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Hot and Cold Running John Durham Conspiracy Conspiracies

I’d like to congratulate Assistant [Durham] Special Counsel Michael Keilty. In what is close to a first from Durham’s team, he submitted a filing without obvious glaring errors (like the Criminal Information for Kevin Clinesmith that revealed the Durham team didn’t even know for what crime Carter Page had been investigated or their persistent cut-and-paste errors).

The filing is a motion for miscellaneous relief, asking Judge Anthony Trenga to require Igor Danchenko to waive any conflict he might have because his new defense attorneys, Danny Onorato and Stuart Sears, are at the same firm as (according to Josh Gerstein) Robert Trout, who is representing, “the 2016 “Hillary for America” presidential campaign (the “Clinton Campaign”), as well as multiple former employees of that campaign, in matters before the Special Counsel.”

The filing is entirely reasonable.

It simply asks that Judge Trenga inquire into the conflict presented by partners from the same firm representing multiple investigative Durham subjects and ensure that if Danchenko chooses to continue with Onorato and Sears as his attorneys, he does so waiving any potential conflict down the road.

Notwithstanding the potential conflicts involved, the government believes that this potential conflict is waivable, should the defendant so choose, assuming a knowing, intelligent and voluntary waiver is executed.

Based on the foregoing, the government respectfully requests that Court inquire into the conflict issues set forth herein.

It’s how Keilty gets there — as well as the Durham’s team uneven treatment of the connectivity of their investigation — that I find interesting. Remember: The Clinton campaign is referenced in Michael Sussmann’s indictment, though Durham already had to confess that the indictment overstated Sussmann’s contacts with members of the campaign.

But Durham’s effort to implicate the Hillary campaign in Danchenko’s actions is more of a stretch, going through Charles Dolan and entailing treating Hillary as a more dangerous adversary than Russian intelligence.

Again, the Paul Manafort report may be the most provably correct report in the entire dossier. Claiming (correctly) that Manafort was ousted not just because of his corrupt ties in Ukraine — a claim that Republicans have spent five years claiming was just a propaganda campaign launched by Democrats — but also because others wanted him out actually undercuts the story that has always claimed to be the most useful to Democrats. The report on Embassy staff changes was, Durham suggests, based directly off quotes Dolan got from the staffer in question; indeed, Durham points to the accuracy of those quotations to prove the report came from Dolan. There was a flourish added — that the person in question was untainted by involvement with the Russian election operation — which Danchenko disclaims, but there’s no evidence the flourish comes from Dolan (or even Danchenko — it’s the kind of thing Steele seems to have added). In other words, assuming Dolan was the source for the things Durham claims he was, Dolan seems to have been the most accurate source for the dossier.

There was an unbelievable amount of shit in the dossier and it would be useful if there were an accounting of how that happened (which Durham is not doing here). The Danchenko-to-Steele reporting process (which, contrary to Durham’s claims, Danchenko candidly laid out in his first interviews with the FBI) was one source of the problems with the dossier. But at least as much of the shit seems to come from Danchenko’s sources, several of whom had ties to Russian intelligence and who may have been deliberately injecting disinformation into the process. Instead of focusing on that — on Russians who may have been deliberately feeding lies into the process — Durham instead focuses on Dolan, not because Durham claims he wittingly shared bad information to harm Trump (his one lie served to boost an accurate story that went against the grain of the Democrats’ preferred narrative), but because as a Democrat he — not Russian spies — is being treated by Durham as an adversary.

Plus, at least as alleged in the Danchenko indictment, there’s no firsthand Hillary witness necessary to Danchenko’s conviction. The witnesses to Danchenko’s five alleged lies are all FBI personnel. The evidence against Danchenko regarding the four claimed lies about Sergei Millian involve Danchenko’s own emails and — !!! — the hearsay Twitter account of someone once and possibly still suspected of being a Russian agent. Dolan’s testimony about what he and Danchenko discussed six years ago at the Moscow Ritz will undoubtedly be of interest to the jury and still more interest to the frothy right, but not only is that not necessary to prove the single count claiming Danchenko lied about Dolan’s role in all this, it falls short of proof that Danchenko didn’t go from that lunch to speak to personnel at the Ritz himself.

Even though no one with a paid gig on the Hillary campaign is needed (or even, at least as charged, conceivably useful) as a witness against Danchenko, here’s how Keilty lays out the potential conflict.

As discussed above, the Clinton Campaign, through Law Firm-1 and U.S. Investigative Firm-1, commissioned and financed the Company Reports in an attempt to gather and disseminate derogatory information about Donald Trump. To that end, U.K. Person-1 relied primarily on the defendant to collect the information that ultimately formed the core of the allegations contained in the Company Reports. The Indictment alleges that certain statements that the defendant made to the FBI about information contained in the Company Reports, were knowingly and intentionally false. Thus, the interests of the Clinton Campaign and the defendant could potentially diverge in connection with any plea discussions, pre-trial proceedings, hearings, trial, and sentencing proceedings. Areas of inquiry that may become relevant to defense counsel’s representation of the defendant, and which also may become issues at trial or sentencing, include topics such as (1) the Clinton Campaign’s knowledge or lack of knowledge concerning the veracity of information in the Company Reports sourced by the defendant, (2) the Clinton Campaign’s awareness or lack of awareness of the defendant’s collection methods and sub-sources, (3) meetings or communications between and among the Clinton Campaign, U.S. Investigative Firm-1, and/or U.K. Person-1 regarding or involving the defendant, (4) the defendant’s knowledge or lack of knowledge regarding the Clinton Campaign’s role in and activities surrounding the Company Reports, and (5) the extent to which the Clinton Campaign and/or its representatives directed, solicited, or controlled the defendant’s activities. On each of these issues, the interests of the Clinton Campaign and the defendant might diverge. For example, the Clinton Campaign and the defendant each might have an incentive to shift blame and/or responsibility to the other party for any allegedly false information that was contained within the Company Reports and/or provided to the FBI. Moreover, it is possible that one of these parties might also seek to advance claims that they were harmed or defrauded by the other’s actions, statements, or representations. In addition, in the event that one or more former representatives of the Clinton Campaign (who are represented by defense counsel’s firm) are called to testify at any trial or other court proceeding, the defendant and any such witness would be represented by the same law firm, resulting in a potential conflict. Finally, it is also likely that defense counsel’s firm already has obtained privileged information from the Clinton Campaign regarding matters involving or relating to the defendant, the Company Reports, and the conduct alleged in the Indictment.

Some of this is the kind of fevered conspiracy theorizing that has fueled Durham for 950 days so far and sustains the Durham presumption that Hillary Clinton is a greater adversary to the United States than Russian intelligence operatives. None of it is contained within the existing indictment. It doesn’t envision as a possibility that this was all a clusterfuck better suited to a child’s game of telephone than the conspiracy Durham needs it to be. It also seems to forget that even if Danchenko lied to Christopher Steele, that would not amount to fraud on the Hillary campaign.

But it is a road map to what Durham is planning: an attempt to sic various participants in the 2016 efforts against each other such that they start entering cooperation agreements in which they spin up the grand conspiracy Durham is certain exists. It’s certainly sound prosecutorial strategy for Keilty to alert Judge Trenga that down the road they seek to pit all the subjects of their investigation against each other such that down the road, people who have never been alleged to have interacted with Danchenko personally might one day testify against him, all to support the claim that the Hillary campaign engaged in a conspiracy to defraud the FBI, DOJ, and DARPA funders.

But it raises questions about something that happened in the other active prosecution of the Durham investigation, Michael Sussmann’s. Based on court filings and what was said at a December 8 hearing in the Sussmann case, Durham has the following evidence about what Sussmann did or did not say:

  • A report written by Durham investigators, probably in conjunction with a 2017 leak investigation, in which “Durham or someone on his team questioned James Baker’s credibility.”
  • An October 3, 2018 Baker interview that conflicts with the indictment.
  • An October 18, 2018 Baker interview that conflicts with the indictment.
  • A July 15, 2019 Baker interview that conflicts with the indictment.
  • The first Durham interview with Baker on this subject, in June 2020, that conflicts with the indictment.
  • Three more Durham interviews with Baker on this subject that align with the indictment.
  • Grand jury testimony that must align with the indictment, but which had not been released to Sussmann’s cleared lawyers before the December 8 hearing.
  • Hearsay testimony from Bill Priestap that generally aligns with the indictment.
  • Hearsay testimony from another FBI witness that differs in some respects from Priestap’s and may or may not align with the indictment.
  • Testimony from two CIA witnesses at a different meeting that may or may not align with the indictment.
  • A report based on notes that have been destroyed, the final version of which differs somewhat from the indictment and may or may not align with it.
  • A draft (there seems to be some disagreement whether it is a memorandum to the file or emails) of that CIA report that reflects Sussmann mentioning a client — which therefore dramatically undermines the indictment.
  • At least one 302 reflecting an interview with Baker about another aspect of the Durham investigation.

Had Mueller believed it ethical to charge someone with evidence this contradictory — and I’m really not exaggerating when I say this — he had the goods to charge Trump with agreeing to give Russia sanctions relief in exchange for an impossibly lucrative real estate deal in Moscow. He could have charged Paul Manafort with trading $19 million in debt relief for the campaign strategy and help carving up Ukraine. He could have charged Roger Stone — and through him, Donald Trump — with entering into cooperation with the Russian hacking team before they spent September hacking Hillary’s analytics, for a still unexplained purpose.

This list of conflicting evidence that Durham has is a testament to the recklessness with which he has decided to pursue his own feverish conspiracy theories. It doesn’t mean he won’t get there. He might! It means he’s engaging in extraordinary conduct to get there.

It’s the last bullet I find particularly interesting. In the December 8 hearing, AUSA Andrew DeFilippis explained, “We did a meeting w/Mr. Baker in which we did not touch on charged conduct. We did not produce to defense.” That is, they’re withholding at least one 302 of a Durham interview in this investigation with Baker. Judge Christopher Cooper responded that he, “won’t disturb USG’s view that this is not discoverable.”

So on the one hand, Durham’s prosecutors are arguing that a conspiracy not yet charged creates conflicts for an Igor Danchenko indictment that doesn’t implicate any paid members of the Hillary campaign. But on the other hand, they’re arguing that the same investigation is sufficiently bracketed that they’re not required to provide Sussmann the records of what exposure Baker himself may have that might persuade him to change his story.

Sussmann’s attorney Sean Berkowitz observed that Baker had obviously changed his story. Durham’s team explains that’s because Baker refreshed his memory (though what we’ve seen of the contemporary records suggest there are two possible readings of them). But Sussmann could well argue that, because of criminal exposure himself, Baker changed his story to reflect what Durham wanted it to be.

As I have said, repeatedly, Durham needs Sussmann to have lied to have any hope of building this conspiracy case, and if he fails, each of the parts are far weaker.

And while claiming the conspiracy case he has not yet charged creates already existing conflicts, he’s still going to withhold the evidence of the conspiracy he’s trying to create.

John Durham’s Cut-and-Paste Failures — and Other Indices of Unreliability

It would be unfortunate if the press corps responded to evidence that significant numbers of reporters had uncritically magnified the Steele dossier by uncritically magnifying other demonstrably unreliable documents. Yet that is what has happened in response to the Igor Danchenko indictment, today in fairly notable form in a Bill Grueskin op-ed in the NYT.

Grueskin calls for more reporting

To be clear, the conclusion of Grueskin’s op-ed (like the dossier’s conclusion that members of the Trump campaign were in contact with key players in the Russian election operation and the DOJ IG Report’s conclusion that the Carter Page FISA applications were badly flawed) is absolutely correct: news organizations should come clean about past erroneous reporting on the dossier and, when in doubt, should do more reporting.

[N]ews organizations that uncritically amplified the Steele dossier ought to come to terms with their records, sooner or later. This is hard, but it’s not unprecedented. When The Miami Herald broke the news in 1987 that the Democratic presidential candidate Gary Hart was seeing a woman other than his wife, the paper followed that scoop with a 7,000-plus-word examination of its investigation, which showed significant flaws in how the paper surveilled its target.

[snip]

Newsrooms that can muster an independent, thorough examination of how they handled the Steele dossier story will do their audience, and themselves, a big favor. They can also scrutinize whether, by focusing so heavily on the dossier, they helped distract public attention from Mr. Trump’s actual misconduct. Addressing the shortcomings over the dossier doesn’t mean ignoring the corruption and democracy-shattering conduct that the Trump administration pushed for four years. But it would mean coming to terms with our conduct and whatever collateral damage these errors have caused to our reputation.

In the meantime, journalists could follow the advice I once got from Paul Steiger, who was the managing editor of The Journal when I was editing articles for the front page. Several of us went to his office one day, eager to publish a big scoop that he believed wasn’t rock solid. Mr. Steiger told us to do more reporting — and when we told him that we’d heard competitors’ footsteps, he responded, “Well, there are worse things in this world than getting beaten on a story.”

As someone who first raised concerns about the provenance of the dossier on January 11, 2017, caught a lot of grief for a long piece calling out real errors in it on September 6, 2017, and started raising concerns about disinformation in the dossier on January 29, 2018, before that became the consensus among Republicans in Congress, there are still key details about the dossier that demand more attention. But they’re not the ones that are getting the most attention.

Oleg Deripaska’s role in the dossier remains largely unreported

By far the most important unreported detail about the dossier, in my opinion, is the brutal double game Oleg Deripaska was playing with Christopher Steele and Paul Manafort. Consider the following details, all readily available in the public record:

  • In March 2016, per Igor Danchenko’s January 2017 interview report, Steele tasked him to collect information on Paul Manafort. Danchenko said he did not know the client for that project, but communications between Steele and DOJ’s Organized Crime expert Bruce Ohr FOIAed by Judicial Watch as well as documents leaked to Byron York show that Steele was doing work on behalf of Deripaska’s lawyers at the time (note that York mistakes a reference to Deripaska as “our favourite business tycoon” for Donald Trump).
  • By early July 2016 (so after just the first dossier report), according to a footnote from the DOJ IG Report declassified for Chuck Grassley and Ron Johnson, “a [person affiliated] to Russian Oligarch 1  [[Deripaska]] was [possibly aware] of Steele’s election investigation.”
  • On July 30, 2016 (so after a Deripaska associate may have learned of the dossier), according the DOJ IG Report, “Steele told Ohr that [Oleg Deripaska]‘s attorney was gathering evidence that Paul Manafort stole money from [Deripaska].”
  • On August 2, 2016, according to the Mueller Report, partly in an attempt to “get whole” on the money Deripaska accused Manafort of stealing, Manafort met with Deripaska deputy Konstantin Kilimnik and discussed, in addition to how to get that debt forgiven, “the state of the Trump Campaign and Manafort’s plan to win the election,” including, “discussion of ‘battleground’ states, which Manafort identified as Michigan, Wisconsin, Pennsylvania, and Minnesota,” and what Manafort described as a “backdoor” way for Russia to control eastern Ukraine.

Even as the investigator employed by Deripaska’s lawyers, Christopher Steele, was sharing Deripaska-sourced claims of Manafort’s corruption with DOJ, Deripaska was using Manafort’s legal and financial vulnerability arising from that corruption to learn how Trump planned to win the election and to recruit Manafort’s help in carving up Ukraine. Deripaska was working a brutal double game, using Steele as cover with DOJ and FBI even as he exploited Manafort’s vulnerability — which had been enhanced by Steele — to make demands on Manafort. That’s the core scandal of Steele’s actions in 2016. Yet reporters who entirely missed this story are being treated as experts on the problems with the dossier.

So I find Grueskin’s conclusion, there’s still reporting to be done, sound.

It’s just how gets there, by replicating the very problems he critiques, that I object to. In a piece complaining that journalists uncritically amplified the dossier, Grueskin uncritically relies on the DOJ IG Report on Carter Page and Durham’s indictment of Igor Danchenko.

The dossier’s credibility suffered a grievous blow in December 2019, when an investigation by the Department of Justice’s inspector general found that F.B.I. investigations “raised doubts about the reliability of some of Steele’s reports.” The F.B.I. “also assessed the possibility that Russia was funneling disinformation to Steele,” the report said, adding that “certain allegations were inaccurate or inconsistent with information gathered” by investigators.

Then, this month, a primary source of Mr. Steele’s was arrested and charged with lying to the F.B.I. about how he obtained information that appeared in the dossier. Prosecutors say that the source, Igor Danchenko, did not, as The Wall Street Journal first reported, get his information from a self-proclaimed real estate partner of Mr. Trump’s. That prompted a statement promising further examination from The Journal and something far more significant from The Washington Post’s executive editor, Sally Buzbee. She took a step that is almost unheard-of: removing large chunks of erroneous articles from 2017 and 2019, as well as an offending video.

Neither should be treated uncritically, particularly with regards to the dossier.

Indices of unreliability in the DOJ IG Report

The DOJ IG Report revealed its unreliability itself, issuing two sets of corrections in the days after its release. Two of those corrections pertained to the dossier. The first correction admitted that the Report had initially miscited Igor Danchenko’s interview report regarding a report Danchenko sourced to Sergei Millian, the key report at issue in the Danchenko indictment.

On pages xi, 242, 368, and 370, we changed the phrase “had no discussion” to “did not recall any discussion or mention.” On page 242, we also changed the phrase “made no mention at all of” to “did not recall any discussion or mention of.” On page 370, we also changed the word “assertion” to “statement,” and the words “and Person 1 had no discussion at all regarding WikiLeaks directly contradicted” to “did not recall any discussion or mention of WikiLeaks during the telephone call was inconsistent with.” In all instances, this phrase appears in connection with statements that Steele’s Primary Sub-source made to the FBI during a January 2017 interview about information he provided to Steele that appeared in Steele’s election reports. The corrected information appearing in this updated report reflects the accurate characterization of the Primary Sub-source’s account to the FBI that previously appeared, and still appears, on page 191, stating that “[the Primary SubSource] did not recall any discussion or mention of Wiki[L]eaks.”

Effectively, DOJ IG realized only after it published that it had not cut-and-pasted from Danchenko’s interview report accurately.

The second correction admitted that, in its original release, the IG Report had complained that the FBI had not integrated information that it learned from Danchenko starting on January 24, 2017 in a FISA reauthorization approved on January 12, 2017, a temporal impossibility.

On page 413, we changed the word, “three” to “second and third.” The corrected information appearing in this updated report reflects the accurate description of the Carter Page FISA applications that did not contain the information the FBI obtained from Steele’s Primary Sub-source in January 2017 that raised significant questions about the reliability of the Steele reporting. This information previously appeared, and still appears, accurately on pages xi, xiii, 368, and 372.

These corrections show that DOJ IG got all the way through its initial release without noticing sloppiness of the sort it found inexcusable from the FBI.

But the far more important change DOJ IG made after first publication — one that still has not been fully corrected — is that all the way through its initial release, IG investigators had misdescribed what crimes the FBI team was investigating, conflating FARA and 18 U.S.C. § 951. The error was absolutely critical, because the investigation into Carter Page was initially opened because he was willingly sharing non-public economic information with people he knew to be Russian intelligence officers. Page would have already passed certain First Amendment review required for a FARA case before the case was picked up by the Crossfire Hurricane team. The correction should have, but did not, lead to wholesale reconsideration of the First Amendment discussion in the IG Report. Relatedly, the IG Report still includes an uncorrected miscitation to a Senate Report on the statute in question, to a passage that explained that an American could be targeted for First Amendment activities if he was — as Carter Page had been prior to 2016 — “acting under the direction of an intelligence service of a foreign power.”

Incidentally, John Durham replicated this error in the first document formally filed as part of his investigation, the Kevin Clinesmith information, revealing that 15 months into his investigation into Crossfire Hurricane, he didn’t even know what crimes Crossfire Hurricane had been investigating.

The corrections the IG Report made are not the only evidence that it is not entirely reliable. The report included a number of omissions, just like the Carter Page FISA applications did. For the purposes of this post, the most important are that it made no mention of the contacts Christopher Steele and Bruce Ohr had before July 30 during 2016 — contacts that focused on Deripaska; it left out one topic of their discussion on July 30, Russian doping; and it misrepresented Ohr’s key role in providing derogatory information about Steele to the FBI that they used to vet the dossier. In other words, DOJ IG misrepresented some of the relevance of Oleg Deripaska to the Russian election operation, which may be why that remains an unreported aspect of Steele’s role in 2016.

Indices of unreliability in Durham’s Danchenko indictment

Grueskin’s — and much of the media’s — uncritical reliance on the Danchenko indictment raises still further problems. Of course, all DOJ press releases on indictments, including the one announcing Danchenko’s charges, emphasize that, “Charges contained in an indictment are only allegations.” And as reporters learn early on, prosecutors (more often state and local prosecutors, but Federal prosecutors are not immune) often make allegations that aren’t backed by the facts.

We won’t be able to fully assess the allegations that Durham has made against Danchenko until Danchenko either pleads guilty or goes to trial.

But there are three reasons not to treat this indictment as credible without further proof:

  • It fails to represent transcripts faithfully
  • It relies on Sergei Millian’s Twitter account as evidence for a key allegation
  • A number of its most newsworthy allegations are not actually charged

Durham’s misrepresentation of Danchenko’s alleged lies

Durham’s indictment of Michael Sussmann, unusually for a false statements indictment, does not quote the lie that Sussmann is alleged to have told.

By contrast, Durham does provide transcripts for some, but not all, of the lies he charges in the Danchenko indictment, though in the actual charges, he usually relies on a few words rather than the full statement of Danchenko’s alleged lie.

That means we can test Durham’s reliability by comparing the actual transcripts with how Durham describes the alleged lies in his charges. (Durham does not include the interview report for the uncharged January 24 allegation below, but it is publicly available, and Durham provided neither a transcript nor summary of Danchenko’s language relating to a November 16, 2017 interview.)

In each case, Durham’s charged lies leave out key caveats or context that appear in the actual transcripts.

In his (uncharged) allegation that Danchenko falsely claimed, on January 24, 2017, that he hadn’t told any of his associates he “worked for Chris Steele or Orbis,” Durham didn’t explain that this was a question specifically about whether Danchenko’s friends knew he collected intelligence for Orbis, not whether he knew Steele at all, nor does he reveal that Danchenko responded to the question, “yes and no.”

In the Millian-related charge pertaining to a recorded March 16, 2017 interview, Durham claimed that Danchenko “well knew” that Millian had never called him, omitting that Danchenko actually stated that “I don’t know” whether he really spoke to Millian.

In the Millian-related charge pertaining to a recorded May 18, 2017 interview, Durham omitted several key details, including that Danchenko was describing what he believed, “at the time,” (in 2016) and that he was “not sure” if Millian really called.

In the single charge relating to Charles Dolan, Durham omitted that the first question the FBI Agent asked Danchenko about Dolan on June 15, 2017 appears to pertain to whether Dolan was a source for Steele, not whether he was a source for Danchenko. It also omits Danchenko’s caveat that he and Dolan had “talked about  … related issues” to the dossier, though not anything “specific,” which is not a categorical denial that he spoke to Dolan about “any material contained” in the dossier.

In a Millian-related charge pertaining to an October 24 interview (Durham doesn’t say whether this was recorded), Durham omits that Danchenko caveated his answer by saying that the caller “was someone who I thought” — again reflecting his belief in 2016, not in 2017 — was Millian.

These omissions don’t doom Durham’s case; they don’t mean Danchenko didn’t lie. But they do show that Durham left out key language and context in the language charging these as lies.

Durham may well prove his case (the Dolan charge is, in my opinion, the strongest one), but his failures in cutting and pasting the language from the transcripts accurately suggests he cannot be relied on uncritically as a source about what really happened.

Sergei Millian’s Twitter feed is no more reliable in an indictment than outside it

All the more so given that Durham, remarkably, relies on Sergei Millian’s Twitter feed as one of the few pieces of proof that the call Danchenko believed to have come from Millian did not take place.

Chamber President-I has claimed in public statements and on social media that he never responded to DANCHEKNO’s [sic] emails, and that he and DANCHENKO never met or communicated.

Durham presents just two other pieces of evidence that the call didn’t take place, both of which post-date the first dossier report purportedly based on the call (meaning neither is proof, at all, that Danchenko didn’t believe Millian was the caller at the time he submitted the report to Steele). And he leaves out a communication Danchenko had that may corroborate the call (or at least Danchenko’s contemporaneous belief it did).

Unless there are FBI interviews with Millian that Durham is obscuring (he’s not obscuring Dolan’s interviews), it is fairly unbelievable that Durham presented this Twitter allegation to a grand jury, because it is not remotely admissible for the facts claimed at trial. Durham appears to be treating Millian — whom FBI also had a counterintelligence investigation on in 2016 — as a fact witness without requiring Millian undergo the same kind of FBI exposure that Danchenko was willing to.

That, itself, is newsworthy, because it reflects poorly on the seriousness of Durham’s case.

Journalists treating Durham’s Twitter-based allegations as credible should ask themselves why they hadn’t, themselves, treated the very same Millian assertions as credible four years earlier, before this indictment. The answer is obvious: because Twitter feeds aren’t normally sufficient proof, for prosecutors or journalists, of any fact beyond that a statement was made. Yet journalists are now taking the appearance of this Twitter claim within an indictment as proof that it is true.

Durham’s uncharged allegations

The last reason why Durham’s Danchenko indictment should be treated with skepticism is more technical but one that has been the key source of bad reporting on it.

Durham charged five false statements, a single charge relating to Charles Dolan, and four counts charging the same lie about a Sergei Millian call allegedly made in four different FBI interviews (one instance of this claimed lie, made in January 2017, is not charged).

Durham also made another allegation that he didn’t charge — the alleged lie on January 24 regarding whether Danchenko told others he was collecting intelligence for Steele.

And Durham presented, as materiality arguments, three dossier reports that Durham doesn’t allege Dolan was the direct source for, but instead, describes that he, “was otherwise involved in the events and information described in the reports.” Here’s how Durham justifies including the allegations about the pee tape as a materiality claim.

Based on the foregoing, DANCHENKO’s lies to the FBI denying that he had communicated with PR Executive-I regarding information in the Company Reports were highly material. Had DANCHENKO accurately disclosed to FBI agents that PR Executive-I was a source for specific information in the aforementioned Company Reports regarding Campaign Manager-1 ‘s departure from the Trump campaign, see Paragraphs 45-57, supra, the FBI might have taken further investigative steps to, among other things, interview PR Executive-I about (i) the June 2016 Planning Trip, (ii) whether PR Executive-I spoke with DANCHENKO about Trump’s stay and alleged activity in the Presidential Suite of the Moscow Hotel, and (iii) PR Executive-1 ‘s interactions with General Manager-I and other Moscow Hotel staff. In sum, given that PR Executive-I was present at places and events where DANCHENKO collected information for the Company Reports, DANCHENKO’s subsequent lie about PR Executive-1 ‘s connection to the Company Reports was highly material to the FBI’ s investigation of these matters.

Durham doesn’t claim that Dolan was the source for the pee tape (though a number of media outlets have claimed he did, even while complaining about bad reporting on the dossier). A likely — and damning — potential explanation is that Danchenko learned from Dolan the name of Ritz Hotel staffers and then used their names, without interviewing them, to make the pee tape rumor Danchenko sourced to a Russian friend of his look more credible. But there’s no hint that Dolan willfully participated in the manufacture of the pee tape report (indeed, the indictment provides several reasons to believe he did not). Durham actually doesn’t even claim that he knows what Dolan’s role was in the pee tape, other than inviting Danchenko to the Ritz for lunch. For example, he may not be able to rule out that, after getting the names of Ritz staffers from Dolan, Danchenko interviewed them. Nor does Durham claim to know what happened with the other two Dolan-related allegations he includes as materiality arguments.

But based off a long narrative presented as a materiality argument, not a separate charged crime (it’s all part of Danchenko’s alleged denial of discussing anything specific that appeared in the dossier), multiple reporters have claimed that there are charges, plural, tied to Dolan and that a Clinton associate had a role in manufacturing the pee tape claim. Neither claim is supported by the Danchenko indictment, but the misimpression may be what Durham was hoping to accomplish by including it.

Durham did something similar in the Sussmann indictment, and as lawyers for both Sussmann and Danchenko have noted, the move impermissibly presents Rule 404(b) information in an indictment, information about motive or other bad acts that might be presented at trial with prior approval from the judge to help prove the case. By doing it, Durham skirts a DOJ rule (the one Jim Comey broke in 2016) against making public allegations that DOJ is not prepared to prove beyond a reasonable doubt.

Effectively, these materiality claims are the equivalent of journalistic scoops that aren’t rock solid that — Paul Steiger told Grueskin years ago — require more investigation before charging or reporting. These materiality claims are no more substantive than the reports in the Steele dossier.

And yet some in the press are treating them as such, most often by treating them (or at least the pee tape one) as a separate charge, and claiming that Durham has alleged something about the pee tape that he has not.

Durham’s Danchenko indictment may one day prove — like the dossier, the DOJ IG Report, and Grueskin’s op-ed — generally right, even if some of the facts in it are wrong.

But it hasn’t yet proven any more reliable, with regards to specific facts, than the dossier itself. And there are several signs that it is not reliable.

It would be a mistake to respond to the bad reporting on the dossier by replicating the same bad habits with the Danchenko indictment.

Danchenko posts

The Igor Danchenko Indictment: Structure

John Durham May Have Made Igor Danchenko “Aggrieved” Under FISA

“Yes and No:” John Durham Confuses Networking with Intelligence Collection

Daisy-Chain: The FBI Appears to Have Asked Danchenko Whether Dolan Was a Source for Steele, Not Danchenko

Source 6A: John Durham’s Twitter Charges

John Durham: Destroying the Purported Victims to Save Them

John Durham’s Cut-and-Paste Failures — and Other Indices of Unreliability

Aleksej Gubarev Drops Lawsuit after DOJ Confirms Steele Dossier Report Naming Gubarev’s Company Came from His Employee

In Story Purporting to “Reckon” with Steele’s Baseless Insinuations, CNN Spreads Durham’s Unsubstantiated Insinuations

On CIPA and Sequestration: Durham’s Discovery Deadends

The Disinformation that Got Told: Michael Cohen Was, in Fact, Hiding Secret Communications with the Kremlin

Some Perspective on the Politicized Leak Investigation Targeting Adam Schiff

The NYT reported the other day that DOJ obtained phone records of Adam Schiff, Eric Swalwell, and a bunch of House Intelligence Committee staffers in the guise of what it reports is a leak investigation (though given the specific form of Bill Barr’s prevarications about his knowledge, may have been repackaged as something else when the investigation was resuscitated in 2020).

Prosecutors subpoenaed Apple for data from the accounts of at least two Democrats on the House Intelligence Committee, aides and family members. One was a minor.

All told, the records of at least a dozen people tied to the committee were seized in 2017 and early 2018, including those of Representative Adam B. Schiff of California, then the panel’s top Democrat and now its chairman, according to committee officials and two other people briefed on the inquiry. Representative Eric Swalwell of California said in an interview Thursday night that he had also been notified that his data had subpoenaed.

Prosecutors, under the beleaguered attorney general, Jeff Sessions, were hunting for the sources behind news media reports about contacts between Trump associates and Russia. Ultimately, the data and other evidence did not tie the committee to the leaks, and investigators debated whether they had hit a dead end and some even discussed closing the inquiry.

But William P. Barr revived languishing leak investigations after he became attorney general a year later. He moved a trusted prosecutor from New Jersey with little relevant experience to the main Justice Department to work on the Schiff-related case and about a half-dozen others, according to three people with knowledge of his work who did not want to be identified discussing federal investigations.

The initial collection and especially the subsequent treatment were clearly politicized — and more importantly, stupid, from an investigative standpoint. But, especially because this involves Adam Schiff, some exactitude about what went on really is required.

This is not spying

First, this is not “spying.” If the use of informants to investigate members of the Trump campaign and Hillary Clinton’s Foundation during a political campaign is not spying, if the use of a lawful FISA to conduct both physical and electronic surveillance on recently departed campaign volunteer Carter Page is not spying — and Adam Schiff said they were not, and I agree — then neither is the use of a subpoena to collect the phone records of Democrats who had knowledge of information that subsequently leaked in a fully predicated (and very serious) leak investigation.

This is “just” metadata

According to all reports, the government obtained the iPhone metadata records of 73 phone numbers and 36 email addresses. Apple suggests other tech companies probably got subpoenas, too, which means that some of those email addresses probably weren’t Apple emails.

But it was — as Adam Schiff said many times when defending a program that aspired to collect “all” the phone records in the United States — “just” metadata.

I don’t mean to belittle the impact of that. As I and others argued (against Schiff), metadata is actually profoundly revealing.

But if this is a problem (it is!), then people like Adam Schiff should lead a conversation about whether the standard on collection of metadata — currently, it only needs to be “relevant to” an investigation — is what it should be, as well as the rules imposed on future access to the data once collected prevent abuse.

Apple (and other tech companies) wouldn’t have known this was Adam Schiff

Even people who understand surveillance seem to believe that Apple would have known these requests targeted Adam Schiff in a leak investigation and therefore should have done more to fight it, as if the actual subpoena would be accompanied with an affidavit with shiny flags saying “HPSCI Ranking Member.”

They wouldn’t have. They would have gotten a list of selectors (some of which, by its description, it probably did not service), a description of the crime being investigated (a leak), and a gag order. The one thing that should have triggered closer review from Apple was the number of selectors. But apparently it did not, and once Apple complied, the data was swept up into the FBI’s servers where it presumably remains.

The subpoena was overly broad and not tailored to limit damage to Schiff

All that said, there were aspects of the subpoena that suggest it was written without any consideration for limiting the damage to Congressional equities or reasonable investigative targets. Focusing on these details are important because they distinguish what is really problematic about this (and who is to blame). According to reports, the subpoena:

  • Obtained information from a minor, who would have had no access to classified information
  • Included a series of year-long gags
  • Obtained all the toll records from date of creation
  • May have focused exclusively on Democratic members and staffers

It’s conceivable that, after years of investigation, DOJ would have reason to believe someone was laundering leaks through a child. But given how broad this subpoena is, it’s virtually impossible the affidavit included that kind of specific knowledge.

With journalists, DOJ is supposed to use shorter gags–three months. The series of year-long gags suggests that DOJ was trying to hide the existence of these subpoenas not just to hide an investigation, but to delay the political embarrassment of it.

There’s no reason to believe that Adam Schiff leaked a FISA application targeting Carter Page first obtained in 2016 in 2009 (or whenever the Californian lawmaker first set up his Apple account). It’s a physical impossibility. So it is completely unreasonable to imagine that years-old toll records would be “relevant to” a leak investigation predicated off a leak in 2017. Mind you, obtaining all records since the inception of the account is totally normal! It’s what DOJ did, for example, with Antionne Brodnax, a January 6 defendant who got notice of subpoenas served on him, but whose attempt to limit the subpoena failed because those whose records are subpoenaed have no authority to do that. There are two appropriate responses to the unreasonable breadth of this request: both a focus on the failure to use special caution with Congressional targets, but also some discussion about how such broad requests are unreasonable regardless of the target.

Given the number of these selectors, it seems unlikely DOJ did more than ID the people who had access to the leaked information in question. Except if they only obtained selectors for Democrats, it would suggest investigators went into the investigation with the assumption that the leak was political, and that such a political leak would necessarily be partisan. That’s simply not backed by exhibited reality, and if that’s what happened, it should force some scrutiny on who made those assumptions. That’s all the more true given hints that Republicans like Paul Ryan may have tipped Page off that he had been targeted.

These kinds of limiting factors are where the most good can come out of this shit-show, because they would have a real impact and if applied broadly would help not just Schiff.

Barr continued to appoint unqualified prosecutors to do his political dirty work

I think it would be useful to separate the initial records request — after all, the leak of a FISA intercept and the target of a FISA order are virtually unprecedented — from the continued use of the records in 2020, under Billy Barr.

The NYT explains that the initial investigators believed that charges were unlikely, but Barr redoubled efforts in 2020.

As the years wore on, some officials argued in meetings that charges were becoming less realistic, former Justice Department officials said: They lacked strong evidence, and a jury might not care about information reported years earlier.

[snip]

Mr. Barr directed prosecutors to continue investigating, contending that the Justice Department’s National Security Division had allowed the cases to languish, according to three people briefed on the cases. Some cases had nothing to do with leaks about Mr. Trump and involved sensitive national security information, one of the people said. But Mr. Barr’s overall view of leaks led some people in the department to eventually see the inquiries as politically motivated.

[snip]

After the records provided no proof of leaks, prosecutors in the U.S. attorney’s office in Washington discussed ending that piece of their investigation. But Mr. Barr’s decision to bring in an outside prosecutor helped keep the case alive.

[snip]

In February 2020, Mr. Barr placed the prosecutor from New Jersey, Osmar Benvenuto, into the National Security Division. His background was in gang and health care fraud prosecutions.

Barr used this ploy — finding AUSAs who were unqualified to work on a case that others had found no merit to — on at least three different occasions. Every document John Durham’s team submitted in conjunction with the Kevin Clinesmith prosecution, for example, betrayed that investigators running it didn’t understand the scope of the Crossfire Hurricane investigation (and thereby also strongly suggested investigators had no business scrutinizing a counterintelligence investigation at all). The questions that Jeffrey Jensen’s team, appointed by Barr to review the DOJ IG investigation and the John Durham investigation to find conclusions they didn’t draw, asked Bill Barnett betrayed that the gun crimes prosecutors running it didn’t know fuckall about what they were doing (why Barnett answered as he did is another thing, one that DOJ IG should investigate). And now here, he appointed a health care fraud prosecutor to conduct a leak investigation after unbelievably aggressive leak investigators found nothing.

DOJ IG should include all of those investigations in its investigation, because they all reflect Barr’s efforts to force prosecutors to come to conclusions that the evidence did not merit (and because the Jensen investigation, at least, appears to have altered records intentionally).

FBI never deletes evidence

In an attempt to disclaim responsibility for yet more political abuse, Billy Barr issued a very interestingly worded disavowal.

Barr said that while he was attorney general, he was “not aware of any congressman’s records being sought in a leak case.” He added that Trump never encouraged him to zero in on the Democratic lawmakers who reportedly became targets of the former president’s push to unmask leakers of classified information.

There are two parts to this: One, that “while he was attorney general,” Congresspersons’ records were not sought, and two, sought in a leak case. The original subpoena for these records was in February 2018, so not during Barr’s tenure as Attorney General. He doesn’t deny asking for those previously-sought records to be reviewed anew while Attorney General.

But he also limits his disavowal to leak cases. Under Barr’s fervent imagination, however, these investigations may well have morphed into something else, what he may have imagined were political abuse or spying violation cases. DOJ can and often does obtain new legal process for already obtained records (which would be unnecessary anyway for toll records), so it is not outside the realm of possibility that Barr directed his unqualified prosecutor to use those already-seized records to snoop into some other question.

It’s a pity for Adam Schiff that no one in charge of surveillance in Congress imposed better trackability requirements on FBI’s access of its investigative collections.

Both an IG investigation and a Special Counsel are inadequate to this investigation

Lisa Monaco asked Michael Horowitz to investigate this investigation. And that’s fine: he can access the records of the investigation, and the affidavits. He can interview the line prosecutors who were tasked with this investigation.

But he can’t require Barr or Jeff Sessions or any of the other Trump appointees who ordered up this investigation to sit for an interview (he could move quickly and ask John Demers to sit for an interview).

Because of that, a lot of people are asking for a Special Counsel to be appointed. That would be nice, except thus far, there’s no evidence that a crime was committed, so there is no regulatory basis to appoint a Special Counsel. The standard for accessing records is very low, any special treatment accorded journalists or members of Congress are not written into law, and prosecutorial discretion at DOJ is nearly sacrosanct. The scandal is that this may all be entirely legal.

Mind you, there’s good reason to believe there was a crime committed in the Jeffrey Jensen investigation, the same crime (altering documents) that Barr used to predicate the Durham Special Counsel appointment. So maybe people should revisit that?

Luckily, Swalwell and Schiff know some members of Congress who can limit such abuses

If I learned that DOJ engaged in unreasonable surveillance on me [wink], I’d have no recourse, largely because of laws that Adam Schiff has championed for years.

But as it happens, Schiff and Swalwell both know some members of Congress who could pass some laws limiting the ability to do some of the things used against them that affect thousands of Americans investigated by the FBI.

Now that Adam Schiff has discovered, years after we tried to reason with him on this point, that “it’s just metadata” doesn’t fly in this day and age, maybe we can talk about how the FBI should be using metadata given how powerful it has become?

The renewed focus on Schiff’s metadata would have come after Schiff disclosed Nunes’ ties to Rudy Giuliani’s grift

Another factor of timing hasn’t gotten enough attention. In late December, Schiff released the Democrats’ impeachment report. Because Schiff obtained subpoenas (almost certainly targeting Lev Parnas and Rudy Giuliani), he included call records of calls implicating Devin Nunes and his staffer Derek

Over the course of the four days following the April 7 article, phone records show contacts between Mr. Giuliani, Mr. Parnas, Representative Devin Nunes, and Mr. Solomon. Specifically, Mr. Giuliani and Mr. Parnas were in contact with one another, as well as with Mr. Solomon.76 Phone records also show contacts on April 10 between Mr. Giuliani and Rep. Nunes, consisting of three short calls in rapid succession, followed by a text message, and ending with a nearly three minute call.77 Later that same day, Mr. Parnas and Mr. Solomon had a four minute, 39 second call.78

[snip]

On the morning of May 8, Mr. Giuliani called the White House Switchboard and connected for six minutes and 26 seconds with someone at the White House.158 That same day, Mr. Giuliani also connected with Mr. Solomon for almost six minutes, with Mr. Parnas, and with Derek Harvey, a member of Representative Nunes’ staff on the Intelligence Committee.159

69 AT&T Document Production, Bates ATTHPSCI _20190930_00848-ATTHPSCI_20190930_00884. Mr. Parnas also had an aborted call that lasted 5 seconds on April 5, 2019 with an aide to Rep. Devin Nunes on the Intelligence Committee, Derek Harvey. AT&T Document Production, Bates ATTHPSCI_20190930_00876. Call records obtained by the Committees show that Mr. Parnas and Mr. Harvey had connected previously, including a four minute 42 second call on February 1, 2019, a one minute 7 second call on February 4, and a one minute 37 second call on February 7, 2019. AT&T Document Production, Bates ATTHPSCI_20190930_00617, ATTHPSCI_20190930_00630, ATTHPSCI_20190930_00641. As explained later in this Chapter, Rep. Nunes would connect separately by phone on April 10, 11, and 12 with Mr. Parnas and Mr. Giuliani. AT&T Document Production, Bates ATTHPSCI_20190930_00913- ATTHPSCI_20190930_00914; ATTHPSCI_20190930-02125.

76 Specifically, between April 8 and April 11, phone records show the following phone contacts:

  • six calls between Mr. Giuliani and Mr. Parnas (longest duration approximately five minutes), AT&T Document Production, Bates ATTHPSCI_20190930-02115-ATTHPSCI_20190930-02131;
  • four calls between Mr. Giuliani and Mr. Solomon (all on April 8, longest duration approximately one minute, 30 seconds) AT&T Document Production, Bates ATTHPSCI_20190930-02114- ATTHPSCI_20190930-02115;
  • nine calls between Mr. Parnas and Mr. Solomon (longest duration four minutes, 39 seconds) AT&T Document Production, Bates ATTHPSCI_20190930-00885- ATTHPSCI_20190930- 00906; and
  • three calls between Mr. Parnas and Ms. Toensing (longest duration approximately six minutes), AT&T Document Production, Bates ATTHPSCI_20190930-00885- ATTHPSCI_20190930- 00905.

77 AT&T Document Production, Bates ATTHPSCI_20190930-02125, ATTHPSCI_20190930-03236.

78 AT&T Document Production, Bates ATTHPSCI_20190930-00902.

[snip]

158 AT&T Document Production, Bates ATTHPSCI_20190930_02313.

159 AT&T Document Production, Bates ATTHPSCI_20190930_02314; ATTHPSCI_20190930_02316; ATTHPSCI_20190930_02318; ATTHPSCI 20190930 01000.

Because Nunes doesn’t understand how phone records work, he — and most other Republicans in Congress — accused Schiff of subpoenaing the record of his colleagues. That’s not what happened. Instead, Nunes and a key staffer got involved in with Rudy’s efforts to solicit dirt from Russian assets and as a result they showed up in Rudy’s phone records.

But it’s the kind of thing that might lead Barr to intensify his focus on Schiff.

The last section of this was an update.

675 Days In, the Durham Investigation Has Lasted Longer than the Mueller Investigation

Today marks the 675th day of the Durham investigation into the origins and conduct of the investigation that became the Mueller investigation. That means Durham’s investigation has lasted one day longer than the entire Mueller investigation, which Republicans complained lasted far too long.

The single solitary prosecution Durham has obtained in that span of time in which Mueller prosecuted George Papadopoulos, Mike Flynn, Paul Manafort, Rick Gates, Richard Pinedo, Alex Van der Zwan, Michael Cohen (for his lies about Trump’s Trump Tower Moscow deal) was the guilty plea of Kevin Clinesmith, based on conduct discovered by DOJ Inspector General Michael Horowitz.

In addition to those prosecutions, Mueller referred further Cohen charges to SDNY, Sam Patten for prosecution to DC, and Bijan Kian for prosecution in EDVA. Mueller charged Roger Stone and handed that prosecution off to DC. He further charged Konstantin Kilimnik, 12 IRA trolls, Yevgeniy Prigozhin, and 12 GRU officers. He referred Paul Manafort’s influence peddling partners, Republican and Democratic alike, for further investigation, leading to the failed prosecution of Greg Craig. Mueller referred 12 other matters — most still sealed — for further investigation, along with the Egyptian bribery investigation originally started in DC.

Meanwhile, Durham has never released a public budget, though by regulation he had to submit a budget request to DOJ in December.

Say what you will about Mueller’s investigation. But it was an investigation that showed real results. Durham, meanwhile, has been churning over the work that DOJ IG already did for as long as Mueller’s entire investigation.

While Lindsey Graham Was Stalling Merrick Garland’s Confirmation He Was Hoping for Imminent Hunter Biden and John Durham News

One of the very last things Lindsey Graham did as Senate Judiciary Chair was to send a letter to Acting Attorney General Monty Wilkinson urging him not to do anything about two investigations that — according to his addled little brain — “Democrats would rather go away.” In addition to the Delaware investigation of Hunter Biden, Lindsey included the John Durham investigation in that.

I was even the primary sponsor of bipartisan legislation, favorably reported out of the Senate Judiciary Committee, to protect Special Counsel Mueller’s probe from being terminated. Special Counsel Mueller of course found no evidence of collusion between the Trump campaign and Russia, but it was important for public trust that the probe be completed without interference.

We now find the shoe on the other foot. We have two properly predicated, ongoing investigations Democrats would rather go away: Special Counsel John Durham’s investigation of the Crossfire Hurricane investigation and the investigation by the Delaware U.S. Attorney’s Office into Hunter Biden. Special Counsel Durham’s probe has already yielded a felony conviction.

I am writing to respectfully request that you refrain from interfering in any way with either investigation while the Senate processes the nomination of Judge Merrick Garland to the position of Attorney General. The American public deserve the truth and must know that these investigations will continue without political interference.

There’s a lot that’s ridiculous about this letter. It is laughably false to claim that Mueller “found no evidence of ‘collusion,'” — that would be a false claim even if Lindsey had used the legally relevant term of “conspiracy.”

The shoe is not on the other foot. In contradistinction to Trump’s incessant focus on the Russian investigation, there has been no peep about these investigations from the Biden White House. Instead, Hunter Biden rolled out a book deal the other day, which led his father to focus on the import of recovery from addiction, not legal risk.

Lindsey waves Durham’s single felony conviction around — as compared to Mueller’s much more productive investigation and based on evidence entirely derived from Michael Horowitz’ investigation — even after presiding FISA Judge James Boasberg concluded that Kevin Clinesmith did not commit that crime out of any ill-will and sentenced him to a year of probation.

It’s just such a pathetic effort to sustain conspiracy theories Trump chased, and in spite of the Fox News piece on this letter quoting someone that sounds remarkably like Lindsey Graham talking about an ongoing investigation he shouldn’t know about off the record, it’s not actually clear that either of these will result in a showy prosecution. Hell, for all we know, Durham has shifted his focus to what the FBI Agents who were sending pro-Trump tweets on their phones did during the investigation or why Bill Barr’s DOJ submitted altered documents to a criminal docket, precisely the crime Clinesmith pled guilty to.

To repeat, Graham wrote this to urge Wilkinson, who remains in charge of DOJ and oversees the Durham investigation (Acting Deputy Attorney General John Carlin probably oversees the Hunter Biden one) because Merrick Garland remains the most senior Cabinet official who hasn’t been confirmed yet. This was one of his last acts as Chair of SJC.

But the other major final stunt before handing his gavel over to Dick Durbin was precisely that delay. In spite of Garland’s bipartisan support and in spite of Durbin’s exhortations to stop delaying, Lindsey simply didn’t take up Garland’s nomination when he counterparts were doing so. And so DOJ may not get a confirmed Attorney General until late February or early March.

Probably, Lindsey primarily stalled this confirmation just to impose a price on Democrats for impeaching the former President.

But I had been wondering whether Lindsey didn’t have more in mind, perhaps the delay of charges that DOJ would not unseal without Garland’s sanction. And that may be the case.

But along with that delay, Lindsey has also delayed his opportunity to obtain assurances from Garland that he’ll leave these two investigations Lindsey is obsessed about untouched.

Kevin Clinesmith Sentenced to a Year of Probation

Judge James Boasberg just sentenced Kevin Clinesmith to a year of probation for altering a CIA email describing Carter Page’s prior relationship with the CIA.

Carter Page spoke at some length in his typical rambling style. Notably, he did not call for a harsh sentence for Clinesmith. And much of what he said was irrelevant to the sentencing (he seemed to be pitching to be a FISC amicus, as if the ties between him and Russian intelligence weren’t real concerns).

Anthony Scarpelli, arguing for the government, did not repeat a claim made in their sentencing memorandum, that Clinesmith may have made this alteration for political reasons. Judge Boasberg noted that the DOJ IG Report had found no evidence of such.

The government did suggest that Clinesmith had altered the email for more than just to avoid the work of correcting it. Boasberg didn’t see it that way. He found the argument of Clinesmith’s lawyer, Justin Shur, compelling that there was no personal benefit to Clinesmith because he wasn’t on the hook for the earlier mistakes in the application.

Boasberg also made a quip that, unlike certain politicians, Clinesmith had not chosen to be in the public limelight.

The hearing was perhaps most interesting for Boasberg’s comments, as the presiding FISA judge presiding over a criminal case pertaining to FISA, about the import of the FISA court’s role in checking Executive authority. I’ll return to those comments when a transcript is available.

Ultimately, then, this closes the most productive aspect of the Durham investigation, which has gone on almost as long as the investigation it is supposed to investigate.

Billy Barr Makes Excuses for His C- Durham Investigation Report Card

Either Billy Barr didn’t believe his bullshit would withstand even the obsequious questioning of Pierre Thomas or Pete Williams, or he felt the need to re-set the expectations for the Durham investigation that he set sky high when it started, because one of his first exit interviews was with WSJ’s propagandist Kim Strassel.

There’s the typical propaganda in here: Strassel’s attempt to claim all the politicized decisions he made were instead brave tough choices and she reports Barr’s admission that he came in to end the Russian investigation without noting that, in the past, he admitted when he came in he didn’t know anything about.

But there’s an interesting framing that suggests Barr knows he badly oversold his claims about the Mueller investigation and the FBI investigation that led to it, and oversold his Durham investigation even more.

Of the Russian investigation, Barr first claims, as fact, that a small group of people used the Russian investigation to topple the Trump “administration,” ignoring the illogic of that claim, since had they really wanted to thwart Trump, they would have done so during the election.

He reminds me why he took the job in the first place: “The Department of Justice was being used as a political weapon” by a “willful if small group of people,” who used the claim of collusion with Russia in an attempt to “topple an administration,” he says. “Someone had to make sure that the power of the department stopped being abused and that there was accountability for what had happened.” Mr. Barr largely succeeded, in the process filling a vacuum of political oversight, reimposing norms, and resisting partisan critics on both sides.

A paragraph later, Barr says that Mueller should have done the work he claims Durham is doing, by refusing to take in garbage (we’ve already seen abundant evidence that Mueller chased down disinformation, including the Steele dossier, as disinformation).

Mr. Barr says Mr. Durham’s appointment should not have been necessary. Mr. Mueller’s investigation should have exposed FBI malfeasance. Instead, “the Mueller team seems to have been ready to blindly accept anything fed to it by the system,” Mr. Barr says, adding that this “is exactly what DOJ should not be.”

In-between the two, Barr reiterated his bullshit claim that there was no evidence of “collusion.”

Mr. Barr describes an overarching objective of ensuring that there is “one standard of justice.” That, he says, is why he appointed U.S. Attorney John Durham to investigate the FBI’s 2016 Crossfire Hurricane probe. “Of course the Russians did bad things in the election,” he says. “But the idea that this was done with the collusion of the Trump campaign—there was never any evidence. It was entirely made up.” The country deserved to know how the world’s premier law-enforcement agency came to target and spy on a presidential campaign.

Ignore for a second that a passage of the Mueller Report that Barr stalled to declassify until the height of the election showed that Mueller referred the investigation into whether Roger Stone conspired with Russia to the DC US Attorney, ignore that Paul Manafort lied about what he and his partner the Russian spy were doing, ignore that Barr and Trump will attempt to make both of those ongoing investigations go away with pardons issued in minutes or days.

Barr suggests that Mueller’s conclusion that he didn’t have enough evidence to charge a conspiracy equates to claims of “collusion” being “entirely made up.” That is, if there’s not enough evidence to charge a crime, then even the lower level non-crime of “arglebargle” didn’t happen, even though SSCI staffers said it did.

So, for the Mueller investigation, Barr suggests no garbage should come in, and if no indictments (aside from the 30 or so that did) come out, then there was nothing to see there.

From there, Barr proceeds to make two paragraphs of excuses as to why Durham has found nothing in the same 20 months that Mueller indicted over 30 people, 3 corporations, and paid for much of the investigation.

Mr. Durham hasn’t finished his work, to the disappointment of many Republicans, including the president, who were hoping for a resolution—perhaps including indictments—before the election. Mr. Barr notes that Mr. Durham had to wait until the end of 2019 for Inspector General Michael Horowitz to complete his own investigation into the FBI’s surveillance. Then came the Covid lockdowns, which suspended federal grand juries for six months. Mr. Durham could no longer threaten to subpoena uncooperative witnesses.

“I understand people’s frustration over the timing, and there are prosecutors who break more china, so to speak,” Mr. Barr says. “But they don’t necessarily get the results.” Mr. Durham will, and is making “significant progress,” says Mr. Barr, who disclosed this month that he had prior to the election designated Mr. Durham a special counsel, to provide assurance that his team would be able to finish its work. The new designation also assures that Mr. Durham will produce a report to the attorney general. Mr. Barr believes “the force of circumstances will ensure it goes public” even under the new administration.

Again, Durham has brought one indictment in the time that Mueller had indicted 33 people (and even the least-politicized investigation into Hunter Biden has gone on longer than the entire Mueller investigation). Which maybe explains why Barr offers up excuses why Durham hasn’t found anything except what Michael Horowitz found for him, the Kevin Clinesmith document alteration.

He offers more, later, but not before he uses a different tack to explain away the futility of his examination. He explains, in passing, that the scope has gotten smaller. He doesn’t mention something he has already admitted in the past — that Durham spent a lot of time (on boondoggle trips to Europe, Barr doesn’t say) chasing down and disproving George Papadopoulos’ conspiracy theories. He does, however, confess that Durham determined before October that the CIA didn’t just make shit up.

The biggest news from Mr. Durham’s probe is what he has ruled out. Mr. Barr was initially suspicious that agents had been spying on the Trump campaign before the official July 2016 start date of Crossfire Hurricane, and that the Central Intelligence Agency or foreign intelligence had played a role. But even prior to naming Mr. Durham special counsel, Mr. Barr had come to the conclusion that he didn’t “see any sign of improper CIA activity” or “foreign government activity before July 2016,” he says. “The CIA stayed in its lane.”

Let me interrupt and observe that Barr bitched that Mueller “blindly accept[ed] anything fed to it by the system,” but here admits that two things he personally fed to Durham — Papadopoulos’ conspiracy theories and politicized claims that the CIA had it in for Trump — were garbage. Barr has just confessed he did what he accuses Mueller (with no evidence) of doing.

Several paragraphs later, Barr asserts, as fact, that the politicized Jeffrey Jensen investigation he ordered up (again, garbage in) concluded that Flynn’s prosecution was “entirely bogus.”

Also outrageous, in Mr. Barr’s view, was the abuse of power by both the FBI and the Mueller team toward Mr. Trump’s associates, especially Mr. Flynn. The FBI, as a review by U.S. Attorney Jeff Jensen found, pulled Mr. Flynn into an interview that had “no legitimate investigative basis.” The Mueller team then denied Mr. Flynn’s legal defense exculpatory information and pressured Mr. Flynn into pleading guilty to lying.

Mr. Barr didn’t order a review of the case until Mr. Flynn petitioned to withdraw his guilty plea in January 2020. Mr. Jensen’s review then made clear that the case “was entirely bogus,” Mr. Barr says. “It was analogous right now to DOJ prosecuting the person Biden named as his national security adviser for communication with a foreign government.” The Justice Department agreed to drop the charges in May, although Judge Emmet Sullivan spent months contesting the move until Mr. Trump finally pardoned Mr. Flynn. Mr. Barr declines to comment on Judge Sullivan’s maneuvering.

Except, of course, “Sullivan’s maneuvering,” (AKA, being a judge) rejected that claim, and pointedly found the claims Barr invented were unpersuasive given the claims that Bill Barr’s own DOJ had already made in his court. The legally valid conclusion is that Barr’s talking shite here, to say nothing of whatever Strassel is doing.

Then, going back a bit, Barr describes Durham’s narrowly circumscribed scope (assuming Biden’s AG doesn’t expand it to look at how Barr and others undermined the Russian investigation, including by committing the same crime Kevin Clinesmith pled guilty to). We’re down to a dead-ender investigation into the FBI agents (presumably, unless Biden’s AG expands the scope, excluding Bill Barnett, whose Jensen interview report conflicts with his own actions on the Flynn case).

Mr. Barr says Mr. Durham’s probe is now tightly focused on “the conduct of Crossfire Hurricane, the small group at the FBI that was most involved in that,” as well as “the activities of certain private actors.” (Mr. Barr doesn’t elaborate.) Mr. Durham has publicly stated he’s not convinced the FBI team had an adequate “predicate” to launch an investigation. In September, Director of National Intelligence John Ratcliffe declassified a document showing that the FBI was warned in 2016 that the Hillary Clinton campaign might be behind the “collusion” claims.

Mr. Barr says Mr. Durham is also looking at the January 2017 intelligence-community “assessment” that claimed Russia had “developed a clear preference” for Mr. Trump in the 2016 election. He confirms that most of the substantive documents related to the FBI’s investigation have now been made public.

SSCI has already judged Barr is wrong about the latter point. So Barr is basically left with the Steele dossier and those who used it as they would any other informant report, especially an informant report from a former intelligence partner.

Barr is, you’ll be unsurprised to know, lying when he claims, “most of the substantive documents related to the FBI’s investigation have now been made public.” More on that in time for January 21, I hope.

So thus far, Barr offers the following excuses, after narrowing the scope to eliminate all the worse-than-Steele dossier bullshit he introduced.

  • Had to wait for Horowitz to find the only crime
  • Too careful
  • Too much sickness
  • Too many conspiracy theories (all included by Barr) to debunk
  • [Unstated: Too many boondoggles]
  • A prosecutor whose team altered documents (like Clinesmith) made a claim a judge shot down

Having done all that, Barr then resorts to the inverse of the attack he makes on the 34-indictment Mueller investigation:

The attorney general also hopes people remember that orange jumpsuits aren’t the only measure of misconduct. It frustrates him that the political class these days frequently plays “the criminal card,” obsessively focused on “who is going to jail, who is getting indicted.”

The American system is “designed to find people innocent,” Mr. Barr notes. “It has a high bar.” One danger of the focus on criminal charges is that it ends up excusing a vast range of contemptible or abusive behavior that doesn’t reach the bar. The FBI’s use “of confidential human sources and wiretapping to investigate people connected to a campaign was outrageous,” Mr. Barr says—whether or not it leads to criminal charges.

Never mind that Barr claims the FBI used wiretapping to investigate “people connected to a campaign,” which is false (the use of informants is true, except Barr is not here complaining that the FBI counts the use of informants against everyone else as one of the most unintrusive means of investigation, which would be the proper conclusion Barr should take from his discomfort at how they were used here).

Barr’s final excuse for the fact that he’s been making grand claims of abuse for years but found nothing is that no one has been put into an orange jumpsuit yet. “The American system is “designed to find people innocent,'” Billy Barr told WSJ’s propagandist. And so people shouldn’t assume that his two year witch hunt has come up dry.

The issue — says the guy turning a no conspiracy charge into a no collusion claim — is that the American system is, “designed to find people innocent.”

Bill Barr claims he believes in, “one standard of justice,” even while making wild accusations for years that have turned out (his narrow scope implicitly admits) to be false. But he apparently believes in two standards of performance. John Durham’s single prosecution over 20 months, on a charge gift-wrapped for him by Michael Horowitz — that’s smoking gun proof of abuse. But Mueller’s 37 indictments, including obstruction-related charges for Trump’s campaign manager, deputy campaign manager, lawyer, rat-fucker, National Security Advisor, and coffee boy, along with an ongoing investigation into the rat-fucker for conspiring with Russia. That’s nothing, “entirely made up.”

There’s still room for abuse and it’s clear Durham doesn’t understand what he’s looking at. But in the end, Barr’s micromanaged witch hunt couldn’t match what Robert Mueller did. And Barr is probably feeling pretty insecure about that on the way out.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

20 Months: A Comparison of the Mueller and Durham Investigations

Because Jonathan Turley and John Cornyn are being stupid on the Internet, I did a Twitter thread comparing the relative output of the Mueller and Durham investigations in their first 18 months. Actually, Durham has been investigating the Russian investigation for 20 months already.

So I did a comparison of the Mueller and Durham investigations over their first 20 months. Here’s what that comparison looks like.

So, in 20 months, Durham went on a boondoggle trip to Italy with Bill Barr to chase conspiracy theories, charged one person, and had his top investigator quit due to political pressure.

In the Mueller investigation’s first 20 months, his prosecutors had charged 33 people and 3 corporations (just Roger Stone was charged after that) and, with Manafort’s forfeiture, paid for much of their investigation.

Update: I’ve corrected the Manafort forfeiture claim. While I haven’t checked precisely how much the US Treasury pocketed by selling Manafort’s properties, I think the declining value of Trump Tower condos means that Manafort’s forfeiture didn’t quite pay for the entire investigation. I’ve also corrected in which month Manafort was found guilty in EDVA.

Update: In response to the Durham appointment, American Oversight reposted the travel records from the Italy boondoggle, which was actually in September, not October (Barr also made a trip to Italy in August 2019 for the same stated purpose, so I wonder if there were two boondoggles). I’ve corrected the timeline accordingly.

The Clinesmith Sentencing Memos: Politically Biased Data In, Politically Biased Data Out

The government and Kevin Clinesmith — the FBI lawyer who altered a document relating to the Carter Page FISA application — submitted their sentencing memos in his case yesterday. The sentencing guidelines call for 0 to 6 months of prison time (as they did for the now pardoned Mike Flynn). Clinesmith asked for probation. The government asked for a sentence in the middle to top of that range — effectively calling for 3 to 6 months of prison time.

I think the government has the better argument on a key point, for reasons that I expect will be very persuasive to the judge in the case, James Boasberg, who is also the presiding FISA judge. The government argues that Clinesmith’s actions undermined the integrity of the FISA process.

The defendant’s conduct also undermined the integrity of the FISA process and struck at the very core of what the FISC fundamentally relies on in reviewing FISA applications: the government’s duty of candor. The FISC serves as a “check on executive branch decisions to conduct surveillance in order to protect the fourth amendment rights of U.S. persons[,]” but it can “serve those purposes effectively only if the applicant agency fully and accurately provides information in its possession that is material to whether probable cases exists.” Order, In Re Accuracy Concerns Regarding FBI Matters Submitted to the FISC, Docket No. Misc. 19-02, at 2 (FISA Ct. Dec. 17, 2019) (internal quotations and citations omitted). Accordingly, and particularly because FISA applications involve ex parte proceedings with no adverse party on the other side to challenge the facts, the government “has a heightened duty of candor to the [FISC].” Id. (internal quotations and citations omitted). In other words, “[c]andor is fundamental to [the FISC’s] effective operation[.]” Id. (citation omitted).

While I think the government’s case on Clinesmith’s understanding of the term “source” is not persuasive, this language is. It matters that Clinesmith did this within the context of the FISA process. Boasberg has a real incentive to ensure that those preparing FISA applications do think of Clinesmith as an object lesson about the duty of candor. I expect he’ll agree with the government and impose some prison term.

That said, the government sentencing memo goes off the rails on another point, one that badly discredits the John Durham investigation.

Both the government and Clinesmith provide the same explanation for why he did what he did: it was a shortcut to avoid filing a footnote with the FISA court.

Clinesmith explains it this way:

Kevin, however, reviewed the OGA email and realized that it did not specifically address the issue of whether Individual #1 had been a source. In a misguided attempt to save himself time and the embarrassment of having to backtrack on his assurance he had it in writing, Kevin forwarded the OGA’s response to the SSA (including the list of OGA reports) immediately after telling the SSA he would do so, but Kevin added the phrase notated in bold to reflect his understanding of Individual #1’s status:

[The OGA uses] the [digraph] to show that the encrypted individual . . . is a [U.S. person]. We encrypt the [U.S. persons] when they provide reporting to us. My recollection is that [Individual #1] was or is . . . [digraph] and not a “source” but the [documents] will explain the details.

OIG Report at 254-55.

And the government endorses that explanation in its sentencing memo (in language that further reinforces why Clinesmith should be treated sternly to preserve the integrity of the FISA process).

By his own words, however, it appears that the defendant falsified the email in order to conceal Individual #1’s former status as a source and to avoid making an embarrassing disclosure to the FISC. Such a disclosure would have likely drawn a strong and hostile response from the FISC for not disclosing it sooner since the FBI had the information in its possession before the first FISA application was filed. Indeed, in the June 19, 2017 instant message conversation with the SSA, the defendant wrote “at least we don’t have to have a terrible footnote” explaining that Individual #1 was a source. OIG Report at 253. While the defendant told OIG he was referring to how “laborious” it would be to draft a footnote explaining that Individual #1 had been an OGA source, see id., that reading is self-serving and absurd. Moreover, as a practical matter, how laborious would it have been to draft a single footnote to explain to the FISC that Individual #1 had been a source for the OGA. The SSA involved in the application understood the defendant to be referring to the terrible optic of just now, in the fourth application, disclosing to the Court that Individual #1 had been a source for another agency after failing to do so in all of the prior applications. See id. Such a disclosure would have undermined the probable cause in the FISA application and the overall investigation of Individual #1, which the defendant was able to avoid by altering the email.

That’s it. At that point, both sides have explained what happened as the kind of bureaucratic sloppiness that can be particularly dangerous where there’s no transparency. Case closed. Clinesmith may not have meant this maliciously but because it happened as part of the FISA process it was very problematic.

Except the government continues by suggesting, without evidence, that Clinesmith did what he did out of political bias.

The public record also reflects that political or personal bias may have motivated or contributed to his offense conduct. As noted in the OIG Report and PSR, the defendant was previously investigated, and ultimately suspended, for sending improper political messages to other FBI employees. See OIG Report at 256 n.400. For example, on the day after the 2016 presidential election, the defendant wrote “I am so stressed about what I could have done differently.” Id. When another FBI colleague asked the defendant “[i]s it making you rethink your commitment to the Trump administration[,]” the defendant replied, “Hell no,” and then added “Viva le resistance.” Id. The defendant was referred to the Office of Professional Responsibility for investigation for these and other related messages, and in July 2018 he was suspended, without pay, for 14 days. The defendant’s prior disciplinary infraction for expressing his political views in a work setting is a relevant aspect of his background. Indeed, it is plausible that his strong political views and/or personal dislike of the current President made him more willing to engage in the fraudulent and unethical conduct to which he has pled guilty. While it is impossible to know with certainty how those views may have affected his offense conduct, the defendant plainly has shown that he did not discharge his important responsibilities at the FBI with the professionalism, integrity, and objectivity required of such a sensitive job position. [my emphasis]

There are several reasons why this argument is not only problematic, but betrays an unbelievable stupidity about the investigation before Durham.

First, as prosecutors admit, they have no evidence that Clinesmith’s claimed bias influenced his actions. The bias “may have motivated” him, “it is plausible” that it did, “it is impossible to know with certainty how those views may have affected his offense conduct.” This kind of language has no place in a sentencing memo. They’re effectively admitting they have no evidence, but relying on their lack of evidence anyway. It’s the kind of shoddy unethical work they’re trying to send Clinesmith to prison for.

Worse still, as Lawfare has shown, the data the government is relying on here comes from a politically biased application of discipline within DOJ. Since 2011, the only cases of people being disciplined for expressing political views on their government devices involved people opposing Trump.

Five employees, the documents show, have been disciplined for private communications using government devices in which they have criticized President Trump. But none, at least not since 2011, has been disciplined for similar conduct with respect to presidential candidates Hillary Clinton or Mitt Romney, or President Barack Obama—or for praising Trump.

[snip]

The verdict is now in, at least for the past four major-party presidential candidates, one of whom served as president of the United States for eight full years. FBI employees who voiced political sentiments in favor of or opposed to Clinton, Obama and Romney did not face consequences—nor did those who praised Trump. Those who criticize the current president appear to be the only people subject to discipline.

Lawfare raises the example of an FBI agent who — unlike Clinesmith, Lisa Page, or Peter Strzok — was running informants targeting Hillary in the Clinton Foundation investigation during the campaign who expressed clear bias. That person — clearly identified as biased by the same Inspector General who identified Clinesmith’s bias — wasn’t disciplined. And there are reports that a key witness in the Durham probe, Bill Barnett, similarly expressed pro-Trump bias on his devices. No one has done an IG Report into whether Barnett’s self-described role in single-handedly preventing the Mueller team from concluding that Mike Flynn lied to protect President Trump reflected improper political bias, much less sent him home for two weeks without pay. You can’t treat OPR’s treatment of biased FBI employees as valid for sentencing because it has already been demonstrated to be itself biased in the same way it treats as discipline-worthy.

Most importantly, you’d have to be fucking stupid to believe that supporting the FISA application of Carter Page in June 2017 would inherently reflect any anti-Trump bias. Even on the first application, the claim that targeting Page would be a way to hurt Trump was a bit of a stretch. At that point, the Trump campaign had very publicly distanced themselves from him because of his embarrassing ties to Russia. Thus, if the FBI treated Trump’s public statements with any weight, then they would be right to view Trump as victimized by Page, someone pushing his pro-Russian views far beyond what the candidate supported, someone removed from the campaign for precisely that reason. That’s one of the potential problems arising from a suspected foreign agent working on a campaign, that the person will make policy commitments that the candidate doesn’t support on behalf of the foreign country in question. Still, you might argue (and Bill Barr has argued) that the FBI targeted Page as a way to collect campaign emails, so one might make some claim to support the case that by targeting Page the FBI was targeting Trump with the October 2016 application.

But Clinesmith wasn’t in the loop on the non-disclosure of Page’s ties with CIA on that first application.

Kevin was not aware of that information, however. When he assisted the FBI’s efforts to obtain the initial FISA warrant, Kevin knew of no prior relationship between Individual #1 and the OGA. And he was not involved in any discussions—including the one discussed above between the case agent and DOJ attorney—concerning whether or not to include information about that relationship in the FISA application. As was typical, the DOJ attorney worked primarily with the case agent to collect and develop information for the FISA application. The first time Kevin was asked to inquire into whether, and to what extent, Individual #1 had a relationship with the OGA was in connection with the fourth and final application.

To suggest that someone would target Page in June 2017 because of anti-Trump bias, though, takes gigantic flights of fancy. Already in October 2016, it was clear that Page (like every other person originally targeted under Crossfire Hurricane) was using Trump, attempting to monetize his access to Trump to get a plush deal to start a think tank that, in his case, would have been funded by the Russian government. Page boasted to Stefan Halper the Russians had offered him an “open checkbook.”

But even before the first renewal in January 2017, Page had victimized Trump in the way that is dangerous for counterintelligence cases. When he was in Russia in December 2016 — at a time when he was still hoping to get a think tank funded by the Russian government — Page claimed to speak on behalf of Trump with respect to Ukraine policy.

According to Konstantin Kilimnik, Paul Manafort’s associate, Page also gave some individuals in Russia the impression that he had maintained his connections to President-Elect Trump. In a December 8, 2016 email intended for Manafort, Kilimnik wrote, “Carter Page is in Moscow today, sending messages he is authorized to talk to Russia on behalf of DJT on a range of issues of mutual interest including Ukraine.”

There’s no record that Page made those representations with the approval of Trump. As such, Page’s representations risked undermining Trump’s ability to set his own foreign policy, whatever it was.

By June, moreover, Page had been totally marginalized by Trump’s people. The fourth warrant served significantly to obtain encrypted content from a phone Page had destroyed when he came under investigation. Tactically, there’s almost no way that that application would have generated new content involving Trump’s people because they were no longer talking to Page. So there’d be no political advantage to targeting him, neither based on the potential content the FBI might collect nor on any political taint from a guy the campaign had loudly dissociated from nine months earlier. Indeed, if your goal was to paint Trump as a pro-Russian asset, focusing on Page — the guy Trump himself had distanced himself from — is the last thing you’d do in June 2017. It’s just a profoundly stupid attack from Durham’s prosecutors, one with no basis in logic or (as the prosecutors admit) evidence.

In short, not only does the gratuitous, evidence-free insinuation that Clinesmith did what he did out of political bias misrepresent the biased quality of the targeting of those OPR investigations, but it fundamentally misunderstands why the FBI would investigate the infiltration of a campaign by a suspected foreign agent. Someone infiltrating Trump’s campaign on behalf of Russia could and — in Page’s misrepresentations in Moscow in December 2016 — did harm Trump. That’s a harm the FBI is paid to try to prevent. Here, prosecutors are trying to criminalize Clinesmith’s efforts to protect Trump from that kind of damage.

After making it clear in his first official filings that Durham’s team didn’t understand the investigation they were investigating, in this one, his prosecutors make it crystal clear they don’t understand how, if an agent of a foreign power were to hypothetically infiltrate a political campaign (which is what the FBI had good reason to believe in October 2016 and more evidence to believe by December 2016), it could be damaging to the campaign and to the President and to the country. That’s not just dangerous malpractice given their involvement in this case, but it betrays a really basic level of stupidity about how the world works.

The government is right that Clinesmith’s alteration of a document should be treated aggressively given that it occurred as part of the FISA process. But oh my goodness has the government discredited both this sentencing filing and the larger Durham investigation by betraying continued ignorance about the investigation, the politicized nature of the evidence they’re getting, and basic facts about counterintelligence investigations.