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If Trump Is So Concerned that a DOJ Contractor Failed to Archive Texts, Why Not Hold the Contractor Accountable?

In yet another attempt to project criminal wrong-doing on those investigating criminal wrong-doing, both Rudy …

… And his client, Individual 1, have repeated a false claim that Robert Mueller deleted 19,000 Peter Strzok and Lisa Page texts.

The claim is, like so much else emanating from these two men’s twitter thumbs, an either willful or ignorant misstatement, this one based on a DOJ IG Report on efforts to collect Strzok-Page texts that, because of a technical malfunction, didn’t get collected by an FBI contractor. It conflates efforts to replace texts sent using their FBI-issued Samsung Galaxy phones (where some 19,000 texts did not get archived, though the number itself is inflated because it would necessarily include a lot of overlap) with a belated effort to check their Mueller-issued iPhones. Worse still, it talks about texts that actually were recovered.

OIG digital forensic examiners used forensic tools to recover thousands of text messages from these devices, including many outside the period of collection tool failure (December 15, 2016 to May 17, 2017) and many that Strzok and Page had with persons other than each other. Approximately 9,311 text messages that were sent or received during the period of collection tool failure were recovered from Strzok’s S5 phone, of which approximately 8,358 were sent to or received from Page. Approximately 10,760 text messages that were sent or received during the period of collection tool failure were recovered from Page’s S5 phone, of which approximately 9,717 were sent to or received from Strzok. Thus, many of the text messages recovered from Strzok’s S5 were also recovered from Page’s S5.

The only thing to blame Mueller’s office for is that, after reviewing Strzok’s phone and finding no substantive text messages, his Records Officer freed up the phone to be factory reset and issued to someone else.

According to SCO’s Records Officer, Strzok was removed from SCO-related work in late July 2017, and he completed his Exit Clearance Certificate on August 11, 2017. As part of an office records retention procedure, the SCO Records Officer stated that she reviewed Strzok’s phone on September 6, 2017. She told the OIG that she determined it did not contain records that needed to be retained. She noted in her records log about Strzok’s phone: “No substantive texts, notes or reminders.”

The Records Officer appears not to have realized that Page had a Mueller iPhone, so it was only subsequently checked for content, after which point it, too, had been factory reset.

But there’s no reason to think hers would have anything more substantive than Strzok’s phone. That’s because they appear to have kept using their Samsungs in the period they were assigned with Mueller (which is where their interesting texts were sent).

On May 17, 2017, the Special Counsel’s Office (SCO) was established to investigate alleged Russian interference in the 2016 Presidential election. Strzok and Page were assigned to the SCO shortly thereafter (Strzok in early June; Page on May 28) and were provided DOJ JMD iPhones during their SCO assignment. Based on OIG’s examination of their FBI mobile devices, Page and Strzok also retained and continued to use their FBI mobile devices. Specifically, on or about May 18, 2017, Page received an FBI-issued Samsung Galaxy S7 mobile device to replace her previously-issued FBI Samsung Galaxy S5. On or about July 5, 2017, Strzok received an FBl•issued Samsung Galaxy S7 mobile device to replace his previously-issued FBI Samsung Galaxy S5.

So what the President and his plays-a-lawyer-on-TV-flack are complaining about is that the federal government reissued government devices when users no longer needed those government devices, something bureaucracies of all types do all the time. With Strzok, at least, before doing so, the Records Officer checked the device to make sure no important content would be overwritten.

And in trying to invent an obstruction claim out of normal bureaucratic thriftiness, they are ignoring the really damning part of the IG Report. The government contractor whose “bug” was responsible for the text messages that weren’t originally archived (but which were later recovered) still can’t ensure more than 90% of FBI’s texts are recovered.

Among the other excuses FBI offers for implementing a fix to a 20% failure with one that still results in a 10% failure is to say, “complete collection of text messages is neither required nor necessary to meet the FBI’s legal preservation obligations” (which goes back to how they’re requiring retention via policy, but not technologically-assisted procedure). The FBI also says that it “is not aware of any solution that closes the collection gap entirely on its current mobile device platforms,” which makes me wonder why they keep buying new Samsungs if the Samsungs aren’t serving their needs? Aside from the question of why we’d ask FBI Agents to use less secure Korean phones rather than more secure American ones (note, Mueller’s team is using iPhones)?

This story — particularly the contractor’s squirreliness when asked about what privileges its retention function accesses…

As DOJ IG was trying to puzzle through why they couldn’t find all of Strzok and Page’s texts, the unnamed vendor got squirrelly when asked how the retention tool interacts with administrative privileges.

Upon OIG’s request, ESOC Information Technology Specialist [redacted] consulted with the FBl’s collection tool vendor, who informed the FBI that the collection application does not write to enterprise.db. [Redacted] further stated that ESOC’s mobile device team and the vendor believed enterprise.db is intended to track applications with administrative privileges and may have been collecting the logs from the collection tool or another source such as the Short Message Service (SMS) texting application. The collection tool vendor preferred not to share specific details regarding where it saves collected data, maintaining that such information was proprietary; however, [redacted] represented that he could revisit the issue with the vendor if deemed necessary.

Maybe it’s me, but I find it pretty sketchy that this unnamed collection tool vendor doesn’t want to tell the FBI precisely what they’re doing with all these FBI Agents’ texts. “Proprietary” doesn’t cut it, in my opinion.

… Seems like what happens in government when a unit has made inappropriate purchase and contracting decisions, but even two years after discovering that fact, nevertheless doubles down with new investments in the same inappropriate purchase decisions.

If Trump really cared that FBI wasn’t archiving all its texts and continues to fail to do so, he should command Big Dick Toilet Salesman Matt Whitaker to ensure that FBI make purchasing decisions (perhaps starting by replacing the Samsungs with more secure iPhones) that will result in full archival records.

But he didn’t do that. Perhaps it’s time for journalists to start asking why he’s not demanding better of DOJ and FBI going forward?

As I disclosed in July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post.

That Peter Strzok 302 Probably Comes from the Obstruction Case File

I’d like to provide a plausible explanation for questions about an FBI 302 released yesterday as part of the Mike Flynn sentencing.

As a reminder, after Flynn pled guilty, his case ultimately got assigned to Emmet Sullivan, who is laudably insistent on making sure defendants get any possible exonerating evidence, even if they’ve already pled guilty. On his orders, the government would have provided him everything early in 2018.

In Flynn’s sentencing memo submitted earlier this week, his lawyers quoted from an Andrew McCabe memo written the day of his interview and a 302 that they described to be dated August 22, 2017, a full 7 months after his interview. In predictable response, Sullivan instructed the government to provide that McCabe memo and the 302 cited by Flynn’s lawyers.

When the government submitted those two documents yesterday, they raised still more questions, because it became clear the 302 (which is what FBI calls their interview reports) in question was of an interview of Strzok conducted on July 19, 2017, drafted on July 20, and finalized on August 22. The 302 described that Strzok was the lead interviewer in Flynn’s interview, whereas his interviewing partner wrote up the 302.

This has raised questions about why we only got the Strzok 302, and not the original one cited by Strzok.

While I don’t have a full explanation, certain things are missing from the discussion.

Folks are misunderstanding what the 302 represents. It is not the 302 reporting the Flynn interview. Rather, it is a 302 “collect[ing] certain information regarding Strzok’s involvement in various aspects of what has become the Special Counsel’s investigation,” which he described to one Senior Assistant Special Counsel and an FBI Supervisory Special Agent, presumably one assigned to SCO. The 302 notes that Strzok wasn’t just involved in the investigation of Mike Flynn. While it redacts the names, it also lists the other parts of the investigation he oversaw.

We know he was involved in the Papadopoulos investigation, and it appears likely he was involved in the Page investigation, as well. Both this passage and the next one describes the people at DOJ that Strzok interacted with in these investigations, which is further evidence the purpose of this 302 is not to capture the interview, but instead to capture details about internal workings surrounding the investigation itself.

The part of this 302 that is unredacted makes up maybe a third of the substance of the 302, and it appears between almost full page redactions before and after the part describing the Flynn interview. Again, the other stuff must be as pertinent to the purpose of this 302 as the Flynn interview itself.

had thought the interview might be an effort by SCO to capture Strzok’s institutional knowledge in the wake of the discovery of his texts with Lisa Page as a way to prepare some other FBI Agent to be able to testify at trial. But the timing appears wrong. DOJ’s IG first informed Mueller about the texts on July 27, and he was removed from the team the next day (though not processed out of that clearance, according to this report, until August 11).

Strzok was assigned to lead the Russia investigation in late July 2016. 197 Page also worked on the Russia investigation, and told us that she served the same liaison function as she did in the Midyear investigation. Both Page and Strzok accepted invitations to work on the Special Counsel staff in 2017. Page told the OIG that she accepted a 45-day temporary duty assignment but returned to work in the Deputy Director’s office at the FBI on or around July 15, 2017. Strzok was removed from the Special Counsel’s investigation on approximately July 28, 2017, and returned to the FBI in another position, after the OIG informed the DAG and Special Counsel of the text messages discussed in this report on July 27, 2017. [my emphasis]

But the interview does line up temporally with other known events: Around the time Strzok was interviewed, both Rod Rosenstein and Sally Yates were interviewed in the obstruction case, interviews that would also result in 302s summarizing the interview. Jim Comey had already turned over his memos on meetings with Trump by that point; eventually he would be interviewed by Mueller as well, though it’s not clear when that interview (and correlating 302) was.

Yates and Comey are both among the people the 302 explicitly describes Strzok interacting with.

In other words, it seems likely that this 302 was designed to capture what Strzok knew about the internal workings of DOJ and FBI surrounding the Mike Flynn interview, and likely was focused on explaining the significance of Flynn’s lies and subsequent firing to the obstruction case. That is, this would have served to turn what Strzok learned as investigator into information Strzok had to offer as a witness, in the same way that Mueller would have had to turn what Comey and Rosenstein knew as supervisors into information relevant to their role as witnesses. It probably had the unintended benefit of capturing what Strzok knew about key parts of the investigation before he was indelibly tainted by the discovery of his text messages.

If this is the explanation, it raises questions about why we only got this 302, and not the original one.

There’s a very likely answer to that: that original 302 presumably didn’t include this detail, at least not in the easily quotable form that would serve Flynn’s political purposes.

Flynn has, as far as we know, gotten everything. His lawyers chose which of those documents to quote. And Judge Sullivan only ordered the government to produce these two (though invited them to submit anything else they wanted to, an invitation they did not take up).

But there’s another piece of evidence that there’s far less to this 302 than some are suggesting: because Republicans in Congress chased down this detail over the last year, and in their most recent incarnation of drumming up conspiracies about Flynn, in questioning Jim Comey just a week ago, Trey Gowdy did not focus on the question of the 302s produced, but instead tried to suggest that Flynn didn’t mean to lie.

Note that, contrary to what right wingers have suggested, Comey did not say anything inconsistent with the Strzok interview 302; rather, he said he wasn’t sure where his knowledge came from.

Mr. Gowdy. Who is Christopher Steele? Well, before I go to that, let me ask you this.

At any — who interviewed General Flynn, which FBI agents?

Mr. Comey. My recollection is two agents, one of whom was Pete Strzok and the other of whom is a career line agent, not a supervisor.

Mr. Gowdy. Did either of those agents, or both, ever tell you that they did not adduce an intent to deceive from their interview with General Flynn?

Mr. Comey. No.

Mr. Gowdy. Have you ever testified differently?

Mr. Comey. No.

Mr. Gowdy. Do you recall being asked that question in a HPSCI hearing?

Mr. Comey. No. I recall — I don’t remember what question I was asked. I recall saying the agents observed no indicia of deception, physical manifestations, shiftiness, that sort of thing.

Mr. Gowdy. Who would you have gotten that from if you were not present for the interview?

Mr. Comey. From someone at the FBI, who either spoke to — I don’t think I spoke to the interviewing agents but got the report from the interviewing agents.

Mr. Gowdy. All right. So you would have, what, read the 302 or had a conversation with someone who read the 302?

Mr. Comey. I don’t remember for sure. I think I may have done both, that is, read the 302 and then spoke to people who had spoken to the investigators themselves. It’s possible I spoke to the investigators directly. I just don’t remember that.

Mr. Gowdy. And, again, what was communicated on the issue of an intent to deceive? What’s your recollection on what those agents relayed back?

Mr. Comey. My recollection was he was — the conclusion of the investigators was he was obviously lying, but they saw none of the normal common indicia of deception: that is, hesitancy to answer, shifting in seat, sweating, all the things that you might associate with someone who is conscious and manifesting that they are being — they’re telling falsehoods. There’s no doubt he was lying, but that those indicators weren’t there.

Mr. Gowdy. When you say “lying,” I generally think of an intent to deceive as opposed to someone just uttering a false statement.

Mr. Comey. Sure.

Mr. Gowdy. Is it possible to utter a false statement without it being lying?

Mr. Comey. I can’t answer — that’s a philosophical question I can’t answer.

Mr. Gowdy. No, I mean, if I said, “Hey, look, I hope you had a great day yesterday on Tuesday,” that’s demonstrably false.

Mr. Comey. That’s an expression of opinion.

Mr. Gowdy. No, it’s a fact that yesterday was —

Mr. Comey. You hope I have a great day —

Mr. Gowdy. No, no, no, yesterday was not Tuesday.

Mr. Gowdy. And, again — because I’m afraid I may have interrupted you, which I didn’t mean to do — your agents, it was relayed to you that your agents’ perspective on that interview with General Flynn was what? Because where I stopped you was, you said: He was lying. They knew he was lying, but he didn’t have the indicia of lying.

Mr. Comey. Correct. All I was doing was answering your question, which I understood to be your question, about whether I had previously testified that he — the agents did not believe he was lying. I was trying to clarify. I think that reporting that you’ve seen is the product of a garble. What I recall telling the House Intelligence Committee is that the agents observed none of the common indicia of lying — physical manifestations, changes in tone, changes in pace — that would indicate the person I’m interviewing knows they’re telling me stuff that ain’t true. They didn’t see that here. It was a natural conversation, answered fully their questions, didn’t avoid. That notwithstanding, they concluded he was lying.

Mr. Gowdy. Would that be considered Brady material and hypothetically a subsequent prosecution for false statement?

Mr. Comey. That’s too hypothetical for me. I mean, interesting law school question: Is the absence of incriminating evidence exculpatory evidence? But I can’t answer that question. [my emphasis]

What may best explains this exchange is that, when it happened, Comey had never seen the Strzok 302, he had just seen the original one, but Gowdy had seen both. That would be consistent with Andrew McCabe’s testimony to HPSCI, which acknowledged that the Agents didn’t detect deception but knew Flynn’s statements did not match the FISA transcript.

McCabe confirmed the interviewing agent’s initial impression and stated that the “conundrum that we faced on their return from the interview is that although [the agents] didn’t detect deception in the statements that he made in the interview … the statements were inconsistent with our understanding of the conversation that he had actually had with the ambassador.”

Gowdy may be suggesting that the original 302 was unfair because it did not admit how well Flynn snookered the FBI’s top Counterintelligence Agent. But that detail may not be something Comey is even aware  of, because it only got written down after he had been fired. That would explain why Flynn wouldn’t want that original one disclosed, because it might make clear that the FBI immediately recognized his claims to be false, even if they didn’t know (before doing the requisite follow-up) why he lied.

One thing we do know: there are two (related) criminal investigations that have come out of Mike Flynn’s interview. The first, into his lies, and the second, into Trump’s efforts to keep him on in spite of his lies by firing the FBI Director.

While we can’t say for sure (and Mueller’s office would not comment in response to my questions when I asked if something like this explained the 302), one possible explanation for why we’re seeing just this 302 is it’s the only one that makes Flynn look good.

Update: As JL notes, the Mueller filing makes it clear that the 302 is neither from the Flynn investigation nor from an investigation into Strzok’s conduct.

Strzok was interviewed on July 19, 2017, in relation to other matters, not as part of the investigation of the defendant or any investigation of Strzok’s conduct.

As I disclosed in July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

After Replacing FBI Devices Two Times, the Bureau Still Fails to Collect 10% of Agent Text Messages

Today, DOJ’s Inspector General released its report on the efforts it made to restore all of Peter Strzok and Lisa Page’s text messages. The report is actually better used to illustrate how, three years into beginning to respond to its failures to collect all of the texts sent or received using FBI issued phones, and after twice upgrading the phones Agents get issued, it still fails to retain 10% of texts that Agents send and receive.

With regards to Strzok and Page, the report describes the efforts it made to obtain all their texts, which includes:

  • Obtaining both the Samsung (Galaxy 5, then Galaxy 7) phones they used during this period, as well the iPhones issued for their brief stint in Mueller’s office, the latter of which neither appears to have used
  • Using the existing collection tool, which included big gaps for key periods of interest
  • Asking DOD’s Computer Forensic Lab for help
  • Searching the Enterprise database, which found a bunch more texts, for reasons no one could explain
  • Hiring an outside Android consultant, who found 62 additional text messages

The upshot is, FBI doesn’t know whether they recovered all Strzok and Page’s texts, and doesn’t know why they didn’t, if in fact they didn’t.

And we’re only learning this because the two of them decided to conduct an extramarital affair on their FBI-issued devices while serving on the two most high profile investigations in recent FBI history.

Which raises the question: is this also true for Agents investigating defendants without the clout of Hillary Clinton or Donald Trump? If necessary, would the FBI be able to find their texts?

The answer is, maybe not.

Here’s what this report says about FBI’s retention rules, generally.

First, important texts are retained by policy, not (technologically-assisted) procedure. So the country’s premier law enforcement agency ensures that important law enforcement related texts are retained by saying anything covering these topics must be retained.

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

But it’s up to the Agents to do that. And if they don’t for some reason, they’re instructed to ask the Enterprise Security Operations Center if they retained them. But the ESOC is not mandated to retain texts. They happen to, but it’s not tied to any mandate to retain substantive communications required to be saved by policy.

The ESOC has a tool, by a vendor whose name may not even appear in redacted form in this report, that “wirelessly collect[s] text messages sent to or from FBI-issued mobile devices.”

As the FBI’s response to this report reveals, the Bureau has known for some time that that tool didn’t collect everything, because they’ve told the OIG that on two prior occasions.

Prior to the OIG’s investigation into the FBI’s actions in advance of the 2016 election, during at least two unrelated investigations, one of which dates back to 2015, the FBI made the OIG aware of gaps in FBI text message collection capabilities.

As DOJ IG was trying to puzzle through why they couldn’t find all of Strzok and Page’s texts, the unnamed vendor got squirrelly when asked how the retention tool interacts with administrative privileges.

Upon OIG’s request, ESOC Information Technology Specialist [redacted] consulted with the FBl’s collection tool vendor, who informed the FBI that the collection application does not write to enterprise.db. [Redacted] further stated that ESOC’s mobile device team and the vendor believed enterprise.db is intended to track applications with administrative privileges and may have been collecting the logs from the collection tool or another source such as the Short Message Service (SMS) texting application. The collection tool vendor preferred not to share specific details regarding where it saves collected data, maintaining that such information was proprietary; however, [redacted] represented that he could revisit the issue with the vendor if deemed necessary.

Maybe it’s me, but I find it pretty sketchy that this unnamed collection tool vendor doesn’t want to tell the FBI precisely what they’re doing with all these FBI Agents’ texts. “Proprietary” doesn’t cut it, in my opinion.

In any case, the FBI started trying to fix the problem, starting in 2016. At the time they started, they were losing 20% of the texts sent and received. After two upgrades of Samsung phones and a fix to a “bug” later, they’re still not collecting 10%.

During calendar year 2017, the FBI phased out use of the Samsung Galaxy S5 devices by its employees and replaced them with Samsung Galaxy S7 devices because of software and other issues that prevented the data collection tool from reliably capturing text messages sent and received via FBI issued Samsung Galaxy SS mobile devices. According to FBl’s Information and Technology Branch, as of November 15, 2018, the data collection tool utilized by FBI was still not reliably collecting text messages from approximately IO percent of FBI issued mobile devices, which included Samsung S7s and subsequently issued S9s. By comparison, the estimated failure rate of the collection tool was 20 percent for the Samsung S5s.

The FBI’s tech folks provided these explanations for why the tool by the unnamed vendor still doesn’t work.

  • In calendar year 2016 the collection application vendor reported a “bug” in a version of the collection tool which caused the application to stop collecting text message or log data- This application version was replaced by a newer version that corrected the issue in March 2017.
  • Errors during the initial installation of the collection application, such as misconfiguration during setup.
  • Errors in the collection application’s ability to send text message data caused by software updates or operating system updates on the mobile device itself.
  • Hardware errors, such as the device not being powered on, being located in a poor cellular signal area, or being located in an area with no cellular service.

Among the other excuses FBI offers for implementing a fix to a 20% failure with one that still results in a 10% failure is to say, “complete collection of text messages is neither required nor necessary to meet the FBI’s legal preservation obligations” (which goes back to how they’re requiring retention via policy, but not technologically-assisted procedure). The FBI also says that it “is not aware of any solution that closes the collection gap entirely on its current mobile device platforms,” which makes me wonder why they keep buying new Samsungs if the Samsungs aren’t serving their needs? Aside from the question of why we’d ask FBI Agents to use less secure Korean phones rather than more secure American ones (note, Mueller’s team is using iPhones)?

This story, like so many with the hoaxes that Republicans have ginned up to try to delegitimize the Mueller investigation, seems to be the big story, not what Strzok and Page sent themselves two years ago (the IG Report concluded the non-discoverable texts did not cover one subject area, so weren’t by themselves suspect, and doubted either Strzok or Page had the technical capability to selectively destroy only incriminating texts).

The FBI is an agency that routinely demands that people respond to subpoenas by pulling all the relevant texts on a given subject. If you were to fail, they would be at least consider whether your failure to do so amounted to obstruction. But they don’t guarantee they would be able to meet that same standard — they’re happy with their 10% failure rate, apparently.

And while it is an interesting topic for Strzok and Page and Donald Trump’s attempts to claim Witch hunt! it’s the instances where criminal defendants are asking the FBI to search for relevant texts among agents (in just one example, MalwareTech asked the FBI for texts between Agents surveilling and then arresting him in Las Vegas, but got nothing) that I care about. Because if you only aspire to 90% retention, and if you attribute any failure to do better to an individual Agent’s failure to meet a policy (but how would you prove it, if the point is that a given text no longer exists to be discovered?), then you’re pretty much ensuring that you can’t fully comply with discovery requests from defendants.

Apparently, the FBI seems okay with that.

The Shiny Object of the May 2017 Russian Investigation: The Evidence Mostly Came in after August 1

There’s a reason today’s NYT story so infuriates me — to say nothing of Trump’s efforts to declassify documents from the Russia investigation that, because of the personnel moves of virtually everyone involved, would mostly end by August 1, 2017.

That’s because it’s clear that — because Peter Strzok lost an August 2016 battle to investigate more aggressively in summer and fall 2016 — DOJ, FBI, and then Mueller were only obtaining key information around about August 1, 2017, a year later. It’s no surprise, then, that (as the frothy right has been obsessing about recently) Lisa Page and Strzok weren’t sure if there was evidence of “collusion” on May 17, 2017. Of course they weren’t. The government hadn’t started collecting the evidence in earnest yet.

Consider the following investigative steps:

FBI appears not to have sent a preservation request to Government Services Administration for George Papadopoulos’ material until March 9, 2017, and they appear not to have pursued his privately held call records (especially the Facebook ones that would have revealed the existence of Ivan Timofeev) until some time later.

On June 6, 2017, the Mueller team was still debating whether they would access Section 702 materials, something they otherwise do routinely with assessments, to say nothing of fully predicated national security investigations.

The John Dowd letter wrongly claiming unprecedented cooperation reveals that Mueller started to receive the documents requested by congressional committees on July 21; that would presumably be the first that the government obtained the version of the June 9 emails that included Paul Manafort’s replies.

Copies of all documents provided to the committees by the Campaign, and all search term lists and the privilege log, were also provided to the Special Counsel.

  • By letter dated May 17, 2017, the Campaign received a request for documents from the Senate Select Committee on Intelligence (SSCI).
  • By letter dated June 7, 2017, the Campaign received a request for documents from the House Permanent Select Committee on Intelligence (HPSCI). The records requested included records generated from June 16, 2015, to 12pm on January 20, 2017, and hence, included the transition period.
  • The Campaign voluntarily responded to these requests by providing 840 documents on July 21, 2017, and another set of 4,800 documents on July 31, 2017. By letter dated July 19, 2017, the Campaign received a request for documents from the Senate Judiciary Committee (SJC).

Mueller sent a preservation request for Transition materials on June 22. He obtained all the emails and devices from 13 transition staffers in late August.

Specifically, on August 23, 2017, the FBI sent a letter (i.e., not a subpoena) to career GSA staff requesting copies of the emails, laptops, cell phones, and other materials associated with nine PTT members responsible for national security and policy matters. On August 30, 2017, the FBI sent a letter (again, not a subpoena) to career GSA staff requesting such materials for four additional senior PTT members.

The list of documents the White House provided, organized by Bates number, show that some key documents couldn’t have come in until July 2017. Indeed, documents pertaining to Comey’s firing appear to be the last of the document sets obtained, sometime after the disclosure of the June 9, 2016 meeting in July 2017.

BuzzFeed’s big scoop on financial transfers between Aras Agalarov and Ike Kaveladze around the time of the June 9 meeting shows banks didn’t start looking for such suspicious transfers until after the June 9 meeting was disclosed on July 8, 2017.

None of these transactions was discovered until 2017, after the New York Times revealed the Trump Tower meeting. Shortly after that report, investigators asked financial institutions to look back at their accounts to learn how money flowed among the people who planned and attended the meeting: Agalarov; Kaveladze; Agalarov’s pop star son, Emin; their employee, Rob Goldstone, who sent the original email to Trump Jr.; and others.

To unearth connections between some of their accounts, banks took an extraordinary step: They invoked a provision of the Patriot Act — a post-9/11 law that included new tools to track money laundering and terrorist financing. That provision, rarely used in the Trump-Russia investigation, allowed the banks to share information about customers with one another.

Three financial institutions — Citibank, JP Morgan Chase, and Morgan Stanley — discovered the $3.3 million that flowed from Agalarov to Kaveladze.

My interview with the FBI (I believe I was the second source about one aspect of what I shared, but believe I was the first about the stuff that tied more obviously to the campaign) was July 14. I believe my materials were moved under Mueller when Ryan Dickey got moved under Mueller in November, 2017.

So the constant six-year old soccer chases by journalists trying to learn what happened in May 2017 — when things were chaotic because Trump was breaking all norms and firing people who actually weren’t investigating that aggressively — to the detriment of attention on what happened in the months thereafter really does a huge disservice to the truth. The investigation into Trump’s conspiracy with Russia started in earnest around about August 1, 2017. Once the government actually started looking for evidence, I imagine the evidence of conspiracy was pretty obvious.

As I disclosed in July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

The NYT “Scoop” Appears To Be an Effort to Spin Opening an Investigation into Trump as an Erratic Act

I’d like to point out something strongly suggested by the stories based on gossiping about Andrew McCabe memos. These stories portray what people not at a meeting that took place just after Comey’s firing think happened at the meeting based off hearing about memos memorializing them. From the WaPo’s far more responsible version of the story, we know that Lisa Page was also present at the meeting.

Another official at the meeting, then-FBI lawyer Lisa Page, wrote her own memo of the discussion which does not mention any talk of the 25th amendment, according to a second person who was familiar with her account.

And the WaPo’s version of the “wire” comment puts it in context, making it clear that Rosenstein was questioning how they could investigate the President.

That person said the wire comment came in response to McCabe’s own pushing for the Justice Department to open an investigation into the president. To that, Rosenstein responded with what this person described as a sarcastic comment along the lines of, “What do you want to do, Andy, wire the president?”

Now go back to earlier in the week, to the frothy right rehashing some texts Page and Peter Strzok sent, talking about opening an investigation into … someone, while Andrew McCabe was Acting Director. (Apologies for the Fox slurs about Page and Strzok.)

Text messages from disgraced FBI figures Peter Strzok and Lisa Page, discussing whether to open a “case” in a “formal chargeable way” after Director James Comey was fired, are under fresh scrutiny after Page told congressional investigators there was no evidence of Russian collusion at the time, according to three congressional sources.

Two hours after Comey’s termination became public on May 9, 2017, Strzok, a now-former FBI agent, texted Page, his then-colleague and lover: “We need to open the case we’ve been waiting on now while Andy is acting.”

“Andy” is a reference to then-Deputy Director Andrew McCabe who temporarily took over the bureau until Christopher Wray was confirmed as director in August 2017.

Page, a former FBI attorney, replied to Strzok: “We need to lock in (redacted). In a formal chargeable way. Soon.”

Strzok concurred. “I agree. I’ve been pushing and I’ll reemphasize with Bill,” believed to be Bill Priestap, the head of the FBI’s counterintelligence division.

Finally, here’s the WaPo version of Michael Bromwich’s description of the memos.

McCabe’s lawyer, Michael Bromwich, said in a statement that his client “drafted memos to memorialize significant discussions he had with high level officials and preserved them so he would have an accurate, contemporaneous record of those discussions. When he was interviewed by the special counsel more than a year ago, he gave all of his memos — classified and unclassified — to the special counsel’s office. A set of those memos remained at the FBI at the time of his departure in late January 2018. He has no knowledge of how any member of the media obtained those memos.”

These are “significant memos” and went right to Mueller when he was appointed. The kind of memos that might back investigative decisions, such as whether to open an investigation into the President.

So what the NYT spin of the story is about is suggesting that at the moment when DOJ opened an investigation into the President, the guy who opened it was “acting erratically.” Presumably based off the third-hand opinions of people like Jim Jordan, who knows a bit about acting erratically. It’s also about whether a discussion of removing the President took place at the same meeting where a discussion of investigating him did.

Likely, the messages are muddled, because they always are when getting laundered through Jim Jordan’s feverish little mind.

Update: NYT has now updated their story with two details designed to rebut the more responsible reporting of other outlets. First, they cite their sources claiming — without having to explain — that Rosenstein spoke about recording the President on another occasion, with the suggestion that that time it wan’t sarcastic.

Mr. Rosenstein also mentioned the possibility of wearing a wire on at least one other occasion, the people said, though they did not provide details.

More remarkably, they include a paragraph that reveals their original story was inaccurate as to timing. To rebut WaPo’s report that Lisa Page’s version of events don’t include the reference to the 25th Amendment, the NYT has now decided there were “at least two meetings that took place on May 16” (but note the knowledge of their sources all appears to come from memos, not from witnessing the events).

At least two meetings took place on May 16 involving both Mr. McCabe and Mr. Rosenstein, the people familiar with the events of the day said. Mr. Rosenstein brought up the 25th Amendment during the first meeting of Justice Department officials, they said. He did not appear to talk about it at the second, according to a memo by one participant, Lisa Page, a lawyer who worked for Mr. McCabe at the time, that did not mention the topic.

Well, okay, maybe that’s true. But that utterly demolishes some key premises of the story as originally written. The story collapses the timing of all this, emphasizing that it happened just two weeks into the job.

Mr. Rosenstein was just two weeks into his job. He had begun overseeing the Russia investigation and played a key role in the president’s dismissal of Mr. Comey by writing a memo critical of his handling of the Hillary Clinton email investigation. But Mr. Rosenstein was caught off guard when Mr. Trump cited the memo in the firing, and he began telling people that hefeared he had been used.

[snip]

The president informed them of his plan to oust Mr. Comey. To the surprise of White House aides who were trying to talk the president out of it, Mr. Rosenstein embraced the idea, even offering to write the memo about the Clinton email inquiry. He turned it in shortly after.

A day later, Mr. Trump announced the firing, and White House aides released Mr. Rosenstein’s memo, labeling it the basis for Mr. Comey’s dismissal. Democrats sharply criticized Mr. Rosenstein, accusing him of helping to create a cover story for the president to rationalize the termination. [my emphasis]

All this suggests the response was a direct response to the Comey firing.

And while the story does note the meetings take place a week later, the update emphasizes the actual date.

A determined Mr. Rosenstein began telling associates that he would ultimately be “vindicated” for his role in the matter. One week after the firing, Mr. Rosenstein met with Mr. McCabe and at least four other senior Justice Department officials, in part to explain his role in the situation. [my emphasis]

The “wire the president” comment (and the 25th Amendment one, if it did happen as described) took place on May 16, almost a week later.

One week after the firing, Mr. Rosenstein met with Mr. McCabe and at least four other senior Justice Department officials, in part to explain his role in the situation.

In this update, the NYT also took out language about Rosenstein wondering about motive.

wondered whether Mr. Trump had motives beyond Mr. Comey’s treatment of Mrs. Clinton for ousting him, the people said.

By May 16, of course, Rosenstein wouldn’t have to wonder about Trump’s motives, because he had already gone on TV and explained what his motive was — it was to end the Russia investigation.

More troublingly, he had taken a meeting with Sergei Lavrov and Sergei Kislyak — the latter of whom was a key figure in any conspiracy investigation — without American press present at which he shared highly sensitive Israeli secrets. While the public didn’t know it yet, at the meeting Trump also said he fired Comey to ease the pressure on him.

More importantly, if there were two meetings — one on whether Trump was handling the FBI hiring properly, and one on whether to open an investigation into the President — then it means those different topics have a different meaning. One meeting was about whether Trump was capable of doing the job, the other was about whether he had broken the law.

Anyway, what we’re not getting is any real understanding of the real context of these comments.

Trump Wants Voters — and Russia — to Know What the Russia Investigation Looked Like on August 1, 2017, not September 14, 2018

Between setting the first status hearing in Paul Manafort’s case as November 16, and setting the Mike Flynn sentencing for no earlier than November 28 (with the reports submitted on November 14), Mueller’s office seems to be suggesting they’ll wait until after election day to roll out the case they just added Trump’s Campaign Manager’s testimony to.

Not long after the release of the Flynn status hearing, Trump ordered the release of yet more stuff on the Steele dossier (the stuff in the first paragraph), plus unredacted texts on what the investigation looked like before August 1, 2017.

At the request of a number of committees of Congress, and for reasons of transparency, the President has directed the Office of the Director of National Intelligence and the Department of Justice (including the FBI) to provide for the immediate declassification of the following materials: (1) pages 10-12 and 17-34 of the June 2017 application to the FISA court in the matter of Carter W. Page; (2) all FBI reports of interviews with Bruce G. Ohr prepared in connection with the Russia investigation; and (3) all FBI reports of interviews prepared in connection with all Carter Page FISA applications.

In addition, President Donald J. Trump has directed the Department of Justice (including the FBI) to publicly release all text messages relating to the Russia investigation, without redaction, of James Comey, Andrew McCabe, Peter Strzok, Lisa Page, and Bruce Ohr.

Depending on how much the various parties put into these texts (I doubt Comey was much of a texter, for example), this will show unbelievable detail on how FBI runs counterintelligence investigations.

But it will also show voters what the investigation looked like before some key evidence came in, such as the communications surrounding the June 9 meeting and whatever the FBI seized from Paul Manafort’s home. Andrew McCabe was the last person in a key role on this investigation, and Christopher Wray took over that role on August 1.

It’s a desperate gambit, I think, throwing the last of the Steele dossier details out there, plus a picture of what the investigation looked like before the FBI learned that the President’s son entered into a conspiracy with Russians exchanging Hillary emails for sanction relief.

Which I take as yet more confirmation that that conspiracy — and whatever Manafort just gave the government — would (will, eventually) utterly damn the President.

As I disclosed in July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

Manafort Turns State’s Evidence: “It’s Time for Some Game Theory”

It took a day for the President to complain after his former campaign manager, having spent the week proffering up testimony, flipped on Friday. When he did, Trump tied the Mueller investigation to polls (and upcoming midterm elections) for the first time in a Tweet.

Of course, his freebie legal PR hack, Rudy Giuliani has been tying midterms to the investigation for some time in his insistence that no indictments can come between now and then. Rudy should be happy, then, that Paul Manfort’s plea avoids a four week trial for Trump’s campaign manager right in the middle of election season.

But he’s not.

I mean, at first, Rudy put a brave face on things Friday, claiming,

Once again an investigation has concluded with a plea having nothing to do with President Trump or the Trump campaign. The reason: the President did nothing wrong and Paul Manafort will tell the truth.

But almost immediately after making that statement, Rudy took out the part about Manafort telling the truth.

Roger Stone, who’s shrewder than Rudy, immediately suggested anything Manafort may be saying (or may already have said) implicating him would be a lie.

I am uncertain of the details of Paul’s plea deal but certain it has no bearing on me since neither Paul Manafort or anyone else can testify truthfully that I am involved in Russian collusion, WikiLeaks collaboration or any other illegal act pertaining to the 2016 election.

Though of course, Stone’s seeming awareness that Mueller might pursue Manafort testimony about Stone reveals his brave comment for the lie it is.

I’m more interested, however, in Rudy’s (and John Dowd’s) apparent desperation to stave off a mass prisoner’s dilemma.

Manafort first proffered testimony Monday, September 10. Rudy was still boasting about how much he knew about Manafort’s thinking for a Thursday Politico story — though he based that off conversations before and after the EDVA trial, which had ended three weeks earlier.

Giuliani also confirmed that Trump’s lawyers and Manafort’s have been in regular contact and that they are part of a joint defense agreement that allows confidential information sharing.

“All during the investigation we have an open communication with them,” he said. “Defense lawyers talk to each other all the time, where, as long as our clients authorize it, therefore we have a better idea of what’s going to happen. That’s very common.”

Giuliani confirmed he spoke with Manafort’s lead defense lawyer Kevin Downing shortly before and after the verdicts were returned in the Virginia trial, but the former mayor wouldn’t say what he discusses with the Manafort team. “It’d all be attorney-client privilege, not just from our point of view but from theirs,” he said.

Immediately after Manafort’s cooperation was announced, both NPR and the same Politico team that had been quoting Rudy’s bravura reported that someone close to Manafort said there would be no cooperation against the President. In later stories, both quote Sarah Huckabee Sanders and Rudy claiming Manafort’s cooperation has nothing to do with the President.

Despite Manafort’s having led the campaign, the White House has sought to distance itself from him and his case.

“This had absolutely nothing to do with the president or his victorious 2016 presidential campaign,” press secretary Sarah Huckabee Sanders said Friday. “It is totally unrelated.”

Trump’s personal lawyer Rudy Giuliani echoed that idea, adding that “the president did nothing wrong.”

But the NPR version includes this correction.

Editor’s note: An early version of this story published before all the court documents in the case were available contained a characterization from a person familiar with the case that said Manafort’s cooperation would be limited. When charging documents and other materials appeared, they did not support that and the characterization was removed.

And the Politico noted how quickly Rudy backed off his claim that Manafort would testify truthfully.

Of course, anyone who has read the plea agreement closely — up to and including the government’s ability to declare Manafort in breach of the agreement with only a good faith rather than preponderance of the evidence standard —

— and it’s clear that if Mueller’s team wants Manafort to testify about Trump, he will.

Meanwhile, Rudy is yelling on Twitter that the morning shows aren’t taking his word about what Manafort is testifying about over what the clear text of the plea agreement suggests.

I’m more interested still that John Dowd emailed the lawyers for the (reportedly 37, though the number is likely smaller now) other witnesses in the Joint Defense Agreement, claiming outlandishly that Manafort has no evidence on Trump.

The President’s lawyers — the one who currently “works” for him for “free” and the one who allegedly doesn’t work for him anymore but recently got lionized in Woodward’s book as his main source about the Mueller investigation, and in that role was shown to be either an idiot or a fantasist, that the “free” one cites to claim that Woodward exonerates the President — are working very hard to convince others that Manafort’s plea deal doesn’t mean the calculation both other witnesses and the Republican party have been making has to change.

They’re trying to stave off an awful game of prisoner’s dilemma.

Consider if you’re one of the other 37 (which might be down to 34 given known cooperators, or maybe even fewer given how uncertain Rudy seems to be about Don McGahn’s third session of testimony) members of the Joint Defense Agreement, especially if you’re one who has already testified before the grand jury about matters that Manafort (and Gates) might be able to refute. So long as there’s no chance Trump will be touched, you’re probably still safe, as you can count on Trump rewarding those who maintain the omertà or at the very least working to kill the Mueller inquiry shortly after the election.

But if you have doubts about that — or concerns that other witnesses might have doubts about that — you still have an opportunity to recall the things you claimed you could not recall a year ago. Depending on how central your testimony is, you might even be able to slip in and fix your testimony unnoticed.

So each of 37 (or maybe just 30) people are considering whether they have to recalculate their decisions about whether to remain loyal to the President or take care of themselves.

Meanwhile, there’s the Republican party. Admittedly, the Republicans are unlikely to do anything until they rush through Brett Kavanaugh’s confirmation, even if doing so without first inquiring about the allegation that he assaulted a girl when he was in high school will damage their electoral prospects with women in November.

But once they’ve got Kavanaugh confirmed (assuming no big news breaks in the Mueller investigation before that), then the calculation may change. Right now, a lot of Republicans believe they have to stick with Trump through the election, if only to ensure the GOP base turns out. But if Trump’s poll numbers continue to sink — and as the numbers of those who strongly disapprove of Trump continue to grow — Republicans in certain kinds of districts (especially suburbs) will have an incentive to distance themselves from the President.

All that’s a straight calculation based on whether Trump will help or hurt more, come November. But the Republican party, from Trump’s endless repetition of “no collusion;” to Devin Nunes’ naked attempt to obstruct the Mueller investigation; to Chuck Grassley and Lindsey Graham’s referral of Christopher Steele rather than Don Jr for perjury charges; to Mark Meadows’ latest attempts to turn Lisa Page and Peter Strzok’s attempts to chase down someone leaking about Carter Page into a suggestion they themselves leaked; to Richard Burr’s cynical boasts that his committee hasn’t found stuff they wouldn’t chase down if they had been told of it, has invested everything on a gamble that Trump was telling the truth (or, more cynically, that he could stave off discovery of any conspiracy he entered into with Russia).

Republicans have invested a whole lot into attempting to give the President a clean bill of health.

Meanwhile, his campaign manager — a guy many of them have worked with — is presumably now doing the opposite, telling Mueller precisely what the Republicans have been working so hard to suppress for 18 months.

At some point, the ones who have been playing along even while admitting that the President probably did conspire with Russia (I know of some who believe that’s likely), will make their move.

If the GOP were less dysfunctional, they’d do it sooner rather than later, cut their losses with Trump to try to salvage the Pence presidency (whom they like far more anyway). But for now, that calculation of whether or not to do so is likely happening in private.

I’m in no way promising Manafort’s plea deal will set off two parallel floods of rats fleeing the Trump JDA or his presidency generally. These are Republicans, after all, and I’m sure they still would prefer obstructing the whole thing away.

I don’t think a mass abandonment of Trump is going to happen anytime soon.

But Trump’s lawyers do seem worried that could happen.

Trump needs his fellow Republicans to believe that Paul Manafort isn’t providing evidence that incriminates him. Because if they start to believe that, their calculations behind support for him may change, and change quickly.

As I disclosed in July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

The Frothy Right Is Furious that Peter Strzok Pursued the Guy Leaking about Carter Page

Close to midnight on June 3, 2017, Lisa Page texted Peter Strzok to let him know that Reality Winner was in custody. Page used the same shorthand she and Strzok (and presumably, those around them) consistently use to describe leak investigations, ML, media leaks.

They used the term elsewhere, as when Strzok said “media leaks and what I do for a living” when responding to the first reports that Mueller was investigating Trump (and hypothesizing about who the WaPo’s likely sources were).

Significantly, they used the term on April 10, 2017, when trying to figure out how to respond to DOJ’s effort to increasingly politicize leak investigations.

Indeed, Strzok’s lawyer has issued a statement confirming this is how Strzok and Page used the term.

The term ‘media leak strategy’ in Mr. Strzok’s text refers to a Department-wide initiative to detect and stop leaks to the media. The President and his enablers are once again peddling unfounded conspiracy theories to mislead the American People.

In spite of all that context, Mark Meadows has the entire frothy right, from Sara Carter to Fox News to Don Jr to his dad, worked up about two newly produced texts, based on this letter to Rod Rosenstein, which gets just about every thing wrong.

Before I explain how wrong Mark Meadows’ letter is, let me point out two things.

Michael Horowitz has already investigated a media leak text and found no misconduct

First, Michael Horowitz is (with the possible exception of DOD’s Glenn Fine) the best Inspector General in government. His office spent over a year investigating the work of Peter Strzok and Lisa Page; he wrote a 500-page report on it. And when he found evidence that even looked like impropriety, acted on it immediately and then formally, leading to Strzok’s firing. He has also spent a year investigating whatever calls went between FBI lines and reporters covering Hillary or Trump. He even drew pretty pictures showing each one of concern.

As part of both investigations, he examined a text in the series Meadows is concerned about (the April 10 one, above). And in spite of examining Page and Strzok, including a relevant text, at such length, Horowitz found no impropriety with the discussions about how to investigate leaks to the media.

We know the likely culprit for the leak the frothy right is blaming on Page and Strzok

The punchline of Meadows’ letter — as fed via the always-wrong Sara Carter — is a claim that Strzok and Page were the source for the WaPo story revealing that FBI obtained a FISA order on Carter Page.

The review of the documents suggests that the FBI and DOJ coordinated efforts to get information to the press that would potentially be “harmful to President Trump’s administration.” Those leaks pertained to information regarding the Foreign Intelligence Surveillance Court warrant used to spy on short-term campaign volunteer Carter Page.

Aside from how fucking stupid you’d have to be to believe that Strzok would go to great lengths to get a FISA order on Page and then tell the entire world about it, there’s another reason that the frothy right should know this is wrong: because we know the likely culprit for it.

As I noted in my first post on the James Wolfe indictment, that investigation appears to have started to (and focused on) finding the source for the WaPo story the frothy right now blames on Strzok and Page.

The government lays out clear proof Wolfe lied about conversations with three reporters. With Watkins and another, they point to stories about Carter Page to do so. The Watkins story is this one, confirming he is the person identified in the Evgeny Buryakov indictment. Another must be one of two stories revealing Page was subpoenaed for testimony by the Senate Intelligence Committee — either this one or this one.

I’m most interested, however, in this reference to a story the FBI raised with Wolfe in its interview, a story for which (unlike the others) the indictment never confirms whether Wolfe is the source.

During the interview, FBI agents showed WOLFE a copy of a news article authored by three reporters, including REPORTER #1, about an individual (referred to herein as “MALE-l), that contained classified information that had been provided to the SSCI by the Executive Branch for official purposes

The story suggests they don’t have content for the communications between Wolfe and Reporter #1, and the call records they’re interested in ended last June (meaning the story must precede it).

For example, between in or around December 2015 and in or around June 2017, WOLFE and REPORTER #1 communicated at least five times using his SSCI email account.

For that reason, I suspect this is the story they asked about — whether Wolfe is a source for the original credible story on Carter Page’s FISA order. The focus on Page generally in the indictment suggests this investigation started as an investigation into who leaked the fact that Page had been targeted under FISA, and continued to look at the stories that revealed classified details about the investigative focus on him (stories which he rightly complained to SSCI about).

The government didn’t charge Wolfe for that story — they just (appear to have) included his lies about whether he knew the reporters behind it among the lies they charged him for. But that’s a common strategy for FBI when dealing with a leak investigation the direct prosecution of which would require declassifying information, particularly with someone like Wolfe who could easily graymail the government. Moreover, the docket in his case has the look of one where the defense is considering a plea to avoid more serious charges.

Now consider how they got Wolfe. Not only did the government go after a trusted employee, not only did they very publicly access his Signal and WhatsApp texts, not only did they get Congress to waive speech and debate (which very rarely happens), but they also obtained years of Ali Watkins’ call records, both directly and via Temple University.

In other words, the prosecution of James Wolfe pushed prior protocols on leak investigations on a number of fronts: going after favored insiders, going after encrypted comms, going after employees of Congress, and going far more aggressively after a journalist and a college student than would seem necessary. That’s precisely the kind of thing that FBI and DOJ would debate as part of revising their strategy to more aggressively pursue media leaks.

So the James Wolfe case not only provides a likely culprit for the leak, but probably even evidence that shifts in the media leak strategy did happen, shifts resulting in far more aggressive pursuit of leaks than happened at the end of the Obama Administration.

Mark Meadows dangerously wrong

Which brings us, finally, to the many errors of Mark Meadows’ letter to Rosenstein. Once again, the premise of the letter is that two next texts (one of which obviously relates the one I posted above) create grave new concerns.

As you may know, we recently received a new production of documents from the Department providing greater insight into FBI and DOJ activity during the 2016 election and the early stages of the Trump administration. Our review of these new documents raises grave concerns regarding an apparent systemic culture of media leaking by high-ranking officials at the FBI and DOJ related to ongoing investigations.

Review of these new documents suggests a coordinated effort on the part of the FBI and DOJ to release information in the public domain potentially harmful to President Donald Trump’s administration. For example, the following text exchange should lead a reasonable person to question whether there was a since desire to investigate wrongdoing or to place derogatory information in the media to justify a continued probe.

April 10, 2017: Peter Strozk [sic] contacts Lisa Page to discuss a “media leak strategy.” Specifically, the text says: “I had literally just gone to find this phone to tell you I want to talk to you about media leak strategy with DOJ before you go.”

April 12, 2017: Peter Strozk [sic] congratulates Lisa Page on a job well done while referring to two derogatory articles about Carter Page. In the text, Strzok warns Page two articles are coming out, one which his “worse” than the other about Lisa’s “namesake.” [see update below] Strzok added: “Well done, Page.”

Meadows goes on to cite the WaPo story revealing Page’s FISA order and Andrew Weissman’s meeting with the AP (in which, per court testimony from the Manafort trial, the AP provided information useful to the investigation into Manafort, but which — significantly — led to the warrant on Manafort’s condo which may have led to the discovery of information that implicates Trump).

Meadows is just wrong. Both texts he already has and the Wolfe case “should lead a reasonable person” to understand that the same people who had long pursued leak investigations still were doing so, doing so in an increasingly politicized environment, but doing so with results that would employ more aggressive techniques and would find the likely culprit behind the WaPo story in question (not to mention send Reality Winner to prison for five years).

But all that’s just a premise to claim that because he imagines, fancifully, that Page and Strzok were leaking about ongoing investigations to the press (when in fact they were investigating such leaks), he should be able to get the FBI to talk about ongoing investigations.

During our interviews with Peter Strozk [sic] and Lisa Page, FBI attorneys consistently suggested witnesses could not answer questions due to the US Attorneys’ Manual’s policy for ongoing investigations. However, documents strongly suggest that these same witnesses discussed the ongoing investigations multiple times with individuals outside of the investigative team on a regular basis.

Not only is Meadows almost certainly wrong in his accusations against Strzok and Page, but he’s also ignoring that there are two ongoing investigations being protected here — both the general Russian investigation, but also the prosecution of Wolfe for behavior that likely includes the story he’s bitching about.

Meadows then uses what he even seems to admit are authorized media contacts as a transition paragraph.

Our task force continues to receive troubling evidence that the practice of coordinated media interactions continues to exist within the DOJ and FBI. While this activity may be authorized and not part of the inappropriate behavior highlighted above, it fails to advance the private march to justice, and as such, warrants your attention to end this practice.

The transition paragraph — which I’ll return to — leads to the whole point of the letter, Meadows’ demand that, because he has trumped up a false accusation against Strzok and Page, he should be able to interview FBI agents he believes will undermine the investigation into Donald Trump.

In light of the new information, our task force is requesting to review text messages, emails, and written communication from FBI and DOJ officials Stu Evans, Mike Kortan, and Joe Pientka between June 2016 to June 2017. To be clear, we are not suggesting wrongdoing on the part of Evans, Kortan, and Pientka–and, in fact, previously reviewed documents suggest that some of these individuals may share the committees’ same concerns. However, these additional documents, with an emphasis on communications between the aforementioned individuals and Peter Strozk [sic], Andrew McCabe, Lisa Page, Bruce Ohr and Andrew Weissman, would provide critical insight into the backdrop of the Russian investigation.

Meadows is looking, among other things, testimony that says Pientka didn’t believe Mike Flynn lied when he interviewed Trump’s National Security Advisor with Strzok. But he’s doing so specifically for a time period that ends before the evidence showing that Flynn did lie came into FBI (in part, when Mueller obtained Transition emails showing Trump closely directed Flynn’s conversations with Sergei Kislyak.

Now back to authorized media interactions. I happen to know something about how they work. I had a conversation with the FBI that pertained, in part, to whether there was a tie between Russian criminals and the President, one that also pertained to my perception of possible threats. Apparently Meadows thinks that such a conversation “fails to advance the private march to justice,” though it’s not clear what he means by that.  I mean, thus far, I have been very circumspect about the content of such conversations; is Meadows really asking me to air details before the midterms? I have thus far hesitated to share suspicions I had, believing it would be inappropriate for anyone besides Mueller and the FBI to air such things publicly, until they had corroborated my suspicions. But Meadows apparently believes it important to air investigative details before the election.

The better option — one that would put the rule of law and the security of the nation ahead of partisan obstruction — would be for Meadows to stop inciting hoaxes among the frothy right. Or maybe, at least, the frothy right can recognize that Meadows has serially embarrassed them as they credulously repeat whatever hoax he floats?

Update: After Jerrold Nadler and Elijah Cummings released a response noting some of Meadows’ errors, he fixed just one of the errors in his letter, admitting that the “well done, Page” language was actually from an April 22, 2017 text that reads, “article is out! Well done, Page,” and which obviously refers to this story on Jim Comey.

As I disclosed July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

Dragons Caught in the Crossfire: On the Genealogy of the Current and Future Mueller Investigation

As I laid out last week, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

Lawfare has one of the best summaries of the Russian hack indictment on Friday. It does an excellent job of laying out what the indictment shows technically and legally. But I really wish it didn’t start with this passage.

This was the investigation over which the president of the United States fired James Comey as FBI director.

This is the investigation Comey confirmed on March 20, 2017, when he told Congress, “I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election.”

This was also the investigation that multiple congressional committees have spent more than a year seeking to discredit—most recently Thursday, when two House panels hauled the former deputy assistant director of the FBI’s Counterintelligence Department, Peter Strzok, a career FBI agent who worked on the Russia probe, up to Capitol Hill for 10 hours of public, televised, abusive conspiracy theorizing. When the president of the United States derides the Mueller investigation as a “witch hunt,” and when congressional Republicans scream at FBI agents, this is the investigation they are trying to harass out of existence.

I get the sentiment. I get criticizing Republicans for attacking the “Mueller probe” (or whatever you want to call it). I’ve criticized the Republicans for doing that myself. But it is assuredly not the case that Friday’s indictment is the “investigation over which the president of the United States fired James Comey as FBI director” or the investigation Comey confirmed in March of 2017.

The investigation that resulted in Friday’s indictment is, rather, the result of investigations conducted primarily in San Francisco and Pittsburgh. At the time Comey confirmed the counterintelligence investigation into Trump’s camp and at the time Comey got fired for not shutting the Trump counterintelligence investigation down, those San Francisco and Pittsburgh investigations were totally separate. Those two investigations almost certainly had little if any involvement from Peter Strzok (indeed, they involved a bunch of FBI cyber agents, a division of FBI that Strzok never tired of mocking in his texts to Lisa Page). The DOJ press release from Friday states that explicitly.

This case was investigated with the help of the FBI’s cyber teams in Pittsburgh, Philadelphia and San Francisco and the National Security Division.

Those two investigations (plus the separate one noted in Philadelphia that started later, as I understand it from what a lawyer who represented a witness in that investigation described to me) got moved under the Mueller umbrella sometime in or just before November, and now the GRU officer part of the investigation will be moved back to Pittsburgh where it started, to languish forever like some other nation-state hacker indictments investigated by Western District of Pennsylvania.

There are several reasons, besides exactitude, I’m harping on this point.

First, House Republicans, working in tandem with the President, have made the CI investigation Comey confirmed the end-all and be-all of the investigation, a way of simplifying it so as to villainize and discredit it. An entire stable of right wing journalists and members of Congress are trying to discredit something in the early stages of the investigation — whether it’s the inclusion of the Steele dossier among other evidence to obtain a FISA order on long-time suspected Russian asset Carter Page, the use of a lifelong Republican operative to conduct interviews in the least intrusive way, or the fact that even as he was losing the fight to investigate aggressively, Peter Strzok shared a widespread belief that Trump was not fit to be President. They believe that if they can do so, they can claim everything downstream of those actions is tainted. They’re doing so even while launching conspiracies off of stories that clearly show the existence of four counterintelligence investigations focused on the Russian operation, just one of which is known to have targeted Trump’s people.

“Crossfire Hurricane” was one of the code names for four separate investigations the FBI conducted related to Russia matters in the 2016 election.

“At a minimum, that keeps the hurry the F up pressure on him,” Strzok emailed Page on Oct. 14, 2016, less than four weeks before Election Day.

Four days later the same team was emailing about rushing to get approval for another FISA warrant for another Russia-related investigation code-named “Dragon.”

The GOP is literally bitching that the FBI was expediting FISA applications targeted at likely Russian targets during an ongoing Russian attack.

It is important to show how each of these attacks on the CI investigation into Trump is bullshit.

  • It is common to use information from consultants like Steele or paid informants in FISA applications. Their credibility is measured, in significant part, based on past credibility. And whatever you think about the impropriety of using oppo research (as DOJ also did with Clinton Cash) and whatever the likelihood that in this case Steele’s intelligence network got fed disinformation, it is the case that in 2016, Steele’s track record with the DOJ was far more reliable than a host of other consultants that presumably get included in FISA applications.
  • The FBI is permitted to use human informants at the assessment level (and when Stefan Halper interviewed Papadopoulos, it appears to have been a full investigation), and using a Republican operative like Halper to question George Papadopoulos was both less likely to affect the election in any way, and legally less dangerous for Papadopoulos than an undercover FBI officer would have been.
  • Strzok definitely believed Trump was unfit to be President, but (as I noted), he fought to use more aggressive investigative methods with both Hillary and Trump, and he lost that fight both times.

Ultimately, when you ask people wielding these complaints as if they’re a big deal what investigative steps against Page (after he left the campaign) or Papadopoulos (when he remained on it) would have been acceptable, they start to scramble, because (and I say this as someone who exposed herself to significant FBI scrutiny by going to them as a witness) these were reasonable steps to take. And the other favorite suggestion — that Trump would have responded to a defensive briefing — ignores that Trump hired Mike Flynn as his National Security Advisor even after President Obama gave him far more explicit warnings about the counterintelligence concerns about Flynn at the time.

At some point, GOP hoaxsters have to commit to whether they think it is legitimate to investigate suspected Russian spies or not, and if so how.

It is equally important to note that — as is demonstrably the case both with the GRU indictment rolled out Friday and with the information I provided — there is a ton of really damning evidence that never touched Peter Strzok. As I explained the other day, you can put information I provided to a team that had nothing to do with the Mueller team at the time I spoke to them, together with several other pieces of information Mueller obtained via other means (some of it was public!), and get right to the question of Trump conspiring with Russians to win the election.

Treating a range of investigations as only one investigation plays into the Trump game of discrediting an overly simplistic caricature of the investigation.

The other reason those covering the Russian investigation should be far more careful with what the investigation consisted of over time is, without understanding where the investigation came from, you can’t understand where the investigation is going. There have been a slew of reports reading dockets and citing anonymous DOJ and Trump sources. Some show an awareness of why prosecutors get added to dockets in particular cases. Others completely ignore things that are in the public record.

It is my well-educated opinion that we’re seeing several things with recent developments. First, where possible, Mueller is handing off things (the Concord Management and GRU hack prosecutions) that don’t need to be politically protected. He has also handed off issues (the Cohen search) that don’t relate directly to conspiring with Russians, even while any prosecution there could result in cooperation on the conspiracy case; though note, Mueller’s reported investigation of inauguration funding would also implicate Cohen. I suspect, eventually, he’ll hand off things that amount to garden variety corruption, as distinct from graft tied directly to the election money laundering.

But when reports say Mueller is preparing to wrap it up, I suspect the reality is Mueller is close to taking steps that will lay out a case for conspiracies with Russia involving people very close to Trump, which will make it much harder for Trump to refuse an interview without putting himself at risk to be indicted personally. Those steps will show what a farce six months of Trump-planted stories emphasizing a focus on obstruction have been. That prosecution Mueller’s team will see through, I imagine, not least because that’s precisely why he included four appellate specialists on his team, including Solicitor General star lawyer Michael Dreeben.

Update: Tweaked the San Francisco/Pittsburgh discussion because it was confusing several people.

Timeline

June 15, 2016: Likely start date for FBI investigation into hack of DNC/DCCC (the genesis for Friday’s indictment)

July 31, 2016: Peter Strzok opens up Operation Crossfire

October 21, 2016: Carter Page FISA approved

January 12, 2017: Carter Page FISA reauthorized

February 18, 2017: Reuters describes a tripartite division of investigation, with DNC hack investigation in Pittsburgh, Guccifer 2.0 investigation in San Francisco, and Trump CI investigation in DC

Early April, 2017: Carter Page FISA reauthorized

May 2017: I learn of Philadelphia investigation targeted in some way at Guccifer 2.0

May 17, 2017: Rod Rosenstein appoints Robert Mueller to take over Operation Crossfire

June 29, 2017: Carter Page FISA reauthorized

August 2, 2017: Mueller investigation includes, at a minimum, George Papadopoulos obstruction, Paul Manafort graft, collusion (including June 9 meeting), and obstruction

October 5, 2017: Papadopoulos pleads guilty (waiving venue)

Mid-October, 2017: Technical witness preparing for interview with Mueller’s team

October 30, 2017: Papadopoulos guilty plea unsealed

Early November, 2017: Mueller adds cyber prosecutor Ryan Dickey

November 2, 2017: WSJ reports DOJ will prosecute GRU hackers, reports that Pittsburgh, San Francisco, Philadelphia, along with DC remain in charge of investigation

December 1, 2017: Mike Flynn pleads guilty

February 12, 2018: Richard Pinedo pleads guilty, waives venue

February 16, 2018: Internet Research Agency (Concord Management) indictment

February 20, 2018: Alex van der Zwaan pleads guilty

February 22, 2018: Paul Manafort indicted in EDVA, refuses to waive venue

March 1, 2018: NBC reports that Mueller — not main DOJ — will prosecute GRU hackers

April 9, 2018: Michael Cohen searches executed by SDNY; SDNY investigation, covering taxi medallion fraud and hush money payments, is likely just part of his criminal exposure

May 3, 2018: Mueller adds Uzo Asonye to EDVA team prosecuting Paul Manafort at request of Judge TS Ellis

June 22, 2018: Mueller brings in DOJ team to prosecute Concord Management, freeing up tech-focused Mueller prosecutors

July 13, 2018: Mueller indicts GRU hackers, sends prosecution back to Pittsburgh

Name the Social Media Author: Lisa Page and Peter Strzok? Or Lindsey Graham and Ted Cruz?

In Lindsey Graham’s questioning of DOJ IG Michale Horowitz in today’s hearing on the IG Report on the investigation of Hillary Clinton, he said, repeatedly, “none of this is normal.” By that, he meant the comments that Peter Strzok and Lisa Page had made about Trump back in 2016. (1:45)

Would you say that this investigation was done by the book?

[snip]

The whole idea that this is normal, folks, there’s nothing here normal. I don’t want you think the FBI does this day in and day out. This is not normal.

He then reviewed a couple of Peter Strzok and Lisa Page’s texts.

Trump’s not ever going to be come president right? right?

No, no he won’t. We’ll stop him.

[snip]

I want to believe the path you threw out in Andy’s office, that there’s no likelihood he’ll become President. It’s like an insurance policy.

[snip]

God Trump is a loathsome human.

Lindsey then repeated that such comments were not normal.

None of this is normal, folks.

Senator Graham, as a former longtime government lawyer as a JAG, should talk to Senator Graham how abnormal such thoughts about Donald Trump are.

“As early as March, these people hated Trump,” Graham said in the hearing, horrified by the thought that someone could come to such conclusions that early.

Former Texas Attorney General Ted Cruz was also alarmed about the mean things that Strzok and Page had said in their social media about Donald Trump. (3:04)

These are difficult days in the Department of Justice and the Federal Bureau of Investigation. Both the Department and the Bureau have long — decades long, in the Department’s case, century’s long traditions of fair and impartial administration of justice. There are thousands of honorable good men and women that work at the Bureau, that work at the Department of Justice, and yet their integrity has been called into question by misconduct and political bias at the highest level.

Cruz went on to quiz Horowitz about the things that Peter Strzok, as lead investigator, had said about Trump.

Is it true that during the period of the investigation in late 2015 and in 2016, when Mr. Strzok was in charge, he used an FBI device to call President [sic] Trump a quote Effing idiot, although I don’t believe he abbreviated it, a loathsome human, and a disaster?

Did he also say multiple times that, quote, Donald Trump cannot be President?

And on August 6, 2016, when FBI Counsel Lisa Page said to Strzok that, quote, maybe you’re meant to stay where you are because you’re meant to protect the country from this menace, meaning President [sic] Trump. Did Mr. Strzok reply that, quote, I can protect our country at many levels?

[snip]

And is it true that there are many similar statements by Mr. Strzok in the report?

[snip]

Does any of that conduct give anyone confidence in the fairness in the enforcement of justice?

These are some of the thoughts that this self-imagined arbiter of integrity had to say about Donald Trump during the period he defined, 2015 to 2016.

These are, of course, different things. Cruz and Lindsey were publicly sharing their thoughts about how unfit Donald Trump was to be President, how outrageous his racism, how unhinged he was. Strzok and Page were engaging in what they foolishly treated as private conversations, but did so on government owned devices at a time when they were conducting politically charged investigations.

I don’t mean to defend the decisions of Strzok and Page with regards to how they shared their thoughts about the unacceptability of Donald Trump.

But I will defend the principle that it is solidly normal to say that Trump is unacceptable.

And there are no better witnesses to that than Lindsey Graham and Ted Cruz.

There’s one other lesson Lindsey teaches us. “I’m glad I don’t text and email,” he also said. If Graham and Cruz’ personal devices were investigated with the scrutiny that Strzok and Page’s were, Strzok and Page might look tame by comparison.