aware of [redacted] between FLYNN and the Russian Ambassador. BARNETT believed FLYNN’s answer was an effort to tell the interviewers what they wanted to hear. BARNETT had to ask the clarifying question of FLYNN who then said clearly that TRUMP was not aware of [redacted]

Barnett then goes on a paragraph long rant claiming there was no evidence that Trump was aware.

BARNETT said numerous attempts were made to obtain evidence that TRUMP directed FLYNN concerning [redacted] with no such evidence being obtained. BARNETT said it was just an assumption, just “astro projection,” and the “ground just kept being retreaded.”

The claim that there was no evidence that Trump directed Flynn to undermine sanctions is false. I say that because Flynn himself told Kislyak that Trump was aware of his conversations with Kislyak on December 31, 2016, when Kislyak called up to let Flynn know that Putin had changed his mind on retaliation based on his call.

FLYNN: and, you know, we are not going to agree on everything, you know that, but, but I think that we have a lot of things in common. A lot. And we have to figure out how, how to achieve those things, you know and, and be smart about it and, uh, uh, keep the temperature down globally, as well as not just, you know, here, here in the United States and also over in, in Russia.

KISLYAK: yeah.

FLYNN: But globally l want to keep the temperature down and we can do this ifwe are smart about it.

KISLYAK: You’re absolutely right.

FLYNN: I haven’t gotten, I haven’t gotten a, uh, confirmation on the, on the, uh, secure VTC yet, but the, but the boss is aware and so please convey that. [my emphasis]

Flynn literally told the Russian Ambassador that Trump was aware of the discussions, but Barnett claims there was no evidence.

Now is probably a good time to note that, months ago, I learned that  Barnett sent pro-Trump texts on his FBI phone, the mirror image of Peter Strzok sending anti-Trump texts.

So Billy Barr has released a 302 completed just a week ago, without yet releasing the Bill Priestap 302 debunking some of the earlier claims released by Billy Barr in an attempt to justify blowing up the Flynn prosecution, much less the 302s that show that Flynn appeared to lie in his first interview with Mueller’s investigators (as well as 302s showing that KT McFarland coordinated the same story).

And the 302 is an ever-loving shit show. Besides the key evidence — that his claim that investigators didn’t listen to him even though the conclusion of the Mueller Report is the one that he says only he had — Barnett disproves his claims over and over in this interview.

Barnett’s testimony substantially shows five things:

  • He thought there was no merit to any suspicions that Flynn might have ties to Russia
  • He nevertheless provided abundant testimony that some of the claims about the investigation (specifically that Peter Strzok and probably Brandon Van Grack had it in for Flynn) are false
  • Barnett buries key evidence: he mentions neither that Flynn was publicly lying about his conversations with Sergey Kislyak (which every other witness said was driving the investigation), and he did not mention that once FBI obtained call records, they showed that Flynn had lied to hide that he had consulted with Mar-a-Lago before he called Sergey Kislyak
  • Jensen didn’t ask some of the most basic questions, such as whether Barnett thought he had to investigate further after finding the Kislyak call or who the multiple people Barnett claimed joked about wiping their phone were
  • Barnett believes that Mueller’s lawyers (particularly Jeannie Rhee and Andrew Weissmann) were biased and pushing for a conclusion that the Mueller Report shows they didn’t conclude, but he didn’t work primarily with either one of them and his proffered evidence against Rhee actually shows the opposite

According to the org charts included in the Carter Page IG Report (PDF 116), it appears that Barnett would have been on a combined Crossfire Hurricane team from July 31 to December 2016; the report says he was working on the Manafort case.

Then, he took over the Flynn case. He would have reported up through someone else who also oversaw the George Papadopoulos investigation, but he would not be part of that investigation.

Even after a subsequent reorganization, that would have remained true until the Mueller investigation, when — by his own description — Barnett remained on the Flynn team.

Early in his 302, Barnett described that he thought the investigation was “supposition on supposition,” which he initially attributed to not knowing details of the case. Much later in the interview, he said he, “believed there were grounds to investigate the other three subjects in Crossfire Hurricane; however, he thought FLYNN was the ‘outlier.'” which conflicts with his earlier claim.

By his own repeated description, Barnett did not open the Flynn case and did not understand why it had been opened (he doesn’t explain that this was an UNSUB investigation, which undermines much of what he says). Moreover, his complaints about the flimsy basis for the Flynn investigation conflict with what Barnett said in the draft closing memo for the investigation, which explained that the investigation was opened,

on an articulable factual basis that CROSSFIRE RAZOR (CR) may wittingly or unwittingly be involved in activity on behalf of the Russian Federation which may constitute a federal crime or threat to the national security.

[snip]

The goal of the investigation was to determine whether the captioned subject, associated with the Trump campaign, was directed and controlled by and/or coordinated activities with the Russian Federation in a manner which is a threat to the national security and/or possibly a violation of the Foreign Agents Registration Act, 18 U.S.C. section 951 et seq, or other related statutes.

A key detail here is that Barnett himself said part of this was an attempt to figure out whether Flynn may have unwittingly been targeted by Russia, which makes his focus on crime in the Jensen interview totally contradictory.

Barnett did explain that NSLs were written up in December but pulled back (these were also released last night, though not with the detail that they were withdrawn). He claimed not to know why the NSLs were withdrawn.

A National Security Letter (NSL) had been prepared to obtain “toll records” for a phone belonging to FLYNN. The request was “pulled back” prior to the records being obtained. Peter Strzok (STRZOK) was the individual who ordered the NSL be pulled back. BARNETT was not told why the NSL was pulled back.

In the draft closing that Barnett himself wrote, he explained that because Flynn was not at that point named as a possible agent of a foreign power, that limited the investigative techniques they might use.

The writer notes that since CROSSFIRE RAZOR was not specifically named as an agent of a foreign power by the original CROSSFIRE HURRICANE predicated reporting, the absence of any derogatory information or lead information from these logical source reduced the number of investigative avenues and techniques to pursue.

That’s also another reason (not noted by Barnett in this interview) why he didn’t get a 215 order.

BARNETT chose not to obtain records through FISA Business Records because he advised this process is comparatively onerous.

Note that Strzok’s order to withdraw the NSL is yet more proof that Strzok was not out to get Flynn.

Barnett also confirmed something else that Strzok has long said — that they chose not to use any overt methods during the election (unlike the Hillary investigation).

BARNETT was told to keep low-key, looking at publicly available information.

Again, this adds to the evidence that no one was out to get Trump.

Barnett also explains how Stefan Halper shared information about Flynn, and he — a pro-Trump agent skeptical of the investigation — decided to chase down the Svetlana Lokhova allegation.

The source reported that during an event [redacted] 2014 FLYNN unexpectedly left the event [redacted] The source alleged FLYNN was not accompanied by anyone other [redacted] BARNETT believed the information concerning [redacted] potentially significant and something that could be investigated. However, Intelligence Analysts did not locate information to corroborate this reporting concerning redacted] FLYNN, including inquiries with other foreign intelligence agencies. BARNETT found the idea FLYNN could leave an event, either by himself or [redacted] without the matter being noted was not plausible. With nothing to corroborate the story, BARNETT thought he information was not accurate.

Later on, Barnett seems to make an effort to spin his inclusion of the Lokhova information in the closing memo as an attempt to help Flynn, describing,

BARNETT wanted to include information obtained during the investigation, including non-derogatory information. BARNETT wanted to include [redacted] specifically [redacted] FLYNN. The [redacted] and FLYNN were only in the same country, [redacted], the same time on one occasion and at that time they were visiting different cities.

That is, something in the closing memo that has been spun as an attack on Flynn he here spins as an attempt to include non-derogatory information, to help Flynn.

I find it curious that the main reason Barnett dismissed this allegation is because he found it implausible that a 30-year intelligence officer would know how to leave a meeting unnoticed. But let it be noted that for over a year, Sidney Powell has suggested that chasing down this tip was malicious targeting of Flynn, and it turns out a pro-Trump agent is the one who chased it down.

In many places, Barnett’s narrative is a muddle. For example, early in his interview, he said that he worked closely with Analyst 1 and Analyst 2. Analyst 2 worked on the Manafort investigation. Barnett had to get the Flynn files from Analyst 1, suggesting Analyst 1 had a key role in that investigation. But then later in the interview, after explaining that Analyst 1, “believed the investigation was an exercise in futility,” Barnett then said that Analyst 3 “was the lead analyst on RAZOR.” Barnett described that Analyst 3 was “‘a believer’ due to his conviction FLYNN was involved in illegal activity,” but also described that Analyst 3 was the one who didn’t want to interview Flynn. But then Barnett explains several other people who did not want to interview Flynn, in part because the pretense Barnett wanted to use (that it was part of a security clearance) was transparently false.

Barnett then explains that he did not change his opinion about whether Flynn was compromised based on reading the transcript (it’s unclear whether he read just one or all of them) of Flynn’s call with Kislyak. He explained that he “did not see a potential LOGAN ACT violation as a major issue concerning the RAZOR investigation.”

There are several points about this request. First, Jeffrey Jensen is taking a line agent’s opinion about a crime as pertinent here, after Billy Barr went on a rant the other day about how line agents and prosecutors don’t decide these things (showing the hypocrisy of this entire exercise). Barnett’s account undermines the disinformation spread before that the Logan Act claim came from Joe Biden, disinformation which Jensen himself wrongly fed.  Significantly, Barnett does not appear to have been asked whether he thought the transcripts meant he had to investigate further. 

Barnett says “in hindsight” he believes he was cut out of the interview of Flynn, based solely on the norm that normally “a line agent/case agent would do the interview with a senior FBI official present in cases concerning high ranking political officials.” He doesn’t consider the possibility that Joe Pientka did it because he had been in the counterintelligence briefing with Flynn the previous summer, which is what the DOJ IG Report said.

He then says “There was another reorganization of the Crossfire Hurricane investigation after the 1/24/17 interview of Flynn. This conflicts, somewhat, with both the org charts Michael Horowitz did, but also texts already released showing the reorg started in the first days of January (though the texts are consistent with the initial plan for Barnett and Andy McCabe to interview Flynn and I don’t necessarily trust the DOJ IG Report over Barnett), but that was before a lot else happened.

Only after describing a post-interview reorganization does Barnett raise something that all the public record says happened earlier, that, “The FBI was reacting to articles being reported in the news, most notably an article written by Ignatius concerning [redacted] involving FLYNN to a Russian Ambassador.” But even here, Barnett does not talk (nor does he appear to have been asked) about Flynn lying to the press about the intercepts. In other words, Jensen’s investigators simply didn’t address what every single witness says was the most important factor at play in the decision to interview Flynn, his public lies about the calls with Kislyak.

In one place, Barnett claims that “base-line NSLs” were filed “after the article by Ignatius,” which would put it in mid-January, before the interview. Later, he says that “In February 2017, NSLs were being drafted with [SA3] instructing BARNETT what needed to be done,” putting it after Flynn obviously lied in his interview. At best, that suggests Barnett is eliding the timeline in ways that (again) don’t deal with the risk of Flynn’s public lies about the Kislyak call.

Barnett then claims that McCabe was running this (in spite of the involvement of SA3 and his earlier report — and Horowitz’s org chart, not to mention other evidence documents already released — showing the continued involvement of Strzok). Barnett also backed getting NSLs in early 2017, and even insisted, again, that they should have been obtained earlier. Jensen appears to be making a big deal out of the fact that Kevin Clinesmith approved the NSLs against Flynn in 2017.

BARNETT said he sent an e-mail to CLINESMITH on 02/01/2017 asking CLINESMITH about whether the predication information was acceptable, as it was the same information provided on the original NSL request in 2016. CLINESMITH told BARNETT the information was acceptable and could be used for additional NSLs.

There’s a lot that’s suspect about this line of questioning, not least that the predicate for the investigation as a whole was different than the one for Flynn. But I’m sure we’ll hear more about it.

A Strzok annotation of a NYT article that Lindsey Graham released makes it clear that by February 14, 2017, the FBI still hadn’t obtained the returns from most of the NSLs.

Barnett seems to suggest that as new information came in “in BARNETT’s opinion, no evidence of criminal activity and no information that would start a new investigative direction.” If he’s referring to call records (which is what the NSLs would have obtained) that is, frankly, shocking, as the call records would have shown that Flynn also lied about being in touch with Mar-a-Lago before calling Kislyak. It’s what Flynn was trying to hide with his lies! And yet Barnett says that was not suspect.

Then Barnett moved onto the Mueller team. He starts his discussion with another self-contradictory paragraph.

BARNETT was told to give a brief on FLYNN to a group including SCO attorney Jean Rhee (RHEE), [four other people], and possibly [a fifth] BARNETT said he briefly went over the RAZOR investigation, including the assessment that there was no evidence of a crime, and then started to discuss [redacted — probably Manafort] which BARNETT thought was the more significant investigation. RHEE stopped BARNETT’s briefing [redacted] and asked questions concerning the RAZOR investigation. RHEE wanted to “drill down” on the fees FLYNN was paid for a speech FLYNN gave in Russia. BARNETT explained logical reasons for the amount of the fee, but RHEE seemed to dismiss BARNETT’s assessment. BARNETT thought RHEE was obsessed with FLYNN and Russia and she had an agenda. RHEE told BARNETT she was looking forward to working together. BARNETT told RHEE they would not be working together.

First, by his own description, Barnett was asked to brief on Flynn, not on Manafort (or anyone else); he was still working Flynn and not (if Horowitz’s org chart is to be trusted) involved anymore with Manafort at all. So if he deviated from that, he wasn’t doing what he was supposed to do in the briefing, which might explain why people in the briefing asked him to return to the matter at hand, Flynn. Furthermore, in much of what comes later, Barnett claims the prosecutors overrode the agents (in spite of the fact that, as shown, the final conclusion of the report sided with Barnett). But Barnett here shows that from his very first meeting with Mueller prosecutors, he was the one being bossy, not the prosecutors.

Update: I’ve since learned that the redacted information pertains to the Flynn Turkey case. The point about Rhee still stands, however. Rhee was in charge of the Russian side of the investigation. She asked questions about the Russian side of the investigation. She was polite and professional. He responded by being an abusive dick. What this paragraph shows is that Barnett has a workplace behavior problem, and he used his own workplace behavior problem to try to attack the female colleague he was being an asshole to.

Barnett’s continued complaints about Rhee (and Weissmann) are nutty given that, as a Flynn agent, he wouldn’t have been working with them.

Barnett claims that,

In March or April 2017, Crossfire Hurricane went through another reorganization. All of the investigations were put together.

The timing coincides with, but the structure does not match, what appears in the Carter Page IG Report (though, again, I don’t necessarily assume DOJ IG got it right).

Then Barnett makes a claim that conflicts with a great deal of public facts:

On 05/09/2017, COMEY was fired which seemed to trigger a significant amount of activity regarding Crossfire Hurricane. Carter Page was interviewed three times and PAPADOPOULOS was also interviewed. Both investigations seemed to be nearing an end with nothing left to pursue. the MANAFORT case was moved from an investigative squad to a counter intelligence squad [redacted] The Crossfire Hurricane investigations seemed to be winding down.

The appointment of the SCO changed “everything.”

At least according to the Horowitz org chart, these weren’t his investigations. A list of interviews shows that FBI had not interviewed the witnesses to Carter Page’s trip before June 2017 (though it is true that the investigation into him was winding down). The details of the Papadopoulos investigation would have shown that it was after at least the first (and given the Strzok note about NSLs) after probably several more interviews before the FBI discovered that Papadopoulos tried to hide extensive contacts with Russians by deactivating his Facebook account. Mueller didn’t even obtain Papadopoulos’ Linked In account until July 7, 2017, and that was just the second warrant obtained by Mueller’s prosecutors, almost three months after he was appointed; that warrant would have disclosed Papadopoulos’ ties to Sergei Millian and further contacts with the Russians. Some of the earliest activity in the investigation pertain to Michael Cohen (in an investigation predicated off of SARs), with the Roger Stone investigation barely beginning in August, neither of which are included in Barnett’s comments. And Barnett makes no mention of the June 9 meeting, discovered only as a result of Congress’ investigations, which drove some of the early investigative steps.

Which is to say, the evidence seems to have changed everything. And yet he says it was Mueller.

And yes, Jim Comey’s firing is part of that. But as to that, Barnett has this ridiculous thing to say:

As another example [of a “get Trump” attitude] BARNETT said the firing of FBI Director COMEY was interpreted as obstruction when it could just as easily have been done because TRUMP did not like COMEY and wanted him replaced.

Well, sure, in the absence of the evidence that might be true. But not when you had Comey’s memos that described how, first of all, Trump had committed to keeping Comey on (meaning he didn’t not like Comey!) but afterwards had tried to intervene in an ongoing investigation. It’s possible Barnett did not know that in real time — it wasn’t his investigation — but it’s not a credible opinion given what is in the memos.

Barnett also claims, as part of his “proof” that people wanted to get Trump that,

Concerning FLYNN, some individuals in the SCO assumed FLYNN was lying to cover up collusion between the TRUMP campaign and Russia. BARNETT believed Flynn lied in the interview to save his job, as that was the most plausible explanation and there was no evidence to contradict it.

Yes. There is evidence. The evidence is that Flynn’s lies hid his consultations with Mar-a-Lago, about which he also lied.

In a passage similarly suggesting that KT McFarland told the same lies that Flynn did because she wanted to get the Singapore job, Barnett seems to refer to (and DOJ seems to have redacted) a reference to Brandon Van Grack (who is the only Mueller prosecutor whose name would span two lines).

If that is, indeed, a reference to Van Grack, then it means DOJ is hiding evidence that Van Grack (along with Strzok) was not biased against Flynn.

Note, too, that Barnett doesn’t reveal that McFarland only unforgot her conversations with Flynn after Flynn pled guilty, which has a significant bearing on how credible that un-forgetting was. Nor does he note that Mueller didn’t charge McFarland with lying. The Mueller Report almost certainly has a declination description for why they didn’t charge McFarland, which (if true), would make a second thing where Barnett’s minority opinion had been determinative for the actual report, in spite of his claim that the prosecutors were running everything.

Finally, the 302 notes that Barnett was asked about whether he “wiped” his own phone.

BARNETT had a cellular telephone issued by the SCO which he did not “wipe.” BARNETT did hear other agents “comically” talk about wiping cellular telephones, but was not aware of anyone “wiping” their issued cellular telephones. BARNETT said one agent had a telephone previously issued to STRZOK.

If this were even a half serious investigation, Barnett would have been asked to back that claim with names. He was not.

What Billy Barr and Jeffrey Jensen have done is show that the only witness they’ve found to corroborate their claims can’t keep his story straight from one paragraph to another, and claims to be ignorant of several central pieces of evidence against Flynn.

That’s all they have.


Given that this post takes such a harsh view on Barnett, reminder I went to the FBI in 2017 regarding someone with no ties to Trump but who sent me a text about (and denigrating) Flynn.

Catherine Herridge Attempts to Relaunch Bullshit Conspiracies Answered by Peter Strzok’s Book

I hope to write a post arguing that Peter Strzok’s book came out at least six months too late.

But for the moment, I want to float the possibility that Nora Dannehy — John Durham’s top aide — quit last Friday at least in part because she read parts of Strzok’s book and realized there were really compelling answers to questions that have been floating unasked — and so unanswered — for years.

High-gaslighter Catherine Herridge raises questions already answered about Crossfire Hurricane opening

Yesterday, the Trump Administration’s favorite mouthpiece for Russian investigation conspiracies, Catherine Herridge, got out her high-gaslighter to relaunch complaints about facts that have been public (and explained) for years.

Citing an unnamed “former senior FBI Agent” and repeating the acronym “DIOG” over and over to give her high-gaslighting the patina of news value, she pointed to the fact that Strzok both opened and signed off on the Electronic Communication opening Crossfire Hurricane, then suggested — falsely — that because Loretta Lynch was not briefed no one at DOJ was. It’s pure gaslighting, but useful because it offers a good read on which aspects of Russian investigation conspiracies those feeding the conspiracies feel need to be shored up.

Note, even considering just the ECs opening investigations, Herridge commits the same lapses that former senior FBI Agent Kevin Brock made in this piece. I previously showed how the EC for Mike Flynn addresses the claimed problems. I’m sure it’s just a coincidence that Herridge’s anonymous former senior FBI Agent is making the same errors I already corrected when former senior FBI Agent Kevin Brock made them in May.

All that said, I take from Herridge’s rant that her sources want to refocus attention on how Crossfire Hurricane was opened.

Peter Strzok never got asked (publicly) about how the investigation got opened

As it happens, that’s a question that Strzok had not publicly addressed in any of his prior testimony.

Strzok was not interviewed by HPSCI.

Strzok was interviewed by the Senate Intelligence Committee on November 17, 2017. But they don’t appear to have asked Strzok about the investigation itself or much beyond the Steele dossier; all six references to his transcript describe how the FBI vetted the Steele dossier.

Deputy Assistant Director Pete Strzok, at that point the lead for FBI’ s Crossfire Hurricane investigation, told the Committee that his team became aware of the Steele information in September 2016. He said, “We were so compartmented in what we were doing, [the Steele reporting] kind of bounced around a little bit,” also, in part, because [redacted] and Steele did not normally report on counterintelligence matters. 5952 Strzok said that the information was “certainly very much in line with things we were looking at” and “added to the body of knowledge of what we were doing.”5953

Peter Strzok explained that generally the procedure for a “human validation review” is for FBI’ s Directorate of Intelligence to analyze an asset’s entire case file, looking at the reporting history, the circumstances of recruitment, their motivation, and their compensation history.6005 Strzok recalled that the result was “good to continue; that there were not significant concerns, certainly nothing that would indicate that he was compromised or feeding us disinformation or he was a bad asset.”6006 However, Strzok also said that after learning that reporters and Congress had Steele’s information:

[FBI] started looking into why he was assembling [the dossier], who his clients were, what the basis of their interest was, and how they might have used it, and who would know, it was apparent to us that this was not a piece of information simply provided to the FBI in the classic sense of a kind of a confidential source reporting relationship, but that it was all over the place. 6007

[snip]

Strzok said that, starting in September 2016, “there were people, agents and analysts, whose job specifically it was to figure this out and to do that with a sense of urgency.”6021

Strzok was also interviewed in both a closed hearing and an open hearing in the joint House Judiciary and House Oversight investigations into whatever Mark Meadows wanted investigated. The closed hearing addressed how the investigation got opened, but an FBI minder was there to limit how he answered those questions, citing the Mueller investigation. And even there, the questions largely focused on whether Strzok’s political bias drove the opening of the investigation.

Mr. Swalwell. Let me put it this way, Mr. Strzok: Is it fair to say that, aside from the opinions that you expressed to Ms. Page about Mr. Trump, there was a whole mountain of evidence independent of anything you had done that related to actions that were concerning about what the Russians and the Trump campaign were doing?

Ms. Besse. So, Congressman, that may go into sort of the — that will — for Mr. Strzok to answer that question, that goes into the special counsel’s investigation, so I don’t think he can answer that question.

Even more of the questions focused on the decision to reopen the Clinton investigation days before the election.

To the extent that the open hearing, which was a predictable circus, addressed the opening of Crossfire Hurricane at all (again, there was more focus on Clinton), it involved Republicans trying to invent feverish meaning in Strzok’s texts, not worthwhile oversight questions about the bureaucratic details surrounding the opening.

The DOJ IG Report backs the Full Investigation predication but doesn’t explain individual predication

The DOJ IG Report on Carter Page does address how the investigation got opened. It includes a long narrative about the unanimity about the necessity of investigating the Australian tip (though in this section, it does not cite Strzok).

From July 28 to July 31, officials at FBI Headquarters discussed the FFG information and whether it warranted opening a counterintelligence investigation. The Assistant Director (AD) for CD, E.W. “Bill” Priestap, was a central figure in these discussions. According to Priestap, he discussed the matter with then Section Chief of CD’s Counterespionage Section Peter Strzok, as well as the Section Chief of CD’s Counterintelligence Analysis Section I (Intel Section Chief); and with representatives of the FBI’s Office of the General Counsel (OGC), including Deputy General Counsel Trisha Anderson and a unit chief (OGC Unit Chief) in OGC’s National Security and Cyber Law Branch (NSCLB). Priestap told us that he also discussed the matter with either then Deputy Director (DD) Andrew McCabe or then Executive Assistant Director (EAD) Michael Steinbach, but did not recall discussing the matter with then Director James Comey told the OIG that he did not recall being briefed on the FFG information until after the Crossfire Hurricane investigation was opened, and that he was not involved in the decision to open the case. McCabe said that although he did not specifically recall meeting with Comey immediately after the FFG information was received, it was “the kind of thing that would have been brought to Director Comey’s attention immediately.” McCabe’s contemporaneous notes reflect that the FFG information, Carter Page, and Manafort, were discussed on July 29, after a regularly scheduled morning meeting of senior FBI leadership with the Director. Although McCabe told us he did not have an independent recollection of this discussion, he told us that, based upon his notes, this discussion likely included the Director. McCabe’s notes reflect only the topic of the discussion and not the substance of what was discussed. McCabe told us that he recalled discussing the FFG information with Priestap, Strzok, then Special Counsel to the Deputy Director Lisa Page, and Comey, sometime before Crossfire Hurricane was opened, and he agreed with opening a counterintelligence investigation based on the FFG information. He told us the decision to open the case was unanimous.

McCabe said the FBI viewed the FFG information in the context of Russian attempts to interfere with the 2016 U.S. elections in the years and months prior, as well as the FBI’s ongoing investigation into the DNC hack by a Russian Intelligence Service (RIS). He also said that when the FBI received the FFG information it was a “tipping point” in terms of opening a counterintelligence investigation regarding Russia’s attempts to influence and interfere with the 2016 U.S. elections because not only was there information that Russia was targeting U.S. political institutions, but now the FBI had received an allegation from a trusted partner that there had been some sort of contact between the Russians and the Trump campaign. McCabe said that he did not recall any discussion about whether the FFG information constituted sufficient predication for opening a Full Investigation, as opposed to a Preliminary Investigation, but said that his belief at the time, based on his experience, was that the FFG information was adequate predication. 167

According to Priestap, he authorized opening the Crossfire Hurricane counterintelligence investigation on July 31, 2016, based upon these discussions. He told us that the FFG information was provided by a trusted source-the FFG–and he therefore felt it “wise to open an investigation to look into” whether someone associated with the Trump campaign may have accepted the reported offer from the Russians. Priestap also told us that the combination of the FFG information and the FBI’s ongoing cyber intrusion investigation of the DNC hacks created a counterintelligence concern that the FBI was “obligated” to investigate. Priestap said that he did not recall any disagreement about the decision to open Crossfire Hurricane, and told us that he was not pressured to open the case.

It includes a discussion explaining why FBI decided against defensive briefings — a key complaint from Republicans. Here’s the explanation Bill Priestap gave.

While the Counterintelligence Division does regularly provide defensive briefings to U.S. government officials or possible soon to be officials, in my experience, we do this when there is no indication, whatsoever, that the person to whom we would brief could be working with the relevant foreign adversary. In other words, we provide defensive briefings when we obtain information indicating a foreign adversary is trying or will try to influence a specific U.S. person, and when there is no indication that the specific U.S. person could be working with the adversary. In regard to the information the [FFG] provided us, we had no indication as to which person in the Trump campaign allegedly received the offer from the Russians. There was no specific U.S. person identified. We also had no indication, whatsoever, that the person affiliated with the Trump campaign had rejected the alleged offer from the Russians. In fact, the information we received indicated that Papadopoulos told the [FFG] he felt confident Mr. Trump would win the election, and Papadopoulos commented that the Clintons had a lot of baggage and that the Trump team had plenty of material to use in its campaign. While Papadopoulos didn’t say where the Trump team had received the “material,” one could reasonably infer that some of the material might have come from the Russians. Had we provided a defensive briefing to someone on the Trump campaign, we would have alerted the campaign to what we were looking into, and, if someone on the campaign was engaged with the Russians, he/she would very likely change his/her tactics and/or otherwise seek to cover-up his/her activities, thereby preventing us from finding the truth. On the other hand, if no one on the Trump campaign was working with the Russians, an investigation could prove that. Because the possibility existed that someone on the Trump campaign could have taken the Russians up on their offer, I thought it wise to open an investigation to look into the situation.

It even explained how, by its read, the investigation met the terms of the DIOG for a Full Investigation.

Under Section 11.B.3 of the AG Guidelines and Section 7 of the DIOG, the FBI may open a Full Investigation if there is an “articulable factual basis” that reasonably indicates one of the following circumstances exists:

  • An activity constituting a federal crime or a threat to the national security has or may have occurred, is or may be occurring, or will or may occur and the investigation may obtain information relating to the activity or the involvement or role of an individual, group, or organization in such activity;
  • An individual, group, organization, entity, information, property, or activity is or may be a target of attack, victimization, acquisition, infiltration, or recruitment in connection with criminal activity in violation of federal law or a threat to the national security and the investigation may obtain information that would help to protect against such activity or threat; or
  • The investigation may obtain foreign intelligence that is responsive to a requirement that the FBI collect positive foreign intelligence-i.e., information relating to the capabilities, intentions, or activities of foreign governments or elements thereof, foreign organizations or foreign persons, or international terrorists.

The DIOG provides examples of information that is sufficient to initiate a Full Investigation, including corroborated information from an intelligence agency stating that an individual is a member of a terrorist group, or a threat to a specific individual or group made on a blog combined with additional information connecting the blogger to a known terrorist group. 45 A Full Investigation may be opened if there is an “articulable factual basis” of possible criminal or national threat activity. When opening a Full Investigation, an FBI employee must certify that an authorized purpose and adequate predication exist; that the investigation is not based solely on the exercise of First Amendment rights or certain characteristics of the subject, such as race, religion, national origin, or ethnicity; and that the investigation is an appropriate use of personnel and financial resources. The factual predication must be documented in an electronic communication (EC) or other form, and the case initiation must be approved by the relevant FBI personnel, which, in most instances, can be a Supervisory Special Agent (SSA) in a field office or at Headquarters. As described in more detail below, if an investigation is designated as a Sensitive Investigative Matter, that designation must appear in the caption or heading of the opening EC, and special approval requirements apply.

Importantly, per Michael Horowitz’s own description of the dispute, this is the topic about which John Durham disagreed. Durham reportedly believed it should have been opened as a Preliminary Investigation — but that would not have changed the investigative techniques available (and there was already a Full Investigation into Carter Page and Paul Manafort).

After first making the same error that Durham did in the Kevin Clinesmith, eleven days after publishing the report, DOJ IG corrected it to note the full implication of Crossfire Hurricane being opened as a counterintelligence investigation, implicating both FARA and 18 USC 951 Foreign Agent charges.

Crossfire Hurricane was opened by CD and was assigned a case number used by the FBI for possible violations of the Foreign Agents Registration Act (FARA), 22 U.S.C. § 611, et seq., and 18 U.S.C. § 951 (Agents of Foreign Governments). 170 As described in Chapter Two, the AG Guidelines recognize that activities subject to investigation as “threats to the national security” may also involve violations or potential violations of federal criminal laws, or may serve important purposes outside the ambit of normal criminal investigation and prosecution by informing national security decisions. Given such potential overlap in subject matter, neither the AG Guidelines nor the DIOG require the FBI to differently label its activities as criminal investigations, national security investigations, or foreign intelligence collections. Rather, the AG Guidelines state that, where an authorized purpose exists, all of the FBI’s legal authorities are available for deployment in all cases to which they apply.

And it provided this short description of why Strzok opened the investigation.

After Priestap authorized the opening of Crossfire Hurricane, Strzok, with input from the OGC Unit Chief, drafted and approved the opening EC. 175 Strzok told us that the case agent normally drafts the opening EC for an investigation, but that Strzok did so for Crossfire Hurricane because a case agent was not yet assigned and there was an immediate need to travel to the European city to interview the FFG officials who had met with Papadopoulos.

Finally, the IG Report provides a description of how the FBI came to open investigations against Trump’s four flunkies, Carter Page, George Papadopoulos, Paul Manafort, and — after a few days — Mike Flynn (though in the process, repeats but did not correct the error of calling this a FARA case).

Strzok, the Intel Section Chief, the Supervisory Intelligence Analyst (Supervisory Intel Analyst), and Case Agent 2 told the OIG that, based on this information, the initial investigative objective of Crossfire Hurricane was to determine which individuals associated with the Trump campaign may have been in a position to have received the alleged offer of assistance from Russia.

After conducting preliminary open source and FBI database inquiries, intelligence analysts on the Crossfire Hurricane team identified three individuals–Carter Page, Paul Manafort, and Michael Flynn–associated with the Trump campaign with either ties to Russia or a history of travel to Russia. On August 10, 2016, the team opened separate counterintelligence FARA cases on Carter Page, Manafort, and Papadopoulos, under code names assigned by the FBI. On August 16, 2016, a counterintelligence FARA case was opened on Flynn under a code name assigned by the FBI. The opening ECs for all four investigations were drafted by either of the two Special Agents assigned to serve as the Case Agents for the investigation (Case Agent 1 or Case Agent 2) and were approved by Strzok, as required by the DIOG. 178 Each case was designated a SIM because the individual subjects were believed to be “prominent in a domestic political campaign. “179

Obviously, the extended account of how the umbrella investigation and individual targeted ones got opened accounts for Strzok’s testimony, but usually relies on someone else where available. That may be because Horowitz walked into this report with a key goal of assessing whether Strzok took any step arising from political bias, and while he concluded that Strzok could not have taken any act based on bias, he ultimately did not conclude one way or another whether he believed Strzok let his hatred for Trump bias his decisions.

But at first, the account made errors about what FBI was really investigating. And even in the longer discussions about how FBI came to predicate the four individual investigations (which follow the cited passage), it doesn’t really explain how FBI decided to go from the umbrella investigation to individualized targets.

Strzok, UNSUB, and his packed bags

So Strzok’s book, as delayed as I think the publication of it is, is in substantial part the first time he gets to explain these early activities.

In a long discussion about how the case got opened, Strzok talks about the difficulties of a counterintelligence investigation, particularly one where you don’t know whom your subject is, as was the case here.

Another reason for secrecy in the FBI’s counterintelligence work is the fundamentally clandestine nature of what it is investigating. Like my work on the illegals in Boston, counterintelligence work frequently has nothing to do with criminal behavior. An espionage investigation, as the Bureau defines it, involves an alleged violation of law. But pure counterintelligence work is often removed from proving that a crime took place and identifying the perpetrator. It’s gaining an understanding of what a foreign intelligence service is doing, who it targets, the methods it uses, and what the national security implications are.

Making those cases even more complicated, agents often don’t even know the subject of a counterintelligence investigation. They have a term for that: an unknown subject, or UNSUB, which they use when an activity is known but the specific person conducting that activity is not — for instance, when they are aware that Russia is working to undermine our electoral system in concert with a presidential campaign but don’t know exactly who at that campaign Russia might be coordinating with or how many people might be involved.

To understand the challenges of an UNSUB case, consider the following three hypothetical scenarios. In one, a Russian source tells his American handler that, while out drinking at an SVR reunion, he learned that a colleague had just been promoted after a breakthrough recruitment of an American intelligence officer in Bangkok. We don’t know the identity of the recruited American — he or she is an UNSUB. A second scenario: a man and a woman out for a morning run in Washington see a figure toss a package over the fence of the Russian embassy and speed off in a four-door maroon sedan. An UNSUB.

Or consider this third scenario: a young foreign policy adviser to an American presidential campaign boasts to one of our allies that the Russians have offered to help his candidate by releasing damaging information about that candidate’s chief political rival. Who actually received the offer of assistance from the Russians? An UNSUB.

The typical approach to investigating UNSUB cases is to open a case into the broad allegation, an umbrella investigation that encompasses everything the FBI knows. The key to UNSUB investigations is to first build a reliable matrix of every element known about the allegation and then identify the universe of individuals who could fit that matrix. That may sound cut-and-dried, but make no mistake: while the methodology is straightforward, it’s rarely easy to identify the UNSUB.

[snip]

The FFG information about Papadopoulos presented us with a text- book UNSUB case. Who received the alleged offer of assistance from the Russians? Was it Papadopoulos? Perhaps, but not necessarily. We didn’t know about his contacts with Mifsud at the time — all we knew was that he had told the allied government that the Russians had dirt on Clinton and Obama and that they wanted to release it in a way that would help Trump.

So how did we determine who else needed to go into our matrix? And what did we know about the various sources of the information? Papadopoulos had allegedly stated it, but it was relayed by a third party. What did we know about both of them: their motivations, for instance, or the quality of their memories? What were the other ways we could determine whether the allegation was true?

And if it was true, how did we get to the bottom of it?

Having laid out the challenge that lay behind the four predications, Strzok then described the circumstances of the trip (with a big gaping hole in the discussion of meeting with the Australians).

He describes how he went home over the weekend, not knowing whether they would leave immediately or after the weekend. That’s why, he explained, he wrote the EC himself, specifically to have one in place before they flew to London.

I quickly briefed him on the facts and asked him to get a bag ready to go to Europe to do some interviews.

When are we leaving? he asked me.

No idea, I told him. Probably not until Monday, but I want to be ready to go tomorrow.

How long are we going for? he asked.

I don’t know, I admitted. A few days at most. I wasn’t sure if we would get to yes with our counterparts, but our sitting there in Europe would make it harder for them to say no.

I had work to do before we could depart. When I left the office on Friday, I grabbed my assigned take-home laptop, configured to operate at a classified level on our secure network.

[snip]

Sitting in my home office, I opened the work laptop and powered it up. The laptops were balky and wildly overpriced, requiring an arcane multi-step process to connect. They constantly dropped their secure connections. Throughout the D.C. suburbs, FBI agents flew into rages when the laptops quit cold while they were trying to work at home. Chinese or Russian intelligence would have been hard-pressed to develop a more infuriating product. Nevertheless, they let you work away from the office.

After logging in, I pulled up a browser and launched Sentinel, our electronic case file system. Selecting the macro for opening an investigation, I filled in the various fields until I reached the blank box for the case name.

They didn’t leave over the weekend, but they did leave on Monday. When they came back, having heard Alexander Downer’s side of the story (probably along with his aide, with whom Papadopoulos met and drank more with on multiple occasions, but that’s not in the book), it seemed a more credible tip.

And in the interim, analysts had found four possible candidates to be the UNSUB.

I was surprised by the amount of information the analysts had already found. Usually, because initial briefings take place at the very beginning of an investigation, they are short on facts and long on conjecture about all the various avenues we might pursue for information. In this case there were already a lot of facts, and several individuals—not just one—had already cropped up in other cases, in other intelligence collection, in other surveillance activity.
Although I was just hours back from Europe, what I saw was deeply dis- concerting. Though we were in the earliest stages of the investigation, our first examination of intelligence had revealed a wide breadth and volume of connections between the Trump campaign and Russia. It was as if we had gone to search for a few rocks only to find ourselves in a field of boulders.

Within a week the team had highlighted several people who stood out as potentially matching the UNSUB who had received the Russian offer of assistance. As we developed information, each person went into the UNSUB matrix, with tick marks next to the matching descriptors.

All this description is surely not going to satisfy Republicans. Nor was it under oath or to law enforcement officers, as Strzok’s other testimony was.

But it’s a compelling description.

It also adds perspective onto the treatment of Mike Flynn. Until they learned about Papadopoulos’ ties with Joseph Mifsud, they still had no clues about who got the tip. Mike Flynn had been eliminated for lack of evidence — but then he picked up a phone and provided the FBI a whole lot of evidence that he could be the guy.

And unless you believe that receiving a credible tip from a close ally that someone is tampering in an election still three months away doesn’t merit urgency, then the other steps all make sense.

I have no idea if that’s why Catherine Herridge got sent to whip out her high-gaslight again. I have no idea whether Nora Dannehy read these excerpts, and in the process realized both the significance of the error in treating this as a FARA investigation, but also how that changes predication into individual subjects.

But there have long been answers to some of the most basic questions that Republicans have returned to over and over again. It’s just that few of the interim investigations ever asked to get those answers. And the one that did — the DOJ IG Report — never even understood the crimes investigated until after the report got published.

“Was Wiped:” A Grammar Lesson for the Frothers

The frothy right is in a tizzy again.

Judicial Watch got a FOIA response that the frothers are reading out of context — without even reading the existing public record much less asking the question they now claim to want to answer — and claiming that Mueller’s attorneys kept wiping their phones.

The FOIA was for records pertaining to Lisa Page and Peter Strzok’s use of DOJ-issued mobile phones while assigned to Mueller’s team. The FOIA was not for a description of the record-keeping in the Mueller office. The FOIA was not for a final accounting of every text that every Mueller team member sent while working for Mueller. If a document mentions Page or Strzok’s phones, it is included here; if it does not, it was withheld.

That said, the frothy right is largely ignoring what the documents show, and instead referring to a single tracking sheet in isolation from the rest, to conclude that multiple Mueller officials wiped their own phones.

To understand what the documents show, it’s best to separate it into what the documents show about Page and Strzok, and then what they show about everyone else.

Mueller’s Office discovered too late that Page and Strzok’s phones had been reset according to standard procedure

The documents show, first of all, that the available paper trail backs the explanations around what happened to Page and Strzok’s Mueller iPhones, which both used for less than 3 months in 2017 while they also used (and sent damning texts on) their FBI issue Samsung phones.

The documents show that Lisa Page was among the first people assigned a Mueller iPhone. Justice Management Department’s Christopher Greer asked for iPhones specifically to deploy a standard mobile technology (though a later document reflects Adam Jed appears to have gotten an Android). Then, after a 45-day assignment, Page left. As the first person to leave the team, she left before processes were put into place to document all that; Page is actually the one who initiated the bureaucratic process of leaving. “Since we have our first detail employee leaving us, it is time to roll out our first form/policy,” Mueller’s administrative officer explained. Mueller’s Records Officer noted she didn’t have to be at the meeting, but provided an Exit Checklist to use on Page’s out-processing. The Records Officer further directed, weeks before anyone discovered Page’s damning texts with Strzok,

Please make sure [Page] doesn’t delete any text messages off her DOJ iPhone, if any.

Everything else should be saved on her H drive on JCON and in her email. This will be good for me as the RSO to go behind and see how that function works.

Mueller’s Administrative Officer also couldn’t make the meeting. But he noted that Page had a laptop “which may already been in [redacted] area, a DOJ cell phone & charger” and noted that “All equipment that I need will be covered as you go through the form.”

The FOIAed documents don’t reveal this, but a DOJ IG Report released in December 2018 reveal that Page left her devices on a shelf in the office she was using.

The SCO Executive Officer completed Page’s Exit Clearance Certification, but said that she did not physically receive Page’s issued iPhone and laptop. During a phone call, Page indicated to SCO that she had left her assigned cell phone and laptop on a bookshelf at the office on her final day there.

On July 17, two days after she left, that Administrative Officer confirmed that, “I have her phone and laptop.”

That is, everyone involved was trying to do it right, but Page was the first person put through this process so everyone admitted they were instituting procedures as they went.

Out-processing of Peter Strzok in August, in the wake of the discovery of Strzok’s texts with Page, was a good deal more terse. That said, the Records Officer did review his phone for anything that had to be saved on September 6, 2017, and found nothing of interest.

Still, their Exit Forms show both returned their iPhone. (Strzok; Page)

It’s only in January 2018, as DOJ IG started to look into their texts, that Mueller’s office discovered they couldn’t account for Page’s iPhone. JMD ultimately found it, but not until September 2018. The phone showed that it had been reset to factory settings, which was standard DOJ policy, on July 31, 2017, two weeks after Page turned it over and left SCO.

In fall 2018 and again in January 2019, numerous people at DOJ tried to find alternative ways to reconstruct any texts Page and Strzok sent on their Mueller iPhones. Because the effort started over a year after they had stopped using the phones, neither DOJ nor Verizon had even log files from the texts anymore. So a DOJ official reviewed Strzok’s phone and found nothing, may not have reviewed Page’s phone, but nevertheless found no evidence Page tried to evade review.

That is, for the subject Judicial Watch was pursuing, the FOIA was a bust.

In response to the Page-Strzok scandal, Mueller appears to have adopted a standard higher than DOJ generally

The Page-Strzok files also suggest certain things about what Mueller did as his investigation was roiled by claims focusing on the two former FBIers.

  • It appears that, after the shit started hitting the fan, Mueller engaged in record-keeping above-and-beyond that required by DOJ guidelines (that’s what the frothers are complaining about)
  • When things started hitting the fan, Mueller’s Chief of Staff Aaron Zebley seems to have started taking a very active role in the response
  • FBI continued to issue Page and Strzok updated phones even while they had Mueller iPhones, which is probably the case for at least the FBI employees on Mueller’s team, making confusion about phones more likely
  • Both DOJ and Verizon would have some ability to reconstruct any texts for phones with problems identified in real time, as opposed to the year it took with Page and Strzok

Here’s the standard DOJ adopts with regards to the use of texts on DOJ-issued phones. DOJ guidelines for retaining texts all stem from discovery obligations — and DOJ, unlike FBI, puts the onus on the user to retain texts.

The OIG reviewed DOJ Policy Statement 0801.04, approved September 21, 2016, which establishes DOJ retention policy for email and other types of electronic messaging, to include text messages. Policy 0801.04 states that electronic messages related to criminal or civil investigations sent or received by DOJ employees engaged in those investigations must be retained in accordance with the retention requirements applicable to the investigation and component specific policies on retention of those messages.

OIG also reviewed DOJ Instruction 0801.04.02, approved November 22, 2016, which provides guidance and best practices on component use of electronic messaging tools and applications for component business purposes.

Section C of 0801.04.02 (Recordkeeping Guidance for Electronic Messaging Tools in Use in the DOJ) subsection 9 (Text Messaging), states that text messaging may be used by staff only if it has been approved by the Head of the Component and in the manner specifically permitted by written component policies. Additional guidance was provided in a memo from the Deputy Attorney General dated March 30, 20 I I, titled ‘Guidance on the Use, Preservation, and Disclosure of Electronic Communications in Federal Criminal Cases.’ The memo states that electronic communications should be preserved if they are deemed substantive. Substantive communications include:

    • Factual information about investigative activity
    • Factual information obtained during interviews or interactions with witnesses (including victims), potential witnesses, experts, informants, or cooperators
    • Factual discussions related to the merits of evidence
    • Factual information or opinions relating to the credibility or bias of witnesses, informants and potential witnesses; and
    • Other factual information that is potentially discoverable under Brady, Giglio, Rule 16 or Rule 26.2 (Jencks Act).

So people using DOJ phones are only required to keep stuff that is case related. DOJ IG had, in 2015, complained about DOJ’s retention of texts, but the standard remained unchanged in 2018.

In January 2018, after someone had leaked news of the Page-Strzok texts to the NYT and after DOJ released their texts to the press (possibly constituting a privacy violation and definitely deviating from the norm of not releasing anything still under investigation by DOJ IG) and after Senator Chuck Grassley and Ron Johnson started making unsubstantiated claims about the texts, Mueller’s Chief of Staff, Aaron Zebley appears to have taken a very active role in the response. That’s when Mueller Executive Officer Beth McGarry Mueller’s Chief of Staff sent Page and Strzok’s Exit Paperwork to Zebley. And that’s when Mueller and DOJ IG discovered no one could find Page’s phone.

Not said in any of these documents, but revealed in the DOJ IG Report, is that Page and Strzok continued to use their FBI Samsung phones, and indeed were issued updated Samsungs after being assigned to Mueller’s team.

Based on OIG’s examination of their FBI mobile devices, Page and Strzok also retained and continued to use their FBI mobile devices. Specifically, on or about May 18, 2017, Page received an FBI-issued Samsung Galaxy S7 mobile device to replace her previously-issued FBI Samsung Galaxy SS. On or about July 5, 2017, Strzok received an FBl-issued Samsung Galaxy S7 mobile device to replace his previously-issued FBI Samsung Galaxy S5.

This was already known, because that’s where all their compromising texts were. But among other things, it makes it clear that some Mueller team members (especially the FBI employees, virtually all of whose names are redacted), may also have continued to use their existing FBI issue phone even while using the Mueller iPhone. With the exception of the 70-something year old James Quarles, whose phone “wiped itself without intervention from him” in April 2018 and who did not use text or have any photos on it when it was wiped, the suspicious events Republicans are complaining about came from DOJ employees, who might be most likely to juggle multiple phones and passwords.

Finally, one more detail of note in the Page and Strzok documents pertains to the other revelations. As noted, as part of the effort to find any texts they might have sent, DOJ reached out to Verizon, to try to figure out what kind of text traffic had been on their phones. Verizon responded that it only keeps texting metadata for 365 days, with rolling age-off, so it couldn’t help (in fall 2018 and January 2019) to access what Page and Strzok had done with their phones in summer 2017. As part of that discussion, however, JMD’s Greer noted that “our airwatch logs may only go back 1 year.” Airwatch is the portal via which corporate users of iPhones track the usage of their employees. It means that so long as something happens with a phone within a year, some data should be available on Airwatch. That is to say, DOJ had two means by which to reconstruct the content of a phone with a problem discovered in real time, means not available given the delay in looking for Page and Strzok’s phones.

The log of phone reviews covering all Mueller personnel

Ultimately, Judicial Watch’s FOIA showed that the documents they were after — the paper trail on the Page and Strzok phones — backs up what has always been claimed about the phones. They were treated via routine process, but as a result there were no texts to review when DOJ IG got around to review them.

So they instead made a stink about just four pages in the release, what appears to be a log — probably started in January 2018, as the Page and Strzok issues continued to roil — of every instance where a Mueller staff phone got reviewed.

The log starts with Page, Strzok, and two other people whose identities are redacted. It has an additional number of entries interspersed with ones from January 2018 which may be those out-processed under DOJ’s normal terms, prior to the initiation of this log. After that, though, the log seems to show meticulous record-keeping both as people were out-processed and any time something went haywire with a phone.

Here, for example, is the entry showing that Kevin Clinesmith’s phone was reviewed on March 5, 2018, and two texts and three photos that were not required to be kept as a DOJ record were emailed to him.

Here, for example, is a record showing that the phone of Uzo Asonye, a local prosecutor added to Manafort’s tax cheat trial in EDVA, got cleared of ten voice mails that pre-dated his involvement with the Mueller team when he was out-processed from the Mueller team.

In other words, Mueller’s team made sure phones were clean, even if they hadn’t been when the came into the team.

Some of what the frothers are pointing to as suspicious is someone wiping their phone when they get it — good security practice and, since the phone is new to them, nothing that will endanger records.

In others of the instances the frothers are complaining about, the log shows that someone immediately alerted record-keepers when they wiped their phone, which (if there were a concern) would provide DOJ an opportunity to check Airwatch.

One thing Republicans are focusing most closely on is that Andrew Weissmann twice “accidentally” wiped his phone, having done so on March 8 and September 27, 2018.

Note, both these instances involve the same phone, and also the same phone he had in what appears to be the final inventory. So while this is not entirely above suspicion, it’s not the case that Weissmann kept wiping phones before DOJ had a chance to check what he had on there before he got a new one. Rather, it appears he wiped the same phone twice and told the record-keepers about it in real time. Moreover, the wipes do not correlate to one possible damning explanation of them, that Weissmann was trying to cover up leaks to the press that Manafort would later accuse him and the Mueller team generally of.

There appears to have been nothing unusual about Weissmann’s out-processing review in March 2019.

So when DOJ had a chance to look at how Weissmann had used his phone for the last six months he used a Mueller phone, it found nothing.

Another of the things Republicans find particularly suspicious is that the phones of Kyle Freeny and Rush Atkinson were both wiped within days of each other (Freeny is a woman, which some of the self-described experts on the Mueller investigation got wrong in their stories on this). For Freeny and one other person (likely an FBI agent), this appears to have been an out-processing review.

Note that here and in many other cases, the description uses the passive voice. “Was [accidentally] wiped,” with no subject identified. There’s good reason to believe — based on the Records Officer retroactive descriptions about Strzok’s phone, the occasional use of the first person, and multiple references to the Administrative Officer — that these are written from the voice of the Records Officer, not the lawyer or agent in question. That is, many of the incidences of descriptions that a phone “was wiped” in no way suggest the person used the phone wiped it. Rather, it seems to be the Records Officer or someone else in the review process. And for a number of those instances there’s a clear explanation why the phone was wiped, which would be normal process for most DOJ transitions in any case.

It does appear Atkinson’s phone was wiped just days after Freeny’s phone, though it was identified in plenty of time to obtain the metadata, if needed.

But like Weissmann, Atkinson’s out-processing review (curiously, the very last one from the entire Mueller team) showed nothing unusual.

In short, what the frothy right appears to have worked themselves up about is that after the conduct of Page and Strzok raised concerns, Mueller imposed record-keeping that DOJ would not otherwise have done, record-keeping that attempted (even though it is not required by DOJ policy) to track every single personal text sent on those phones. And for many of the instances that frothers look at with suspicion, they’re actually seeing, instead, a normal DOJ treatment of a phone.

Timeline

May 20, 2017: Add four accounts, give them iPhones, including Lisa Page and Brandon Van Grack.

May 31, 2017: Page and Strzok first logged into SCO laptops.

June 15, 2017: What kind of tracking do we need for phones? Answer: IMEI. [Includes non-exempt team through that date.]

July 13, 2017: Out-processing of Lisa Page, for whom the process was invented. [Includes list of admin personnel.]

July 17, 2017: Page had handed over her devices, SCO still working with JMD to figure out how to back up common drive.

July 27, 2017: Michael Horowitz tells Mueller of Page-Strzok texts he discovered.

July 31, 2017: Page phone reset to factory settings.

August 9, 2017: Strzok sends exit checklists.

August 10, 2017: Strzok separates from office.

September 6, 2017: Records Officer reviews Strzok’s phone.

November 30, 2017: Mike Flynn informed of Strzok’s texts.

December 2, 2017: NYT reports on Strzok’s texts.

December 13, 2017: DOJ releases first batch of Page-Strzok texts, while trying to hide they were the source.

January 19, 2018: Stephen Boyd informs Chuck Grassley of archiving problems.

January 22, 2018: Strzok’s Mueller iPhone located.

January 23, 2018: Attempt to get texts from Verizon, but both content and metadata no longer stored.

January 25, 2018: Beth McGarry sends Aaron Zebley exit forms from Strzok and Page.

January 26, 2018: LFW notes that they’ve lost Page’s phone, but hands the search off to JMD. Greer notes, specifically, however, that “SCO policy was to reuse them and not hold.”

Late January 2018: FBI Inspection Division finds FBI Samsung phones, provide to DOJ IG.

February 8, 2018: Trump supporter Cesar Sayoc starts plotting attack on Strzok and others.

March 5, 2018: Kevin Clinesmith’s out-processing shows nothing unusual.

March 8, 2018: Andrew Weissmann wipes his phone.

May 4, 2018: Page resigns from FBI.

June 2018: DOJ IG discovers more texts, changes conclusion of Midyear Exam report.

June 14, 2018: Release of Midyear Exam report.

August 10, 2018: Strzok fired from FBI.

Early September 2018: Justice Management Division finds Page’s Mueller iPhone, provides to DOJ IG.

September 13, 2018: SCO Records Officer contacts DOJ IG about what status they got Page’s phone in.

September 21, 2018: Draft language between records officer and Aaron Zebley for DOJ IG Report. Also an attempt to check Airwatch for backups to the phones, but they only go back one year.

September 27, 2018: Andrew Weissmann wipes his phone.

October 17, 2018: DOJ IG informs SCO Records Officer that they have the phone, but that it had been reset to factory settings.

October 22, 2018: DOJ IG Cyber Agent follows up about DOJ IG Report language.

November 15, 2018: FBI Data Collection tool not archiving texts reliably.

November 27, 2018: Kyle Freeny’s phone wiped as part of out-processing.

November 29, 2018: Rush Atkinson’s phone accidentally wiped.

Late December 2018: DOJ IG releases report on archiving of DOJ phones.

December 27, 2018: Zebley responds to Rudy Giuliani claim about destruction of evidence.

January 18, 2019: JMD asks Verizon for texting data for Page and Strzok’s phones, but Verizon’s metadata records only go back 365 days.

January 30-31, 2019: LFW asks to cancel Strzok’s phone.

March 28, 2019: Andrew Weissmann’s out-processing review shows nothing unusual.

June 11, 2019: Rush Atkinson’s out-processing review shows nothing unusual.

December 9, 2019: DOJ IG releases Carter Page IG Report.

Unclear date: Inventory of all phones.

Kevin Clinesmith Ordered to Cooperate with People Not on John Durham’s Team

According to multiple reports and live-tweeting from his plea hearing last week, John Durham is relying, in part, on former FBI Agents to conduct his investigation into an investigation he may not understand.

Mr. Durham is relying on a team of prosecutors, including Nora R. Dannehy and Neeraj Patel, from Connecticut, as well as former and current F.B.I. agents to complete his investigation. Anthony Scarpelli, a top prosecutor from the U.S. attorney’s office in Washington, was detailed to the team along with a federal prosecutor from Manhattan, Andrew DeFilippis.

Two former F.B.I. agents, Timothy Fuhrman and Jack Eckenrode, are also assisting. An F.B.I. agent who oversaw public corruption in Chicago and served in Ukraine as an assistant legal attaché, Peter Angelini, has also joined Mr. Durham’s team.

That’s important because of a detail in the Kevin Clinesmith plea deal that the frothy right has totally misrepresented. The plea deal includes a paragraph — addressing the “use of self-incriminating information,” not cooperation — that requires Clinesmith’s cooperation with the FBI, not prosecutors.

10. Use of Self-Incriminating Information

As an express condition of this agreement, the defendant agrees to be personally debriefed by the Federal Bureau of Investigation (“FBI”) regarding the FBI’s review of Foreign Intelligence Surveillance Act (“FISA”) matters and any information he possesses, direct or indirect, that should be brought to the attention of the Foreign Intelligence Surveillance Court (“FISC”). The Government agrees pursuant to U.S.S.G. § 1B1.8(a), that information provided by your client pursuant to this Agreement or during the course of the aforementioned debriefing, and about which the Government had no prior knowledge or insufficient proof in the absence of the debriefing, will not be used at the time of sentencing for the purpose of determining the applicable guideline range. However, all information provided by the defendant may be used for the purposes and in accordance with the terms identified in U.S.S.G. § 1B1.8(b).

The paragraph even describes the topic of Clinesmith’s mandated cooperation: working with the FBI to figure out if there’s anything further he worked on that must be noticed to the FISA Court.

On December 5, then presiding FISA Judge Rosemary Collyer (she has been succeeded by James Boasberg, who also presides over Clinesmith’s prosecution) ordered the government to check every FISA application Clinesmith had been involved with to make sure he hadn’t done anything similar on other applications.

(1) Identify all other matters currently or previously before this Court that involved the participation of the FBI OGC attorney whose conduct was described in the Preliminary Letter and Supplement Letter;

(2) Describe any steps taken or to be taken by the Department of Justice or FBI to verify that the United States’ submissions in those matters completely and fully described the material facts and circumstances; and

(3) Advise whether the conduct of the FBI OGC attorney bas been referred to the I appropriate bar association(s) for investigation or possible disciplinary action.

Nothing in the public record indicates that FBI has completed this review. Which means the FBI still needs Clinesmith’s help to review the cases he worked on.

So the language here covers what happens if, in the course of this review, FBI finds other cases where he doctored the record or somehow lied to the FISA Court.

The emphasis on cooperating with the FBI (and Durham’s heavy reliance on retired FBI Agents) should have been hint enough that this is not some grand cooperation agreement that will land Jim Comey and John Brennan in prison. But there’s another clue. The plea deal specifically says the government will not file any downward departure for sentencing.

In addition, your client acknowledges that the Government is not obligated and does not intend to file any post-sentence downward departure motion in this case pursuant to Rule 35(b) of the Federal Rules of Criminal Procedure.

There’s no cooperation agreement because there’s nothing on the table for Clinesmith to cooperate on, except to avoid further exposure.

And the plea agreement says there’s nothing more (some plea agreements have sealed addendums).

There’s no upside promised in this plea agreement. Which means Clinesmith has not promised to deliver any heads on a platter for the frothers.

How Durham Gets to Intent on False Statements with Kevin Clinesmith

A lot of skeptics of the John Durham investigation have raised questions about the false statements charge against Kevin Clinesmith and intent.

Clinesmith claimed to DOJ IG that he did not intend to mislead when he altered an email saying that Carter Page was a “source” for CIA, but that he did so because he believed Page not to be a recruited asset but instead some kind of sub-source.

The OGC Attorney told us that- his belief that Page had never been a source for the other U.S. government agency, but instead interacted with a source-was based on telephone conversations with the Liaison. He said he recalled the Liaison “saying that [Page] was not a source of theirs,” but rather “incidentally reporting information via a source of theirs” and that they “ended up not actually opening him.”396

[snip]

We asked the OGC Attorney about this instant message exchange with SSA 2 in which he told SSA 2 that Carter Page was never a source. The OGC Attorney stated, “That was my, the impression that I was given, yes.” We also asked why he told SSA 2 in the instant message exchange that the other U.S. government agency “confirmed explicitly that he was never a source.” The OGC Attorney explained that his statement was just “shorthand” for the information provided by the other agency about Page and that he had no particular reason to use the word “explicitly.”

[snip]

We asked the OGC Attorney about the alteration in the email he sent to SSA 2. He initially stated that he was not certain how the alteration occurred, but subsequently acknowledged that he made the change. He also stated it was consistent with his impression of the information that he had been provided by the Liaison.

Clinesmith’s lawyer told a similar story to the NYT, so he either still believes that or has settled on that story to avoid further legal exposure.

Mr. Clinesmith’s argued that he did not change the document in an attempt to cover up the F.B.I.’s mistake. His lawyers argued that he had made the change in good faith because he did not think that Mr. Page had been an actual source for the C.I.A.

Neither Michael Horowitz nor Durham appear to believe this story. Durham quotes the CIA liaison saying that Clinesmith had no basis to formulate that belief.

The Liaison focused on the portion of the exchange in which the 0GC Attorney stated that Page “was never a source.” The Liaison told us that this statement was wrong, as was the 0GC Attorney’s statement that Page “was a U.S. sub-source of a source.” The Liaison said that such an assertion is “directly contradictory to the [documents]” the agency provided to the FBI. The Liaison also said it was inaccurate to describe Carter Page as “like a sub-source of [a digraph]” and to state that the other agency had “confirmed explicitly that [Page] was never a source.” We asked the Liaison whether the Liaison ever told the 0GC Attorney that Page was not a source. The Liaison said that, to the best of the Liaison’s recollection, the Liaison did not and would not have characterized the status of a “[digraph]” without either first reaching out to the other agency’s experts responsible for the underlying reporting, or relying on the proper supporting documentation for an answer. The Liaison stated, “I have no recollection of there being any basis for [the 0GC Attorney] to reach that conclusion, and it is directly contradicted by the documents.”

And Horowitz subtly suggested that Clinesmith formulated this belief without reading the documents that the CIA liaison had told him to refer to to understand Page’s tie with the CIA.

The Liaison responded that same day by providing the OGC Attorney with a list of documents previously provided by the other agency to the FBI mentioning Page’s name, including the August 17 Memorandum.

[snip]

We asked the OGC Attorney if he read the documents identified by the Liaison in her June 15, 2017 email. The OGC Attorney told the OIG that he “didn’t know the details of…the content of the [documents]” and did not think he was involved in reviewing them. He also said he “didn’t have access to the [documents] in the OGC space,” but that the investigative team was provided the list of documents and that they would have been reviewing them.

This is a detail that Durham repeated in the Criminal Information charging Clinesmith.

Later that same day, the OGA Liaison responded by email in which the liaison provided the defendant with a list (but not copies) of OGA documents.

Both seem to suggest that Clinesmith provided no credible explanation for how he came to conclude that Page was not a source, even if he maintains that he believed in good faith that an operational contact was not a source.

Still, the only proof of that is (at least as far as the public record goes) the CIA liaison’s imperfect memory of that conversation. He says, she says. Not a strong case that Clinesmith intentionally changed the email to mislead.

So how, a number of Durham skeptics are rightly asking, will Clinesmith allocute to guilt in changing the document, when he has consistently claimed he did not intend to mislead anyone by changing the email.

That’s not how Durham has formulated this false statements charge.

Clinesmith is not charged with lying about whether Page was a source. Rather, he’s charged under 18 USC 1001(a)(3), which reads:

(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—

(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;

shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both. If the matter relates to an offense under chapter 109A, 109B, 110, or 117, or section 1591, then the term of imprisonment imposed under this section shall be not more than 8 years.

That is, he’s not charged with lying, but instead with using a false document that he knew to contain a materially false statement.

The Information explains that,

Specifically, on or about June 19, 2017, the defendant altered the OGA Liaison’s June 15, 2017 email by adding that Individual #1 “was not a source” and then forwarded the email to the SSA, when in truth, and in fact, and as the defendant well knew, the original June 15, 2017 email from the OGA Liaison did not contain the words “not a source.”

This shifts the burden on intent significantly, because while Clinesmith contends he did not intend to mislead, he doesn’t deny altering the email, for whatever purpose. SSA 2 (SSA in the Information) has already testified to the IG (and presumably said the same thing to Durham) that that altered verbiage was material to him.

We discussed the altered email with SSA 2, who told us that the OGC Attorney was the person he relied upon to resolve the issue of whether Carter Page was or had been a source for the other U.S. government agency. SSA 2 told us that the statement inserted into the Liaison’s email-that Page was “not a source”- was the most important part of the email for him. SSA 2 said “if they say [he’s] not a source, then you know we’re good.” SSA 2 also said that if the email from the Liaison had not contained the words “not a source” then, for him, the issue would have remained unresolved, and he would have had to seek further clarification. SSA 2 stated: “If you take out ‘and not a source,’ it’s not wrong, but it doesn’t really answer the question.” He also said that something lesser, such as a verbal statement from the Liaison through the OGC Attorney, would not have resolved the issue for him. SSA 2 also told us it was important to him that the OGC Attorney had first sent the Liaison’s response email to the 01 Attorney, because if they discussed the issue and they have “decided we don’t have to do a footnote that he’s not a source … we’ve resolved this. We’re good to move forward.” He also said that he “would assume that the [OI Attorney]. .. received exactly what [SSA 2] received since it was a forward.”

SSA 2 has testified, then, that Clinesmith’s alteration of the email was material to his understanding of Page’s status; anything less than those words would have led him to include a footnote in the fourth Page application.

While I know a lot of Durham skeptics (including bmaz, who’ll promptly call me and yell at me) think Durham has a problem with allocution here, I think by crafting this under 18 USC 1001(a)(3), Durham avoids those problems. It doesn’t matter why Clinesmith altered the email (whether you believe him or not — and again, I don’t think Durham does). All Clinesmith is charged with is intentionally altering the email, which he has already admitted to.

One more point about intent. The frothy right has falsely claimed Clinesmith newly implicated his colleagues in altering this email. There’s nothing new here. The DOJ IG Report stated that Clinesmith forwarded the email, unaltered, to people who weren’t the affiants on the FISA application.

That same day, the OGC Attorney forwarded the Liaison’s email response to Case Agent 6 and an FBI SSA assigned to the Special Counsel’s Office, without adding any explanation or comment. The SSA responded by telling Case Agent 6 that she would “pull these [documents] for you tomorrow and get you what you need.”

This passage doesn’t get the frothy right where they think it does, either, at least not yet. They forget, for example, that Mueller has testified that he was not involved in the FISA process. And the information about Page’s role with the CIA was important to Mueller’s team for different reasons — most notably because in June 2017, Mueller’s team would be trying to assess what to make of FBI 302s where Page is recorded as equivocating about whether he had told anyone he was Male-1 in the Victor Podobnyy indictment, which would amount to an attempt to deny that he had gone out of his way to maintain contact with Russia even after it became clear those contacts were with intelligence officers.

It’s possible Durham thinks that something these two people did led Clinesmith to start lying about what kind of source Page was. But in addition to working with them, he also immediately told his boss that Page was a subsource–the explanation he has offered since.

The Clinesmith Information Suggests that John Durham Misunderstands His Investigation

Paragraph 2 of the Kevin Clinesmith Criminal Information reads:

On July 31, 2016, the FBI opened a Foreign Agents Registration Act (“FARA”) investigation known as Crossfire Hurricane into whether individual(s) associated with Donald J. Trump for President Campaign were witting of and/or coordinating activities with the Russian government. By August 16, 2016, the FBI had opened individual cases under the Crossfire Hurricane umbrella on four United States persons including a United States person referred to herein as “Individual 1.”

That paragraph is, at a minimum, deeply dishonest.

But I believe — and four experts I asked on the topic (which does not include Andrew Weissmann, who has since tweeted about this) agree — that it may be something worse. It appears to be evidence that John Durham doesn’t understand his own investigation.

The paragraph is dishonest because it suggests that the investigation into Carter Page arose exclusively out of the Crossfire Hurricane predication. That’s false.

As the DOJ IG Report made clear, the NY Field Office opened an investigation into Page during the spring of 2016 upon discovering that, when he was identified in the indictment of one of the Russians trying to recruit him in 2013, he went to other Russians and apparently tried to reassure them that he had not told the FBI about their efforts (and when interviewed by the FBI, Page repeatedly said sharing non-public economic information with known Russian intelligence officers was a positive for him).

On March 2, 2016, the NYFO CI Agent and SDNY Assistant United States Attorneys interviewed Carter Page in preparation for the trial of one of the indicted Russian intelligence officers. During the interview, Page stated that he knew he was the person referred to as Male-1 in the indictment and further said that he had identified himself as Male-1 to a Russian Minister and various Russian officials at a United Nations event in “the spirit of openness.” The NYFO CI Agent told us she returned to her office after the interview and discussed with her supervisor opening a counterintelligence case on Page based on his statement to Russian officials that he believed he was Male-1 in the indictment and his continued contact with Russian intelligence officers.

The FBI’s NYFO CI squad supervisor (NYFO CI Supervisor) told us she believed she should have opened a counterintelligence case on Carter Page prior to March 2, 2016 based on his continued contacts with Russian intelligence officers; however, she said the squad was preparing for a big trial, and they did not focus on Page until he was interviewed again on March 2. She told us that after the March 2 interview, she called CD’s Counterespionage Section at FBI Headquarters to determine whether Page had any security clearances and to ask for guidance as to what type of investigation to open on Page. 183 On April 1, 2016, the NYFO CI Supervisor received an email from the Counterespionage Section advising her to open a [redacted] investigation on Page.

[snip]

On April 6, 2016, NYFO opened a counterintelligence [redacted] investigation on Carter Page under a code name the FBI assigned to him (NYFO investigation) based on his contacts with Russian intelligence officers and his statement to Russian officials that he was “Male-1” in the SONY indictment. Based on our review of documents in the NYFO case file, as well as our interview of the NYFO CI Agent, there was limited investigative activity in the NYFO investigation between April 6 and the Crossfire Hurricane team’s opening of its investigation of Page on August 10. The NYFO CI Agent told the OIG that the steps she took in the first few months of the case were to observe whether any other intelligence officers contacted Page and to prepare national security letters seeking Carter Page’s cell phone number(s) and residence information. The NYFO CI agent said that she did not use any CHSs to target Page during the NYFO investigation. The NYFO investigation was transferred to the Crossfire Hurricane team on August 10 and became part of the Crossfire Hurricane investigation.

Carter Page was the subject of a legitimate counterintelligence investigation months before Crossfire Hurricane got opened, based off conduct that continued three years after CIA had ended approval for Page as an operational contact, based off conduct with multiple Russians — at least one a known intelligence officer — that Page did not share with the CIA. Carter Page was the subject of a counterintelligence investigation started irrespective of all ties Page had formerly had with the CIA that is the issue at the core of the Clinesmith Information.

By pretending that every investigation into Trump’s flunkies (including the ongoing Money Laundering investigation into Paul Manafort) got opened by Crossfire Hurricane, Durham creates a narrative that is every bit as dishonest as the worst stories about Crossfire Hurricane.

Durham is doing precisely what he is tasked with investigating others for.

But Durham’s mischaracterization of the investigation as a “FARA” investigation is far more troubling. Either he doesn’t know what he’s doing — replicating an error that DOJ IG had to fix in its Carter Page investigation — or he’s deliberately misrepresenting what was a counterintelligence investigation that, at the start, envisioned the possibility that Page was unwittingly being cultivated.

And from this error, paragraph 4 of the Information creates the (again, false) impression that the suspicions that Carter Page might be a willing agent of Russia all came from the Crossfire Hurricane team.

Each of these FISA applications allege there was probable cause that Individual #1 was a knowing agent of a foreign power, specifically Russia.

Again, that’s false! Page told the FBI, repeatedly, that he thought it was a good thing to share non-public information with people he knew to be Russian intelligence officers. He told the FBI that well before Kevin Clinesmith got involved at all. He told the FBI that years after CIA no longer considered him an approved operational contact. That was the basis for investigating him, long before any of the people Durham is investigating got involved.

As I’ve noted, it took DOJ IG eleven days after publishing its report in December before it discovered that it didn’t know what FBI was investigating. After those eleven days, it issued a correction for some (but not all) of the references where it incorrectly portrayed the investigation as limited to FARA.

On page 57, we added the specific provision of the United States Code where the Foreign Agents Registration Act (FARA) is codified, and revised a footnote in order to reference prior OIG work examining the Department’s enforcement and administration of FARA.

But there remain incorrect treatments of this nuance, and the IG Report conducted a First Amendment analysis about Carter Page that should have been mooted as soon as he admitted he was sharing information — economic information with no political tie — with people he knew to be Russian intelligence officers.

Still, at least DOJ IG explained the source of confusion: for any investigation involving registering as a foreign agent, the FBI uses the same case file number.

Crossfire Hurricane was opened by CD and was assigned a case number used by the FBI for possible violations of the Foreign Agents Registration Act (FARA), 22 U.S.C. § 611, et seq., and 18 U.S.C. § 951 (Agents of Foreign Governments). 170 As described in Chapter Two, the AG Guidelines recognize that activities subject to investigation as “threats to the national security” may also involve violations or potential violations of federal criminal laws, or may serve important purposes outside the ambit of normal criminal investigation and prosecution by informing national security decisions. Given such potential overlap in subject matter, neither the AG Guidelines nor the DIOG require the FBI to differently label its activities as criminal investigations, national security investigations, or foreign intelligence collections. Rather, the AG Guidelines state that, where an authorized purpose exists, all of the FBI’s legal authorities are available for deployment in all cases to which they apply . 171

That’s why the EC opening the investigation — which has subsequently been released — calls this a “FARA” investigation; because it’s a bureaucratic detail that in no way circumscribes the scope of the investigation. But the EC opening the investigation into Flynn — and assuredly, the EC opening the investigation into Page, though no one has released that yet — specifically names 18 USC 951 as well.

[See the update below for the evolution of the case ID# 97 that was used with Crossfire Hurricane.]

From the start, this was about more than doing political work for Russians.

People who know how FBI filing systems work, or know how FARA overlaps with 951, or know what the “COUNTERINTELLIGENCE” label appearing before the designation of this as a FARA case, would understand that FARA’s not a description of the actual investigation.

Apparently, Durham and his team (which does not include any National Security Division personnel, at least on the Clinesmith Information) don’t know or don’t care about any of that. His spokesperson did not return a call asking for clarification.

The point is, these were all counterintelligence investigations. As DOJ IG explained, the FBI may believe the investigation focuses on threats to national security and/or it may believe the investigation focuses on potential crimes. As one person I spoke with characterized this error, it’s like not knowing that the wall between intelligence and criminal investigations came down after 9/11.

And yet, Durham — who in December suggested he didn’t believe this investigation that he still treats as a criminal investigation was not properly predicated as a full investigation — appears not to understand that very basic fact about this investigation.

If Durham believes, erroneously, that the FBI opening a criminal investigation into Page into something that overlaps with First Amendment protected activity, it might explain why he hasn’t just closed up shop right now. It may explain why he claimed this was not a properly predicated full investigation. It may explain why he doesn’t understand why FBI continued the investigation based on behavior entirely unrelated to the Steele dossier.

But now Durham has made an assertion that likely arises from a total misunderstanding of what he’s investigating. He has betrayed that his entire investigation appears premised on a misunderstanding.

Update: I’ve fixed a reference to “operational contact,” which I originally had as “operational conduct.”

Update: Per a recently released Mike Flynn file, we know the case ID# for Crossfire Hurricane was 97F-HQ-063661. NARA describes how that case ID # started as a way to codify the Foreign Agents Registration Act. But then in 1950 it also came to include those who had knowledge of espionage, counter-espionage, or sabotage from a foreign country. Likewise, the FBI itself makes it clear that 97 covers both FARA and 18 USC 951. Durham only had to refer to a public FOIA document to understand his error.