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Hillary’s Candidate Briefing Was More Contentious than Mike Flynn’s

The DOJ IG Report on Carter Page revealed that FBI Agent Joe Pientka was selected as the FBI counterintelligence briefer for both Presidential candidates in 2016 in part to give him familiarity with Mike Flynn, shortly after the former DIA head became one subject in the UNSUB investigation into how the Trump campaign got advance notice of the Russian election operation.

The FBI selected SSA 1, the supervisor for the Crossfire Hurricane investigation, to provide the FBI security briefings for Trump and Clinton. 478 SSA 1 told us that one of the reasons for his selection was that ODNI had informed the FBI that one of the two Trump campaign advisors attending the August 17 briefing would be Flynn. He further stated that the briefing provided him “the opportunity to gain assessment and possibly have some level of familiarity with [Flynn]. So, should we get to the point where we need to do a subject interview … I would have that to fall back on.”

Since then, Republicans have never stopped wailing about how badly Flynn was treated in this briefing — never mentioning that Flynn was secretly working for Turkey when he sat in on this briefing, meaning FBI should have scrutinized him more closely than they did.

The CIA just released the latest chapter of its running history of Presidential briefing, the one covering Trump. (h/t Micah Zenko)

It provides accounts of the candidate briefings given to both Trump and Hillary. Its account of the first Trump one makes no specific mention of Pientka’s investigative role. Nor does it mention that at the time Flynn was asking “tactical” questions about the Middle East, he was on Turkey’s payroll.

Trump was accompanied by two advisors, New Jersey Governor Chris Christie and Lt. Gen. (ret.) Michael Flynn. The briefing team, led by Gistaro, included six of the substantive experts and a colleague from the ODNI Transition Team who was available to record and take follow-up action related to any questions that might arise and not be answered on the spot.

Gistaro led off with a substantive overview of the highest priority issues the IC was following, then turned to his colleagues to elaborate on developments in their areas of specialization. They briefed on terrorism, cyber security, counterterrorism, ISIS, the civil war in Syria, the security situation in Iraq, and the Iranian nuclear program. Gistaro recalled that he was careful to watch the clock and intervene as necessary so that the briefers each had an opportunity to say their piece but did not run over their allotted time. Nevertheless, the briefing went on for two and a half hours, longer than scheduled, and even then could not cover all the planned subjects. It was agreed that a second session was necessary.

In this first session, Trump was primarily a listener. He did ask some “big picture” questions, reflecting the fact that the material was new to him. Because several of the issues related to matters Flynn had dealt with in the military, he was the most active questioner. In Gistaro’s words, “He was on his home turf.” Most of Flynn’s questions were on the Middle East and were quite tactical. However, a few of his questions, especially on Iran, raised policy issues and had to be turned aside for referral, if he wished, to the national security advisor. Trump’s verdict on the session was a “thumbs-up” to IC officers as he departed. Christie later described the briefing as outstanding.

Here’s the FBI summary of that briefing, which focused primarily on questions about Russia, not Turkey, which might have been really useful once FBI discovered that Flynn was secretly on their payroll.

The history separates its account of the second briefing from claims Trump made about the briefing days later in a town hall by several pages.

Trump received a second preelection briefing roughly two weeks later, on 2 September, also at the FBI office in Manhattan. Again, Trump was accompanied by Christie and Flynn. This one-and-a-half-hour briefing rounded out the agreed list of topics, focusing on cyber security, Russia, China, and North Korea. On this occasion, Trump had numerous questions, some of which raised policy issues. Most, however, reflected his interest in financial and trade matters and in press reports about Russia’s reported interference in the US election campaign.

At the briefing of 2 September, Trump told the briefers that he valued the first session in August and their expertise. They were surprised when he assured them that “the nasty things he was saying” publicly about the Intelligence Community “don’t apply to you.” Afterward, Flynn complimented the briefers in remarks to the press.

[snip]

[O]fficials were anxious to see what issues related to intelligence would arise during the debates in 2016, including whether the candidates would make direct or indirect reference to information they had received in their preelection briefings. This anxiousness was reinforced before the formal candidate debates during a quasi debate on 7 September, when Trump and Clinton were questioned, separately, by NBC newsman Matt Lauer. On this occasion, Trump made reference to intelligence briefers’ “body language” in suggesting that they were “not happy” with policies of the Obama administration. These comments caused outrage in the following days among news commentators and former intelligence officers and prompted reporters to dig for information about what had transpired during Trump’s briefings.

Thus, unlike with some other instances, this account doesn’t make clear whether Trump was lying outright about his public comment. Notably, too, this account makes no mention of Flynn’s own role in lying about the briefing, which seems remarkable given the comment about his compliment to the briefers.

Given how the history soft-pedals these issues, it makes the description of the single Hillary briefing all the more jarring.

Clinton, although feeling under the weather and unavoidably delayed 20 minutes, joined the briefers in a small secure room (SCIF, in intelligence argot) at the FBI field office in White Plains, New York, on 27 August. Given all that Clinton was going through related to her handling of personal emails during the campaign, Gistaro regretted that the first question the security officer asked Clinton as she approached the room was whether she had any cell phones with her. The Secretary very professionally assured the questioner that she had left her cell phones at home

Hillary, of course, had been cleared of misconduct before that August 27 briefing, and was well-versed in the use of SCIFs. Yet she was treated by the security officer as a suspect.

Whereas Mike Flynn, who was quite literally working for a frenemy government during both of these classified briefings, and under investigation for suspect ties to Russia, was nevertheless freely served up answers to all the tactical questions he posed.

Andrew McCabe Got His Pension and His Cufflinks — But Is that Adequate Recourse for the Country?

As part of a settlement DOJ entered into yesterday to avoid giving Andrew McCabe discovery on the full extent of the politicized campaign against him, DOJ agreed to give him his retirement — and the cufflinks he would normally have gotten upon retiring from Senior Executive Service.

The more substantive parts of the agreement reflect a total capitulation by DOJ: restoration of McCabe’s pension backdated to the time he was fired and partial award of his legal fees for representation from Arnold & Porter.

Defendants will complete all actions necessary to ensure that Plaintiff will be recorded as having entered the federal retirement system effective March 19, 2018, with an annuity commencement date of April 1, 2018, see 5 U.S.C. § 8464(a)(1)(A), 5 C.F.R. § 842.208(b), and will receive:

a. a payment of a lump sum representing all retirement annuity payments, including annuity supplement payments, that he would otherwise have received from the April 1, 2018 annuity commencement date until the day before he is paid his first regular monthly payment, which will be computed in accordance with all relevant statutory and regulatory provisions, and which will not deduct or withhold any amounts for benefits not received or for taxes not owed during the time period specified above, unless such deductions and/or withholdings are required by relevant statutory or regulatory provisions;

b. prospectively from the date of his first regular monthly payment, through the federal retirement system, all periodic annuity payments, including annuity supplement payments, consistent with his March 19, 2018 retirement date;

[snip]

Defendants agree to pay $539,348.15 to Plaintiff, pursuant to the Equal Access to Justice Act, and in full settlement and satisfaction of all attorney’s fees, costs, and expenses. Payment shall be made to Plaintiff via electronic funds transfer to Arnold & Porter Kaye Scholer LLP, as promptly as practicable, consistent with the normal processing procedures followed by the Department of Justice and the Department of the Treasury, following the dismissal of the above-captioned civil action. This provision does not constitute an admission that Defendants’ position was not substantially justified under 28 U.S.C. § 2412(d)(1)(A).

McCabe will get also an admission that “Executive Branch officials outside the Department” — otherwise known as The President —  “should not comment publicly on ongoing career civil service employee disciplinary matters.” [my emphasis]

WHEREAS, the Parties agree that Executive Branch officials outside the Department of Justice and its components should not comment publicly on ongoing career civil service employee disciplinary matters, except as provided by statute or regulation, so as not to create any appearance of improper political influence;

But McCabe won’t get a concession that numerous people within the chain of command at DOJ and FBI, including prosecutors who pursued a false statements charge against McCabe, bowed to that improper political influence. Nor, as noted, will McCabe get discovery to learn what documents — besides proof that Bill Barr’s DOJ altered McCabe’s notes in an effort to undermine the Mike Flynn prosecution —  DOJ was so determined to avoid disclosing that they settled this case.

All this is being accomplished, legally, by a kind of reset. McCabe’s personnel records will be altered such that there’s no record of his firing.

1. Within 30 days of the execution of this Settlement Agreement, Defendants will rescind their removal of Plaintiff from the FBI and the civil service, and will rescind and vacate former Attorney General Jefferson B. Sessions’s March 16, 2018 removal decision (“DOJ Removal Decision”), and the March 16, 2018 removal recommendation that was submitted to Attorney General Sessions (“DOJ Removal Recommendation”).

2. The Parties agree that Plaintiff’s electronic Official Personnel Folder will reflect that he was employed continuously by the FBI from July 1996 until his retirement on March 19, 2018, as the FBI Deputy Director and a member of the Senior Executive Service (“SES”), after becoming 50 years of age and completing over 20 years of service.

3. Within 30 days of the execution of this Settlement Agreement, the government will remove from Plaintiff’s electronic Official Personnel Folder all documents that reflect or reference his removal, and replace them with documents reflecting that Plaintiff was continuously employed by the FBI until his retirement on March 19, 2018. Defendants will then provide to Plaintiff a copy of his revised electronic Official Personnel Folder.

4. Plaintiff will be deemed to have retired from the FBI on March 19, 2018.

5. Plaintiff will be deemed to have separated from the FBI in good standing for the purposes of 18 U.S.C. § 926C(c)(1).

By my reading, this doesn’t force DOJ Inspector General to revise its report on McCabe to incorporate Michael Kortan’s testimony, one of the problems in the report identified in McCabe’s suit. It doesn’t negate the conflicting Office of Professional Responsibility review results. But it does legally remove the final effect of over a year of retaliation and public badgering by the President, eliminating all trace of Sessions’ last minute firing of McCabe.

I have no doubt this settlement makes a lot of sense for McCabe. He gets the money he earned over two decades of chasing terrorists, spies, and organized crime and the ability to be treated with the respect a former Deputy Director is normally accorded.

But this country is still fighting the aftereffects of a coup attempt that almost succeeded, in part, because the FBI backed off investigating those close to the President, including Proud Boys who played a key leadership role in the attack. We never got fully visibility into the President’s relationship with Russia because Trump throttled that investigation with firings and pardons. And an unrelenting flood of disinformation masks both of these facts.

We know, from the fact that DOJ entered into this settlement (among other things), that Trump badly politicized DOJ. But this settlement allows DOJ to avoid coming clean about all that happened.

The Two New Material Errors Are the News from the IG Report on Woods File Errors

Footnote 14 in a DOJ Inspector General Report summarizing the problems with the FBI’s compliance with the Woods requirement released last week claims to lay out why reviewing Woods file compliance is a good measure of FISA.

14 The OIG’s December 2019 FISA Report demonstrates the significant problems that can result from a lack of compliance with the Woods Procedures. For example, one of the Woods Procedures-based failures detailed in our December 2019 report concerned the failure to seek and document the handling agent’s approval of the source characterization statement for Christopher Steele in the FISA applications, which we found overstated Steele’s bona fides and gave the misimpression that Steele’s past reporting to the FBI had been deemed sufficiently reliable by prosecutors to use in court and that more of his information had been corroborated than was actually the case. As detailed in our December 2019 report, the handling agent told us that had he been shown the source characterization statement, as required by the Woods Procedures, he would not have approved it. Given the importance of a source characterization statement to the FISC’s determination of a source’s reliability, the failure to comply with the Woods Procedures was a significant error on the part of the FBI case agents involved and their supervisors. Moreover, this issue compounded other serious problems with the subsequent FISA renewal applications, such as the FBI’s continued reliance on Steele’s information despite the fact that the Primary Sub-source, during his FBI interviews, had contradicted Steele’s reporting on several critical issues.

The footnote badly overstates its claim.

In a post laying out how the Woods file errors in Carter Page’s applications weren’t the real indicators of a problem, I noted that Steele’s FBI handler, Mike Gaeta, had explained why he treated Steele’s reporting as reliable, even though Steele had never testified in any trials, the measure FBI normally uses to measure the reliability of a source.

[DOJ IG identified two claims unsupported by the Woods file stating] that Christopher Steele’s reporting had been corroborated, something the DOJ IG Report lays out at length was not true in the terms FBI normally measured. Except, even there, Steele handler Mike Gaeta’s sworn testimony actually said it had been. He described jumping when Steele told him he had information because he was a professional,

And at that time there were a number of instances when his information had borne out, had been corroborated by other sources.

He also provided a perfectly reasonable explanation for why Steele’s reporting was not corroborated in the way DOJ IG measured it in the report: because you could never put Steele on a stand, so his testimony would never be used to prosecute people.

From a criminal perspective and a criminal investigative kind of framework, you know, Christopher Steele and [redacted] were never individuals who were going to be on a witness stand.

In other words, while it appears that DOJ cleaned up many of the errors identified by DOJ IG by finding the documentation to back it over the course of months, the public record makes it clear that Crossfire Hurricane would have been able to clear up even more of the Page Woods file.

Per the IG Report, Gaeta would not have approved the source statement in the Carter Page application as written. But Gaeta is on the record explaining what measure he used to assess a source who would never be asked to testify but whose reporting had nevertheless “borne out.” And Gaeta, per his Congressional testimony, believed Steele’s reporting was worth immediate attention.

There was just one other Woods file error identified in the Carter Page IG Report that wasn’t proven elsewhere that can be publicly tested — a James Clapper claim that Russia had provided money (unproven) and disinformation (proven) to particular candidates. The majority of the problems in the Page report, however, weren’t related to a Woods violation, in large part because they were about critical information omitted from the applications, not included.

That is, the Woods file was pretty much useless for identifying the real errors in the Carter Page applications. That’s why I’m sympathetic with a comment that DOJ IG cited critically — DOJ IG judged that the comment “dismiss[ed …] the weaknesses we identified related to compliance with the Woods Procedures” — that the IG emphasis on Woods file compliance may distract from getting material facts correct.

While we all understand the extreme importance of presenting accurate facts to any court on material issues, there is a concern that we are allowing our efforts to be diverted from that very important goal and instead diverted to the creation of picture perfect Woods binders that literally support every granular fact in the application regardless of whether it is material to probable cause.

That’s why — as my previous post laid out at length — the DOJ IG audit is most useful for identifying problems in the claims FBI and DOJ made about the FISA process, as well as larger systematic problems identified. For example, DOJ IG scolded DOJ for releasing a statement boasting, in summer of 2020, of its accuracy, while downplaying the seriousness of the errors DOJ IG identified (something I noted in my earlier post).

On July 30, 2020, following the Department’s review of the remaining applications, the FBI issued a press statement that again referenced the FBI’s “dedicat[ion] to the continued, ongoing improvement of the FISA process to ensure all factual assertions contained in FISA applications are accurate and complete,” while highlighting that “DOJ and FBI discovered only two material errors [in the 29 FISA applications] but—most importantly—neither of these errors is assessed to have undermined or otherwise impacted the FISC’s probable cause determinations” (emphasis in original). The statement went on to state that “Within these thousands of facts, there were approximately 201 non-material errors found, across the 29 applications. These include minor typographical errors, such as misspelled words, and slight date inaccuracies.”28 However, the statement did not mention that the majority of the FISA application errors—124 of these 201—involved errors beyond minor typographical mistakes and date errors, including deviations from source documentation, misidentified sources of information, and unsupported facts.

The report provided examples of the kinds of errors that DOJ deemed fairly insignificant. My favorite — which DOJ considered non-material — is that a counterintelligence suspect had visited an entirely different continent than the country they were suspected of being an agent of, but FBI misreported that destination.

Example: The FISA application stated the target returned from a trip overseas from the specific country of counterintelligence threat concern, but the support in the Woods File stated that the target was returning from a country on a different continent.

In perhaps the most telling example, though, DOJ IG described how FBI blew off as “subjective” a FISA application assertion that DOJ IG identified as a “potential inaccuracy,” only to have NSD determine the inaccuracy was not only an error, but a material one requiring a report to FISC.

[T]here were 30 instances where FBI field personnel initially determined that the potential inaccuracy we identified was not an error, yet NSD OI ultimately determined it was an error, which was thereafter reported to the FISC. In one instance that was ultimately determined to be a material omission of fact by NSD OI, the FBI field office’s initial response dismissed our note and stated that the issue was “subjective” and “not material to probable cause.”

The IG Report identifies that, in addition to two publicly released letters to FISC (one, two) describing the errors DOJ identified based off DOJ IG’s preliminary review of 29 cases, there was a third, dated October 28, 2020, which DOJ NSD has not made public, revealing two additional material errors.

In three separate filings with the FISC on June 15, July 29, and October 28, 2020, the Department and FBI provided the results after their assessment of the CDC accuracy reviews of the 29 FISA applications that the OIG had reviewed and in which we had identified numerous potential errors. 12 In total, the Department notified the FISC about 209 instances of unsupported or inaccurate statements, as well as omissions of fact, that it had identified in 27 of the 29 FISA applications. The Department and FBI further informed the FISC that 2 of the 29 FISA applications reviewed did not contain any inaccurate statements.13 Of the total 209 errors reported to the FISC, 162 related to initial concerns identified in the OIG’s review. The additional errors reported were identified by the FBI in its subsequent CDC accuracy reviews in response to the FISC’s order.

[snip]

The Department and FBI determined that 4 of the 209 identified errors were material errors. FBI policy and the 2009 Accuracy Memorandum define material facts as “those facts that are relevant to the outcome of the probable cause determination” and states that NSD OI determines whether a misstatement or omission is capable of influencing the FISC’s probable cause determination. The Department further assessed that none of these 209 errors undermined or otherwise impacted the FISC’s probable cause determinations. The four reported material errors or omissions occurred in three different applications related to different targets. The material errors were:

  • Failing to include context to inform the reader of the application that certain remarks the target made about a particular organization were made, according to evidentiary support, to provoke a response from law enforcement personnel. Instead, the application simply stated that the target expressed support of the referenced organization.
  • Describing the target’s support for a specific group, where the evidence in the Woods File instead indicated the target supported a specific cause.
  • Describing that the target used a financial account as of a certain date. NSD OI stated that it was not evident from the supporting documentation how recently the government had confirmed the target’s use of the financial account, and certain evidence on the target’s use of the financial account was several years prior to the date included in the application.
  • Failing to include the required reliability statement for one of two CHSs referenced in the application.

It’s not just that FBI treated a comment made by someone trying to “provoke a response from law enforcement personnel” as sincere. It’s that having already reviewed all these errors and publicly boasted about how minimal they were (even while ignoring that none of the worst problems in the Carter Page applications were found using this methodology), DOJ somehow went back and discovered there were additional problems, one of which they had dismissed as “subjective.”

Don’t get me wrong. The headline findings — that FBI simply didn’t have Woods files for a number of applications — are concerning.

Out of the FBI’s stated universe of over 7,000 FISA applications for which Woods Files appeared to be required, we identified at least 179 instances (in addition to the 4 that the OIG previously identified) across 21 field offices where the respective field office reported the Woods File as missing or incomplete and requiring whole or partial reassembly.17

But they’re frankly not the real concern. The real concern is that the Woods file is not designed to fix the problems identified in the Carter Page applications (and this report doesn’t describe whether an effort to elicit information that might otherwise be omitted is working). And somewhere along the way, Billy Barr’s DOJ admitted to the FISC that their self-congratulatory press boasts turned out to be inaccurate without revealing that publicly.

Update, 11/14/21: I just realized that the Woods File violation pertaining to Clapper involved the FBI paraphrasing a Clapper interview otherwise quoted before and after the violative language.

CLAPPER: In the U.S., the United States. And of course there is a history there of — there is a tradition in Russia of interfering with the elections, their own and others’. So it shouldn’t come as a big shock to people. I think it’s more dramatic maybe because now they have the cyber tools that they can bring to bear in the same effort. This is still going on, but I will say that it’s probably not real, real clear whether there is influence in terms of outcome. What I worry about more, frankly, is just sowing seeds of doubt, where doubt is cast on the whole process. So what are we doing about it? Well, apart from what you talked about, certainly DHS, Secretary Jeh Johnson has been very active with state election officials, offering, you know, our services and best practices and that sort of thing to secure, where appropriate, particularly if there is any dependence on the Internet in the course of the conduct of an election in voter registration, databases or the actual conduct of the election. We have a strength here in that we don’t have a centralized electoral system. It’s very decentralized among the states and local officials, and that actually works our advantage to be really a real monumental undertaking to try to affect the election nationally. But again, I think probably the more likely — and I am just surmising here — the more likely objective to would be to try to just sow seeds of doubt about the efficacy and viability and the sanctity — if I could use that word — of the whole system. _________IGNATIUS: You mentioned that there had been past instances where Russia — in this case I assume the Soviet Union — had tried to interfere in our election process. I probably should know what those are but I don’t. What comes to mind in terms of the past history of this? _________CLAPPER: Well, where they have fed money to opposition candidates, or tried to feed disinformation. Again, the way it was done during the Cold War, which of course preceded what we now know as the cyber era. And of course the record is replete with cases of influencing elections in East Europe and that sort of thing by, by today’s standards, more primitive methods. They have a history of that

Why Did DOJ Delay Seven Months before Letting Jeffrey Rosen Testify?

On January 22 — after Jeffrey Rosen was no longer Acting Attorney General but before Trump’s second impeachment trial — Katie Benner published a story describing Trump’s efforts to get Jeffrey Bossert Clark to undermine those at DOJ, including Rosen and Acting Deputy Attorney General Richard Donoghue, who refused to endorse Trump’s lies about the election.

As I noted the other day, that story included all the details that have been dribbling out from the House Oversight Committee in recent weeks: Trump’s efforts to get DOJ to intervene in Georgia, Rosen and Donoghue’s refusal, followed by Trump’s effort to put Clark in charge at DOJ on January 3. Benner had all that nailed in January.

The day after Benner’s January 22 story, the holdover members of the Senate Judiciary Committee sent a letter to DOJ citing the story and asking for documents behind it.

On January 22, The New York Times reported astonishing details about an alleged plot between then-President Donald Trump and then-Acting Assistant Attorney General of the Civil Division Jeffrey Bossert Clark to use the Department of Justice to further Trump’s efforts to subvert the results of the 2020 presidential election.[1]  These efforts culminated on January 6, when Trump incited a violent mob that attacked Congress as it counted the electoral votes and prepared to affirm President Biden’s victory.  The information revealed by this story raises deeply troubling questions regarding the Justice Department’s role in Trump’s scheme to overturn the election.

The Senate Judiciary Committee will conduct vigorous oversight of these matters.  As a first step, we seek your immediate assurance that the Department will preserve all relevant materials in its possession, custody, or control.  Please also produce the following materials as soon as possible, but no later than February 8, 2021:

  • All documents and communications, including emails, text messages, and calendar entries, referring or related to the reported December 15 meeting between then-President Trump and then-Acting Attorney General Jeffrey Rosen and reported follow-up calls and meetings between President Trump and Mr. Rosen;
  • All documents and communications, including emails, text messages, and calendar entries, referring or related to reported complaints President Trump made to Justice Department leaders regarding then-U.S. Attorney Byung J. Pak prior to Pak’s resignation;
  • All documents and communications, including emails, text messages, and calendar entries, regarding a reported draft letter that Mr. Clark prepared and requested be sent to Georgia state legislators; and
  • All documents and communications, including emails, text messages, and calendar entries, involving the reported January 3 White House meeting involving Mr. Clark and Mr. Rosen.

That letter set a deadline of February 8, over a month before Merrick Garland was confirmed and over 70 days before Lisa Monaco was confirmed.

In May, House Oversight Chair Carolyn Maloney sent Rosen a request (which hasn’t been made public) for a transcribed interview.

Seemingly in response to that — though the letter cites both the January request and the May one — DOJ (in the guise of Bradley Weinsheimer, who was elevated from NSD to DOJ’s institutional accountability role at Associate Deputy Attorney General by Jeff Sessions, and so was a colleague of those DOJ officials), wrote Rosen and five other former top DOJ officials permitting them to testify about a carefully defined set of events. The testimony is basically limited to, “any efforts by President Trump or any DOJ officials to advance unsubstantiated allegations of voter fraud, challenge the 2020 election results, stop Congress’s count of the Electoral College vote, or overturn President Biden’s certified victory.” It is limited to events that happened after Attorney General Barr resigned on December 14. The letter specifically prohibits discussing any prosecutorial decisions the men made, or discussing investigations that were ongoing when they left.

Discussion of any pending criminal cases and possible charges also could violate court rules and potentially implicate rules of professional conduct governing extra-judicial statements.

But within that scope, the letter permits these former DOJ officials to answer questions that would otherwise be covered by executive privilege.

[T]he Department authorizes you to provide unrestricted testimony to the Committees, irrespective of potential privilege, so long as the testimony is confined to the scope of the interviews as set forth by the Committees and as limited in the penultimate paragraph below.

Of particular note, DOJ asked President Biden — via the White House Counsel — whether he wanted to invoke privilege; he chose not to.

Because of the nature of the privilege, the Department has consulted with the White House Counsel’s Office in considering whether to authorize you to provide information that may implicate the presidential communications privilege. The Counsel’s Office conveyed to the Department that President Biden has decided that it would not be appropriate to assert executive privilege with respect to communications with former President Trump and his advisors and staff on matters related to the scope of the Committees’ proposed interviews, notwithstanding the view of former President Trump’s counsel that executive privilege should be asserted to prevent testimony regarding these communications. See Nixon v. Administrator of General Servs., 433 U.S. 425, 449 (1977) (“[I]t must be presumed that the incumbent President is vitally concerned with and in the best position to assess the present and future needs of the Executive Branch, and to support invocation of the privilege accordingly.” see also id. (explaining that the presidential communications privilege “is not for the benefit of the President as an individual, but for the benefit of the Republic”) (internal citation omitted).

As Benner wrote in a story offering details of Jeffrey Rosen’s testimony, Rosen has been trying to get permission to testify for “much of the year.” As soon as DOJ gave it, he rushed to testify before Trump could intervene.

Mr. Rosen has spent much of the year in discussions with the Justice Department over what information he could provide to investigators, given that decision-making conversations between administration officials are usually kept confidential.

Douglas A. Collins, a lawyer for Mr. Trump, said last week that the former president would not seek to bar former Justice Department officials from speaking with investigators. But Mr. Collins said he might take some undisclosed legal action if congressional investigators sought “privileged information.”

Mr. Rosen quickly scheduled interviews with congressional investigators to get as much of his version of events on the record before any players could ask the courts to block the proceedings, according to two people familiar with those discussions who are not authorized to speak about continuing investigations.

He also reached out directly to Michael E. Horowitz, the Justice Department’s inspector general, and pledged to cooperate with his investigation, according to a person briefed on those talks.

The question is why. After all, these events were knowable to DOJ since they happened, and for the entirety of that time, DOJ has been conducting an investigation into efforts to obstruct the vote count. For some of that period, in fact, Rosen himself was in ultimate charge of the investigation, and he could have ordered or authorized himself to testify.

Benner didn’t specify whether Rosen might have been interviewed by the FBI, though the implication is he has not been asked.

Similarly, DOJ IG has been investigating related issues since then as part of a specific investigation into the BJ Pak firing and a general investigation into January 6. While Michael Horowitz could not subpoena Rosen, he could simply have asked Rosen to provide testimony. But Benner is quite clear that Rosen has not yet testified even to Horowitz.

During that period, too, there was an instance where DOJ IG asked someone for an interview, but the person quit to avoid the testimony.

During the course of an ongoing administrative misconduct investigation, the Department of Justice (DOJ) Office of the Inspector General (OIG) informed a then senior DOJ official, who was a non-career member of the Senior Executive Service, that the senior DOJ official was a subject in the investigation and that the OIG sought to interview the senior DOJ official in connection with the investigation. After several unsuccessful attempts to schedule a voluntary interview with the senior DOJ official, the OIG instructed the senior DOJ official to appear for a compelled interview and informed the senior DOJ official that neither the answers the senior DOJ official provided nor any evidence gained by reason of those answers could be used against the senior DOJ official in a criminal proceeding. The senior DOJ official failed to appear for the compelled interview and resigned from Department employment shortly thereafter.

The OIG concluded that the senior DOJ official violated both federal regulations and DOJ policy by failing to appear for a compelled OIG interview while still a DOJ employee. The OIG offered the senior DOJ official the opportunity to cure that violation by participating in a voluntary interview after leaving the Department, but the senior DOJ official, through counsel, declined to do so. The OIG has the authority to compel testimony from current Department employees upon informing them that their statements will not be used to incriminate them in a criminal proceeding. The OIG does not have the authority to compel or subpoena testimony from former Department employees, including those who retire or resign during the course of an OIG investigation.

Those events were reported on April 19.

There are two more dates of interest. First, DOJ only released its new contact policy — under which the request for a privilege determination may have been passed — on July 21. I’m curious whether the request for a  waiver of executive privilege waiver came after that. Executive privilege considerations were a key limitation on the Mueller investigation overseen in its final days partly by Rosen himself.

At least as interesting, however, is that DOJ sent the letter just one day before DOJ submitted a court filing in the Eric Swalwell lawsuit — speaking of members of Congress but using more generalized language — arguing that no federal officials can campaign in their official capacity and further noting that attacking one’s employer is not within the scope of someone’s job description.

The record indicates that the January 6 rally was an electioneering or campaign activity that Brooks would ordinarily be presumed to have undertaken in an unofficial capacity. Activities specifically directed toward the success of a candidate for a partisan political office in a campaign context—electioneering or campaign activities—are not within the scope of the office or employment of a Member of the House of Representatives. Like other elected officials, Members run for reelection themselves and routinely campaign for other political candidates. But they do so in their private, rather than official, capacities.

This understanding that the scope of federal office excludes campaign activity is broadly reflected in numerous authorities. This Court, for example, emphasized “the basic principle that government funds should not be spent to help incumbents gain reelection” in holding that House or Senate mailings aimed at that purpose are “unofficial communication[s].” Common Cause v. Bolger, 574 F. Supp. 672, 683 (D.D.C. 1982) (upholding statute that provided franking privileges for official communications but not unofficial communications).

[snip]

Second, the Complaint alleges that Brooks engaged in a conspiracy and incited the attack on the Capitol on January 6. That alleged conduct plainly would not qualify as within the scope of employment for an officer or employee of the United States, because attacking one’s employer is different in kind from any authorized conduct and not “actuated . . . by a purpose to serve” the employer. Id. § 228(1)(c). Brooks does not argue otherwise. Instead, he denies the Complaint’s allegations of conspiracy and incitement. The Department does not address that issue here because the campaign-related nature of the rally independently warrants denial of certification, and because the Department is engaged in ongoing investigations into the events of January 6 more generally. But if the Court were to reject our argument that the campaign nature of the January 6 rally resolves the certification question, the Court should not certify that Brooks was acting within the scope of his office or employment unless it concludes that Brooks did not engage in the sort of conduct alleged in the Complaint. [my emphasis]

It’s possible that this seven month delay is inexcusable.

It’s also possible that it reflects the time DOJ took to come to other determinations about whether privileged information could be used to investigate a former President and if so how to obtain it.

Update: On both June 24,

I assure the American people that the Department of Justice will continue to follow the facts in this case and charge what the evidence supports to hold all January 6th perpetrators accountable.

And July 6,

The Attorney General and Deputy Attorney General encouraged the team to continue to follow the facts in this case and charge what the evidence supports to hold all January 6th perpetrators accountable.

Garland made statements reiterating his commitment to charge all perpetrators against whom the evidence supported charges.

On the Missing Inspector General Report[s] about Wilbur Ross’ Lies

There was a big news blitz yesterday on the news that the Commerce Department’s Inspector General had concluded Wilbur Ross twice misled Congress about the rationale for including a citizenship question in last year’s census.

The claim was based off a letter from Inspector General Peggy Gustafsonwho was nominated under President Obama — explaining what had become of a 2019 request to investigate whether Ross had lied. In her letter, which was publicly released, Gustafson revealed the outcome of her investigation.

Our investigation established that the then-Secretary misrepresented the full rationale for the reinstatement of the citizenship question during his March 20, 2018, testimony before the House Committee on Appropriations and again in his March 22, 2018, testimony before the House Committee on Ways and Means. During Congressional testimony, the then-Secretary stated his decision to reinstate the citizenship question was based solely on a DOJ request. That request memorandum was signed by the DOJ on December 12, 2017. However, evidence shows there were significant communications related to the citizenship question among the then-Secretary, his staff, and other government officials between March 2017 and September 2017, which was well before the DOJ request memorandum. Evidence also suggests the Department requested and played a part in drafting the DOJ memorandum. Further, the then-Secretary sent a memorandum to the Department on June 21, 2018, clarifying his deliberations regarding adding a citizenship question to the Decennial Census. In this memorandum, the then-Secretary stated he began considering the content of the 2020 Census, to include reinstating the citizenship question, soon after his appointment to Secretary.

This investigation was presented to and declined for prosecution by the Public Integrity Section of the DOJ’s Criminal Division.

She sent the report to Congress along with her letter. But the report itself has not been released publicly or, best as I can tell, even leaked with those who wrote stories on the letter.

Reports on DOJ’s declination created a great deal of outrage that Merrick Garland had declined to prosecute the case. Only, as an AP correction revealed, Garland’s DOJ hadn’t declined prosecution. Barr’s DOJ did.

This story has been corrected to reflect that the decision not to prosecute Ross was made by the Department of Justice during the Trump administration, not the Biden administration.

But corners of the media blitz left out a lot more details about the context of the original request. It came after a Republican strategist, Thomas Hofeller, died, leaving his Democratic daughter to go through his papers, only to discover he, and very racist plans for gerrymandering, were behind the census question. After that smoking gun was discovered, House Oversight (starting under Elijah Cummings before he died) did more investigation and then a bunch of Senators asked for an investigation.

And after DOJ kept appealing a District Court ruling on the question in NY, even the Supreme Court found that Commerce had misrepresented the reason for the question.

Finally, we have recognized a narrow exception to the general rule against inquiring into “the mental processes of administrative decision-makers.” Overton Park, 401 U. S., at 420.

On a “strong showing of bad faith or improper behavior,” such an inquiry may be warranted and may justify extra-record discovery. Ibid. The District Court invoked that exception in ordering extra-record discovery here. Although that order was premature, we think it was ultimately justified in light of the expanded administrative record. Recall that shortly after this litigation began, the Secretary, prodded by DOJ, filed a supplemental memo that added new, pertinent information to the administrative record. The memo disclosed that the Secretary had been considering the citizenship question for some time and that Commerce had inquired whether DOJ would formally request reinstatement of the question. That supplemental memo prompted respondents to move for both completion of the administrative record and extra-record discovery. The District Court granted both requests at the same hearing, agreeing with respondents that the Government had submitted an incomplete administrative record and that the existing evidence supported a prima facie showing that the VRA rationale was pretextual.

[snip]

That evidence showed that the Secretary was determined to reinstate a citizenship question from the time he entered office; instructed his staff to make it happen; waited while Commerce officials explored whether another agency would request census-based citizenship data; subsequently contacted the Attorney General himself to ask if DOJ would make the request; and adopted the Voting Rights Act rationale late in the process. In the District Court’s view, this evidence established that the Secretary had made up his mind to reinstate a citizenship question “well before” receiving DOJ’s request, and did so for reasons unknown but unrelated to the VRA. 351 F. Supp. 3d, at 660.

John Roberts laid out the evidence that Commerce’s IG must also have relied on.

[I]t was not until the Secretary contacted the Attorney General directly that DOJ’s Civil Rights Division expressed interest in acquiring census-based citizenship data to better enforce the VRA. And even then, the record suggests that DOJ’s interest was directed more to helping the Commerce Department than to securing the data. The December 2017 letter from DOJ drew heavily on contributions from Commerce staff and advisors. Their influence may explain why the letter went beyond a simple entreaty for better citizenship data—what one might expect of a typical request from another agency—to a specific request that Commerce collect the data by means of reinstating a citizenship question on the census. Finally, after sending the letter, DOJ declined the Census Bureau’s offer to discuss alternative ways to meet DOJ’s stated need for improved citizenship data, further suggesting a lack of interest on DOJ’s part.

Altogether, the evidence tells a story that does not match the explanation the Secretary gave for his decision. In the Secretary’s telling, Commerce was simply acting on a routine data request from another agency. Yet the materials before us indicate that Commerce went to great lengths to elicit the request from DOJ (or any other willing agency). And unlike a typical case in which an agency may have both stated and unstated reasons for a decision, here the VRA enforcement rationale—the sole stated reason—seems to have been contrived.

After SCOTUS ruled Commerce could not include a citizenship question in the census, the plaintiffs asked the judge to sanction DOJ and Commerce officials who made misrepresentations to the court. Judge Jesse Furman made the government pay fees but did not further sanction the government witnesses in question.

That is, the underlying record has been known for some time. The only thing new in the record, as far as we know, is that — after a bunch of Senators asked for an investigation into this — the Commerce IG agreed with John Roberts and referred Ross for prosecution, only to have Barr’s hyper-politicized DOJ — a DOJ that was itself caught making untrue statements to the District Judge in the NY case — decline prosecution.

Which makes it all the more curious that Commerce didn’t publicly release the report along with the letter. The report is done. Why not release it publicly, as past derogatory reports about Ross were released?

One more detail that may explain DOJ’s silence in response to this news. The original letter from a bunch of Senators requesting the investigation wasn’t addressed just to Commerce. It was also addressed to Michael Horowitz, DOJ’s Inspector General. There’s no sign of such an investigation on their site (and I have thus far gotten no response to a question about this from them) — but they don’t include all their investigations.

But these stories are only about what the result of the Commerce Inspector General investigation was, and how Bill Barr’s DOJ responded. They’re not about whether there was an investigation at DOJ, and what happened if that investigation ended under Merrick Garland. They’re not about what a DOJ that has put great emphasis on voting rights has done with all this.

PCLOB: The Essential Oversight Link Designed to Be Inadequate

Last year, there were a couple of measures that purported to respond to the problems with the Carter Page FISA application but which would not have helped him at all. In February, House Judiciary Committee rolled out a bill to replace the now-lapsed Section 215 of FISA that included a Privacy and Civil Liberties Oversight Board review of the impact that tradition FISA had on First Amendment Activities.

SEC. 303. REPORT ON USE OF FISA AUTHORITIES REGARDING PROTECTED ACTIVITIES AND PROTECTED CLASSES.

(a) REPORT.—Not later than one year after the date of the enactment of this Act, the Privacy and Civil Liberties Oversight Board shall make publicly available, to the extent practicable, a report on—

(1) the extent to which the activities and protected classes described in subsection (b) are used to support targeting decisions in the use of authorities pursuant to the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.); and

(2) the impact of the use of such authorities on such activities and protected classes.

As I noted at the time, because PCLOB’s mandate is limited to counterterrorism, it would not be able to look at counterintelligence targeting. This is not the first time that PCLOB’s mandate made its work less useful than it could be. Because its Section 702 report was necessarily limited to the counterterrorism uses of the law, PCLOB’s report did not address problems with the cybersecurity and counterproliferation uses of Section 702, both of which have far more unexpected impact on US person’s privacy than the counterterrorism use.

Then, in May, PCLOB’s Chair, Adam Klein, announced PCLOB was going to review traditional FISAs.

Adam I. Klein, the chairman of the privacy board, said that the issues Horowitz surfaced were precisely those that the board was established to examine.

“This is at the heartland of our jurisdiction,” said Klein, a lawyer and prominent researcher of FISA and other national security laws. “The IG found systemic compliance problems. At a minimum, we have a duty to inform ourselves.”

I again noted that PCLOB’s mandate would limit the value of such a review, and indeed, would prevent PCLOB from even reviewing the precipitating application, Page’s counterintelligence application.

Last week, Klein released the results of that review, billed and released not as a PCLOB report, but as a Chairperson’s White Paper (Klein has said he’d step down once Joe Biden replaced him). He makes clear,

I provide several observations and recommendations based on this review. These views are provided in my individual capacity as Chairman and should not be attributed to the Board as a whole or to other members of the Board.

Its recommendations are not obviously supported by the described scope of the review. His White Paper generally argues for more efficiency, a recommendation that conflicts with virtually all other conclusions that came out of the Carter Page review (though some of his recommendations to achieve efficiency, such as making the authorization period for non-US person FISA applications one year, make sense). He makes two recommendations (that the Woods file not require repeated documentation for repeated facts and that DOJ distinguish between information known at the time and information learned subsequent to an initial application) that would undercut some of the results of the DOJ IG Report on Carter Page.

Klein’s White Paper does recommend that a summary memo submitted with the application which highlights novel privacy, legal, or technological issues. If the FBI Director or his delegate were required to sign off on that summary as well as the current certification (that doesn’t address the probable cause content of the application in the least), it might provide a level of accountability that (Congress doesn’t yet understand) FISA currently lacks. Other than that, Klein’s White Paper reads as much like a valedictory trying to guide future PCLOB plans as it does a report to improve FISA. Almost two pages of the 26-page report constitutes a recommendation to reauthorize Section 215 of FISA.

But, as predicted, the review did not consider anything remotely pertinent to what happened to Carter Page.

To conduct its review of applications themselves, PCLOB asked for and received the subset of the 29 FISA files that DOJ IG is conducting a review of that pertain to counterterrorism as well as the backup exchange between FBI and DOJ regarding those applications. That included:

  • 19 total applications (out of 29 reviewed by DOJ IG)
  • All counterterrorism targets
  • Most located in United States at time of targeting

These details help us understand the two reports DOJ IG wrote about the full set of 29 files, which I wrote about here. Of the 29, ten must be counterintelligence files like Carter Page’s.

Because PCLOB did not review the counterintelligence applications, it only reviewed one of the two for which DOJ IG found a material error.  The second was a CI application that showed a worse error rate than the Carter Page file (which was measured using a different methodology than the Carter Page one).

It also didn’t review any Sensitive Investigative Matters — applications which, like Carter Page’s, involve someone who is a political, journalistic, or religious figure whose targeting should get extra scrutiny. That seems to suggest that DOJ IG did not include any counterterrorism applications targeting SIMs in its review (it would seem SIMs would be more likely to be targeted on the counterintelligence side, but we know of religious and political figures targeted under counterterrorism FISA applications). These would be the applications that pose the greatest privacy and civil liberties concern.

In lieu of that, FBI Office of General Counsel provided PCLOB with,

The number of “sensitive investigative matters” pertaining to U.S. persons in which FBI sought a FISA probable cause order in each year between 2015 and 2019, a summary of each matter (including the type of investigation and the features resulting in its classification as a “sensitive investigative matter”), and whether each request was granted.

That’s presumably how PCLOB learned that there aren’t all that many SIMs targeted under FISA.

[I]nformation received by the Board indicates that relatively few FISA applications are obtained each year in SIMs.

Still, this is the core of what you’d need to review to serve the function of PCLOB. Klein even appears not to have reviewed Page’s significantly declassified public applications, which would have been simple to do, would have provided him something to compare the counterterrorism applications he reviewed with, but which would have been outside the scope of PCLOB’s mandate.

This matters because PCLOB has been reasonably effective. Indeed, in a book published in April in recognition of the 50th Anniversary of the Pentagon Papers, Lisa Monaco (in a contribution submitted before she became Deputy Attorney General) pointed to PCLOB’s contributions after the Snowden releases as an important way forward to balance security and secrecy in the age of mass leaks. Monaco even recommended that PCLOB consult with the Director of National Intelligence prior to the implementation of certain policies. (Director of National Intelligence Avril Haines also contributed a chapter to the book, which was far more intriguing that Monaco’s.)

Another would be to institute a practice of DNI consultation with the PCLOB before the adoption of certain collection programs. The PCLOB served an important function after disclosures precisely because it is charged with considering privacy and civil liberties implications as well as the national security implications of counter-terrorism programs.82 It could be a valuable addition to the consideration and review of some intelligence programs for a standing body with the infrastructure to handle classified information to work with privacy officers in each agency to assess privacy concerns and conduct privacy impact assessments that are reported to the DNI.

But as noted above, even PCLOB’s Section 702 review suffered because it couldn’t look at several of the applications of 702, applications implicated by the Snowden releases.

Last year, I was told that efforts to expand the jurisdiction of PCLOB would be a poison pill to any bill to which they were attached. I can only assume that means the Executive doesn’t want to expose to scrutiny they kinds of practices that were central to the Carter Page application.

But if Lisa Monaco believes PCLOB has a role to play in balancing national security and secrecy, she should ensure its mandate is sufficiently broad to do that job.

Some Perspective on the Politicized Leak Investigation Targeting Adam Schiff

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

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

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

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

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

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

This is not spying

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

This is “just” metadata

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

[snip]

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

[snip]

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

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

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

FBI never deletes evidence

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

[snip]

158 AT&T Document Production, Bates ATTHPSCI_20190930_02313.

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

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

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

The last section of this was an update.

Bill Barr Issued Prosecution Declinations for Three Crimes in Progress

On March 24, 2019, by judging that there was not evidence in Volume II of the Mueller Report that Trump had obstructed justice, Billy Barr pre-authorized the obstruction of justice that would be completed with future pardons of Mike Flynn, Paul Manafort, and Roger Stone. He did so before the sentencing of Flynn and before even the trial of Stone.

This is why Amy Berman Jackson should not stay her decision to release the Barr Memo. It’s why the question before her goes well beyond the question of whether the Barr memo presents privileged advice. What Barr did on March 24, 2019 was pre-authorize the commission of crimes that ended up being committed. No Attorney General has the authority to do that.

As the partially unsealed memo makes clear, Steve Engel (who, even per DOJ’s own filing asking for a stay, was not permitted to make prosecutorial decisions) and Ed O’Callaghan (who under the OLC memo prohibiting the indictment of the President, could not make prosecutorial decisions about the President) advised Bill Barr that he should, “examine the Report to determine whether prosecution would be appropriate given the evidence recounted in the Special Counsel’s Report, the underlying law, and traditional principles of federal prosecution.”

In her now-unsealed memo ordering the government to release the memo, ABJ argues, “the analysis set forth in the memo was expressly understood to be entirely hypothetical.”

It was worse than that.

It was, necessarily, an instance of “Heads Trump wins, Tails rule of law loses.” As the memo itself notes, the entire exercise was designed to avoid, “the unfairness of levying an accusation against the President without bringing criminal charges.” It did not envision the possibility that their analysis would determine that Trump might have committed obstruction of justice. So predictably, the result of the analysis was that Trump didn’t commit a crime. “[W]ere there no constitutional barrier, we would recommend, under Principles of Federal Prosecution, that you decline to commence such a prosecution.”

The government is now appealing ABJ’s decision to release the memo to hide the logic of how Engel and O’Callaghan got to that decision. And it’s possible they want to hide their analysis simply because they believe that, liberated from the entire “Heads Trump wins, Tails rule of law loses” premise of the memo, it becomes true deliberative advice (never mind that both Engel and O’Callaghan were playing roles that OLC prohibits them to play).

But somehow, in eight pages of secret analysis, Engel and O’Callaghan decide — invoking the entire Special Counsel’s Report by reference — that there’s not evidence beyond a reasonable doubt that Trump obstructed justice.

We can assume what some of these eight pages say. In the newly unsealed parts, Engel and O’Callaghan opine, “that certain of the conduct examined by the Special Counsel could not, as a matter of law, support an obstruction charge under the circumstances.”

As Quinta Jurecic’s epic chart lays out, the potential instances of obstruction of justice before Engel and O’Callaghan included a number of things involving Presidential hiring and firing decisions — the stuff which the memo Bill Barr wrote as an audition for the job of Attorney General said could not be obstruction.

To address those instances of suspected obstruction, then, Engel and O’Callaghan might just say, “What you said, Boss, in the memo you used to audition to get this job.” That would be scandalous for a whole bunch of reasons — partly because Barr admitted he didn’t know anything about the investigation when he wrote the memo (even after the release of the report, Barr’s public statements made it clear he was grossly unfamiliar with the content of it) and partly because it would raise questions about whether by hiring Barr Trump obstructed justice.

But that’s not actually the most scandalous bit about what must lie behind the remaining redactions. As Jurecic’s chart notes, beyond the hiring and firing obstruction, the Mueller Report laid out several instances of possible pardon dangles: to Mike Flynn, to Paul Manafort, to Roger Stone, and to Michael Cohen. These are all actions that, in his confirmation hearing, Barr admitted might be crimes.

Leahy: Do you believe a president could lawfully issue a pardon in exchange for the recipient’s promise to not incriminate him?

Barr: No, that would be a crime.

Even Barr admits the question of pardon dangles requires specific analysis.

Klobuchar: You wrote on page one that a President persuading a person to commit perjury would be obstruction. Is that right?

Barr: [Pause] Yes. Any person who persuades another —

Klobuchar: Okay. You also said that a President or any person convincing a witness to change testimony would be obstruction. Is that right?

Barr: Yes.

Klobuchar: And on page two, you said that a President deliberately impairing the integrity or availability of evidence would be an obstruction. Is that correct?

Barr: Yes.

Klobuchar: OK. And so what if a President told a witness not to cooperate with an investigation or hinted at a pardon?

Barr: I’d have to now the specifics facts, I’d have to know the specific facts.

Yet somehow, in eight pages of analysis, Engel and O’Callaghan laid out “the specific facts” that undermined any case against Trump for those pardon dangles. I’d be surprised if they managed to do that convincingly in fewer than eight pages, particularly since they make clear that they simply assume you’ve read the Mueller Report (meaning, that analysis almost certainly doesn’t engage in the specific factual analysis that Bill Barr says you’d need to engage in).

The far, far more problematic aspect of this analysis, though, is that, of the four potential instances of pardon dangles included in the Mueller Report, three remained crimes-in-progress on March 24, 2019 when Barr issued a statement declining prosecution for them.

By then, Michael Cohen had already pled guilty and testified against Trump. But Paul Manafort had only just been sentenced after having reneged on a cooperation agreement by telling lies to hide what the government has now confirmed involved providing assistance (either knowing or unknowing) to the Russia election operation. Mike Flynn had not yet been sentenced — and in fact would go on to renege on his plea agreement and tell new lies about his conduct, including that when he testified to the FBI that he knew he discussed sanctions, he didn’t deliberately lie. And Roger Stone hadn’t even been tried yet when Barr said Stone’s lies to protect Trump weren’t a response to Trump’s pardon dangles. In fact, if you believe Roger Stone (and I don’t, in part because his dates don’t line up), after the date when Barr issued a declination statement covering Trump’s efforts to buy Stone’s silence, prosecutors told him,

that if I would really remember certain phone conversations I had with candidate trump, if I would come clean, if I would confess, that they might be willing to, you know, recommend leniency to the judge perhaps I wouldn’t even serve any jail time

If that’s remotely true, Barr’s decision to decline prosecution for the pardon dangles that led Stone to sustain an obviously false cover story through his trial itself contributed to the obstruction.

Barr’s decision to decline prosecution for obstruction crimes that were still in progress may explain his even more outrageous behavior after that. For each of these remaining crimes in progress, Barr took steps to make it less likely that Trump would issue a pardon. He used COVID as an excuse to spring Paul Manafort from prison to home confinement, even though there were no cases of COVID in Manafort’s prison at the time. He engaged in unprecedented interference in the sentencing process for Roger Stone, even going so far as claiming that threats of violence against (as it happens) Amy Berman Jackson were just a technicality not worthy of a sentencing enhancement. And Bill Barr’s DOJ literally altered documents in their effort to invent some reason to blow up the prosecution of Mike Flynn.

And Barr may have realized all this would be a problem.

On June 4, a status report explained that DOJ was in the process of releasing the initially heavily redacted version of this memo to CREW and expected that it would be able to do so by June 17, 2020, but that “unanticipated events outside of OIP’s control” might delay that.

However, OIP notes that processing of the referred record requires consultation with several offices within DOJ, and that unanticipated events outside of OIP’s control may occur in these offices that could delay OIP’s response. Accordingly, OIP respectfully submits that it cannot definitively guarantee that production will be completed by June 17, 2020. However, OIP will make its best efforts to provide CREW with a response regarding the referred record on or before June 17, 2020

This consultation would have occurred after Judge Emmet Sullivan balked at DOJ’s demand that he dismiss the Flynn prosecution, while the DC Circuit was reviewing the issue. And it occurred in the period when Stone was using increasingly explicit threats against Donald Trump to successfully win a commutation of his sentence from Trump (the commutation occurred weeks after DOJ gave CREW a version of the memo that hid the scheme Barr had engaged in). That is, DOJ was making decisions about this FOIA lawsuit even as Barr was taking more and more outrageous steps to try to minimize prison time — and therefore the likelihood of a Trump pardon — for these three. And Trump was completing the act of obstruction of justice that Barr long ago gave him immunity for by commuting Stone’s sentence.

Indeed, Trump would go on to complete the quid pro quo, a pardon in exchange for lies about Russia, for all three men. Trump would go on to commit a crime that Barr already declined prosecution for years earlier.

While Barr might believe that Trump’s pardon for Mike Flynn was righteous (even while it undermined any possibility of holding Flynn accountable for being a secret agent of Turkey), there is no rational argument you can make that Trump’s pardon of Manafort after he reneged on his plea deal and Trump’s pardon of Stone after explicit threats to cooperate with prosecutors weren’t obstruction of justice.

This may influence DOJ’s decision not to release this memo, and in ways that we can’t fathom. There are multiple possibilities. First, this may be an attempt to prevent DOJ’s Inspector General from seeing this memo. At least the Manafort prison assignment and the Stone prosecution were investigated and may still be under investigation by DOJ. If Michael Horowitz discovered that Barr took these actions after approving of a broad pre-declination for pardon-related obstruction, it could change the outcome of any ongoing investigation.

It may be an effort to stave off pressure to open a criminal investigation by DOJ into Barr’s own actions, a precedent no Attorney General wants to set.

Or, it may just be an effort to hide how many of DOJ’s own rules DOJ broke in this process.

But one thing is clear, and should be clearer to ABJ than it would be to any other judge: Bill Barr issued a prosecution declination for three crimes that were still in process. And that’s what DOJ is hiding.

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

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

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

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

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

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

A DOJ IG Investigation Is Insufficient to Investigate Trump’s Attempt to Get DOJ Help to Steal the Election

As many news outlets are reporting, DOJ’s Inspector General Michael Horowitz is opening an investigation into whether any former or current DOJ official helped Trump try to overturn an election.

The DOJ Office of the Inspector General (OIG) is initiating an investigation into whether any former or current DOJ official engaged in an improper attempt to have DOJ seek to alter the outcome of the 2020 Presidential Election.  The investigation will encompass all relevant allegations that may arise that are within the scope of the OIG’s jurisdiction.  The OIG has jurisdiction to investigate allegations concerning the conduct of former and current DOJ employees.  The OIG’s jurisdiction does not extend to allegations against other government officials.

The OIG is making this statement, consistent with DOJ policy, to reassure the public that an appropriate agency is investigating the allegations.  Consistent with OIG policy, we will not comment further on the investigation until it is completed.  When our investigation is concluded, we will proceed with our usual process for releasing our findings publicly in accordance with relevant laws, and DOJ and OIG policies.

This is welcome news, but nowhere near as big a deal as people are making out. That’s true for several reasons. First, while DOJ IG will have access to internal DOJ communications, DOJ IG cannot compel testimony of former employees. So if Jeffrey Bossert Clark — or any of the sources leaking anonymously with no threat of legal consequences — don’t want to cooperate with this inquiry, they can avoid doing so.

More importantly, as Horowitz notes, his office’s jurisdiction, “does not extend to allegations against other government officials.” He can’t investigate Scott Perry, the GOP Congressperson who was reportedly involved in this, he can’t investigate Pat Cipollone, who reportedly sided with others at DOJ to undercut Trump’s efforts, and he can’t investigate Trump himself.

Still, it will serve one welcome purpose. As I noted in this post, one way to get investigations into Trump conduct started without appearing as if Joe Biden’s DOJ has it in for Trump is to start them with Inspectors General. A year from now, DOJ IG will likely produce a report showing improper behavior from Clark (probably because he went around his superiors, not for any good legal reason), while noting that he was unable to get further cooperation. That could provide predicate for opening an investigation into the Former President.