Posts

The Predictable Result of Asymmetry in Terrorism Policing: Andrew McCabe’s Demise

I recently finished Andrew McCabe’s book.

It is very effective at what I imagine its intended purposes are. It provides some fascinating new details about the genesis of the Russian investigation. It offers a great introduction in how the FBI (at its best) can work. It gives a self-congratulatory version of McCabe’s career, including key events like the Najibullah Zazi and Boston Marathon investigations; even if McCabe had wanted to tell fully honest stories about those investigations, I’m sure the less flattering details wouldn’t have passed FBI’s publication review.

The book also says satisfyingly mean things about Trump, Jeff Sessions, and (more obliquely) Rod Rosenstein. (I think McCabe’s book release significantly explains the rumors reported as fact that Mueller’s report was imminent some weeks ago; that claim served, in part, to once again eliminate any pressure to fire Rosenstein immediately).

The latter of two, of course, implemented McCabe’s firing. McCabe’s excuse for lying to the Inspector General, which led to his firing, is one of the least convincing parts of the book (he admits he can’t say more because of his continued legal jeopardy, but he does raise it). That’s true, in part, because McCabe only deals with one of the conversations in question; there were a number of them. But he also excuses his chief lie because he was frazzled about learning of the Strzok-Page texts in the same conversation. I can understand that, but elsewhere, one of his digs against Rosenstein is how overwhelmed the Deputy Attorney General was in the wake of the Jim Comey firing. McCabe suggests, in that context, that because he had dealt with big stressful issues (like the Boston Marathon attack), he wasn’t similarly rattled. Which is why I find it disingenuous to use being frazzled for not being fully truthful to the Inspector General. Plus, virtually all defendants prosecuted for lying to the FBI (including George Papadopoulos, but not Mike Flynn, who is a very accomplished liar) are frazzled when they tell those lies; it’s a tactic the FBI uses to catch people unguarded.

I was most frustrated, however, by something that has become increasingly important in recent days: McCabe’s utter lack of awareness (at least in the book) of the import of the asymmetric focus on Islamic terrorism across his career.

After moving to counterterrorism in the mid-00s from working organized crime, McCabe became an utterly central player in the war on Islamic terror, founding the High Value Interrogation Group, and then leading the CT and National Security Divisions of FBI. He was a key player in investigations — like Zazi — that the FBI is rightly proud of.

But McCabe normalizes the choices made after 9/11 to pursue Islamic terrorism as a distinct danger. He (of course) whitewashes Jim Comey’s decision to retain the Internet dragnet in 2004 under an indefensible use of the PATRIOT Act. He argues that it is politically impossible to survive a failure to prevent an attack even though he managed the Boston Marathon attack, where FBI and NSA had some warning of Tamerlan Tsarnaev’s danger, but nevertheless got very little criticism as a result. Most remarkably, McCabe talks about Kevin Harpham’s attempted attack on the Martin Luther King Day parade, mentions as an aside that this was (obviously) not an Islamic terror attack, but offers no reflection on how Harpham’s attack undermines much of what he presents, unquestioningly, as a greater risk from Islamic terrorism (here’s a story on how Barack Obama did not get briefed on Harpham, a decision that may well have involved McCabe).

Granted, McCabe’s blind spots (at least in the book) are typical of people who have spent their lives reinforcing this asymmetry. You see it, too, in this utterly nonsensical paragraph in a largely ridiculous piece from Joshua Geltzer, Mary McCord, and Nick Rasmussen — all likewise accomplished players in the War on Just One Kind of Terrorism — at Lawfare.

The phrases “international terrorism” (think of the Islamic State and al-Qaeda) and “domestic terrorism” (think of the Oklahoma City bombing and the October 2018 shooting at a Pittsburgh synagogue) have often been a source of confusion to those not steeped in counterterrorism. The Islamic State has its roots internationally, but what makes it such a threat to Americans is, in part, its ability to influence domestic actors like Omar Mateen to kill Americans in domestic locations like Orlando, Florida. The group may be “international,” but its attackers and attacks can be, and have been, domestic—to tragic effect.

This paragraph, in a piece that admits the focus of their career has been wrong (and neglects to mention that Christchurch terrorist Brenton Tarrant named Donald Trump, along with Anders Behring Breivik, as an inspiration), suggests that the reason international terrorism is “such a threat” is because it can inspire domestic actors. The logic inherent to that paragraph is that terrorism carried out by “domestic terrorists,” inspired by a domestic white supremacist ideology is any less dangerous than terrorism carried out by people inspired by what is treated as an international ideology. International terrorism is worse than domestic terrorism, these experts argue, because it can lead to domestic terrorism.

Dead is dead. And given the significant number of white supremacists who have had experience in the military and greater tolerance for their training, white supremacists have the potential of being far more effective, as individuals, at killing than US-based Islamic terrorists.

One thing the Lawfare piece studiously avoids acknowledging is that what it calls “domestic” terrorism (the racist ideology of which they never describe) is an ideology significantly exported by the United States. Even in a piece that rightly calls for an equal focus on both white supremacist terrorism and Islamic terrorism, it ducks labeling the ideology in question. And while this WaPo piece does label the ideology in question, it bizarrely calls an attack in New Zealand carried out by an Australian a “domestic” attack.

The WaPo piece describes one problem with the asymmetric treatment of different kinds of terrorism: that governments don’t share intelligence about international violent racist ideology. In fact, in the US, such intelligence gets treated differently, if the FBI’s failure to track the networks around Frazier Glenn Miller and Eric Rudolph is any indication.

Ironically, that’s one reason that McCabe’s failure to track white supremacist terrorism in the same way he tracked Islamic terrorism led to his demise. While the network behind the election year operation that helped elect Trump involves a lot of Russians, it also clearly involves a lot of white supremacists like Nigel Farage (and David Duke), a network Russia exploited. Additionally, as I have argued (and at least one study backs) white supremacist networks provided the real fire behind the attacks on Clinton; Russia’s information operations had the effect of throwing more fuel on a blazing bonfire.

The other problem with the US government’s asymmetric treatment of terrorism is legitimacy. Labeling Islamic terrorism “foreign” and pursuing material support cases based partly on speech has had the effect of criminalizing some speech that criticizes US foreign policy, even well-deserved criticism about the effect of US killing of Muslims. By contrast, white supremacist speech, even that which  more aggressively advocates violence is treated as speech. Yes, deplatforming has begun to change that.

But we’re still not at a place where those who incite white supremacist violence are held accountable for it.

That’s how it was possible for a man to kick off a campaign by inventing lies about Mexican immigrants and how the entire Republican party, up to and including the new supposedly sane Attorney General, are permitted to pursue counterproductive policies solely so they can appear to demonize brown people.

Irrespective of the merit or not in the finding that Andrew McCabe lacked candor with the IG, he got treated the way he did because a man whose entire political career is based off feeding white resentment needed to appear to be a victim of Andrew McCabe. That act, by itself, was not about Trump’s white supremacist ideology. But it is a structure of power that is white supremacist (exacerbated by Trump’s narcissism).

We have a President Trump in significant part because this country has tolerated and even rewarded white supremacist ideology, institutionally ignoring that it poses as much of a risk as violent Islamic ideology. It would be really useful if people like Andrew McCabe spend some time publicly accounting for that fact.

The white supremacy that brought us the Trump presidency would not be possible if we had treated violent white supremacist terror as terror for the last twenty years.

PSA: Don’t Misunderstand the Function of a Mueller Report

About a million people have asked me to weigh in on this story, which relies on unnamed defense attorneys (!! — remember that its author, Darren Samuelson, was among those citing Rudy Giuliani’s FUD in the wake of the Paul Manafort plea) and named former prosecutors, warning that people may be disappointed by the Mueller “report.”

President Donald Trump’s critics have spent the past 17 months anticipating what some expect will be among the most thrilling events of their lives: special counsel Robert Mueller’s final report on Russian 2016 election interference.

They may be in for a disappointment.

That’s the word POLITICO got from defense lawyers working on the Russia probe and more than 15 former government officials with investigation experience spanning Watergate to the 2016 election case. The public, they say, shouldn’t expect a comprehensive and presidency-wrecking account of Kremlin meddling and alleged obstruction of justice by Trump — not to mention an explanation of the myriad subplots that have bedeviled lawmakers, journalists and amateur Mueller sleuths.

Perhaps most unsatisfying: Mueller’s findings may never even see the light of day.

The article then goes on to cite a range of impressive experts, though it quotes zero of the defense attorneys, not even anonymously, except in linking back to Rudy warning that the White House would try to block the public release of any report by invoking executive privilege.

Without having first laid out what Samuelson imagines people expect from the report or even what he himself thinks, the piece’s quotes lay out the assumptions of his sources. “He won’t be a good witness,” says Paul Rosenzweig, suggesting he imagines Congress will invite Mueller to testify about his report to understand more about it. Mary McCord, who knows a bit about the investigation having overseen parts of it when she was still acting NSD head, said “It will probably be detailed because this material is detailed, but I don’t know that it will all be made public,” which seems to suggest it will collect dust at DOJ. Paul McNulty, who worked with Mueller in the Bush Administration, acknowledges that Mueller, “knows there are a lot of questions he needs to address for the sake of trying to satisfy a wide variety of interests and expectations.” All those quotes may be true and still irrelevant to what might happen with the Mueller report.

Later in his piece, Samuelson does lay out his assumptions (this time citing none of his impressive sources). Samuelson posits, for example, that, “it will be up to DOJ leaders to make the politically turbo-charged decision of whether to make Mueller’s report public.” He claims Democrats hope to win a majority and with it “subpoena power to pry as much information as possible from the special counsel’s office.” In those comments, Samuelson betrays his own assumptions, assumptions which may not be correct.

Start with this. Even though Samuelson has covered this investigation closely, he somehow missed the speaking indictments covering Russian actions, to say nothing of the 38 pages of exhibits on how Paul Mananfort runs a campaign accompanying the plea deal of Trump’s former campaign manager. It appears he has missed the signs that Mueller — if he has an opportunity — will not be using his mandated report to do his talking.

He’ll use indictments.

Which is probably something you don’t learn listening to defense attorneys who won’t go on the record. But you might learn if you consider what Patrick Fitzgerald has to say. Like McNulty, Fitz also worked closely with Mueller, not just during the four years he served as special counsel investigating the CIA leak case, but during the almost 11 years when Fitz was US Attorney in Chicago and Mueller was FBI Director. Also, while he’s not a defense attorney in the Mueller case, he is representing a key witness, Jim Comey, in it and had a partner, Greg Craig, investigated by it. Fitz basically says that the Scooter Libby trial revealed “a fair amount about what we did.”

Patrick Fitzgerald, the independent counsel in the Plame investigation, was under no obligation to write a report because of the specific guidelines behind his appointment. Testifying before Congress as his probe was ending, Fitzgerald defended the approach by noting that grand jury witnesses expect secrecy when they testify. He also noted that a 2007 public trial involving I. Lewis “Scooter” Libby, a former top aide to Vice President Dick Cheney convicted for perjury, had revealed much of the investigation’s details.

“I think people learned a fair amount about what we did,” Fitzgerald said. “They didn’t learn everything. But if you’re talking about a public report, that was not provided for, and I actually believe and I’ve said it before, I think that’s appropriate.”

Fitz is right. He revealed a lot in that trial, having fought hard to be able to get much of it cleared by the spooks to be publicly released. He revealed enough that, had the Democratically-controlled Congress seen fit in 2007, they could have conducted investigations into the impropriety of things constitutional officer Dick Cheney did in pushing the release of Valerie Plame’s identity. In a key hearing, Joe Wilson actually pulled any punches directed at Cheney. It is my belief, having been present at some key events in this period, that had a witness instead laid out all the evidence implicating Cheney, Congress may well have taken the evidence Fitz released in the trial and used it to conduct further investigation.

No one will have to make that case about Trump to Democrats in the wake of a Mueller investigation, I imagine.

I’ve got a piece coming out next week that lays out what role I think the vaunted Mueller report really plays, because I think it does play a role, a role that Samuelson doesn’t even consider.

But for now, I’ll point to Fitz comments as a way to say that, even drawing as he does on a great number of experts about how such investigations have worked in the past, Samuelson is not drawing the correct lessons. The first of which is that Mueller would prefer to lay out his “report” in trial exhibits.

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

Don McGahn’s Bullshit Report Covering Up the Flynn Firing

Murray Waas, who writes about one and only one subject on the Russian investigation, has for the second time written a story claiming that a report Don McGahn wrote on February 15, 2017 — and not Trump’s serial offers to pardon people who are serving as his firewall —  is “the strongest evidence to date implicating the president of the United States in an obstruction of justice” and “the most compelling evidence we yet know of that Donald Trump may have obstructed justice.” Murray then goes on to parrot Rudy Giuliani’s preferred narrative about what would happen next.

Several people who have reviewed a portion of this evidence say that, based on what they know, they believe it is now all but inevitable that the special counsel will complete a confidential report presenting evidence that President Trump violated the law. Deputy Attorney General Rod Rosenstein, who oversees the special counsel’s work, would then decide on turning over that report to Congress for the House of Representatives to consider whether to instigate impeachment proceedings.

Because even people covering the story closely mistake the Flynn firing for an obstruction crime instead evidence of the conspiracy, I’d like to lay out why this story is silly. This will lay out things implicit in this post, which shows that in fact the White House narrative about Flynn is all an effort to treat his firing as obstruction and not “collusion.”

Neither story about Don McGahn’s exoneration of Trump should be credited

Murray claims that because Trump knew that Mike Flynn was under investigation when he asked Jim Comey to let the investigation into Flynn go, it will undercut an explanation offered in January that Trump thought Flynn had been cleared by the FBI.

In arguing in their January 29 letter that Trump did not obstruct justice, the president’s attorneys Dowd and Sekulow quoted selectively from this same memo, relying only on a few small portions of it. They also asserted that even if Trump knew there had been an FBI investigation of Flynn, Trump believed that Flynn had been cleared. Full review of the memo flatly contradicts this story.

The memo’s own statement that Trump was indeed told that Flynn was under FBI investigation was, in turn, based in part on contemporaneous notes written by Reince Priebus after discussing the matter with the president, as well as McGahn’s recollections to his staff about what he personally had told Trump, according to other records I was able to review. Moreover, people familiar with the matter have told me that both Priebus and McGahn have confirmed in separate interviews with the special counsel that they had told Trump that Flynn was under investigation by the FBI before he met with Comey.

Murray repeats a suspect McGahn timeline describing himself, along with Reince Priebus and White House lawyer John Eisenberg, “confronting” Flynn about intercepts showing that he had raised sanctions with Kislyak, contrary to what (they were claiming) he had told them.

On February 8, 2017, The Washington Post contacted the White House to say that it was about to publish a story citing no less than nine sources that Flynn had indeed spoken to Kislyak about sanctions. In attempting to formulate a response, Priebus, McGahn, and Eisenberg questioned Flynn. Confronted with the information that there were intercepts showing exactly what was said between him and Kislyak, Flynn’s story broke down. Instead of denying that he had spoken to Kislyak about sanctions, the timeline said, Flynn’s “recollection was inconclusive.” Flynn “either was not sure whether he discussed sanctions, or did not remember doing so,” the McGahn timeline says.

Priebus then “specifically asked Flynn whether he was interviewed by the FBI,” the timeline says. In response, “Flynn stated that FBI agents met with him to inform him that their investigation was over.” That claim, of course, was a lie. The FBI never told Flynn their investigation of him was over. Shortly thereafter, Vice President Pence, Priebus, and McGahn recommended that Flynn be fired.

According to the story Murray got snookered into repeating, because those three never informed Trump about this confrontation, his understanding of the investigation would remain what Priebus and McGahn had already briefed him — that Flynn was under investigation — and so by asking Comey to back off, he was obstructing justice.

In arguing that the president did nothing wrong, Trump defense attorneys John Dowd and Jay Sekulow, in both informal conversations and later in formal correspondence with the special counsel, relied on the false statements of Flynn to Priebus, McGahn, and Eisenberg that the FBI had closed out their investigation of him. In the attorneys’ reasoning, if Trump had no reason to think that Flynn was under criminal investigation when he allegedly pressured Comey to go easy on Flynn, the president did not obstruct justice. More broadly, Sekulow and Dowd argued in correspondence with the special counsel that the “White House’s understanding” was that “there was no FBI investigation that could conceivably have been impeded” at the time of Trump’s White House meeting with Comey.

But Sekulow and Dowd’s account of these conversations is partial and misleading. In fact, there is no information or evidence that Flynn’s false assertions were ever relayed to the president.

Murray doesn’t ask an obvious question: why, if Priebus and McGahn had already briefed Trump that Flynn was under investigation, they would have to confront Flynn about it. Nor does he mention a lot of other relevant details.

Two narratives

Before I get into the most relevant details, consider what we’re looking at: what Murray claims is his scoop, which provides more details on the original McGahn report, written the day after Trump tried to get Comey to end an investigation into why Mike Flynn lied about his conversation about sanctions on December 29, 2016. As always seemed the case and still appears to be true based on Murray’s claims about the report, the McGahn report misrepresented what Sally Yates said and a bunch of other things, but  in so doing laid out a narrative whereby the firing of Mike Flynn would serve as punishment for something Flynn did wrong.

Murray contrasts that with the letter Trump’s lawyers sent at the end of January but leaked in June in part to feed a narrative — one that had already been debunked — that Mueller was primarily investigating Trump for obstruction. The letter was Jay Sekulow and John Dowd’s attempt, in the wake of Mike Flynn’s cooperation agreement, to use the McGahn narrative to spin the firing of Flynn. In the January 29, 2018 telling, Flynn is not at fault, he’s just confused. And so, in the January letter, is the president. It portrays a story where no one really knew what Flynn said to Kislyak and everything that followed was just a big game of confused telephone for which the participants can’t be held legally liable. If Flynn were confused, of course, then his purported lies to Mike Pence would need to be excused, which is probably why Sekulow and Dowd didn’t address that part of the story.

When this whole process started — before Trump fired Jim Comey and in the process extended the investigation and got Robert Mueller looking into the stories being told — McGahn and Priebus and everyone else probably presumed that firing Flynn would shut everything down. That was the intent, anyway. Fire Flynn, end of investigation about why he lied to the FBI about discussing sanctions with Sergei Kislyak. And if you end the investigation, there would be no further scrutiny into what everyone else knew at the time, nor would anyone ask Comey and Yates their side of the story.

Of course, Trump fucked that all up, and fired Comey, which led to Mueller’s appointment, which led to his convening of a grand jury, which led to all that falling apart.

Bill Burck’s other clients already knew that Flynn had discussed sanctions

Which brings us to the most important of the missing details.

As noted, Trump couldn’t leave well enough alone and so fired Comey which led to Mueller which led to an actual investigation which led, in August, to Mueller obtaining the transition communications of 13 key members of the transition team, unmediated by Trump lawyers, who at the time were just responding to wholly inadequate document requests from Congress and sharing with Mueller.

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

Among others, Mueller would have obtained emails that would have revealed that contrary to the story the White House had told in early January 2017 (which Murray repeats in his story), numerous Transition officials were aware of the emails regarding sanctions. Indeed, Reince Priebus, along with Flynn, Steve Bannon, Sean Spicer, and two other people (Kushner’s inclusion is implied elsewhere in the story), got forwarded an email KT McFarland sent Tom Bossert the day that Mike Flynn made his calls with Kislyak, talking about Flynn’s upcoming call with Kislyak and the need to avoid public comment defending Russia. McFarland also relayed what Obama’s Homeland Security Czar, Lisa Monaco, expected from the call, and the expectation Kislyak would respond with threats.

On Dec. 29, a transition adviser to Mr. Trump, K. T. McFarland, wrote in an email to a colleague that sanctions announced hours before by the Obama administration in retaliation for Russian election meddling were aimed at discrediting Mr. Trump’s victory. The sanctions could also make it much harder for Mr. Trump to ease tensions with Russia, “which has just thrown the U.S.A. election to him,” she wrote in the emails obtained by The Times.

[snip]

McFarland wrote, Mr. Flynn would be speaking with the Russian ambassador, Mr. Kislyak, hours after Mr. Obama’s sanctions were announced.

“Key will be Russia’s response over the next few days,” Ms. McFarland wrote in an email to another transition official, Thomas P. Bossert, now the president’s homeland security adviser.

[snip]

Bossert forwarded Ms. McFarland’s Dec. 29 email exchange about the sanctions to six other Trump advisers, including Mr. Flynn; Reince Priebus, who had been named as chief of staff; Stephen K. Bannon, the senior strategist; and Sean Spicer, who would become the press secretary.

[snip]

“If there is a tit-for-tat escalation Trump will have difficulty improving relations with Russia, which has just thrown U.S.A. election to him,” she wrote.

Mr. Bossert replied by urging all the top advisers to “defend election legitimacy now.”

[snip]

Obama administration officials were expecting a “bellicose” response to the expulsions and sanctions, according to the email exchange between Ms. McFarland and Mr. Bossert. Lisa Monaco, Mr. Obama’s homeland security adviser, had told Mr. Bossert that “the Russians have already responded with strong threats, promising to retaliate,” according to the emails.

Flynn took orders on and relayed his results to McFarland, who was in Mar-a-Lago with Trump. And the transition team, when it complained that Mueller obtained these emails, suggested that they would have — perhaps did, in their compliance with congressional requests — treat this one as privileged. The day after Flynn’s calls, Trump hailed the outcome his National Security Advisor appointee had accomplished on the calls the day before.

In other words, a great deal of evidence suggests that Trump not only knew what went on in those calls, but directed Flynn through McFarland to placate the Russians.

Within days after the call, Flynn briefed other members of the transition team on the call. It is highly unlikely that he lied to people who had been informed in advance of his call that he would be discussing sanctions.

FBI may have believed, in January 2017 and even February 2017, when McGahn wrote his memo, that Flynn lied on his own, to hide the contents of his calls from others in the Administration. But by November 2017, they knew that the most important people in the transition — including Bill Burck’s other clients, Steve Bannon and Reince Priebus — knew well what had transpired in the calls with Kislyak.

None of this, of course, shows up in the tale White House sources are telling Murray. As a result, he tells a story that presents the McGahn narrative as more closely matching the “truth” than the later Sekulow and Dowd letter.

The problems with the McGahn narrative

But neither are true, and so while it’s nifty for Murray to claim this is the biggest yet proof of obstruction (it’s not, compared to the pardons promised), that’s not actually what happened, and Mueller would know that.

For example, the entire story about Flynn lying to Pence — which is something Sekulow and Dowd simply ignored in their January letter — is probably not true; and if it is, key White House staffers, including at least two of Burck’s clients, were lying to the nominal Transition head and were parties to Flynn’s lie.

On January 12, 2017, Washington Post columnist David Ignatius disclosed that US intelligence agencies had intercepted the phone calls, although Ignatius’s sources did not disclose the specifics of what either Flynn or Kislyak said. Vice President Mike Pence was immediately enlisted to defend Flynn. Flynn assured Pence that he never spoke to Kislyak about sanctions, whereupon Pence repeated those denials on Fox News and CBS’s Face the Nation. Flynn was then also questioned by the FBI about the phone calls, but once again denied that he had ever spoken to Kislyak about sanctions.

Similarly, the notion that Priebus would have to ask Flynn what he said to Kislyak on February 8 (when he had known it would include sanctions before Flynn made the call) is nonsense.

 On February 8, 2017, The Washington Post contacted the White House to say that it was about to publish a story citing no less than nine sources that Flynn had indeed spoken to Kislyak about sanctions. In attempting to formulate a response, Priebus, McGahn, and Eisenberg questioned Flynn. Confronted with the information that there were intercepts showing exactly what was said between him and Kislyak, Flynn’s story broke down. Instead of denying that he had spoken to Kislyak about sanctions, the timeline said, Flynn’s “recollection was inconclusive.” Flynn “either was not sure whether he discussed sanctions, or did not remember doing so,” the McGahn timeline says.

Both Priebus and Flynn would know better. It’s possible Flynn and Priebus were putting on a show for the lawyers (but if so, that show would likely be just for John Eisenberg, because otherwise Burck would have a major conflict). It’s more likely the McGahn narrative was an attempt to make the internal story consistent with the public claims that only Flynn knew of the content of the calls.

One of the other key pieces of bullshit in the McGahn narrative is the claim that there was any doubt whether Flynn could be fired when Yates first presented her concerns to McGahn.

The McGahn timeline recounts: “Part of [our] concern was a recognition by McGahn that it was unclear from the meeting with Yates whether or not an action could be taken without jeopardizing an ongoing investigation.”

She clearly suggested (and would be backed by Mary McCord) that’s what they should do.

Finally, there’s something else missing from this narrative: that Flynn had spent the weekend between this alleged grilling from Priebus and McGahn in Mar-a-Lago with the President, sitting in on yet more sensitive meetings (in that case, with Shinzo Abe).

McGahn’s narrative may offer an explanation for why Trump fired Flynn, even if it doesn’t accord with known facts. But the entire narrative fails to explain why, if all the players knew and did what they said, Trump didn’t fire Flynn as soon as Yates suggested he should, or after they reviewed the intercepts (showing what they knew the conversation entailed), or after Priebus and McGahn grilled Flynn.

Which is not to say that McGahn’s letter isn’t proof of obstruction (albeit far less damning than Trump’s offers of pardons). It’s just an entirely different model of obstruction, and Murray’s story may be yet more PR from Don McGahn to make sure he’s on the right side of any obstruction charges.

Annual FISC Report Suggests the Court Did Not Approve ANY Section 702 Certificate in 2016

The Administrative Office of the Courts just released the FISC annual report, the first full year report issued after USA Freedom Act.

I’ll work on more analysis in a moment, but wanted to point to something that is fairly remarkable, if I’m reading the report correctly.

Here’s the top line report for the year. Note, in particular, the 1881a line.

As last year’s report did, this year’s redacts the number of certificates the government applied for. But then the footnote reads, in part,

The government submitted this number of certification(s) during calendar year 2016 but the Court did not take action on any such certification(s) within the calendar year.

That, plus the “0”s in the table, seems to state clearly that the FISC did not approve last year’s Section 702 application.

What that likely means, given the precedent set in 2011, is that the government submitted applications (usually they do this with a month of lead time), but the court would not approve the applications as submitted. In 2011, the government got a series of extensions, so 702 never lapsed. The prior approval before last year was November 6, 2015, so it would only have had to have been extended 2 months to get into this year. So that seems to suggest there was at least a three month (application time plus extension) delay in approving the certifications for this year.

Note, too, that the report shows the only amicus appointed last year was Marc Zwillinger for a known PRTT application, so this hold up wasn’t even related to an amicus complaint.

In any case, this may reflect significant issues with 702.

Update: Here’s the 2011 702 opinion, which documents the last known time this happened (though there must have been a roughly month-long delay once since then). After submitting an application in April for May reauthorization, the government got two 60-day extensions, and one more month-long extensions, with final approval on October 3, 2011. It appears there was no big problem with getting the extensions (though at one point, Bates had a meeting with DOJ to tell them he was serious about the reapproval process), so presumably any extension in November would have been granted without much fuss.

One other thing that is worth noting. On September 27, 2016, then Assistant Attorney General John Carlin announced he would be leaving in a month. Mary McCord (who announced her own departure today) took over on October 15. So the transition between the two of them would have happened in the weeks before the certificates would have normally been reauthorized. Whatever Carlin’s reasons for leaving (which has never been made public, as far as I know) the transition between the two of them may have exacerbated any delay.