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Bullshit Brigade – Book Burner Edition

[NB: Check the byline, thanks. /~Rayne]

This week has been rife with bullshit. Here are three egregious examples.

~ 3 ~

Meditating on the sci-fi dystopian classic, Fahrenheit 451, I’ve pondered the cultural shift from a brick-and-mortar society to a digital society, in which text printed on paper has given way to internet-mediated electronic content.

What does a fireman look like in the age of the internet?

Apparently they still look like pasty white Nazis, like this one Trumpy-buddy and VA gubernatorial candidate Glenn Youngkin points to in Virginia – a racist mom whining about her poor baby boy whose fee-fees were hurt by an essential piece of American literature written by a Black woman author in which racism and slavery are central.

What a pity he can’t find a job after being so tormented by American literature…oh but wait.

The poor little teenager is now 27 years old and working as an attorney for the GOP. Perhaps Momma Murphy’s got a point – the kid’s intellectual growth was stunted by cognitive dissonance trying to make his artificially white privileged world meet literature reflecting the horror of enslavement upon which that white privilege was built. Now he can’t find a job anywhere except working for the party of racism in America.

Utter book burning bullshit. Stem it by helping elect Terry McAuliffe to Virginia’s governor’s office.

~ 2 ~

Speaking of the Virginia governor’s race, Jonathan Turley had to stick his two cents in because he has a problem with attorney Marc Elias.

Turley’s bitchy little dig betrays not only his ignorance about John Durham’s pathetic investigation but his concerns about Elias, who successfully won 64 out of 65 lawsuits Trump’s campaign filed to unsuccessfully contest the results of the 2020 election.

Perhaps Turley’s really worried that at some point if all the investigations into Team Trump’s efforts to ratfuck and obstruct the 2020 election, Turley’s own supporting role may receive more attention than it has so far.

It’s still quite intriguing that Turley wrote an op-ed, Could Robert Mueller actually be investigating Ukrainian collusion? (The Hill, Feb 21, 2019) just after Rudy Giuliani met with Prosecutor General Yuriy Lutsenko in Poland, but just before The Hill’s John Solomon interviewed Ukraine’s prosecutor general Yuriy Lutsenko for Hill.TV during which Lutsenko made a false claim about U.S. Ambassador to Ukraine Marie Yovanovitch as part of a character assassination operation.

Such timely prescience coincidentally mirroring a Russian active measure reeks of bullshit. One might wonder if Turley’s, Giuliani’s, and Solomon’s 2019 phone records have a few overlaps.

~ 1 ~

And then there’s this bullshit which may be on another level altogether – Tucker Carlson’s disseminating a complete fabrication of another reality intended to obscure the attempted overthrow of the U.S. government.

Sadly, it’s playing on televisions across military facilities and likely some federal offices, too.

It’d be nice if instead Carlson and the rest of Fox News’ toxic crap our federally-owned televisions were distributing our own content produced by the U.S. Agency for Global Media since its mission is to “inform, engage, and connect people around the world in support of freedom and democracy.”

Clearly it’s not Carlson’s or the Murdochs’ or News Corp’s mission to encourage freedom and democracy when they’re whitewashing insurrection and sedition. Their mission instead is flooding the zone with bullshit.

~ 0 ~

What’s the most egregious bullshit you’ve seen this week? Share in comments.

John Durham Admits He Overstated Evidence in His Michael Sussmann Materiality Statement

In my post laying out Michael Sussmann’s motion for a Bill of Particulars, I expressed the following:

  • His claim that he needed the exact quote of the lie he purported told Jim Baker was well-founded
  • Durham would respond to Sussmann’s demand for more specificity about materiality by saying that was up to the jury
  • Sussmann surely knew the names of the other people at a CIA meeting where, Durham alleges, just two people present now claim that Sussmann lied about having a client
  • Sussmann surely knew there were no people on the Clinton Campaign with whom he had — as Durham had insinuated in a materiality statement — [personally] coordinated; he knew any such communications happened through Marc Elias

As I tweeted out here, Durham’s response to Sussmann affirms all of those predictions.

  • Durham responded to the request for the exact quote of the lie Sussmann purportedly told by block-quoting the indictment (which doesn’t quote his lie), but not providing the actual lie he told or the context in which he allegedly told it; in the process, Durham seemed to commit that he was not charging Sussmann with a lie of omission but only alleging Sussmann omitted material information with an alleged affirmative lie
  • Durham quoted the traditional definition of materiality (not the one DOJ espoused with Mike Flynn), and said it was up to the jury to decide
  • Durham admitted that he introduced the CIA lie as 404b information, not an actual charge (and seemed to concede he has no proof that Sussmann told exactly the same lie to the CIA as he allegedly did to the FBI)

But it’s Durham’s response to the request for the names of the Clinton Campaign people with whom Sussmann allegedly coordinated that I find most telling. Sussmann had asked for the identity of the Clinton Campaign people that Durham mentioned in a passage (bolded below) from paragraph 6 of the indictment that Durham used as one of three prongs in his materiality statement.

Finally, Mr. Sussmann seeks the identities of certain representatives and agents of the Clinton Campaign mentioned in the Indictment that the Special Counsel has refused to provide to date.7 The Indictment alleges that Mr. Sussmann, Tech Executive-1, and Law Firm-1 “coordinated, and were continuing to coordinate, with representatives and agents of the Clinton Campaign with regard to the data and written materials that Sussmann gave to the FBI and the media.” Indictment ¶ 6. The Indictment does not identify by name the alleged “representatives and agents of the Clinton Campaign.” Id.

The animating theory of the Special Counsel’s Indictment is that Mr. Sussmann was secretly working on behalf of the Clinton Campaign, and he intentionally and falsely stated that he was not acting on behalf of any client in order to conceal his ties to the campaign. The Special Counsel should not be permitted, on the one hand, to allege that Mr. Sussmann was working on behalf of the Clinton Campaign, but on the other hand, decline to identify the specific individuals with whom he was purportedly working. Among other things, Mr. Sussmann may wish to call such individuals as witnesses in his defense at trial, but, unless he knows of their identities, he will have no ability to do so. At base, an indictment must provide a defendant with the “essential facts constituting the offense charged.” Fed R. Crim. P. 7(c)(1). And no facts could be more essential than the names of the witnesses involved.

Having made these allegations, the Special Counsel must illuminate them—by identifying the relevant individuals referenced—to allow Mr. Sussmann to decide how to respond appropriately. See Butler, 822 F.2d at 1193 (the indictment must enable the defendant to understand the charges against him and prepare a defense); cf. Hubbard, 474 F. Supp. at 80 (ordering bill of particulars to define “unnecessarily vague” phrases used in the indictment). Therefore, Mr. Sussmann respectfully asks this Court to order the Special Counsel to provide a bill of particulars identifying, by name, the “representatives and agents of the Clinton Campaign” with respect to Paragraph 6.

7 The Special Counsel has identified virtually all of the other anonymous individuals and entities referred to in the Indictment (except, as noted above, the Agency-2 employees).

In my post, I suggested that Sussmann isn’t so much trying to get these names, but because he knows this claim is false, he’s trying to get Durham to admit that there are no names — because (Sussmann knows) he didn’t coordinate directly with the Clinton Campaign.

Sussmann likely doesn’t really need these names because he likely knows that Durham has nothing to substantiate this claim. If he did, Durham would have described such evidence in his speaking indictment.

And Durham’s response cedes the point: In response to a question about the “agents and representatives of the Clinton Campaign” with whom Sussmann directly coordinated referenced in paragraph 6, Durham explains that that reference is just a “summary” of “facts” later alleged in paragraphs 25(e), 20(d), and 20(g).

Paragraph 6 is a portion of the “Introduction and Overview” section of the Indictment that summarizes facts later alleged with specificity. And the later parts of the Indictment provide details underlying the more generalized allegation in Paragraph 6. For example, Paragraph 25(e) of the Indictment states that [Elias] had exchanged emails about the [Alfa Bank] allegations with the Clinton Campaign’s campaign manager, communications director, and foreign policy advisor which the defendant had provided to a newspaper. Ind. ¶ 25(e). Indeed, the government also provided the true identities of each of those referenced individuals to defense counsel in a discovery letter dated October 20, 2021. Likewise, Paragraphs 20(d) and 20(g) allege that the defendant, one of his law partners, and [Rodney Joffe] each communicated via email with an investigative firm that was at the time acting as an agent of the Clinton Campaign. The government similarly has provided the identity of that investigative firm to the defense in its October 20 discovery letter, even though counsel was undoubtedly already aware of that firm’s identity. Moreover, it was a production of information by the defendant’s counsel (i.e., a privilege log) that first alerted the government to these cited emails. Accordingly, the defendant is neither entitled to, nor needs any greater detail, regarding the identities of the individuals identified in Paragraph 25(e) at this stage, and any further information in that regard will be disclosed in due course in discovery prior to trial. At bottom, the defendant’s demand here is not an appropriate use of a motion for a bill of particulars and should be denied.

In response to the request for the identities of the Clinton Campaign people he was coordinating with, Durham pointed to the following allegations:

d. In or around the same time period [mid-August 2016], SUSSMANN, [Marc Elias], and personnel from [Fusion GPS] began exchanging emails with the subject line, “Connecting you all by email.”

[snip]

g. Later in or about August 2016, [Rodney Joffe] exchanged emails with personnel from [Fusion GPS].

[snip]

e. On or about September 15, 2016, [Elias] exchanged emails with the Clinton Campaign’s campaign manager, communications director, and foreign policy advisor concerning the [Alfa Bank] allegations that SUSSMANN had recently shared with [Franklin Foer]. [Elias] billed his time for this correspondence to the Clinton Campaign with the billing entry, “email correspondence with [Jake Sullivan], [name of campaign manager], [name of communications director] re: [Alfa Bank] Article.” [emphasis added by Durham]

That is, in response to a question, tell me what agents of the Clinton Campaign Sussmann and Joffe and Perkins Coie coordinated with, which is something (Durham claims) Sussmann lied to hide, Durham responded by pointing to 1) an email where Elias connected Fusion GPS and Sussmann via email (well after the identification of the Alfa Bank anomaly), 2) emails that Joffe exchanged with Fusion GPS, and 3) an email that Elias sent Jake Sullivan and others about the Franklin Foer article.

Effectively, Durham’s response admits that he has presented no evidence either Sussmann or Joffe ever spoke directly to members of the Clinton Campaign about the Alfa Bank allegations. He sustains the claim only by raising Elias, whom he doesn’t mention in that materiality statement.

He also admits that he is treating Fusion GPS as an agent of the Clinton Campaign, which it arguably is, but only through Perkins Coie. The indictment presents no evidence that the Campaign was directly managing Fusion, or even aware of it. There’s no place in this indictment where the Clinton Campaign provided directions into this effort that would amount to an instruction to feed information to the FBI, something that goes to the heart of whether or not Sussmann was representing Hillary at the meeting with Baker. (Right wing conspiracists have, in recent days, pointed back to Sussmann’s June 2016 efforts to get the FBI to attribute the DNC hack to Russia, conflating an interest in attribution to Russia and a later effort to investigate Trump’s ties to Russia.)

Durham might not even have the content of his emails with Fusion GPS or Elias’ emails with Sullivan and others. He only knows of these communications, Durham explains, because Sussmann invoked privilege over them in a privilege log shared with Durham.

In the indictment, Durham makes much of something April Lorenzen (the security expert who used the name Tea Leaves during this project but whom Durham has needlessly referred to as Originator-1) said on August 20, 2016 that reflects an obvious technical point: “even if we found what [Joffe] asks us to find in DNS, we don’t see the money flow, and we don’t see the content of some message saying, ‘send money here’.” That is, the DNS traffic they were following was proof of some kind of messaging. But it was not proof of what was being said. Durham may have the same problem: he may not have proof regarding what direction these communications flowed and what was really said.

I would not be remotely surprised if Durham used the fact that he obtained a false statements indictment as a basis to obtain a probable cause warrant to obtain these communications via other means (perhaps via whatever company hosts Perkins Coie’s email) such that an FBI filter team could do their own privilege determination of them. Durham is working on a theory that this is all two parallel conspiracies to defraud the government, and would need to use a crime-fraud exception to get to content that, he believes as a matter of faith, would prove the case. A big part of this investigation is an exercise in exposing Hillary to the same invasive investigative scrutiny as Trump (as if the Clinton email and Clinton Foundation investigations didn’t already do that), and Trump’s attorneys keep having their communications seized. So I’m sure Durham would relish seizing the communications of Elias and Sussmann.

That said, for the existing indictment charging only Sussmann with a single false statement, Durham claims that Sussmann lied to James Baker by disclaiming that both his work to chase down this Alfa Bank anomaly and his scheduling of a meeting at which he gave Baker a heads up that a media outlet was going to publish the story in order to hide that he was “coordinating” with the Clinton Campaign. But Durham presents no evidence Sussmann ever spoke to anyone at the Clinton Campaign on this topic … and the only evidence he presents that anyone spoke to Hillary’s people comes well after the white papers provided to the FBI were substantially complete.

This doesn’t really fly in an indictment charging just Sussmann. It effectively treats this as a conspiracy, without (yet) charging a conspiracy. With his response to Sussmann’s motion for a Bill of Particulars, Durham has effectively accused and treated all the named people of engaging in a conspiracy without showing any evidence that they were doing anything other than trying to understand an anomaly involving Trump’s company and a Russian bank.

John Durham Is the Jim Jordan of Ken Starrs

Last Thursday, John Durham indicted Michael Sussmann, the Perkins Coie lawyer who advised the DNC, DCCC, and Clinton Campaign about cybersecurity in 2016 as they struggled to deal with a hostile nation-state attack aiming — in part — to help elect their opponent. The indictment accuses Sussmann of lying to FBI General Counsel James Baker at a September 19, 2016 meeting at which Sussmann shared information about the curious DNS traffic between a server used by a Trump marketing contractor and Alfa Bank.

emptywheel’s long history of debunking the Alfa Bank story

Before I unpack the indictment, let me remind readers that when this story first publicly broke, I explained why the Spectrum Health (aka my boob hospital at the time) aspect of the allegations made no sense, criticized Hillary’s team (including Jake Sullivan) for jumping on the story, and echoed Rob Graham’s criticism of the researchers who accessed DNS data to conduct this research.

In addition to his technical debunking, Robert Graham made an equally important point: researchers shouldn’t be accessing this data for ad-lib investigations into presidential candidates, and it’s not even clear who would have access to it all except the NSA.

The big story isn’t the conspiracy theory about Trump, but that these malware researchers exploited their privileged access for some purpose other than malware research.

[snip]

In short, of all the sources of “DNS malware information” I’ve heard about, none of it would deliver the information these researchers claim to have (well, except the NSA with their transatlantic undersea taps, of course).

[snip]

[B]efore Tea Leaves started pushing this story to the press, the FBI had been investigating it for two months.

Which, to my mind, raises even more questions about the anonymous researchers’ identities, because (small world and all) the FBI likely knows them, in which case they may have known that the FBI wasn’t jumping on the story by the time they started pitching it.

Or the FBI doesn’t know them, which raises still more questions about the provenance of these files.

Ah well, if President Hillary starts a war with Russia based off Iraq-War style dodgy documents, at least I’ll have the satisfaction of knowing my boob clinic is right there on the front lines.

In March 2017, I observed that the weird Alfa Bank entry in the Steele dossier suggested a feedback loop between the Alfa Bank server story and the dossier project. Then days after that, I noted all the ways that the packaging of this story made it more suspect.

In 2018, I complained about the way Dexter Filkins had strained to sustain the story, while noting that people ought to look more closely at why Alfa Bank might be the focus here; the Mueller Report since confirmed that within weeks after the story broke publicly, Vladimir Putin pushed Oligarchs from Alfa Bank to fight harder against western sanctions, something that the alleged source for the Alfa Bank entry in the dossier seemed to parrot.

In short, I not only have consistently criticized this story, but done so in ways that anticipate the most justifiable parts of the indictment. It’s only the last bit — how the Alfa narrative echoes Putin’s interests — that this indictment doesn’t incorporate.

I guess with five more years Durham might get there…

So in unpacking this indictment, I’m in no way defending the Alfa Bank – Trump Tower story. It was a sketchy allegation, the packaging of it was suspect, and those who conducted the research arguably violated ethical guidelines.

I got to where Durham got in this indictment years and years ago. But that doesn’t make it a crime.

John Durham’s “narrative”

Moreover, that doesn’t mean Durham should tell as strained a “narrative” as those who packaged up this story. Central to Durham’s indictment is an assumption that if a victim of a crime who believed at the time that the crime had a — since confirmed — political goal reports suspicious, potentially related details, the victim must be motivated exclusively out of self-interest, not good citizenship or a concern about national security. That is, this entire indictment assumes that when Russia attacks a Presidential candidate, that is not itself a national security concern, but instead nothing more than a political dispute.

Effectively, John Durham has made it a crime for someone victimized by a Russian influence operation to try to chase down Russian influence operations.

Tech Executive-1 and Clinton both had retained Perkins Coie long before this, with Sussmann getting involved specifically for cybersecurity help in the wake of the Russian hack

The indictment, perhaps deliberately, obscures the timeline and facts leading up to the charged lie. But here’s the story it tells. First, all of Durham’s subjects established contracts with each other, even though all of those contracts (including Fusion GPS’) had scopes far larger than oppo research on Trump’s relationship with Russia.

  • In February 2015, Tech Executive-1 (whom I’ll call TE-1 for brevity) retained Sussmann to deal with a US government agency [Durham does not say whether this matter was resolved or continued in this period in 2016, which is central to the question of what kind of client of Sussmann’s TE-1 was].
  • In April 2015, the Clinton Campaign retained Perkins Coie and made Marc Elias the Campaign’s General Counsel.
  • In April 2016, the victim of a Russian government election-related attack, the DNC, retained Sussmann to help it deal with aftermath, which included meeting with the FBI. As the indictment describes this was not just legal support but cybersecurity.
  • [After a Republican retained them first and on a date that Durham doesn’t reveal,] Perkins Coie retained Fusion GPS to conduct oppo research on Trump pertaining to Russia [and other topics, though Durham doesn’t mention those other topics].

Durham only mentions in passing, later, that the researchers involved here similarly knew each other through relationships that focused on cybersecurity and predated these events.

Via means and on specific dates that Durham doesn’t always provide, Tea Leaves, TE-1, Sussmann, and two Researchers got the DNS data showing an anomaly

There are two sets of research here: that done in a university setting and that done at companies associated with TE-1, though TE-1 is the pivot to both. As depicted, Durham suggests the former are more legally exposed than the latter.

  • By some time in late July 2016 [the exact date Durham doesn’t provide], a guy who always operated under the pseudonym Tea Leaves but whom Durham heavy-handedly calls “Originator-1” instead had assembled “purported DNS data” reflecting apparent DNS lookups between Alfa Bank and “mail1.trump-email.com” that spanned from May 4 through July 29.
  • Tea Leaves was a business associate of TE-1 and via means Durham doesn’t describe, the data Tea Leaves gathered was shared with TE-1.
  • “In or about July 2016” [at a time that, because of the laws of physics, must post-date the late July date when Tea Leaves collected this data and the date when he shared them with TE-1], TE-1 alerted Sussmann to the data.
  • On July 31, Sussmann billed the Clinton Campaign for 24 minutes with the billing description, “communications with Marc Elias regarding server issue.”
  • At some point [Durham doesn’t provide even a month, but by context it was at least as early as July 2016 and could have been far, far earlier], TE-1’s company provided a university with data for a government contract ultimately not contracted until November 2016, including the DNS data from an Executive Branch office of the US government that Tech Exec-1’s company had gotten as a sub-contractor to the US government. [This date of this is critical because it would be the trigger for a Conspiracy to Defraud charge, if Durham goes there.]
  • In or about August 2016 [Durham doesn’t provide a date], a federal government was finalizing but had not yet signed a cybersecurity research contract with [presumably] that same university to receive and analyze large quantities of public and non-public data “to identify the perpetrators of malicious cyber-attacks and protect U.S. national security.” Tea Leaves was the founder of a company that the university was considering [Durham doesn’t provide the date of consideration, but generally these things precede finalization] for a subcontract with the government contract.

TE-1 directs employees of companies under his control to research this issue

Though Durham’s indictment is somewhat vague, at least one piece of research from companies associated with TE-1 was shared with the FBI; it appears that other threads of research were not shared.

  • In or about early August 2016 [the dates of which Durham doesn’t provide], TE-1 directed personnel at two companies in which he had an ownership interest to search for what the indictment calls, “any Internet data reflecting potential connections or communications between Trump or his associates and Russia,” which Durham describes to be “derogatory information on Trump.” In connection with this tasking, TE-1 later stated [on a date Durham doesn’t describe] he was working with someone who had close ties to the Democratic Party.
  • At some point, an individual tasked with this work described being “uncomfortable regarding this tasking,” [Durham doesn’t describe when he learned this or whether there is any contemporaneous proof].
  • At some point [Durham doesn’t describe the date], TE-1 provided one of his companies with personal (but publicly available) data from six Trump associates and one purported US-based lobbyist for Alfa Bank and directed these individuals should be the focus of that company’s data queries and analysis [Durham doesn’t say whether these six associates overlapped with the people Fusion had been tasked to research, nor does he allege they got included in the eventual reports to the FBI; both details are needed to assess his case].
  • On August 12, 2016, Sussmann, Elias, and TE-1 met in Elias’ office; Sussmann billed his time to the Clinton Campaign describing, “confidential meetings with Elias, others.”
  • On August 15, employees at one of the companies queried their holdings against a set of addresses that referred to Trump and/or Alfa Bank.
  • During the same time period [Durham doesn’t specify when], employees at Internet Company-3 drafted a written paper that included technical observations that Sussmann would later convey to the FBI.

Around the time this started, Sussmann met Fusion and a bunch of meetings happened that were billed to Hillary

  • On July 29, Sussmann and Marc Elias met with Fusion GPS [Durham doesn’t affirmatively claim this data pertained to the server issue], and Sussmann billed his time to the Hillary Campaign under “General Political Advice,” a different description than all the other Fusion meetings that Durham more credibly claims relate to the Alfa Bank allegation.
  • Around “the same [August] time period” [Durham doesn’t provide the date], Sussmann, Elias, and Fusion personnel began exchanging emails with the subject line, “Connecting you all by email;” [Durham doesn’t say who initiated the email, but it suggests that before this period, Sussmann and Fusion did not have direct contact].
  • On August 17, 2016, Sussmann, Elias, and TE-1 conducted an additional conference call, for which Sussmann billed his time to the Clinton campaign, noting “telephone conference with” TE-1 and Elias.
  • On August 19, 2016, Sussman and Elias had another in-person meeting that Sussmann described as a meeting with TE-1, which was billed as a “confidential meeting with Elias, others.”

Researchers 1 and 2 and Tea Leaves worked with TE-1 on a “storyline” and “narrative” with varying degrees of skepticism expressed

This is the stuff Durham–with some justification–will and has used to taint all this as a political project.

  • On July 29, Researcher-2 emailed Researcher-1 the data compiled by Tea Leaves [Durham provides no evidence that TE-1 was involved in this exchange].
  • On August 19, Researcher-1 queried Internet data maintained by TE-1’s company [it is not clear but this suggests it was not the data turned over to the University] for the aforementioned mail1.trump-email.com domain. Researcher-1 then emailed TE-1 with the list of domains that had communicated with it, saying the list, “does not make much sense with the storyline you have.”
  • On August 20, Tea Leaves emailed Tech Exec-1, Researcher-1, and Researcher 2, stating that, “even if we found what [TE-1] asks us to find in DNS, we don’t see the money flow, and we don’t see the content of some message saying, ‘send money here’.” Tea Leaves then explained that one could fill out sales forms and cause them, “to appear to communicate with each other in DNS.” Tea Leaves then noted that “it’s just not the case that you can rest assured that Hillary’s opposition research and whatever professional gov and investigative journalists are also digging come up with the same things.”
  • On August 20, TE-1 clarified that the task was “indeed broad,” and that,
    • Being able to provide evidence of *anything* that shows an attempt to behave badly in relation to this [Durham doesn’t describe what the antecedent of “this” is], the VIPs would be happy. They’re looking for a true story that could be used as the basis for closer examination.
  • Still on August 20, seemingly distinguishing between that task and the Alfa Bank allegations, TE-1 said, “the prior hypothesis was all that they needed: mailserver dedicated or related to trump … and with traffic almost exclusively with Alfa was sufficient to do the job. … Trump has claimed he and his company have had NO dealings with .ru other than the failed Casino, and the Miss universe pageant. He claims absolutely NO interaction with any financial institutions. So any potential like that would be jackpot.” [Ellipses original]
  • On August 21, TE-1 emailed the recipients [but not, apparently, Sussmann], urging them to do further research on Trump which would “given the base of a very useful narrative.” He added that he didn’t believe the trump-email.com domain was a secret communications channel but a “red herring,” because the host was “a legitimate valid company,” stating they could “ignore it, together with others that seem to be part of the marketing world.”
  • On August 22, Researcher-1 raised doubts about whether, using only the tools they were currently using, they could prove their hypothesis. Among the concerns raised is that they couldn’t prove that “this is not spoofed [] traffic.” [brackets original; bolded in the original]
  • Later in or about August 2016 [on dates Durham doesn’t provide], TE-1 exchanged emails with personnel from Fusion.

Sussmann drafts a white paper and (via unstated means) TE-1 gets Researchers 1 and 2 and Tea Leaves to review it

  • Between September 5 and September 14, Sussmann drafted a white paper, generally billing his time to the Clinton Campaign, but on September 14, billing time to both Clinton and TE-1.
  • On September 14, TE-1 [not Sussmann] sent the white paper he had drafted to Researcher 1, Researcher 2, and Tea Leaves to ask them if a review of less than an hour would show this to be plausible. Though some of them noted how limited the standard of “plausibility” was, they agreed it was plausible, and Researcher 2 said [Durham does not quote the specific language here] “the paper should be shared with government officials.”

Sussmann shares this and other information with James Baker and–Durham claims–affirmatively lies about whether he is representing someone

  • Both before the September 19 meeting and after it (notably in a September 12 meeting involving the NYTimes, in which Marc Elias also participated), Sussmann spoke to the press about what Durham credibly suggests was the Alfa Bank white paper. Sussmann billed this to Clinton.
  • On September 19, Sussmann met with Baker and provided him with three white papers and a thumb drive with data. Durham doesn’t actually make clear where all three of these came from.
  • On September 19, Sussmann met with James Baker. Durham claims that “he stated falsely that he was not acting on behalf of any client” [which Durham cannot quote because there’s no contemporaneous record], that he had been approached by multiple cyber experts [Durham doesn’t say whether the three he named were Researcher 1, Researcher 2, and Tea Leaves or other people, as seems to be the case], three white papers [which I may return to because this is another problematic spot in his story], and some of the data, which Durham calls “purported.”
  • Immediately after the September 19 meeting, Baker met with Bill Priestap whose notes read:
    • Michael Sussman[n] — Atty: Perkins Coie — said not doing this for any client
      • Represents DNC, Clinton Foundation, etc. []
      • Been approached by Prominent Cyber People (Academic or Corp. POCs), People like: [three names redacted]
  • Durham substantiates a claim that Sussmann billed the meeting itself to Hillary to a description, “work and communications regarding confidential project,” that does not, at least as he quotes it, mention a meeting with the FBI General Counsel at all.

Some of this — the reference to crafting a narrative and a storyline — is damning and validates my discomfort with the political nature of this project five years ago. Other parts of this emphasize the researchers’ insistence on truth from at least parts of this effort. Still others (such as the recognition that this could be spoofed data) will almost certainly end up being presented as exculpatory if this ever goes to trial, but Durham seems to think is inculpatory.

In one place, Durham describes “aforementioned views,” plural, that the Alfa Bank data was a “red herring,” something only attributed to TE-1 in the indictment, seemingly presenting TE-1’s stated view on August 21 to everyone involved, including Sussmann, who does not appear to have been on that email chain. He claims Sussmann, Researcher 1 and 2, TE-1, and Tea Leaves drafted the white paper(s) shared with the FBI, but all he substantiates is a less than one hour review by everyone but Sussmann. He leaves out a great deal of detail about what Jean Camp and someone using the moniker Tea Leaves did and said, publicly, after the FBI meeting, which may totally undercut Durham’s “narrative.”

But other parts, even of the story that Durham tells, are problematic for his narrative. First, there is not (yet) the least hint that Tea Leaves — whom he calls “The Originator” — fabricated this data (or even packaged it up misleadingly, though I think there is evidence he did). Nor is there the least hint that TE-1 asked Tea Leaves to come up with the data. That part of the story is fundamentally important and Durham simply ignores it with that legally unnecessary — particularly given that Durham clearly labels this person as Tea Leaves — moniker “Originator,” giving the anomalous forensic data a kind of virgin birth. And while two of the four tech experts described herein (there appear to be at least three others not described) expressed some doubt about the meaning of it, none of them seems to have doubted that there was an anomaly in the Trump marketing server and Alfa Bank.

Based on this story, though, Durham insinuates Sussmann fed information that he, Sussmann, knew to be bullshit to the FBI on behalf of both Hillary and TE-1, and in so doing affirmatively hid that the bullshit “storyline” was designed to help Hillary which (he claims) would have led the FBI to treat it differently.

In spite of a lot of thus far extraneous details, that’s the only crime he has alleged.

The existing case is remarkably weak

As a number of people have noted, as charged this is a remarkably weak case. Ben Wittes dedicates a section of his post on this indictment to those weaknesses. They are, succinctly:

  • The evidence regarding the core allegation in the indictment pits Sussmann’s word against James Baker’s; there are no other witnesses.
  • After the meeting with Baker, Sussmann repeatedly admitted under oath he was representing a client, a detail which could be exculpatory or inculpatory.
  • Baker testified to Congress he did believe Sussmann was representing a client (meaning Baker will be used to discredit Baker, the one witness to Sussmann’s alleged lie).
  • Even in Bill Priestap’s nearly-contemporaneous notes which are the only documentation of Sussmann’s comments, he describes Sussmann as Hillary’s lawyer (including for the Clinton Foundation, which may be incorrect), so FBI knew full well that Sussmann represented Hillary.
  • Priestap’s notes may be inadmissible hearsay at trial.

The NYT article predicting these charges also claim Durham is conflating Sussmann’s tracking of his hourly work with the actual money charged to the Hillary campaign.

Moreover, internal billing records Mr. Durham is said to have obtained from Perkins Coie are said to show that when Mr. Sussmann logged certain hours as working on the Alfa Bank matter — though not the meeting with Mr. Baker — he billed the time to Mrs. Clinton’s 2016 campaign.

[snip]

They are also said to have argued that the billing records are misleading because Mr. Sussmann was not charging his client for work on the Alfa Bank matter, but needed to show internally that he was working on something. He was discussing the matter with Mr. Elias and the campaign paid a flat monthly retainer to the firm, so Mr. Sussmann’s hours did not result in any additional charges, they said.

There are a number of other ways that Sussmann’s presumably well-funded defense will combat these charges. But as to the allegation buried amid all these details, Durham’s evidence is weak.

Durham’s materiality broadcasts his bid for a ConFraudUS conspiracy

But that’s not what this is about.

Durham is not just alleging that Sussmann was hiding that he was working for Hillary. He is also claiming that Sussmann was at the same time representing TE-1 at that meeting. In the indictment, I think that’s based on a single data point — that Sussmann billed TE-1’s company for “communications regarding confidential project” on September 14. I’m not sure whether that makes the false statements case still weaker or stronger.

But it’s a key part of where Durham obviously wants to go.

Not only are many of the details Durham included in the indictment irrelevant to the false statements charge, but if they were crimes by themselves, they would have been tolled under any five year statute of limitations already. There are only two conceivable purposes for including them in this indictment. First, to give the Alfa Bank Oligarchs more cause to sue more people, effectively a US prosecutor assisting Russians in cynical lawfare. Durham’s investigation incorporates stuff the Oligarchs have already liberated, so is itself derivative of Russian lawfare. Effectively, that means that a prosecutor working for Bill Barr’s DOJ pursued a prosecution that was complementary to an intelligence-related effort by foreigners who pay Kirkland & Ellis a lot of money. Sussmann will have real cause to question whether Brian Benczkowski (who recused from matters involving this aspect of Alfa Bank) or any other Kirkland & Ellis lawyer had a role in this strand of the investigation.

Then there’s the most obvious way to extend the statute of limitations on the events that happened in July and August 2016: to include them in a conspiracy that continued after those dates (and indeed, Durham refers to Elias, Researcher 1 and 2, and Tea Leaves in the way DOJ often uses to refer to charged or uncharged co-conspirators).

Given the extended statement Durham includes to explain why Sussmann’s alleged lie is material under the charged statute, that’s undoubtedly where Durham wants to head with his investigation.

SUSSMANN’s lie was material because, among other reasons, SUSSMANN’s false statement misled the FBI General Counsel and other FBI personnel concerning the political nature of his work and deprived the FBI of information that might have permitted it more fully to assess and uncover the origins of the relevant data and technical analysis, including the identities and motivations of SUSSMANN’s clients.

Had the FBI uncovered the origins of the relevant data and analysis and as alleged below, it might have learned, among other things that (i) in compiling and analyzing the Russian Bank-1 allegations, Tech Executive-1 had exploited his access to non-public data at multiple Internet companies to conduct opposition research concerning Trump; (ii) in furtherance of these efforts, Tech Executive-1 had enlisted, and was continuing to enlist, the assistance of researchers at a U.S.-based university who were receiving and analyzing Internet data in connection with a pending federal government cybersecurity research contract; and (iii) SUSSMAN, Tech Executive-1, and Law Firm-1 had coordinated, and were continuing to coordinate, with representatives and agents of the Clinton Campaign with regard to the data and written materials that Sussmann gave to the FBI and the media.

Don’t get me wrong. This will clearly pass the incredibly low standard for materiality under existing precedent. Though Sussmann will surely make much of citing the invented standard Billy Barr used to try to dismiss the Mike Flynn prosecution, which first requires the investigation in question to be legitimate.

The Government is not persuaded that the January 24, 2017 interview was conducted with a legitimate investigative basis and therefore does not believe Mr. Flynn’s statements were material even if untrue. Moreover, we not believe that the Government can prove either the relevant false statements or their materiality beyond a reasonable doubt.

[snip]

In any event, there was no question at the FBI as to the content of the calls; the FBI had in its possession word-for-word transcripts of the actual communications between Mr. Flynn and Mr. Kislyak. See Ex. 5 at 3; Ex. 13. at 3. With no dispute as to what was in fact said, there was no factual basis for the predication of a new counterintelligence investigation. Nor was there a justification or need to interview Mr. Flynn as to his own personal recollections of what had been said. Whatever gaps in his memory Mr. Flynn might or might not reveal upon an interview regurgitating the content of those calls would not have implicated legitimate counterintelligence interests or somehow exposed Mr. Flynn as beholden to Russia.

If DOJ had no interest in figuring out whether Trump was undermining sanctions to pay off a quid pro quo, they sure as hell have no interest in launching a 3-year investigation to figure out the tie between these allegations and Hillary that was obvious to Priestap in real time, particularly given how quickly the FBI dismissed the allegations in 2017 and given that the allegations are not publicly known to have had a tie to their larger Russian investigation.

Still, while Durham will have no trouble proving Sussmann’s claimed lie meets the standards of materiality, Durham’s claims for it are ridiculous.

It’s a load of horseshit that FBI would have treated this tip any differently — which amounted to investigating it, alerting the press there was nothing to it, then dismissing it pretty quickly, as far as is public — if they knew that Sussmann was formally being paid at that meeting by Hillary, if he in fact was. Priestap knew Sussmann was representing Hillary and said as much in the best evidence Durham has! In fact, FBI’s warning to the NYT about this story in October could be presented as evidence that FBI already incorporated an assumption this came from Hillary.

Likewise, it’s a load of horseshit that FBI couldn’t know that the Bureau needed to ID the researchers behind the project. If I was able to figure that was important out before the 2016 election, and I did, then the experts at the FBI surely figured that out.

But what Durham’s materiality statement emphasizes — what Durham claims Sussmann intended to hide with his claimed lie — is that, “researchers at a U.S.-based university … were receiving and analyzing Internet data in connection with a pending federal government cybersecurity research contract.” That’s the significance of ¶¶23a through e of the indictment, which describe how TE-1 provided data that included some from an Executive Branch office of the U.S. government, which his company had obtained “as a sub-contractor in a sensitive relationship between the U.S. government and another company,” to the university at which Researcher 1 and 2 were working, and both with his university researcher allies and employees of his own company, he tasked people to research Donald Trump. Durham is suggesting that subset of data taints the whole pool that TE-1 shared, making it a Federal interest.

It’s not just that Durham is working on a theory that Sussmann deliberately dealt garbage to the FBI (which GOP sources also did on the Clinton Foundation) while trying to hide that fact. It’s that data originally sourced from the government was used in doing that research.

It’s actually the kind of argument that DOJ prosecutors typically succeed with. Except it’s all premised on proving that Sussman was trying to hide all this in his meeting with Baker. Even if the evidence surrounding the meeting weren’t so flimsy, this is another degree of motive that Durham is straining mightily to make.

Durham needs Sussmann to have lied, because a deliberate attempt to obscure the rest is necessary for his “storyline.” His evidence that Sussmann lied — much less, deliberately — is shoddy. But if he can’t get that, then his hopes for a larger “narrative” collapse.

The parts of the story Durham doesn’t tell

That becomes more clear when you consider some details that Durham doesn’t include in his indictment.

Two details that were public to everyone involved make it clear why Durham’s silence about the exact dates in July when this operation started is so corrupt.

On July 22, WikiLeaks published emails that were at the time believed and since have been confirmed by the FBI to have been hacked by Russia. Durham hides the dates in July when many of these events transpired, but everything he includes suggests this activity post-dated the time when WikiLeaks published stolen emails and the entire security community in the US, surely including every researcher mentioned in this story, coalesced on the belief that Russia was the culprit. Durham refers to Russia’s attack on Hillary (and therefore on the US) inaccurately as, “the hacking of its email servers by the Russian government” and “a hack” (the hack went well beyond just email and continued through the period of Sussmann’s meeting with Baker). But, amazingly, Durham’s “narrative” doesn’t account for the fact that Hillary was targeted not just with an attack but with an information operation. And the timeline he presents here affirmatively hides that these events took place after the entire security community understood that there was an information operation aspect to the attack.

Then, on July 27, Trump gave a press conference in Florida where he said numerous things that make all the actions of Sussmann and others justifiable on national security grounds. First, Trump raised doubts about the Russian attribution of the DNC hack that, by that point in July, was the consensus among national security experts, undoubtedly including every tech expert mentioned in this indictment.

I watched this guy Mook and he talked about we think it was Russia that hacked. Now, first of all was what was said on those that’s so bad but he said I watched it. I think he was live. But he said we think it was Russia that hacked.

And then he said — and this is in person sitting and watching television as I’ve been doing — and then he said could be Trump, yeah, yeah. Trump, Trump, oh yeah, Trump. He reminded me of John Lovitz for “Saturday Night Live” in the liar (ph) where he’d go yes, yes, I went to Harvard, Harvard, yes, yes. This is the guy, you have to see it. Yes, it could be Trump, yes, yes. So it is so farfetched. It’s so ridiculous. Honestly I wish I had that power. I’d love to have that power but Russia has no respect for our country.

And that’s why — if it is Russia, nobody even knows this, it’s probably China, or it could be somebody sitting in his bed. But it shows how weak we are, it shows how disrespected we are. Total — assuming it’s Russia or China or one of the major countries and competitors, it’s a total sign of disrespect for our country. Putin and the leaders throughout the world have no respect for our country anymore and they certainly have no respect for our leader. So I know nothing about it.

Trump then offered his bullshit explanation for why he wouldn’t release his tax returns, framing it in terms of whether he had business ties to Russia.

TRUMP: Because it’s under order. And I’ll release them when the audits completed. Nobody would release when it’s under — I’ve had audits for 15 or 16 years. Every year I have a routine audit. I’m under audit, when the audits complete I’ll release them. But zero, I mean I will tell you right now, zero, I have nothing to do with Russia, yes?

Trump then said the nation-state hack of his opponent wasn’t the important thing, the content of the emails that were released was, thereby encouraging the press to participate in the information operation aspect of this attack.

He already did something today where he said don’t blame them, essentially, for your incompetence. Let me tell you, it’s not even about Russia or China or whoever it is that’s doing the hacking. It was about the things that were said in those e-mails. They were terrible things, talking about Jewish, talking about race, talking about atheist, trying to pin labels on people — what was said was a disgrace, and it was Debbie Wasserman Schultz, and believe me, as sure as you’re sitting there, Hillary Clinton knew about it. She knew everything.

Trump then asked Russia to further hack his opponent.

Russia, if you’re listening, I hope you’re able to find the 30,000 e-mails that are missing.

Trump then doubled down on the comment he made about his taxes, assuring the press that he had “zero” business ties with Russia.

TRUMP: No, I have nothing to do with Russia, John (ph). How many times do I have say that? Are you a smart man? I have nothing to with Russia, I have nothing to do with Russia.

And even — for anything. What do I have to do with Russia? You know the closest I came to Russia, I bought a house a number of years ago in Palm Beach, Florida.

Palm Beach is a very expensive place. There was a man who went bankrupt and I bought the house for $40 million and I sold it to a Russian for $100 million including brokerage commissions. So I sold it. So I bought it for 40, I told it for 100 to a Russian. That was a number of years ago. I guess probably I sell condos to Russians, OK?

QUESTION: (OFF-MIKE)

TRUMP: Of course I can. I told you, other than normal stuff — I buy a house if I sold it to a Russian. I have nothing to do with Russia. I said that Putin has much better leadership qualities than Obama, but who doesn’t know that?

QUESTION: (OFF-MIKE)

TRUMP: Of course not. I own the Trump organization. Zero, zero. Go ahead.

Trump then reiterated his claim that no one could attribute the DNC hack to Russia.

TRUMP: No, but they seem to be, if it’s Russians. I have no idea. It’s probably not Russia. Nobody knows if it’s Russia. You know the sad thing is? That with the technology and the genius we have in this country, not in government unfortunately, but with the genius we have in government, we don’t even know who took the Democratic National Committee e-mails. We don’t even know who it is.

I heard this morning, one report said they don’t think it’s Russia, they think it might be China. Another report said it might be just a hacker, some guy with a 200 I.Q. that can’t get up in the morning, OK? Nobody knows. Honestly they have no idea if it’s Russia. Might be Russia. But if it’s any foreign country, it shows how little respect they have for the United States. Yes, ma’am.

Finally, Trump also stated that he would consider lifting sanctions on Russia.

QUESTION: I would like to know if you became president, would you recognize (inaudible) Crimea as Russian territory? And also if the U.S. would lift sanctions that are (inaudible)?

TRUMP: We’ll be looking at that. Yeah, we’ll be looking.

Each of these comments, individually, would have raised eyebrows. The same comments, made by an American citizen, would equally have raised alarms among those committed to cybersecurity.

But for a presidential candidate to encourage the hostile nation-state information operation targeting his opponent, then ask the hostile nation-state to further target her, in conjunction with the repeated denials of any business ties to Russia raised real, legitimate questions about whether Trump was putting his own interests above the national security of the country.

You might excuse Durham for excluding this from his indictment because after all he was busy indicting a ham sandwich based on hearsay evidence he might be able to exclude these facts at trial. Except that an August 20 comment from TE-1 that Durham quotes in his indictment may be a direct reference to (and at the least incorporates knowledge of) this press conference.

Trump has claimed he and his company have had NO dealings with .ru other than the failed Casino, and the Miss universe pageant. He claims absolutely NO interaction with any financial institutions. So any potential like that would be jackpot.

That is, Durham included what appears to be a reference to the July 27 press conference. It appears (though Durham obscures this point) that all the actions laid out in this indictment post-date the press conference. Virtually everyone in the US committed to ensuring America’s national security was alarmed by Trump’s comments in this press conference. Yet Durham doesn’t acknowledge that all these actions took place in the wake of public comments that made it reasonable for those committed to cybersecurity to treat Donald Trump as a national security threat, irrespective of partisan affiliation.

Durham will work hard to exclude detail of Trump’s press conference from trial. But I assume that if any of the named subjects of this investigation were to take the stand at trial, they would point out that it was objectively reasonable after July 27 to have national security concerns based on Trump’s encouragement of Russia’s attack on Hillary Clinton and his defensive denials of any business ties. Any of the named subjects of the indictment would be able to make a strong case that there was reason to want to, as a matter of national security, test Trump’s claim to have no financial ties to Russia. Indeed, the bipartisan SSCI Report concluded that Trump posed multiple counterintelligence concerns, and therefore has concluded that Durham’s portrayal of politics as the only potential motive here to be false.

Central to Durham’s theory of prosecution is that there was no sound national security basis to respond to anomalous forensic data suggesting a possible financial tie between Trump and Russia. Except that, after that July 27 speech — and all of these events appear to post-date it — that theory is unsustainable.

The parts of the story Durham doesn’t tell

And not only was it objectively reasonable to test whether Trump’s claims to have “zero” business ties to Russia were false, but those suspecting that Trump was hiding such ties were, in fact, correct.

According to Michael Cohen, when Trump walked off the stage from that July 27 press conference, Cohen asked Trump why he had claimed that he had zero business ties with Russia when he had in fact been pursuing an impossibly lucrative deal to brand a Trump Tower in Moscow. And we now know that within hours of Trump’s request, GRU hackers made a renewed assault on Hillary’s own servers. By the time security researchers pursued anomalous data suggesting covert communications with a Russian bank, Cohen had already participated in discussions about working with two sanctioned Russian banks to fund the Trump Tower deal, had agreed to work with a former GRU officer to broker it, had spoken to an aide of Dmitry Peskov, and had been told that Putin was personally involved in making the deal happen. Just on the Trump Tower basis alone, Trump had publicly lied in such a way that posed a counterintelligence risk to America.

But that was not the only thing that Trump had done by the date when a bunch of security researchers responded to anomalous forensic data to test whether Trump was hiding further ties to Russia’s attack on Hillary Clinton.

In March, Trump hired Paul Manafort, a financially desperate political operative with close ties to a Russian intelligence officer, Konstantin Kilimnik, who (SSCI provided three redacted examples of) may have been involved in the hack-and-leak operation. In April, Manafort started leveraging his relationship with Trump to try to make money. In May, Manafort started regularly sending Kilimnik the campaign’s internal polling data. All that happened before researchers started testing Trump’s claims to have had no tie to Russia. On July 28, Kilimnik emailed Manafort to set up a meeting to talk about the future of Ukraine. Just days after the researchers started the inquiry, on August 2, Manafort met with Kilimnik to discuss carving up Ukraine in the same meeting where he described his strategy to win the election.

In April, an academic with close ties to Russia, Joseph Mifsud, told an unqualified braggart whom Trump had added to his team to pretend he had a foreign policy plan, George Papadopoulos, that Russia had thousands of Hillary’s emails that they intended to release to help Trump.

In May, according to Rick Gates’ testimony, Roger Stone started claiming he had advance knowledge of what would become the WikiLeaks releases. On or about June 15, per Gates, Stone told him that “he had contact with Guccifer 2.” According to a warrant affidavit targeting Stone, he searched Google on “Guccifer” before the Guccifer website went up that day. On June 23, Manafort called Stone and then the two old friends met for 30 minutes in the Trump cafeteria. On June 30, Stone spoke to Trump. According to multiple sources (including Michael Cohen), Stone knew of the DNC drop before it happened.

In June, Don Jr accepted a meeting with Natalia Veselnitskaya at which he believed he would get dirt on Hillary Clinton. At the meeting, Veselnitskaya asked Don Jr to end sanctions on Russia, and the candidate’s son said his dad would reconsider it if he won.

In short, the researchers who, in the wake of Trump’s damning comments, were testing whether Trump had lied about having ties to Russia, not only had objectively reasonable reasons to do that research. But their suspicions were proven correct, over and over again.

Durham describes the outcome of the FBI investigation into the allegations this way:

The FBI’s investigation of these allegations nevertheless concluded that there was insufficient evidence to support the allegations of a secret communications channel with Russian Bank-1. In particular, and among other things, the FBI’s investigation revealed that the email server at issue was not owned or operated by the Trump Organization but, rather, had been administered by a mass marketing email company that sent advertisements for Trump hotels and hundreds of other clients.

Nothing here suggests the FBI disproved that this was an anomaly.

And there’s one more detail that Durham didn’t include in the Sussmann indictment: on July 26, Australia first shared their report about what George Papadopoulos told Alexander Downer in May. The next day, July 27, the FBI Legat in the UK got the tip. On July 31 — before the substantive research into the Alfa Bank allegation began — the FBI opened an UNSUB investigation into who got advance warning about the Russian operation and shared it with George Papadopoulos. In other words, by hiding the dates when Tea Leaves first discovered the anomalous data, Durham is hiding not just the damning things that publicly happened before the Alfa Bank operation got started, but probably details about the tip that turned into the Crossfire Hurricane investigation.

In the wake of the Sussmann indictment, the usual Russian denialists have claimed that this proves that what they call “Russiagate” was all a fraud.

Such claims defy the rules of physics, suggesting that events that happened after the FBI opened an investigation to learn how and why the Trump campaign (via three channels, as it turns out) learned of the Russian attack in advance were in fact the cause of it.

It is likely that Durham will be able to exclude all these details from a Michael Sussmann trial, at least if it remains just a false statements case. He will be able to convince Judge Christopher Cooper, who is presiding over the case, that this information — that the researchers not only had reason to believe Trump presented a cybersecurity risk to the country, but that the researchers turned out to be right, and that FBI had itself determined there was reason to carry out the same kinds of investigations that the researchers did, possibly before any one of them took a single step — is irrelevant to the case against Sussmann. But if Durham charges ConFraudUS based on a claim that it was illegitimate to look into why Donald Trump was inviting Russia to hack his opponent, it will become centrally important that, before these researchers started conducting their investigation, the FBI had likewise decided such an investigation had merit.

The Alfa Bank story was sleazy and unethical. But it was still, nevertheless, an instance where someone representing the victim of a nation-state attack attempted to chase down information that may have pertained to that nation-state attack.

John Durham will go down in history as the guy who decided that torturing detainees, even in excess of legal guidance, was not a crime, but a victim sharing concerns about nation-state hacking is.

Update: It’s likely that Richard Burt was one of the people investigated as part of this effort. Per the Mueller Report, he was the person Petr Aven asked to establish a tie with Trump’s transition in 2016.

After the December 2016 all-hands meeting, A ven tried to establish a connection to the Trump team. A ven instructed Richard Burt to make contact with the incoming Trump Administration. Burt was on the board of directors for LetterOne (L 1 ), another company headed by Aven, and had done work for Alfa-Bank. 1169 Burt had previously served as U.S. ambassador to Germany and Assistant Secretary of State for European and Canadian Affairs, and one of his primary roles with Alfa-Bank and Ll was to facilitate introductions to business contacts in the United States and other Western countries. 1170

While at a L1 board meeting held in Luxembourg in late December 2016, Aven pulled Burt aside and told him that he had spoken to someone high in the Russian government who expressed interest in establishing a communications channel between the Kremlin and the Trump Transition Team. 1171 Aven asked for Burt’s help in contacting members of the Transition Team. 1172 Although Burt had been responsible for helping Aven build connections in the past, Burt viewed Aven’s request as unusual and outside the normal realm of his dealings with Aven. 1173

Burt, who is a member of the board of CNI (discussed at Volume I, Section IV.A.4, supra), 1174 decided to approach CNI president Dimitri Simes for help facilitating A ven’ s request, recalling that Simes had some relationship with Kushner. 1175 At the time, Simes was lobbying the Trump Transition Team, on Burt’s behalf, to appoint Burt U.S. ambassador to Russia.1176

Burt contacted Simes by telephone and asked if he could arrange a meeting with Kushner to discuss setting up a high-level communications channel between Putin and the incoming Administration. 1177 Simes told the Office that he declined and stated to Burt that setting up such a channel was not a good idea in light of the media attention surrounding Russian influence in the U.S. presidential election. 1178 According to Simes, he understood that Burt was seeking a secret channel, and Simes did not want CNI to be seen as an intermediary between the Russian government and the incoming Administration. 1179 Based on what Simes had read in the media, he stated that he already had concerns that Trump’s business connections could be exploited by Russia, and Simes said that he did not want CNI to have any involvement or apparent involvement in facilitating any connection. 118

Update: Corrected scope of Benczkowski’s recusal. His should cover the server issue (and Alfa Bank issues for the first two years he was CRM).

Update: Brian Krebs wrote a post laying out all the people who still believe there’s something going on technically. I don’t think that’s inconsistent, at all, with this one. As noted, everyone who looked at this believes it’s an anomaly. What I keep pointing to is the aftermath of that anomaly got Alfa Bank to act in a certain way that is consistent with Putin’s interests. Krebs notes that it has also led to a lot of scrutiny of security researchers in the US, not unlike the way the aftermath of the Steele dossier discredited most top Russian experts in the US government.

Update: This transcript of Preet Bharara and Joyce Vance discussing the many weaknesses of the Durham indictment largely replicates what I’ve laid out here but is worth a review.

SSCI’s Asymmetric Interest in Partisan Use of Oppo Research

As I’ve said in past post, the SSCI Report on Russia is better than I expected, but it has some significant gaps (which I’ll discuss in more detail once I’m done reading the whole thing). One fairly inexcusable asymmetry in the committee’s interests, however, pertains to how the two parties dealt with the oppo research floating around in the summer of 2016.

Here’s some of the discussion of SSCI’s effort to figure out how much of Steele’s information got back to both the Clinton campaign and the DNC.

(U) Simpson implied in his interview with the Committee-but would not state outright-that Perkins Coie knew he had hired a subcontractor, along with pursuing other overseas iines of inquiry. 5722 In his book, Simpson said that Elias “had never even heard of Steele. While Elias was aware that Fusion had engaged someone outside the United States to gather information on Trump’s ties to Russia, he did not ask who it was or what the person’s credentials were.”5723 –

(U) Elias represented that the charges associated with Fusion GPS were around $60,000 per month, unevenly split between the Clinton Campaign and the DNC, including the $10,000 per-month fee paid to Perkins Coie.5724

(U) The Committee was unable to fully establish how much of the Steele information was actually transferred to the DNC and the Clinton Campaign. As a general practice, Fusion GPS passed research back to Elias weekly, sending both original source materials and summary documents.5725 Simpson would not say whether or when he gave the memos to Perkins Coie.5726 Elias, through counsel, did not provide details on what information he provided to the DNC or the Clinton Campaign, citing attorney-client privilege. His attorneys conveyed that he provided “advice on communications strategies and the information from.Fusion when warranted. Such information was infrequent, provided orally, and given to both the Clinton Campaign and the DNC.”s121

(U) Robby Mook told the Committee that counsel starting in the summer had briefed him, Podesta, Clinton Campaign Communications Director Jen Palmieri, Jake Sullivan, and Glenn Caplan (a communications staffer) on “pieces of the reporting” in the dossier.5728 The briefings were oral, generally, but Mook remembered one paper memo that counsel distributed then retrieved at the end of the meeting.5729 Palmieri told the Committee she never saw the dossier during the campaign, but she also recalled the Elias briefings: “I don’t recall the term ‘dossier’ being used. He had reports. Some of the things … that I know are in the dossier. Some of the things that I have read are in the dossier I had heard about from Marc, including the famous encounter at the hotel.”573° Congresswoman Debbie Wasserman Schultz told the Committee she had no awareness of the dossier, Steele, or Simpson, until the dossier and those names appeared in the press.5731

(U) The Committee also asked Mook whether he fourid the briefings by Elias to be alarming enough to warrant sharing the information with law enforcement. Mook said “No, I don’t recall ever feeling like we had sufficient evidence to go to law enforcement with anything. “5732

SSCI not only interviewed key people from both the campaign and the party (elsewhere, the report also describes what Donna Brazile and John Podesta knew, when), but it tried to understand the communication between them, even though that communication was attorney-client privileged in the same way coordinated attempts to doctor statements to the committee were privileged.

Here is the extent of SSCI’s curiosity in response to learning, from Rick Gates’ 302s and the Mueller Report, that the Trump campaign was working with the RNC to optimize WikiLeaks releases.

(U) Nonetheless, a possible WikiLeaks release appeared central to the Campaign’s · strategic focus. For example, after the June 12 announcement by Assange, Gates described learning from Manafort that the RNC was “energized” by the potential of a WikiLeaks release. Further, Manafort told Gates that the RNC was going to “run the WikiLeaks issue to ground.”1492 Trump and Kushner were reportedly willing to “cooperate” with the RNC’s efforts on this front, overcoming their earlier skepticism of working with the RNC, and demonstrating that both were focused on the possibility of WikiLeaks. releasing Clinton documents. 1493

1492 (U) FBI, FD-302, Gates 4/10/2018. Gates also said that the RNC “indicated they knew the timing of the upcoming releases,” but did not convey who specifically had this information, how it was acquired, or when. The RNC has denied that it had advance knowledge of the timing of WikiLeaks releases.

1493 (U) Ibid It is not clear to the Committee exactly when the notion of cooperation between the RNC and the Campaign arose, and Kushner never mentioned it in any interviews with the Committee. However, the context of these statements suggests that this was in response to early warnings about a pending WikiLeaks d9cument dump and before the July 22 release occurred. The Committee did not examine the RNC’s activity or its interactions with the Campaign on this topic. [my emphasis]

This is supposed to be a counterintelligence investigation of the ways that dalliances with foreign actors might compromise American security. RNC efforts to maximize the impact of documents stolen by Russia had just as much a possibility of compromising those involved as Trump’s own efforts.

And yet, SSCI was far more concerned about Democratic awareness of a report that — the SSCI report makes clear — was done by a guy (Steele) described as having no partisan leanings besides being anti-Putin working for a guy (Glenn Simpson) who didn’t much care for the Clintons but who wanted to make a buck off research already completed.

The Dossier Is Not the Measure of the Trump-Russia Conspiracy

It seems like the whole world has decided to measure Trump’s conspiracy with Russia not from the available evidence, but based on whether the Steele dossier correctly predicted all the incriminating evidence we now have before us.

The trend started with NPR. According to them (or, at least, NPR’s Phillip Ewing doing a summary without first getting command of the facts), if Michael Cohen didn’t coordinate a Tower-for-sanctions-relief deal from Prague, then such a deal didn’t happen. That’s the logic of a column dismissing the implications of the recent Cohen allocution showing that when Don Jr took a meeting offering dirt on Hillary as “part of Russia and its government’s support for Mr. Trump,” he knew his family stood to make hundreds of millions if they stayed on Vladimir Putin’s good side.

Item: Cohen ostensibly played a key role in the version of events told by the infamous, partly unverified Russia dossier. He denied that strongly to Congress. He also has admitted lying to Congress and submitted an important new version of other events.

But that new story didn’t include a trip to Prague, as described in the dossier. Nor did Cohen discuss that in his interview on Friday on ABC News. Could the trip, or a trip, still be substantiated? Yes, maybe — but if it happened, would a man go to prison for three years without anyone having mentioned it?

As I noted, Mueller laid out the following in the unredacted summary of Cohen’s cooperation.

Consider this passage in the Mueller Cohen sentencing memo.

The defendant’s false statements obscured the fact that the Moscow Project was a lucrative business opportunity that sought, and likely required, the assistance of the Russian government. If the project was completed, the Company could have received hundreds of millions of dollars from Russian sources in licensing fees and other revenues. The fact that Cohen continued to work on the project and discuss it with Individual 1 well into the campaign was material to the ongoing congressional and SCO investigations, particularly because it occurred at a time of sustained efforts by the Russian government to interfere with the U.S. presidential election. Similarly, it was material that Cohen, during the campaign, had a substantive telephone call about the project with an assistant to the press secretary for the President of Russia.

Cohen’s lies, aside from attempting to short circuit the parallel Russian investigations, hid the following facts:

  • Trump Organization stood to earn “hundreds of millions of dollars from Russian sources” if the Trump Tower deal went through.
  • Cohen’s work on the deal continued “well into the campaign” even as the Russian government made “sustained efforts … to interfere in the U.S. presidential election.”
  • The project “likely required[] the assistance of the Russian government.”
  • “Cohen [during May 2016] had a substantive telephone call about the project with an assistant to the press secretary for the President of Russia [Dmitri Peskov].”

But because the new Cohen details (along with the fact that he booked tickets for St. Petersburg the day of the June 9 meeting, only to cancel after the Russian hack of the DNC became public) didn’t happen in Prague, it’s proof, according to NPR, that there is no collusion. [Note, NPR has revised this lead and added an editors note labeling this piece as analysis, not news.]

Political and legal danger for President Trump may be sharpening by the day, but the case that his campaign might have conspired with the Russian attack on the 2016 election looks weaker than ever.

There are other errors in the piece. It claims “Manafort’s lawyers say he gave the government valuable information,” but they actually claimed he didn’t lie (and it doesn’t note that the two sides may have gone back to the drawing board after that public claim). Moreover, the column seems to entirely misunderstand that Manafort’s plea (would have) excused him from the crimes in chief, which is why they weren’t charged. Nor does it acknowledge the details from prosecutors list of lies that implicate alleged GRU associate Konstantin Kilimnik in an ongoing role throughout Trump’s campaign.

Then there’s the NPR complaint that Mike Flynn, after a year of cooperation, is likely to get no prison time. It uses that to debunk a straw man that Flynn was a Russian foreign agent.

Does that sound like the attitude they would take with someone who had been serving as a Russian factotum and who had been serving as a foreign agent from inside the White House as national security adviser, steps away from the Oval Office?

That’s never been the claim (though the Russians sure seemed like they were cultivating it). Rather, the claim was that Flynn hid details of Trump’s plans to ease sanctions, an easing of sanctions Russians had asked Don Jr to do six months earlier in a meeting when they offered him dirt. The 302 from his FBI interview released last night makes it clear that indeed he did.

Finally, NPR is sad that Carter Page hasn’t been charged.

Will the feds ever charge Trump’s sometime foreign policy adviser, Carter Page, whom they called a Russian agent in the partly declassified application they made to surveil him?

This is not a checklist, where Trump will be implicated in a conspiracy only if the hapless Page is indicted (any case against whom has likely been spoiled anyway given all the leaking). The question, instead, is whether Trump and his spawn and campaign manager and longtime political advisor (the piece names neither Don Jr nor Roger Stone, both of whom have been saying they’ll be indicted) entered into a conspiracy with Russians.

In short, this piece aims to measure whether there was “collusion” not by looking at the evidence, but by looking instead at the Steele dossier to see if it’s a mirror of the known facts.

But NPR isn’t the only outlet measuring reality by how it matches up to the Steele dossier. This piece describes that Michael Isikoff thinks, “All the signs to me are, Mueller is reaching his end game, and we may see less than what many people want him to find,” in part because of the same three points made in the NPR piece (Cohen didn’t go to Prague, no pee tape has been released, and Flynn will get no prison time), but also because Maria Butina — whose investigation was not tied to the Trump one, but whom Isikoff himself had claimed might be — will mostly implicate her former boyfriend, Paul Erickson. In the interview, Isikoff notes that because the dossier has not been corroborated, calling it a “mixed record, at best … most of the specific allegations have not been borne out” and notes his own past predictions have not been fulfilled.  Perhaps Isikoff’s reliance on the dossier arises from his own central role in it, but Isikoff misstates some of what has come out in legal filings to back his claim that less will come of the Mueller investigation than he thought.

Then there is Chuck Ross. Like Isikoff, Ross has invested much of his investigative focus into the dossier, and thus is no better able than Isikoff to see a reality but for the false mirror of the dossier. His tweet linking a story laying out more evidence that Michael Cohen did not go to Prague claims that that news is “a huge blow for the collusion narrative.”

Even when Ross wrote a post pretending to assess whether the Michael Cohen plea allocution shows “collusion,” Ross ultimately fell back on assessing whether the documents instead proved the dossier was true.

Notably absent from the Mueller filing is any indication that Cohen provided information that matches the allegations laid out in the Steele dossier, the infamous document that Democrats tout as the roadmap to collusion between the Trump campaign and Russian government.

The most prominent allegation against Cohen in the 35-page report is that he traveled to Prague in August 2016 to meet with Kremlin insiders to discuss paying off hackers who stole Democrats’ emails.

The Isikoff comments appear to have traveled via Ross to Trump’s Twitter thumbs, all without assessing the evidence in plain sight.

Meanwhile, Lawfare is erring in a parallel direction, checking on the dossier to see “whether information made public as a result of the Mueller investigation—and the passage of two years—has tended to buttress or diminish the crux of Steele’s original reporting.”

Such an exercise is worthwhile, if conducted as a measure of whether Christopher Steele obtained accurate intelligence before it otherwise got reported by credible, public sources. But much of what Lawfare does does the opposite — assessing reports (it even gets the number of reports wrong, saying there are 16, not 17, which might be excusable if precisely that issue hadn’t been the subject of litigation) out of context of when they were published. Even still, aside from Steele’s reports on stuff that was already public (Carter Page’s trip to Moscow, Viktor Yanukovych’s close ties to Paul Manafort), the post reaches one after another conclusion that the dossier actually hasn’t been confirmed.

There’s the 8-year conspiracy of cooperation, including Trump providing Russia intelligence. [my emphasis throughout here]

Most significantly, the dossier reports a “well-developed conspiracy of co-operation between [Trump and his associates] and the Russian leadership,” including an “intelligence exchange [that] had been running between them for at least 8 years.” There has been significant investigative reporting about long-standing connections between Trump, his associates and Kremlin-affiliated individuals, and Trump himself acknowledged that the purpose of a June 2016 meeting between his son, Donald Trump Jr. and a Kremlin-connected lawyer was to obtain “dirt” on Hillary Clinton. But there is, at present, no evidence in the official record that confirms other direct ties or their relevance to the 2016 presidential campaign.

There’s the knowing support for the hack-and-leak among Trump and his top lackeys.

It does not, however, corroborate the statement in the dossier that the Russian intelligence “operation had been conducted with the full knowledge and support of Trump and senior members of his campaign team.”

There’s Cohen’s Trump Tower deal.

These documents relate to Cohen’s false statements to Congress regarding attempted Trump Organization business dealings in Russia. The details buttress Steele’s reporting to some extent, but mostly run parallel, neither corroborating nor disproving information in the dossier.

There’s Cohen’s role in the hack-and-leak, including his trip to Prague.

Even with the additional detail from the Cohen documents, certain core allegations in the dossier related to Cohen—which, if true, would be of utmost relevance to Mueller’s investigation—remain largely unconfirmed, at least from the unredacted material. Specifically, the dossier reports that there was well-established, continuing cooperation between the Trump campaign and the Kremlin; that Cohen played a central role in the coordination of joint efforts; and that he traveled to Prague to meet with Russian officials and cut-outs.

There’s Papadopoulos, who (as Lawfare admits) doesn’t show up in the dossier; here they argue he could have, without asking why Steele missed him running around London talking to people who traveled in Steele’s circles.

We revisit his case because it resonates with one of the themes of the dossier, which is the extensive Russian outreach effort to an array of individuals connected to the Trump campaign. Steele’s sources reported on alleged interactions between Carter Page and Russian officials, but Papadopoulos’s conduct would have fit right in.

Again, except for the stuff that was publicly known, Lawfare assesses one after another claim from the dossier and finds that Mueller’s investigation has not corroborated the specific claims, even while Mueller has provided ample evidence of something else going on. But that doesn’t stop Lawfare from claiming that Mueller has “confirm[ed] pieces of the dossier.”

The Mueller investigation has clearly produced public records that confirm pieces of the dossier. And even where the details are not exact, the general thrust of Steele’s reporting seems credible in light of what we now know about extensive contacts between numerous individuals associated with the Trump campaign and Russian government officials.

However, there is also a good deal in the dossier that has not been corroborated in the official record and perhaps never will be—whether because it’s untrue, unimportant or too sensitive. As a raw intelligence document, the Steele dossier, we believe, holds up well so far. But surely there is more to come from Mueller’s team. We will return to it as the public record develops.

In the end, I actually think Mueller may show that Trump, Stone, and Manafort did abet the hack-and-leak campaign, certainly the later parts of it, and that the Trump Tower deal was a key part of the quid pro quo. That’s aside from anything that Trump did with analytics data made available, if it was. But Mueller has just shown the outlines of where a case in chief might fit thus far. And where has has, those outlines raise one after another question of why Steele missed evidence (like the June 9 meeting) that was literally sitting in front of him. No one is answering those questions in these retrospectives.

One reason this effort, coming from Lawfare, is particularly unfortunate is because of a detail recently disclosed in Comey’s recent testimony to Congress. As you read, remember that this exchange involves Mark Meadows, who is the source of many of the most misleading allegations pertaining to the Russian investigation. In Comey’s first appearance this month (given Comey’s comments after testifying yesterday, I expect we’ll see more of the same today when his transcript is released), Meadows seemed to make much of the fact that Michael Sussman, who works with Marc Elias at Perkins Coie, provided information directly to Lawfare contributor James Baker.

Mr. Meadows. So are you saying that James Baker, your general counsel, who received direct information from Perkins Coie, did so and conveyed that to your team without your knowledge?

Mr. Comey. I don’t know.

Mr. Meadows. What do you mean you don’t know? I mean, did he tell you or not?

Mr. Comey. Oh, I — well —

Mr. Meadows. James Baker, we have testimony that would indicate that he received information directly from Perkins Coie; he had knowledge that they were representing the Democrat National Committee and, indeed, collected that information and conveyed it to the investigative team. Did he tell you that he received that information from them? And I can give you a name if you want to know who he received it from.

Mr. Comey. I don’t remember the name Perkins Coie at all.

Mr. Meadows. What about Michael Sussmann?

Mr. Comey. I think I’ve read that name since then. I don’t remember learning that name when I was FBI Director. I was going to ask you a followup, though. When you say “that information,” what do you mean?

Mr. Meadows. Well, it was cyber information as it relates to the investigation.

Mr. Comey. Yeah, I have some recollection of Baker interacting with — you said the DNC, which sparked my recollection — with the DNC about our effort to get information about the Russian hack of them —

Mr. Meadows. Yeah, that’s — that’s not — that’s not what I’m referring to.

Mr. Comey. — but I don’t — I don’t remember anything beyond that.

Mr. Meadows. And so I can give you something so that you — your counsel can look at it and refresh your memory, perhaps, as we look at that, but I guess my concern is your earlier testimony acted like this was news to you that Perkins Coie represented the Democratic National Committee, and yet your general counsel not only knew that but received information from them that was transmitted to other people in the investigative team. [my emphasis]

I have long wondered how the Perkins Coie meeting with the FBI on the hack timed up with the hiring, by Fusion GPS working for Perkins Coie, of Christopher Steele lined up, and that appears to be where Meadows is going to make his final, desperate stand. An earlier version of this hoax revealed that it pertained to materials on hacking, but did not specify that Steele had anything to do with it (indeed, Steele was always behind public reporting on the hack-and-leak).

Still, it would be of more public utility for Lawfare to clarify this detail than engage in yet another exercise in rehabilitating the dossier.

Instead, they — just like everyone else choosing not to look for evidence (or lack thereof) in the actual evidence before us — instead look back to see whether Steele’s dossier was a mirror of reality or something else entirely. If it’s the latter — and it increasingly looks like it is — then it’s time to figure out how and what it is.

Update: Cheryl Rofer did a line by line assessment of Steele’s dossier which is worthwhile. I would dispute a number of her claims (and insist that Steele’s reporting on the hacks be read in the temporal context in which he always lagged public reporting) and wish she’d note where the public record shows facts that actually conflict with the dosser. But it is a decent read.

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. 

Did the Steele Dossier Lead the Democrats To Be Complacent after They Got Hacked?

I get asked, a lot, why I obsess over the Steele dossier. A lot of people believe that even if the dossier doesn’t pan out, it doesn’t matter because Mueller’s investigation doesn’t depend on it. I’d be more sympathetic to that view if people like Adam Schiff and John Podesta didn’t keep invoking the dossier in ways that makes their legitimate concerns easy to discredit.

But I now believe the dossier may have done affirmative damage.

Consider the timeline.

Perkins Coie lawyer Marc Elias reportedly engaged Fusion for opposition research in April (their first payment was May 24).

April 26, Joseph Mifsud told George Papadopoulos that Russians said they had “dirt” on Hillary Clinton, in the form of emails.

April 29, the DNC discovered they had been hacked. Perkins Coie partner Michael Sussman had a key role in their response.

“Not sure it is related to what the F.B.I. has been noticing,” said one internal D.N.C. email sent on April 29. “The D.N.C. may have been hacked in a serious way this week, with password theft, etc.”

No one knew just how bad the breach was — but it was clear that a lot more than a single filing cabinet worth of materials might have been taken. A secret committee was immediately created, including Ms. Dacey, Ms. Wasserman Schultz, Mr. Brown and Michael Sussmann, a former cybercrimes prosecutor at the Department of Justice who now works at Perkins Coie, the Washington law firm that handles D.N.C. political matters.

“Three most important questions,” Mr. Sussmann wrote to his clients the night the break-in was confirmed. “1) What data was accessed? 2) How was it done? 3) How do we stop it?”

Sometime in May, Robert Johnston (who then worked at Crowdstrike) briefed the DNC on the hack. He told them how much data had been stolen, but he told them intelligence hackers generally don’t do anything with the stolen data.

When he briefed the DNC in that conference room, Johnston presented a report that basically said, “They’ve balled up data and stolen it.” But the political officials were hardly experienced in the world of intelligence. They were not just horrified but puzzled. “They’re looking at me,” Johnston recalled, “and they’re asking, ‘What are they going to do with the data that was taken?’”

Back then, no one knew. In addition to APT 29, another hacking group had launched malware into the DNC’s system. Called APT 28, it’s also associated Russian intelligence. Andrei Soldatov, a Russian investigative journalist and security expert, said it’s not crystal clear which Russian spy service is behind each hacker group, but like many other cybersecurity investigators, he agreed that Russian intelligence carried out the attack.

So, Johnston said, “I start thinking back to all of these previous hacks by Russia and other adversaries like China. I think back to the Joint Chiefs hack. What did they do with this data? Nothing. They took the information for espionage purposes. They didn’t leak it to WikiLeaks.”

So, Johnston recalled, that’s what he told the DNC in May 2016: Such thefts have become the norm, and the hackers did not plan on doing anything with what they had purloined.

May 25 was likely the date on which the last emails shared with Wikileaks got exfiltrated.

On June 9, Natalia Veselnitskaya met with Don Jr, Jared Kushner, and Paul Manafort at Trump Tower. Both at a Prevezon court hearing that morning and after the Trump Tower meeting, she reportedly met with Fusion’s Glenn Simpson. Though there’s no sign of Baker Hostetler paying for any services anytime near that meeting. Sometime Fusion associate Rinat Akhmetshin accompanied Veselnitskaya to the meeting; it’s possible he was paid for work in June.

Sometime in “mid-June,” the Perkins Coie lawyer Sussman and the DNC first met with the FBI about the hack. They asked the FBI to attribute the hack to Russia.

The D.N.C. executives and their lawyer had their first formal meeting with senior F.B.I. officials in mid-June, nine months after the bureau’s first call to the tech-support contractor. Among the early requests at that meeting, according to participants: that the federal government make a quick “attribution” formally blaming actors with ties to Russian government for the attack to make clear that it was not routine hacking but foreign espionage.

“You have a presidential election underway here and you know that the Russians have hacked into the D.N.C.,” Mr. Sussmann said, recalling the message to the F.B.I. “We need to tell the American public that. And soon.”

The FBI would not attribute the hack formally until the following year.

On June 14, the DNC placed a story with the WaPo, spinning the hack to minimize the damage done.

On June 15, Guccifer 2.0 started posting. In his first post, he proved a number of the statements Crowdstrike or Democrats made to the WaPo were wrong, including that:

  • The hackers took just two documents
  • Only Trump-related documents had been stolen
  • Hillary’s campaign had not been hacked
  • The DNC had responded quickly
  • No donor information had been stolen

Now, you’d think this (plus Julian Assange’s claim to have Hillary emails) would alert the Democrats that Johnston’s advice — that the Russians probably wouldn’t do anything with the data they stole — was wrong. Except that (as far as is publicly known) none of the documents Guccifer 2.0 leaked in that first batch were from the DNC.

Around this same time, Perkins Coie lawyer Marc Elias asked Fusion to focus on Trump’s Russian ties, which led to Christopher Steele’s involvement in the already started oppo effort.

On June 20, Perkins Coie would have learned from a Steele report that the dirt Russia had on Hillary consisted of “bugged conversations she had on various visits to Russia and intercepted phone calls rather than any embarrassing conduct.” It would also have learned that “the dossier however had not yet been made available abroad, including to TRUMP or his campaign team.”

On July 19, Perkins Coie would have learned from a Steele report that at a meeting with a Kremlin official named Diyevkin which Carter Page insists didn’t take place, Diyevkin “rais[ed] a dossier of ‘kompromat’ the Kremlin possessed on TRUMP’s Democratic presidential rival, Hillary CLINTON, and its possible release to the Republican’s campaign team.” At that point in time, the reference to kompromat would still be to intercepted messages, not email.

On July 22, Wikileaks released the first trove of DNC emails.

On July 26 — days after Russian-supplied emails were being released to the press — Perkins Coie would receive a Steele report (based on June reporting) that claimed FSB had the lead on hacking in Russia. And the report would claim — counter to a great deal of publicly known evidence — that “there had been only limited success in penetrating the ‘first tier’ foreign targets.” That is, even after the Russian hacked emails got released to the public, Steele would still be providing information to the Democrats suggesting there was no risk of emails getting released because Russians just weren’t that good at hacking.

It appears likely that the Democrats asked Fusion to focus on Russia because they believed they had been badly hacked by Russia.

Everything they learned (and would have learned, if the June reporting on cybersecurity had been produced in timely fashion) between the time they were hacked and when Wikileaks would start releasing massive amounts of emails would have told the Democrats that the Russians hadn’t really succeeded with their hacking, and any kompromat they had on Hillary was not emails, but instead dated intercepts. The Steele dossier would have led them to be complacent, rather than prepping for the onslaught of the emails.

We don’t know how Steele’s intelligence was used within the party. But if they had paid attention to it, it would have done affirmative damage, because it might have led them to continue to rely on Johnston’s opinion that the stolen emails weren’t coming out.

The Cost of the Lawfare Surrounding the Steele Dossier Will Vastly Outstrip Its Original Cost

In response to Monday’s server hiccups and in anticipation that Mueller is nowhere near done, we expanded our server capacity overnight. If you think you’ll rely on emptywheel reporting on the Mueller probe, please consider a donation to support the site

Yesterday, Reuters reported that Fusion GPS has told Congress (presumably as part of the settlement on a bank subpoena reached last week) how much it got paid for the dossier on Donald Trump, and how much of that it paid Christopher Steele for his part in the dossier. Fusion got $1.02 million from Perkins Coie, of which Steele got $168K.

Fusion GPS’ statement said it had told Congress about how $168,000 was paid last year to Orbis Business Intelligence, Steele’s company.

The money paid to Orbis was taken from $1.02 million it received in fees and expenses from the Perkins Coie law firm, the statement said.

There’s some confusion about this number, however, with some claiming that Fusion had a huge markup on Steele’s labor. But that’s not right. We’ve now confirmed what we’ve seen is just part of the total dossier Fusion did on Trump. If the numbering in the dossier is any indication, there were at least 166 reports done, with 79 done between the time  started on the dossier in April and when Steele got involved in June. Of the total, we’ve seen just 17 released reports from Steele, or about 10% of the total (assuming none of his Russian-related reports were withheld). That would put his payment — over 16% of what Fusion got paid — to be a reasonable fraction (of course much of the rest of the dossier is likely domestic and less reliant on paid sources built up over decades).

In any case, as Reuters points out, it’s far less than the $12 million Trump has alleged.

But it’s also far less than what the dossier will cost in the long run. As I’ve been tracking, there are a number of strands of “lawfare” surrounding the dossier — Russian and Republican attempts to use lawsuits to make the dossier toxic. They include:

  • Alexej Gubarev’s lawsuit against Steele and his company in the UK
  • Alexej Gubarev’s lawsuit against BuzzFeed in FL (with related subpoena challenges being litigated in DC)
  • The lawsuit by Alfa Bank executives against BuzzFeed in DC (filed after consulting with top GOP lawyers Viet Dinh and Brian Benczkowski and their firm)
  • Fusion’s efforts to fight testimony and bank subpoenas in DC
  • Carter Page’s lawsuit against HuffPo and Yahoo

In addition, I would be shocked if Marc Elias doesn’t get slapped with a lawsuit or two, now that his role in funding the dossier has become known. With the exception of Page’s suit, each of those involves at least two sets of well paid lawyers to fight things out.

Which is to say that the lawfare surrounding the dossier may well end up costing $12 million, even assuming no one ever has to pay any penalties. Which seems to offer a lesson for sleazy politicos: If you’re going to pay to develop dirt on your opponent, make sure that the blowback from it doesn’t cost more in terms of dollars and damage than the actual dossier itself.

Reasons Why Dems Have Been Fucking Stupid on the Steele Dossier: a Long Essay

Let me start this post by reposting in full my explanation of why Trump opponents are idiots for clinging to the Steele dossier, so I can add to that with an explanation of why the disclosure that Marc Elias paid for the dossier on behalf of Hillary and the DNC makes it far, far worse.

I have zero doubt that the Russians attempted to influence the election. I think it likely Robert Mueller will eventually show evidence that senior people in Trump’s camp attempted to and may have coordinated with people working for Russia, and people more tangential to the campaign sought out Russians for help. I think if the full story of the Russian involvement in the election comes out, it will be worse than what people currently imagine.

I also think Trump opponents have made a really grave error in investing so much in the Steele dossier. That’s true because, from the start, there were some real provenance questions about it, as leaked. Those questions have only grown, as I’ll explain below. The dossier was always way behind ongoing reporting on the hack-and-leak, meaning it is utterly useless for one of the most important parts of last year’s tampering. The dossier provides Trump officials a really easy way to rebut claims of involvement, even when (such as with Michael Cohen) there is ample other evidence to suggest inappropriate ties with Russia. Most importantly, the dossier is not needed for the most common reason people cling to it, to provide a framework to understand Trump’s compromise by Russia. By late January, WaPo’s reporting did a far better job of that, with the advantage that it generally proceeded from events with more public demonstrable proof. And (again, given the abundance of other evidence) there’s no reason to believe the Mueller investigation depends on it.

But because Trump opponents have clung to the damn dossier for months, like a baby’s blanket, hoping for a pee tape, it allows Trump, Republicans, and Russians to engage in lawfare and other means to discredit the dossier as if discrediting the dossier will make the pile of other incriminating evidence disappear.

So let’s see how the Marc Elias disclosure makes this far, far worse.

The WaPo reports that Elias’ firm, Perkins Coie, acting on behalf of both Hillary and the DNC, paid Fusion GPS. And they did so much earlier than previously reported, starting in April.

Marc E. Elias, a lawyer representing the Clinton campaign and the DNC, retained Fusion GPS, a Washington firm, to conduct the research.

After that, Fusion GPS hired dossier author Christopher Steele, a former British intelligence officer with ties to the FBI and the U.S. intelligence community, according to those people, who spoke on the condition of anonymity.

Elias and his law firm, Perkins Coie, retained the company in April 2016 on behalf of the Clinton campaign and the DNC. Before that agreement, Fusion GPS’s research into Trump was funded by an unknown Republican client during the GOP primary.

Given the numbering of the dossier, the April date makes far better sense than the June date. In fact, on January 13, I said, “It must have started sometime in April.” Yay me — that’s the one piece of prescience I’ll write about here I’m happy about.

The news comes as Fusion has been digging itself deeper and deeper into a perjury hole in an effort to protect Elias and the Democrats, just as they would have had to release financial documents showing Perkins Coie’s involvement in any case (I’ll do a follow-up to show that Fusion seems to have been using a cute definition of “client” in its sworn legal declarations about the dossier).

Some of the details are included in a Tuesday letter sent by Perkins Coie to a lawyer representing Fusion GPS, telling the research firm that it was released from a ­client-confidentiality obligation. The letter was prompted by a legal fight over a subpoena for Fusion GPS’s bank records.

As the WaPo and an army of Dem flacks have noted since this story broke, it is totally normal to pay oppo research firms for dirt on opponents.

It is!!

Which ought to raise really big questions why Elias didn’t come forward before now to simply admit that Hillary and the Dems — rather than some unnamed big donor as has always been intimated — were doing what every campaign normally does.

And there are several likely reasons for that.

First, consider what position this puts the FBI in. Steele started sharing his information with the FBI during the summer, possibly before the FBI opened an investigation into Trump’s Russian ties (though the CIA claims to have had a report in June about such ties, so the investigation doesn’t derive exclusively from the dossier). It’s still unclear — not even given Steele’s legal statements on this fact — whether Steele shared the information on his own, or whether Fusion permitted him to share. It’s also not clear whether Steele disclosed to FBI who was paying for his work (or even if he actually knew). But it is qualitatively different for the FBI to accept and respond to information from a political party than it is to respond to information paid for by — say — a rich private person like George Soros. That is, admittedly, how the Whitewater investigation got started (so I can appreciate the irony), but it was wrong then and it’s wrong now.

Note, this detail also provides a much better explanation for why the FBI backed out of its planned relationship with Steele in October, one that matches my supposition. As soon as it became clear Elias was leaking the dossier all over as oppo research, the FBI realized how inappropriate it was to use the information themselves, no matter how credible Steele is. This also likely explains why FBI seeded a story with NYT, one Democrats have complained about incessantly since, reporting “none of the investigations so far have found any conclusive or direct link between Mr. Trump and the Russian government.” Ham-handed? Sure. But in the wake of Harry Reid and David Corn’s attempts to force FBI to reveal what Democratic oppo research had handed to FBI, the FBI needed to distance themselves from the oppo research, and make sure they didn’t become part of it. Particularly if Steele was not fully forthcoming about who was paying him, the FBI was fucked.

And consider what Hillary and the DNC did. Back when the June 9 Trump Tower meeting first broke, I warned Democrats who were screaming that this was proof of collusion to be very careful of how they defined it.

[T]hus far, it is not evidence of collusion, contrary to what a lot of people are saying.

That’s true, most obviously, because we only have the implicit offer of a quid pro quo: dirt on Hillary — the source of which is unknown — in exchange for sanctions relief. We don’t (yet) have evidence that Don Jr and his co-conspirators acted on that quid pro quo.

But it’s also true because if that’s the standard for collusion, then Hillary’s campaign is in trouble for doing the same.

Remember: A supporter of Hillary Clinton paid an opposition research firm, Fusion GPS, to hire a British spy who in turn paid money to Russians — including people even closer to the Kremlin than Veselnitskaya — for Russia-related dirt on Don Jr’s dad.

Yes, the Clinton campaign was full of adults, and so kept their Russian-paying oppo research far better removed from the key players on the campaign than Trump’s campaign, which was run by incompetents. But if obtaining dirt from Russians — even paying Russians to obtain dirt — is collusion, then a whole bunch of people colluded with Russians (and a bunch of other foreign entities, I’m sure), including whatever Republican originally paid Fusion for dirt on Trump.

Breaking: Our political process is sleazy as fuck (but then, so are most of our politicians).

I assumed at the time that Democrats were adults and provided Hillary some plausible deniability and distance from the payments to ex-spooks who in turn paid Russian spies.

Serves me right for underestimating, yet again, Hillary’s ability to score own goals, because Nope! They’re not that adult! And so while it pains me greatly to have to say this, the Dems who screamed “COLLUSION!!!!!!!!” after evidence of a meeting but not payment have earned this attack from Ari Fleischer, accusing them of colluding, because that’s the standard they adopted at the time.

Finally, there’s the most interesting thing implicated by the disclosure that Perkins Coie partner Marc Elias paid for the dossier.

As noted, the WaPo explains Elias started to do so in April, which makes far more sense given the numbering of the dossier. But Steele, we know, was brought in in June; his first report, about whether Russia had kompromat on Hillary, was June 20. That means Steele’s involvement, paid for by Perkins Coie, postdates the involvement of Perkins Coie partner (and former DOJ prosecutor who should have known better than to do this) Michael Sussman in the DNC’s response to learning they were hacked by Russia, starting around April 29.

“Not sure it is related to what the F.B.I. has been noticing,” said one internal D.N.C. email sent on April 29. “The D.N.C. may have been hacked in a serious way this week, with password theft, etc.”

No one knew just how bad the breach was — but it was clear that a lot more than a single filing cabinet worth of materials might have been taken. A secret committee was immediately created, including Ms. Dacey, Ms. Wasserman Schultz, Mr. Brown and Michael Sussmann, a former cybercrimes prosecutor at the Department of Justice who now works at Perkins Coie, the Washington law firm that handles D.N.C. political matters.

“Three most important questions,” Mr. Sussmann wrote to his clients the night the break-in was confirmed. “1) What data was accessed? 2) How was it done? 3) How do we stop it?”

It also means that Steele’s involvement — paid for by Perkins Coie — roughly coincides with the time Democrats and Perkins Coie partner Michael Sussman first sat down with the FBI and pushed the FBI to “tell the American public that” Russia had attacked the Democrats.

The D.N.C. executives and their lawyer had their first formal meeting with senior F.B.I. officials in mid-June, nine months after the bureau’s first call to the tech-support contractor. Among the early requests at that meeting, according to participants: that the federal government make a quick “attribution” formally blaming actors with ties to Russian government for the attack to make clear that it was not routine hacking but foreign espionage.

“You have a presidential election underway here and you know that the Russians have hacked into the D.N.C.,” Mr. Sussmann said, recalling the message to the F.B.I. “We need to tell the American public that. And soon.”

Shortly thereafter, Steele, paid for by Perkins Coie, started sharing reports with the FBI, with as yet unknown disclosure to them about who was paying his bills. Do you see why this is a problem yet?

Note, too, the irony. The DNC was unwilling to share their server directly with the FBI. But they were willing to launder their intelligence to it.

Not cool, Democrats. Also, not smart.

Now, add to this massive own goal the Democrats have scored on themselves. The second report in the released dossier, is dated July 26, released four days after WikiLeaks started releasing the DNC emails, making it clear the Democrats had a far bigger hack-and-leak problem on their hands than they had let on in a June 14 story to the WaPo. It is an incredibly back-assward report on Russian hacking that proved unaware of the most basic publicly known details about Russia’s hacking (the Democrats would have been better served reading this report that had been released ten months before, which is almost certainly what FBI was trying to point them to when they first warned of the hack in September). That is, in the wake of the DNC hack, the Democrats’ lawyer paid for private intelligence about Russian involvement with Trump, and they ended up paying someone whose sources (because Steele is a follow-the-money guy, not a follow-the-packets guy) consistently were months and months behind the public knowledge on the hack.

Yikes.

Finally, one more point. It has been clear for some time that Steele’s reports had some kind of feedback loop, responding to information the Democrats got. That was most obvious with respect to the September 14 Alfa Bank report, which was obviously written after first news of the Alfa Bank/Trump Tower story, which was pushed by Democratic partisans. Particularly given that we know the released report is a selective release of just some reports from the dossier, the inclusion of Alfa Bank in that release makes no sense. Even if reports about old corrupt ties between Alfa and Putin are true (as if Democratic politicians and corrupt American banks never have old ties), the inclusion of the Alfa report in the dossier on Trump made zero sense.

Which is why Alfa Bank decided — after consulting with big Republican lawyers like Viet Dinh and soon-to-be DOJ Criminal Division Chief Brian Benczkowski — to sue for defamation. Now I understand why (particularly given that Republicans seem to have known who paid for the dossier for some time). I’m not sure Alfa Bank executives pass the bar for defamation here (though the publication of a report that misspelled Alfa’s name is pretty damning), but the fact that Elias paid for this dossier on behalf of the Democrats is going to make that defamation case far more explosive (and I’ll be surprised if Elias doesn’t get added into the mix).

As I said when I began this: I have no doubt Russia tampered with the election, and if the full truth comes out I think it will be more damning than people now imagine.

But the Democrats have really really really fucked things up with their failures to maintain better ethical distance between the candidate and the dossier, and between the party and the FBI sharing. They’ve made things worse by waiting so long to reveal this, rather that pitching it as normal sleazy political oppo research a year ago.

The case of Russian preference for Trump is solid. The evidence his top aides were happy to serve as Russian agents is strong.

But rather than let FBI make the case for that, Democrats instead tried to make their own case, and they did in such a way as to make the very solid case against Trump dependent on their defense of the dosser, rather than on better backed claims released since then.

Boy it seems sadly familiar, Democrats committing own goals like this. And all that’s before where the lawfare on this dossier is going to go.

Update, 12/6/17: This, from April, is a really interesting claim by claim debunking of the dossier.

Trump Is Who He’s Always Been, And Trump Is the Epitome of the GOP; They Have To Own Him

The Washington Post’s David Fahrenthold has come up with another scoop. While scraping for video clips does not seem to be Fahrenthold’s strength, like the KFile boys who bolted Buzzfeed in the middle of the night for the apparently greener pastures of CNN, this clip posted by the Washington Post is bigger than anything that has come before. It doesn’t matter if it is by weight, timing, or the clear combination of the two, it is simply huge. Game changing.

The most striking thing, however, is not that this video exists, nor that it has emerged to public view, it is that the Republican party worthies and press seem to think it is shocking. Seriously, this information, and the Donald Trump it reflects, is exactly who Donald Trump is, and has been, for decades.

Donald Trump is a once and forever informationally ignorant, self serving jackass extreme narcissist. But he has been that for decades to anybody paying attention. Trump was the leader from the start in the Republican primary, and was the easy winner of their nomination. Why? Because the votes on the ground count, much to the consternation of supposed “sane party elders”, and the votes on the ground made Trump an easy winner. He is exactly what the current Republican GOP party embodies at its heart.

Watching holier than though instant moral compasses (well oiled craven weathervanes?) like Jason Chaffetz, Mitch McConnell, John McCain, Mitch McConnell, Orrin Hatch and Paul Ryan squirm and proclaim their shock, like grubby kids with their hand stuck in the cookie jar, is hilarious. What convenient souls they are to suddenly have the inclination of what they have all sowed and reaped for years. They doth protest too much; Trump is them, and they are Trump.

I came home late, but still managed to hear at least two tellings of the story of how John Rhodes, Barry Goldwater and Hugh Scott went down the Hill and gave the hook to Nixon when it was time, with the ideation that such a similar scene could end the Trump moment now. Those are the crazy fever dreams of people like Chris Matthews, David Gergen, Mark Halperin and the rest of the Beltway cocktail weiner gobblers.

Not gonna happen. Rhodes, Goldwater and Scott were men of a different time and more stout character. There are no analogues today. Jason Chaffetz and Mike Lee can conveniently preen and bluster all they want. It is bullshit, as it is with almost all of the rest of today’s Republican party. They do NOT get to suddenly walk away from the monster their party has spent decades creating. They own Trump, Hannity, Roger Ailes, Fox News, Breitbart and Limbaugh. It is who they are, and nobody should forget it.

The Republican party of today has relentlessly stood against women’s rights and ability to control their own bodies, equal rights and protections for LGBT citizens, fair treatment for minorities and immigrants, and the right to vote for anybody other than middle aged fat white men. The current Republican party think that they are the only “suspect class” due “equal protection”, and not the minorities, races, genders, sexual identities and other endangered classes the civil rights laws were designed to protect.

This is exactly what makes the instant kvetching in the GOP aisle over Trump last night so fatuous. It is a boatload of opportunistic self serving fraud. Not for one second should anybody accept that Trump is the sudden exception, he is unequivocally what the GOP has been growing into for years. The modern Republican party has long championed racism, bigotry and misogyny; Donald Trump is just the point of their spear. To the extent there are any “honest brokers” left in the GOP, they are still guilty of benign neglect that allowed the ugliness that is the Trumpian GOP to fester.

The GOP cannot run from Donald Trump, he is who they are now. The last minute panicked contrition of the very women blaming and shaming, racists, bigots and oligarchs that claim to speak for the GOP cannot shed the snake skin of who they are, and what they have created.

Oh, and by the way, the fever dreams of the Chris Matthews and Mark Halperins of the pearl clutching Beltway set are not going to get their wish. It is too late for Trump to be replaced on the ballot by the grand poohbahs of the GOP. As election litigator extraordinaire Marc Elias points out, the ballots for the military and overseas voters have already been sent out pursuant to the UOCAVA, i.e. the Uniformed and Overseas Citizens Absentee Voting Act. Locally, the Arizona ballots are putatively at the printers and being mailed out within five days. Many other states are either on that timetable or ahead of it. In short, the voting has begun. The die is cast.

Also, via Philip Bump and Dave Weigel of the Washington Post:

More than 34,000 Republican voters have already cast their ballots for the 2016 general election according to the U.S. Election Project, 8,000 of them in the battleground state of North Carolina and another 5,000 in Florida. Not all of those ballots were cast for Donald Trump, it’s safe to assume, but it’s more than likely that most of them were. And that, in a nutshell, is why it’s far too late for the Republican Party to dump Donald Trump from their ticket.

More from Bump, Weigel and the WaPo:

Josh Putnam, a University of Georgia lecturer and expert on the machinations of the parties, told me at the time that the rule at issue was Rule 9. Rule 9 reads:

The Republican National Committee is hereby authorized and empowered to fill any and all vacancies which may occur by reason of death, declination, or otherwise of the Republican candidate for President of the United States or the Republican candidate for Vice President of the United States, as nominated by the national convention, or the Republican National Committee may reconvene the national convention for the purpose of filling any such vacancies.

Death, declination or otherwise. No “because we want to” clause.

“Let’s be clear here: The rule is intended to fill vacancies, not to lay the groundwork for a replacement,” Putnam said. “Some have speculated that ‘otherwise’ is ambiguous. Taken out of context it is. However, under the provisions for filling vacancies, it clearly fills in any gap between death and declination (i.e.: an incapacitating illness, but one that leaves the nominee neither dead nor able to decline to run further). And that was the intention.”

Weigel and Bump are superb reporters, and put up a compelling article on a short deadline. But, when it comes to election law, there is nobody better than Rick Hasen. Rick actually contemplated this scenario back in August, over two months ago, when the switch would have been far easier than it is now with ballots already outstanding. His conclusion was that it would be beyond difficult. And that was then, much less now.

But what if the ballots stood as is, could the GOP “electors” find the unanimity to cast enough electoral votes for some person other than Trump? Hasen, at his excellent “Election Law Blog” linked to some thoughts on that effectively imaginary scenario by Ned Foley:

As I write this on Friday night October 7, there is renewed talk of GOP leadership disavowing Trump. True, Trump will still be on the ballot that we citizens cast. But suppose the GOP leadership publicly announces that it will ask GOP electors, when they meet and vote on 12/19, to cast their presidential vote for Pence. Then some GOP-leaning superPACs spend a lot money before 11/8 informing voters of this plan.

Suppose this plan is successful, insofar as it causes on Election Night, 11/8, the media to announce that GOP electors were chosen in enough states to amount to 270 Electoral College votes. Then on 12/19, the GOP electors all do as intended according to this plan: they cast their official Electoral College votes for Pence, not Trump. Pursuant to 3 U.S.C. 9-11, these electors all sign their certificates showing Pence as their choice and send the certificates to Joe Biden, as President of the Senate.

Now, someone might claim that some of these electors violated a previous pledge they made to cast their Electoral College votes for Trump. Maybe this claimant even arranges to send to Biden a separate set of Electoral College votes cast by replacement electors who were substituted because the faithless electors violated their pledge. (This move would be reminiscent of 1876.) We can assume that the claimant wouldn’t send to Biden 270+ Electoral College votes for Trump, but some number short of 270 in the hope of depriving Pence of the presidency.

What would happen when Biden receives two conflicting sets of Electoral College votes from some states, one set for Pence, and the second set for Trump?…

Long story short: There is no way out from Trump for the GOP. They are stuck, and they got there the old fashioned way: they earned it. The Republican Party cannot hide form this event or pretend it is a mistake. It is the culmination of where the Republicans have been headed since the days of Nixon and Lee Atwater. The GOP has tried to mask it with duplicitous bleating about social conservancy and family values, but the truth is out now. It is all about preservation of white bigotry and privilege, and shifting of income and wealth to oligarchs and corporations. When Trump feigned to support that, and the maintenance of women in second class subservient status, the Republican party was willing to ride that horse. Now they want off. Don’t let them.

It is time for change, and that will not, and cannot, be furthered by letting the party of bigotry, hate, misogyny and income inequality off the hook because their avatar has been exposed.. Make them own what they built and earned.