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Incidental Collection Under Section 702 Has Probably Contributed to Trump’s Downfall, Too

As you’ve no doubt heard, the House passed the bad reauthorization to Section 702 yesterday. The Senate will vote on cloture on Tuesday — though both Rand Paul and Ron Wyden have threatened to filibuster it — and will almost certainly be voted into law after that.

I’ll have comment later on the rising costs, for politicians, for mindlessly reauthorizing these bills in a follow-up post.

Paul Ryan told President Trump Section 702 hasn’t affected his people

But for the moment, I want to comment on the debate that took place in response to Trump’s two tweets. The first tweet, which was clearly a response to a Judge Napolitano piece on Fox News yesterday morning, complaining about FISA.

Then, after a half hour lesson from Paul Ryan on the different FISA regimes (note, for some reason Devin Nunes was conspicuously absent from much of this process yesterday, both the coddling of the President and managing debate on the bill), a follow-up tweet hailing Section 702’s utility for “foreign surveillance of foreign bad guys on foreign land.”

In response to those tweets, many commenters stated, as a matter of fact, that Trump hasn’t been impacted by Section 702, that only traditional FISA intercepts drove key developments in the Russian investigation.

That’s unlikely to be true, and I suspect we already have evidence that that’s not the case.

It is true that incidental collection on a Title I got Mike Flynn in trouble

To defend the case that incidental collection off a traditional FISA order has impacted Trump’s administration, people point to the December 29, 2016 intercepts of communications between Sergey Kislyak and Mike Flynn which were cited in Flynn’s guilty plea. It is true that those intercepts were done under a traditional FISA order. Admiral Mike Rogers as much as confirmed that last March in his efforts to explain basic FISA law to the House Intelligence Committee Republicans who are supposed to oversee it.

Rogers: FISA collection on targets in the United States has nothing to do with 702, I just want to make sure we’re not confusing the two things here. 702 is collection overseas against non US persons.

And Speaker Ryan, fresh off his efforts to teach the President basic surveillance law, yesterday clarified — inaccurately — that,

Title 1 of the FISA law is what you see in the news that applies to U.S. citizens. That’s not what we’re talking about here. This is Title 7, Section 702. This is about foreign terrorists on foreign soil.

Whatever the facts about FISA orders targeting Carter Page and Paul Manafort, the intercepts that have done the most known damage to the Trump Administration so far targeted a foreigner on US soil, Sergey Kislyak, and Flynn just got picked up incidentally.

Papadopoulos’ affidavit and statement of offense make different claims about his false claims and obstruction

But as I said, I suspect it is highly likely the Trump Administration has also been brought down by an American being caught up incidentally in a Section 702 tasking. That’s because of several details pertaining to the George Papadopoulos plea which I nodded to here; they strongly suggest that Papadopoulos’ Facebook communications with Joseph Mifsud were first obtained by the FBI via Section 702, and only subsequently parallel constructed using a warrant. It’s further likely that the FBI obtained a preservation order on Papadopoulos’ Facebook account before he deleted it because of what they saw via Section 702. [Update: KC has alerted me that they may not have gotten a preservation order, but instead were able to access the Facebook account because that content doesn’t all go away when you deactivate an account, which is what the October 5 document describes as happening.]

Compare the two descriptions of how Papadopoulos obstructed justice. The July 28, 2017 affidavit supporting Papadopoulos’ arrest describes Papadopoulos destroying his Facebook account to hide conversations he had with Timofeev.

The next day, on or about February 17, 2017, however, GEORGE PAPADOPOULOS, the defendant, shut down his Facebook account, which he had maintained since approximately August 2005. Shortly after he shut down his account, PAPADOPOULOS created a new Facebook account.

The Facebook account that PAPADOPOULOS shut down the day after his interview with the FBI contained information about communications he had with Russian nationals and other foreign contacts during the Campaign, including communications that contradicted his statements to the FBI. More specifically, the following communications, among others, were contained in that Facebook account, which the FBI obtained through a judicially authorized search warrant.

The affidavit makes it clear that Papadopoulos attempted to hide “his interactions during the Campaign with foreign contacts, including Russian nationals.” The descriptions of the communications that Papadopoulos attempted to hide are described as “a Facebook account identified with Foreign Contact 2,” Timofeev.

The FBI recorded both interviews, suggesting they already by January 27 they had reason to worry that Papadopoulos might not tell the truth.

The October 5 statement of the offense describes one of Papadopoulos’ false statements this way:

PAPADOPOULOS failed to inform investigators that the Professor had introduced him to the Russian MFA Connection [Timofeev], despite being asked if he had met with Russian nationals or “[a]nyone with a Russian accent” during the Campaign. Indeed, while defendant PAPADOPOULOS told the FBI that he was involved in meetings and did “shuttle diplomacy” with officials from several other countries during the Campaign, he omitted the entire course of conduct with the Professor and the Russian MFA Connection regarding his efforts to establish meetings between the Campaign and Russian government officials.

And it describes his obstruction this way:

The next day, on or about February 17, 2017, defendant PAPADOPOULOS deactivated his Facebook account, which he had maintained since approximately August 2005 and which contained information about communications he had with the Professor and the Russian MFA Connection. Shortly after he deactivated his account, PAPADOPOULOS created a new Facebook account that did not contain the communications with the Professor and the Russian MFA Connection.

On or about February 23, 2017, defendant PAPADOPOULOS ceased using his cell phone number and began using a new number.

In neither document does FBI mention having the content of Papadopoulos’ April 2016 Skype calls with Timofeev and neither one cites data — such as texts — that might have been on his cell phone.

What FBI (probably) learned when

While we can’t be sure — after all, the government may simply be withholding more information from other suspects — the differences between the two legal filings and other public information suggest the following evolution in what the government knew of Papadopoulous’ communications with his interlocutors when. Most importantly, the FBI had learned of Papadopoulos’ communications with Joseph Mifsud and Olga Vinogradova before his two interviews, but they had not learned of his communications with Ivan Timofeev.

Late July 2016

In a drunken conversation in May 2016, Papadopoulos told the Australian Ambassador Alexander Downer that he had been told (by Joseph Mifsud, but it’s not clear Papadopoulos would have revealed that) the Russians had dirt on Hillary in the form of emails.

Before January 27, 2017

  • Papadopoulos might lie and so should be recorded
  • Papadopoulos had interesting communications with Joseph Mifsud and Olga Vinogradova
  • Since Timofeev did not come up in the interview, FBI appears not to have learned of those conversations yet

Before February 16, 2017

  • Papadopoulos’ Facebook was interesting enough to sustain a preservation request but (because FBI still didn’t know about Timofeev) FBI had not yet accessed its content via Papadopoulos [Though see update above]
  • FBI had not yet accessed Skype, which would have shown call records between Timofeev and Papadopoulos
  • FBI did not have a warrant on Papadopoulos’ phone and never obtained one before February 23

By July 28, 2017

  • FBI had obtained a warrant for Papadopoulos’ email
  • FBI had read the Facebook content Papadopoulos tried to delete, discovering the communications (and the relationship) with Timofeev
  • FBI had identified the Skype conversations that had taken place, but not in time to collect them using 702

By October 5, 2017

  • FBI had obtained far more email from the campaign side
  • FBI had discovered that, in addition to destroying his Facebook account, Papadopoulos had also gotten a new phone number (and, I suspect, a new phone), thereby destroying any stored texts on the phone

FBI probably tracked Papadopoulos’ Facebook communications with Mifsud before February 16

Again, this is just a guess, but given the evolution of FBI’s understanding about Papadopoulos laid out above, it seems highly likely that FBI had obtained some (but not all) of Mifsud’s communications before February 16, had submitted preservation requests to Papadopoulos’ providers, but had not yet obtained any legal process for content via Papadopoulos. Given that Papadopoulos’ Facebook content was preserved even in spite of his effort to destroy it, it seems clear the government had reason to know its content was of interest, but it did not yet know about his Facebook communications with Timofeev. This is how FBI routinely launders Section 702 information through criminal process, by getting a warrant for the very same content available at PRISM providers that they already obtained via PRISM. They key detail is that they appear to have known about the content of some but not all of Papadopoulos’ Facebook messages in time to preserve the account before February 16.

This strongly suggests the FBI had obtained Mifsud’s Facebook content, but not Papadopoulos’.

Once FBI opened a full investigation into the Russian ties — which we know they did in late July, in part because of that Papadopoulos conversation about the Mifsud comments — it could task and obtain a raw feed of any known PRISM account for any foreigner overseas associated with that investigation. Once it identified Mifsud as Papadopoulos’ interlocutor — and they would have been able to identify their common relationship from their common front organization, the London Centre of International Law Practice — they would have tasked Mifsud on any identifier they could collect.

And collecting on Facebook would be child’s play — just ask nicely. So it would be shocking if they hadn’t done it as soon as they identified that Mifsud was Papadopoulos’ interlocutor and that he had a Facebook account.

Incidental collection under 702 may have led to the preservation of evidence about the Timofeev relationship Papadopoulos tried to destroy

If all this is right — and it is admittedly just a string of well-educated guesses — then it means FBI’s ability to incidentally collect on Papapdopoulos by targeting Mifsud may have been what led them to take action to preserve Papadopoulos’ Facebook content, and with it evidence of ongoing communications with Timofeev that he had tried to hide.

And the fact that he did try to hide it is what led to Mueller flipping his first cooperating witness.

So if all this is right, then incidental collection on Papadopoulos under Section 702 may be every bit as central to Trump’s legal jeopardy right now as the incidental collection on Flynn under Title I. They’re both critical pieces in proving any hypothetical case that Trump traded policy considerations for the release of Hillary emails.

This is how Section 702 is supposed to work, and could be done under USA Rights

Let me be clear: I’m not saying the discovery of Papadopoulos’ Facebook communications with Mifsud and through them his Facebook communications with Timofeev is an abuse. On the contrary, this is how 702 is supposed to work.

If we’re going to have this program, it should be used to target suspect agents of a foreign power located overseas, as Mifsud clearly was. If he was targeted under 702, he was targeted appropriately.

But there is no reason to believe doing so required any of the more abusive uses of 702 that USA Rights would limit. Unless Mifsud was already tasked at FBI when they opened the investigation in July 2016, there’s no reason to believe this account could have been found off of a back door search at FBI. Mifsud may have been tasked at NSA or even CIA, but if he was, searching on Papadopoulos because the government suspected he was being recruited by a foreign power would fall under known justifications for back door searches at those foreign intelligence agencies (especially at CIA).

USA Rights would permit the use of this 702 information to support the criminal case against Papadopoulos, because it’s clearly a case of foreign government spying.

And no use of the Tor exception would be implicated with this search.

In other words, Section 702 as Ron Wyden and Rand Paul and Justin Amash and Zoe Lofgren would have it would still permit the use of Section 702 as a tool to — ultimately — lead FBI to figure out that Papadopoulos was hiding his contacts with Ivan Timofeev.

As it turns out, the kinds of people Trump’s foreign policy advisor George Papadopoulos was chatting up on Facebook — Joseph Mifsud and Ivan Timofeev — are precisely the kind of people the FBI considers “foreign bad guys on foreign land” for the purposes of Section 702, meaning the Bureau could get their Facebook account quite easily.

And the incidental collection of Americans of such conversations can be — may well have been — as dangerous to Donald Trump as the incidental collection of Americans under Title I.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

What Explains Trump’s Focus on Manafort?

As I noted yesterday on Twitter, the transcript of NYT’s interview with Donald Trump reads like this:

collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion

23 times Trump either denied any evidence of collusion between his campaign and Russia or alleged collusion between Hillary and … I’m not entirely clear who she was supposed to have colluded with.

Whatever else this interview was, it was also a testament to Trump’s continued obsession with trying to deny any guilt.

Which is why I’m so interested in both the form and the singular focus on Trump’s denial of Paul Manafort.

SCHMIDT: What’s your expectation on Mueller? When do you —

TRUMP: I have no expectation. I can only tell you that there is absolutely no collusion. Everybody knows it. And you know who knows it better than anybody? The Democrats. They walk around blinking at each other.

SCHMIDT: But when do you think he’ll be done in regards to you —

TRUMP: I don’t know.

SCHMIDT: But does that bother you?

TRUMP: No, it doesn’t bother me because I hope that he’s going to be fair. I think that he’s going to be fair. And based on that [inaudible]. There’s been no collusion. But I think he’s going to be fair. And if he’s fair — because everybody knows the answer already, Michael. I want you to treat me fairly. O.K.?

SCHMIDT: Believe me. This is —

TRUMP: Everybody knows the answer already. There was no collusion. None whatsoever.

_________

TRUMP: Maybe I’ll just say a little bit of a [inaudible]. I’ve always found Paul Manafort to be a very nice man. And I found him to be an honorable person. Paul only worked for me for a few months. Paul worked for Ronald Reagan. His firm worked for John McCain, worked for Bob Dole, worked for many Republicans for far longer than he worked for me. And you’re talking about what Paul was many years ago before I ever heard of him. He worked for me for — what was it, three and a half months?

SCHMIDT: A very short period of time.

TRUMP: Three and a half months. [Inaudible] So, that’s that. Let’s just say — I think that Bob Mueller will be fair, and everybody knows that there was no collusion.

The interview started with a discussion of Jeff Sessions’ recusal, which led Trump to claim he won because he campaigned better than Hillary, but then Mike Schmidt returned to Russia, which returned Trump to his “no collusion” line.

Then Schmidt permits Trump to go off the record about … something. Then the interview goes back on the record with Trump apparently deciding to offer up details after all. He offers the following defense of Manafort:

  • He’s a nice, honorable man
  • Manafort worked for other Republicans too
  • Manafort didn’t work (on the campaign) for Trump long at all
  • Trump never heard of the man who lived in Trump Tower and had had a firm with Trump’s buddy Roger Stone

Having already had two people flip on him and agree to cooperate with prosecutors, Trump starts by flattering Manafort. He rightly reminds that Manafort has long been tolerated in the Republican party, even after Manafort’s fondness for working with thugs became widely known.

Trump then dismisses any Manafort taint based on time associated with the campaign (three and a half key months of the campaign, during the period when Russians were reaching out to provide dirt), not based on his actions for the campaign.

Finally, by falsely claiming he didn’t know Manafort, Trump absolves himself of any prior taint the lobbyist had.

As I said, I’m interested in this passage not just for Trump’s lame attempt at defending himself, but also that he did so. It’s only Manafort Trump feels the need to defend himself against, not Flynn (whom Trump reportedly is preparing to accuse of lying), not Papadopoulos, and not even Rick Gates (who, after all, hung around the campaign through the transition).

The Daily Beast did do an uninteresting piece suggesting Mueller’s team may get a superseding indictment against Manafort, but it doesn’t even imagine Mueller getting to the guts of the case, perhaps by indicting Manafort based on his ongoing reporting on the campaign to Oleg Deripaska via Konstantin Kilimnik, the latter of whom also served as a go-between in an effort to help Manafort write a self-defensive op-ed. Instead, it imagines only that Manafort will get a superseding indictment on tax charges.

Alternately, Schmidt may have said something during that off the record section that directly raised Manafort. Schmidt’s regular beat is the FBI, not Mar a Lago, so he may know something far more interesting than the Daily Beast does about where Mueller is going.

Whatever the reason, Trump seems far more worried about damage Manafort can do to him right now than any damage Flynn can.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

Why Republicans Launched the GSA Email Attack Now

I think most people are missing the significance of why the Republicans launched their attack on the GSA over the weekend (this post is a summary of what we know, with updates).

That’s true, in part, because people are misunderstanding what the Trump for America team recently learned. It’s not — as many have claimed — that they only recently learned Mueller had emails beyond what TFA had turned over to Congress and through that to Mueller. As Axios reported, “Trump officials discovered Mueller had the emails when his prosecutors used them as the basis for questions to witnesses, the sources said.” That is, Mueller has been asking questions based off these emails for months.

The timing of this complaint — not the complaint itself — is key

What TFA only discovered last week, according to their letter, at least, is how Mueller obtained them — by asking, just like prosecutors reviewing government communications in the course of investigating possible violations of the Espionage Act always do, especially if the subjects of the investigation have access to classified documents.

We discovered the unauthorized disclosures by the GSA on December 12 and 13, 2017. When we learned that the Special Counsel’s Office had received certain laptops and cell phones containing privileged materials, we initially raised our concerns with Brandon Van Grack in the Special Counsel’s Office on December 12, 2017. Mr. Van Grack confirmed that the Special Counsel’s Office had obtained certain laptops, cell phones, and at least one iPad from the GSA – but he assured us that the Special Counsel’s investigation did not recover any emails or other relevant data from that hardware. During this exchange, Mr. Van Grack failed to disclose the critical fact that undercut the importance of his representations, namely, that the Special Counsel’s Office had simultaneously received from the GSA tens of thousands of emails, including a very significant volume of privileged material, and that the Special Counsel’s Office was actively using those materials without any notice to TFA.1 Mr. Van Grack also declined to inform us of the identities of the 13 individuals whose materials were at issue.

The government has great leeway to access government communications, as Peter Strzok, the former counterintelligence FBI Agent who just had his own communications leaked and then released to the world, would probably be all too happy to tell you. All the more so given allegations that files went missing from the Transition SCIF, just as Jared Kushner was talking about back channel communications with the Russians.

So what’s new is not that Mueller had the emails (about which no one has complained before). But that he obtained the email inboxes of 13 people, including Jared, from GSA without letting the Transition do their own review of what to turn over.

Trump’s team may face obstruction charges

As I made clear here, it appears that one reason the Trump people are so angry is that Mueller has probably caught them failing to turn over emails that are absolutely material to the investigation, such as KT McFarland’s “Thrown election” email. Whoever did these document reviews may now be exposed to obstruction charges for withholding such material, which in turn would give Mueller leverage over them for their own further cooperation.

[Update: I should have said, withholding emails will only be a problem if the Transition was otherwise obligated (say, by subpoena) to turn them over. Mueller did subpoena the campaign for a similar set of emails; but since he didn’t need to from GSA, he may not have here.]

Mueller has far more damning information on Jared than Trump’s folks expected

Just as importantly, Axios explicitly said the emails include Jared Kushner’s emails (indeed, given his public claims about how many people he spoke to during the transition, I wouldn’t be surprised if his was the email box that had 7,000 emails).

As I have shown, Jared has been approaching disclosure issues (at least with Congress) very narrowly, ignoring clear requests to turn over his discussions about the topic of the investigation, and not just with the targets of it. If Mueller obtained all his emails, he’d have those “about” emails that Jared purposely and contemptuously has withheld from others.

We know that Jared is a key interim Mueller target here (and Abbe Lowell’s search for a crisis communications firm to help sure suggests Jared’s defense team knows that too). We know he felt the need to explain how he went from responding to a personalized Vladimir Putin congratulatory email on November 9 to asking Dmitri Simes for Sergei Kislyak’s name.

Take, for example, the public statement prepared for testimony to congressional committees by the president’s son-in-law and adviser Jared Kushner. There, he revealed that on the day after the election, in response to a congratulatory email from Russian President Vladimir Putin, he asked the publisher of The National Interest, Dimitri Simes, for the name of Russia’s ambassador to the United States. “On November 9, the day after the election, I could not even remember the name of the Russian ambassador,” Kushner claimed. “When the campaign received an email purporting to be an official note of congratulations from President Putin, I was asked how we could verify it was real. To do so, I thought the best way would be to ask the only contact I recalled meeting from the Russian government, which was the ambassador I had met months earlier, so I sent an email asking Mr. Simes, ‘What is the name of the Russian ambassador?’”

We also know that Mueller’s team has expressed some skepticism about Kushner’s previous public claims — and I would bet money this includes that email.

CNN recently reported, however, that in an interview conducted in the weeks before Flynn’s plea deal, “Mueller’s team asked Kushner to clear up some questions he was asked by lawmakers and details that emerged through media reports.” So Mueller’s team may now have doubts about the explanation Kushner offered for his interest in speaking with Kislyak as one of the first things he did after his father-in-law got elected.

If Mueller has all Jared’s emails and those emails disclose far more about the negotiations with all foreign powers conducted during the transition (including with Bibi Netanyahu on settlements, but obviously also with Russia), and Trump’s people recognize those emails expose Jared to serious charges, then of course they’re going to complain now, as the expectation that Mueller might soon indict Kushner grows.

Mueller has an outline of places where Trump was personally involved

Most importantly, consider what those morons laid out: they want to claim that these emails from the transition period — emails they insist were not government emails — are protected by Executive Privilege.

The legal claim is ridiculous; as I and far smarter people have noted, you don’t get Executive Privilege until you become the actual Executive on inauguration day.

But that they made the claim is telling (and really fucking stupid).

Because that tells us which emails Trump officials believe involve communications directly with Trump. The KT McFarland email, which we know was written from Mar-a-Lago, is a case in point. Did they withhold that because they believe it reflects a conversation with Trump? If so, then we know that Trump was personally involved in the orders to Mike Flynn to ask the Russians to hold off on retaliating for Obama’s sanctions. It might even mean that the language attributed to McFarland — about Russia being the key that unlocks doors, efforts to “discredit[] Trump’s victory by saying it was due to Russian interference, “thrown elections,” and Obama boxing Trump in — is actually Trump’s own language. Indeed, it does sound like stuff he says all the time.

And given that the emails include “speculation about vulnerabilities of Trump nominees, strategizing about press statements, and policy planning on everything from war to taxes,” it might even reflect Trump’s own explanations of why — for example — he couldn’t nominate Flynn to be CIA Director because of his ties to Russia and Turkey.

In the wake of his plea agreement, Flynn’s surrogate made it clear that Trump ordered him to carry out certain actions, especially with Russia. That’s likely a big reason why, in the wake of the Flynn plea, Trump’s people are now squawking that Mueller obtained these emails, emails that may lay out those orders.

Heck. These emails might even reflect Trump ordering Flynn to lie about his outreach to Russia.

Maybe that’s why Trump’s aides have promised to demand Mueller return the emails in question.

All of which is to say, there are things about these emails that explain why this attack is coming now, beyond just a generalized effort to discredit Mueller. The attack is designed to discredit specific avenues of investigation Mueller clearly has in hand. And those avenues reveal far more about the seriousness of the investigation than anything Ty Cobb is willing to claim to appease the President.

That said, the attack is probably too little, too late.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

Trump Appears to Have Withheld the KT McFarland Email about the “Thrown Election”

This post explains what appears to be the real reason for the fake outrage about Mueller obtaining information from GSA: by doing so, he appears to have obtained proof that the Transition was withholding emails material to the investigation. Go to this post for a more general summary of what we know about the claim. 

Here’s the letter that Trump For America lawyer sent to Congress to cause a big hullabaloo about how Robert Mueller obtained transition period emails. I unpacked it in this Twitter thread and commented on it in an update to this post.

But this passage deserves a separate post, because it seems to go to the heart of why the Republicans are spewing propaganda like this.

Additionally, certain portions of the PTT materials the Special Counsel’s Office obtained from the GSA, including materials that are susceptible to privilege claims, have been leaked to the press by unknown persons. Moreover, the leaked records have been provided to the press without important context and in a manner that appears calculated to inflict maximum reputational damage on the PTT and its personnel, without the inclusion of records showing that PTT personnel acted properly – which in turn forces TFA to make an impossible choice between (a) protecting its legal privileges by keeping its records confidential and (b) waiving its privileges by publicly releasing records that counteract the selective leaks and misguided news reports. In short, since the GSA improperly provided them to the Special Counsel’s Office, the PTT’s privileged materials have not only been reviewed privately by the Special Counsel’s Office without notification to TFA – they have also been misused publicly.

Kory Langhofer is insinuating — without quite risking the claim — that after GSA shared certain emails with Robert Mueller’s office, “unknown persons” leaked them to the press. The insinuation is that Mueller’s team leaked them.

I can think of just one set of emails that fit this description: emails from KT McFarland that provided proof that Mike Flynn lied to the FBI about his conversations with Sergei Kislyak on December 29, 2016. The NYT quoted extensively from them in a December 2 story.

Among other things, McFarland stated in the emails that Russia “has just thrown the U.S.A. election to” Trump.

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

[snip]

Mr. Obama, she wrote, was trying to “box Trump in diplomatically with Russia,” which could limit his options with other countries, including Iran and Syria. “Russia is key that unlocks door,” she wrote.

She also wrote that the sanctions over Russian election meddling were intended to “lure Trump in trap of saying something” in defense of Russia, and were aimed at “discrediting Trump’s victory by saying it was due to Russian interference.”

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

Contrary to Langhofer’s suggestion, NYT made some effort to mitigate the damage of McFarland’s comment seemingly confirming the Trump team knew the election had been stolen, including speaking to a White House lawyer about it.

It is not clear whether Ms. McFarland was saying she believed that the election had in fact been thrown. A White House lawyer said on Friday that she meant only that the Democrats were portraying it that way.

And while NYT’s explanation that they got the emails “from someone who had access to transition team communications” certainly could include Mueller’s team among the culprits, it could also include GSA officials themselves or — even more likely — a former Trump official with a grudge. At least three were CCed on the email in question: Bannon, Priebus, and Spicer.

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

In other words, Langhofer uses the leak as an excuse to suggest wrong-doing by Mueller, when other possibilities are far more likely.

But consider the other implication of this: Langhofer is suggesting that this email chain (which included no named active lawyers, nor included Trump directly, though they were written in Trump’s presence at Mar a Lago) is “susceptible to privilege claims.” He is further suggesting that GSA is the only way this email could have been released (ignoring, of course, the Bannon/Priebus/Spicer) options.

If that’s right, then he’s suggesting that Trump was involved in this email chain directly. There’s no reason to believe he was CCed. But since the emails were written from Mar-a-Lago, it’s likely he was consulted in the drafting of the emails.

In addition, Langhofer is also admitting that Trump’s team didn’t release these emails directly — at least not to Congress.

Emails which couldn’t be more central to the point of Mueller’s investigation.

Did the GOP just admit that Trump withheld this email? Because if so, it suggests the “thrown election” comment is far more damning than the NYT laid out.

Update: It’s not clear whether Mueller ever tried to obtain these records via GSA (though it’s possible FBI obtained emails before the inauguration). But this, from the letter, makes it clear at least Congress had made requests, which led TFA to try to take GSA out of the loop even though SCO had a document preservation request.

In order to comply with congressional document production requests, TFA ordered from the GSA electronic copies of all PTT emails and other data. Career GSA staff initially expressed concern that providing copies of PTT emails to TFA might violate a document preservation request that the GSA had received from the Special Counsel’s Office.

Withholding this email from Congress would be particularly problematic, as McFarland testified in conjunction with her now-frozen nomination to be Ambassador to Singapore that she knew nothing about Flynn’s communications with Kislyak. h/t SS

Update: Ah, this explains how Mueller was getting emails: via voluntary production, along with everything the Transition was giving Congress. Which means the email was withheld, and this October subpoena was an attempt to see whether they’d cough it up on their own.

Special counsel Robert Mueller’s team in mid-October issued a subpoena to President Donald Trump’s campaign requesting Russia-related documents from more than a dozen top officials, according to a person familiar with the matter.

The subpoena, which requested documents and emails from the listed campaign officials that reference a set of Russia-related keywords, marked Mr. Mueller’s first official order for information from the campaign, according to the person. The subpoena didn’t compel any officials to testify before Mr. Mueller’s grand jury, the person said.

The subpoena caught the campaign by surprise, the person said. The campaign had previously been voluntarily complying with the special counsel’s requests for information, and had been sharing with Mr. Mueller’s team the documents it provided to congressional committees as part of their probes of Russian interference into the 2016 presidential election.

[snip]

Mueller’s team had previously issued subpoenas individually to several top campaign officials, including former campaign chairman Paul Manafort and former national security adviser Mike Flynn.

[Correction: I’ve been corrected on this passage, which makes it clear this is about campaign emails, not transition ones. But I assume he made parallel requests for all three phases of Trump organization.]

Update: Mueller’s spox, Peter Carr, issued a statement saying, “When we have obtained emails in the course of our ongoing criminal investigation, we have secured either the account owner’s consent or appropriate criminal process.” Given what I’ve laid out here, I actually think “C” may have been the case:

  • Subpoena to Flynn, obtain voluntary compliance for specific things as well as evidence shared with Congress prior to August
  • In August (perhaps after being alerted to withheld documents by Priebus/Spicer/Bannon/Papadopoulos?) obtain emails from GSA, technically the device owners
  • In October, subpoena for Russian-related emails from the same ~13 people

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

Trump Transition Team Outraged To Be Treated as Transition Team!!

This is a general post on the GOP claim Mueller improperly obtained emails from ~13 Transition officials, updated as new news comes available. This post explains what is really going on: the Transition appears to have withheld emails — including the KT McFarland one referring to the election as having been “thrown” — and Mueller obtained proof they were withholding things. 

Both Fox News and Axios have pieces reflecting the outrage!!! among Trump people that they got asked questions about emails they thought they had hidden from Mueller’s investigation. Axios reveals that Mueller obtained the full contents of 12 accounts (Reuters says 13), one including 7,000 emails, from people on the “political leadership” and “foreign-policy team;” it says it includes “sensitive emails of Jared Kushner.”

Fox reveals that a transition lawyer wrote Congress today claiming that it was unlawful for government employees to turn over emails hosted on government servers for a criminal investigation.

A lawyer for the Trump presidential transition team is accusing Special Counsel Robert Mueller’s office of inappropriately obtaining transition documents as part of its Russia probe, including confidential attorney-client communications and privileged communications.

In a letter obtained by Fox News and sent to House and Senate committees on Saturday, the transition team’s attorney alleges “unlawful conduct” by the career staff at the General Services Administration in handing over transition documents to the special counsel’s office.

Officials familiar with the case argue Mueller could have a problem relating to the 4th Amendment – which protects against unreasonable searches and seizures.

Kory Langhofer, the counsel to Trump for America, wrote in the letter that the the GSA “did not own or control the records in question.”

But, Langhofer says, Mueller’s team has “extensively used the materials in question, including portions that are susceptible to claims of privilege.”

And Axios explains that the Trump people actually sorted through this stuff. “The sources say that transition officials assumed that Mueller would come calling, and had sifted through the emails and separated the ones they considered privileged.”

I’m really looking forward to hearing the full story about this, rather than just this partisan spin. For example, I’m interested in whether Mueller realized via some means (perhaps from someone like Reince Priebus or Sean Spicer — update, or George Papadopoulos) that the White House had withheld stuff that was clearly responsive to his requests, so he used that to ask GSA to turn over the full set.

I’m also interested in how they’ll claim any of this was privileged. The top 13 political and foreign policy people on the Trump team might include (asterisks mark people confirmed to be among those whose accounts were obtained):

  1. Pence
  2. Bannon
  3. Jared*
  4. Flynn*
  5. KT McFarland
  6. Spicer
  7. Priebus
  8. Nunes
  9. Sessions
  10. Seb Gorka
  11. Stephen Miller
  12. Hope Hicks
  13. Ivanka
  14. Don Jr
  15. Rebekah Mercer
  16. Kelly Anne Conway
  17. Rudy Giuliani
  18. Steven Mnuchin
  19. Rick Gates
  20. Corey Lewandowski
  21. Tom Bossert

Just one of those people — Sessions — is a practicing lawyer (and he wasn’t, then), and he wasn’t playing a legal role in the transition (though both Sessions and Nunes may have been using their congressional email, in which case Mueller likely would show far more deference; update: I’ve added Rudy 911 to the list, and he’d obviously qualify as a practicing lawyer). Though I suppose they might have been talking with a lawyer. But I would bet Mueller’s legal whiz, Michael Dreeben, would point to the Clinton White House Counsel precedent and say that transition lawyers don’t get privilege.

Furthermore, Trump wasn’t President yet! This has come up repeatedly in congressional hearings. You don’t get privilege until after you’re president, in part to prevent you from doing things like — say — undermining existing foreign policy efforts of the actually still serving President. So even if these people were repeating things Trump said, it wouldn’t be entitled to privilege yet.

Finally, consider that some of these people were testifying to the grand jury months and months ago. But we’re only seeing this complaint today. That’s probably true for two reasons. One, because Mueller used the emails in question (most notably, the emails between McFarland and Flynn from December 29 where they discussed Russian sanctions) to obtain a guilty plea from Flynn. And, second, because Republicans are pushing to get Trump to fire Mueller.

Update: I’ve added Pence, Don Jr., Ivanka, Hope Hicks, Kelly Anne Conway, Rudy Giuliani, Steven Mnuchin back in here.

Update: Here’s more from Reuters.

Langhofer, the Trump transition team lawyer, wrote in his letter that the GSA’s transfer of materials was discovered on Dec. 12 and 13.

The FBI had requested the materials from GSA staff last Aug. 23, asking for copies of the emails, laptops, cell phones and other materials associated with nine members of the Trump transition team response for national security and policy matters, the letter said.

On Aug. 30, the FBI requested the materials of four additional senior members of the Trump transition team, it said.

The GSA transfer may only have been discovered this week (probably as a result of Congress’ investigation). But the witnesses had to have known these emails went beyond the scope of what the transition turned over. And the request date definitely is late enough for Mueller to have discovered not everything got turned over, perhaps even from George Papadopoulos, who flipped in late July.

Update: One more thing. Remember that there were worries that transition officials were copying files out of a SCIF. That, by itself, would create an Insider Threat concern that would merit FBI obtaining these emails directly.

Update: Here’s a report dated June 15 on a transition lawyer instructing aides and volunteers to save anything relating to Russia, Ukraine, or known targets (Flynn, Manafort, Page, Gates, and Stone).

Update: AP reports that Flynn was (unsurprisingly) among those whose email was obtained.

Update: Here’s the letter. I unpacked it here. It’s a load of — I believe this is the technical term — shite. First, it stakes everything on PTT not being an agency. That doesn’t matter at all for a criminal investigation — Robert Mueller was no FOIAing this stuff. It then later invokes a bunch of privileges (the exception is the attorney client one) that only come with the consequent responsibilities. It then complains that Mueller’s team didn’t use a taint team.

Perhaps the craziest thing is they call for a law that would only permit someone to access such emails for a national security purpose — as if an espionage related investigation isn’t national security purpose!

Update: Chris Geidner got GSA’s side of the story. Turns out they claim the now dead cover up GC didn’t make the agreement the TFA lawyer says he did. In any case, GSA device users agreed their devices could be monitored.

“Beckler never made that commitment,” he said of the claim that any requests for transition records would be routed to the Trump campaign’s counsel.

Specifically, Loewentritt said, “in using our devices,” transition team members were informed that materials “would not be held back in any law enforcement” actions.

Loewentritt read to BuzzFeed News a series of agreements that anyone had to agree to when using GSA materials during the transition, including that there could be monitoring and auditing of devices and that, “Therefore, no expectation of privacy can be assumed.”

Update: Mueller’s spox, Peter Carr, issued a statement saying, “When we have obtained emails in the course of our ongoing criminal investigation, we have secured either the account owner’s consent or appropriate criminal process.”

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

The Unmasking Panic and the Flynn Plea

Yesterday, Eli Lake was the first person to confirm the identity of the “very senior” official who “directed FLYNN to contact officials from foreign governments, including Russia, to learn where each government stood on the resolution” condemning Israel’s illegal settlements.

At the time, the U.N. Security Council resolution on Israeli settlements was a big deal. Even though the Obama administration had less than a month left in office, the president instructed his ambassador to the United Nations to abstain from a resolution, breaking a precedent that went back to 1980 when it came to one-sided anti-Israel resolutions at the U.N.

This was the context of Kushner’s instruction to Flynn last December. One transition official at the time said Kushner called Flynn to tell him he needed to get every foreign minister or ambassador from a country on the U.N. Security Council to delay or vote against the resolution. Much of this appeared to be coordinated also with Israeli prime minister Benjamin Netanyahu, whose envoys shared their own intelligence about the Obama administration’s lobbying efforts to get member states to support the resolution with the Trump transition team.

Lake was also the reporter who got the earliest “scoops” on the unmasking panic earlier this year.

There’s a reason for that. They’re the same story.

In April, I laid out how Devin Nunes was at the center of both the January unmasking panic and the panic on behalf of a bunch of Republicans, during the Iran deal negotiations, who got their collusion with Bibi Netanyahu to kill the deal sucked up.

Throughout his ongoing information operation to claim the Obama White House spied on the Trump transition team, Devin Nunes has pointed to what he claimed was a precedent: when, in December 2015, members of Congress suddenly copped on that their conversations with Bibi Netanyahu would get picked up incidentally. In his March 22 press conference, he explained,

We went through this about a year and a half ago as it related to members of Congress, if you may remember there was a report I think it was in the Wall Street Journal and but then we had to have we had a whole series of hearings and then we had to have changes made to how Congress is informed if members of Congress are picked up in surveillance and this looks it’s like very similar to that.

Eli Lake dutifully repeated it in the second of his three-post series pitching Nunes’ information operation.

A precedent to what may have happened with the Trump transition involved the monitoring of Israel’s prime minister and other senior Israeli officials. The Wall Street Journal reported at the end of 2015 that members of Congress and American Jewish groups were caught up in this surveillance and that the reports were sent to the White House. This occurred during a bitter political fight over the Iran nuclear deal. In essence the Obama White House was learning about the strategy of its domestic political opposition through legal wiretaps of a foreign head of state and his aides.

But Lake didn’t apparently think through what the implications of Nunes’ analogy — or the differences between the two cases.

Here’s the WSJ report and CBS and WaPo versions that aren’t paywalled. All make it very clear that Devin Nunes took the lead in worrying about his conversations with Bibi Netanyahu being sucked up (I don’t remember Republicans being as sympathetic when Jane Harman got sucked up in a conversation with AIPAC).

It’s clear now that it’s all one panic.

The most public confirmed unmasking involved Susan Rice discovering that Sheikh Mohammed bin Zayed al-Nahyan had a secret meeting with Flynn, Kushner, and Bannon in NY.

Former national security adviser Susan Rice privately told House investigators that she unmasked the identities of senior Trump officials to understand why the crown prince of the United Arab Emirates was in New York late last year, multiple sources told CNN.

The New York meeting preceded a separate effort by the UAE to facilitate a back-channel communication between Russia and the incoming Trump White House.
The crown prince, Sheikh Mohammed bin Zayed al-Nahyan, arrived in New York last December in the transition period before Trump was sworn into office for a meeting with several top Trump officials, including Michael Flynn, the president’s son-in-law, Jared Kushner, and his top strategist Steve Bannon, sources said.

But we now know that there would be intercepts between Netanyahu and Kushner leading up to it.

I wouldn’t even be surprised if the Republicans are so certain they’ve been unmasked because Israel has their own way of discovering such things.

I’ve laid out how Jared Kushner’s “peace” “plan” really is just an attempt to remap the Middle East to the interests of Israel and Saudi Arabia, interests which require significantly more belligerence against Iran than Obama showed. The unmasked discussions would include the ones that preceded Kushner’s order to Flynn to try to undercut the resolution, as well as whatever else Kushner discussed with Netanyahu at the time.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

Next Stop: Jared

This morning at 8, I was on Democracy Now talking about how then reported and now completed Flynn plea agreement would focus attention directly on Jared.

Since then, Mike Flynn indeed pled guilty to one charge of false statements to the FBI about various conversations with Sergei Kislyak, promising he’d fully cooperate with Mueller’s inquiry. Reports describe that Flynn spoke with an unnamed senior advisor who was at Mar A Lago at the time about his December 29 conversations with Kislyak, which pertained to Russian sanctions. They also say Flynn will testify against Trump and members, plural, of his family, particularly regarding the orders he had to reach out to Russia.

The other lie charged about conversations with Kislyak involves a request that Russia try to delay or shut down a vote on condemning Israel’s illegal settlements.

That’s a key lie, because we know who was pushing that: Jared Kushner (though the court filing suggests it might be someone even more senior).

Robert Mueller’s investigators are asking questions about Jared Kushner’s interactions with foreign leaders during the presidential transition, including his involvement in a dispute at the United Nations in December, in a sign of the expansive nature of the special counsel’s probe of Russia’s alleged meddling in the election, according to people familiar with the matter.

The investigators have asked witnesses questions about the involvement of Mr. Kushner, President Donald Trump’s son-in-law and a senior White House adviser, in a controversy over a U.N. resolution passed Dec. 23, before Mr. Trump took office, that condemned Israel’s construction of settlements in disputed territories, these people said.

Israeli officials had asked the incoming Trump administration to intervene to help block it. Mr. Trump posted a Facebook message the day before the U.N. vote—after he had been elected but before he had assumed office—saying the resolution put the Israelis in a difficult position and should be vetoed.

[snip]

Israeli officials said at the time that they began reaching out to senior leaders in Mr. Trump’s transition team. Among those involved were Mr. Kushner and political strategist Stephen Bannon, according to people briefed on the exchanges.

So that second lie — and almost certainly the first — involves Kushner directing Flynn.

I noted yesterday CNN’s report that in the last few weeks — so during the window when Mueller was in close discussions about Flynn flipping — Mueller’s team interviewed Kushner asking if he had any exonerating information on Flynn.

Mueller’s team specifically asked Kushner about former national security advisor Michael Flynn, who is under investigation by the special counsel, two sources said. Flynn was the dominant topic of the conversation, one of the sources said.

[snip]

The conversation lasted less than 90 minutes, one person familiar with the meeting said, adding that Mueller’s team asked Kushner to clear up some questions he was asked by lawmakers and details that emerged through media reports. One source said the nature of this conversation was principally to make sure Kushner doesn’t have information that exonerates Flynn.

The meeting took place around the same time the special counsel asked witnesses about Kushner’s role in the firing of former FBI Director James Comey and his relationship with Flynn, these people said.

Mueller was, effectively, locking in Kushner’s testimony before Flynn flipped. As I said this morning, speaking of that meeting,

The Kushner meeting was reported as kind of one of the last things that Mueller had to put into place before this plea agreement that people have been talking about with Mike Flynn. And that suggests that there is more news about to drop regarding Mike Flynn that I think is going to really dramatically change how Republicans take the Russian investigation.

Flynn had been avoiding discussing plea agreements for months and months and months, and then really in the last two weeks, all of a sudden it seems like it’s about to happen. Mueller has more leverage over Flynn in the last couple of weeks. It may be Turkey, because a key witness in New York has turned state’s evidence and apparently has information on Flynn. I think there’s some other information.

And so, Flynn, we expect, is moving towards a plea agreement. We expect, or I expect, that’s going to add a lot more pressure on Trump. And I have been saying for months that the way to get to Kushner is through Flynn. Because a lot of the events in which Flynn was involved, such as meeting with Sergei Kislyak in December, they connect very closely with activities that Kushner is known to be involved with.

Kushner may now be hoping he’ll be in a he-said he-said with Flynn, except it’s unlikely Mueller would give Flynn this easy plea without a whole lot more to know that Flynn would be telling the truth. Remember, Kushner is one of the few people aside from Flynn himself who has a very appropriate lawyer for this kind of issue.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

On the Jared and Flynn Stories

Amid reports that Mike Flynn is flipping like a pancake, CNN reported (in addition to a report that Mueller’s team canceled a grand jury appearance for former Flynn business associates) that Jared Kushner was asked a bunch of questions about Flynn in an interview earlier this month.

Before reading the details CNN provides, however, consider this line in the story:

It’s not clear that this is the only time that Kushner will meet with the special counsel’s team.

That is, the subtext here is that, even as Mueller’s team preps a plea deal with Flynn, he’s well aware that he remains a key target in conjunction with Flynn events, and may get hauled back before Mueller’s team for all the other stuff. Effectively, they were locking in Kushner’s testimony — including, presumably, about what kind of permission/instructions Flynn had to engage in the corrupt foreign deals he was pushing — from Kushner and his pop-in-law before flipping Flynn.

So here’s how CNN describes the Flynn questions:

Mueller’s team specifically asked Kushner about former national security advisor Michael Flynn, who is under investigation by the special counsel, two sources said. Flynn was the dominant topic of the conversation, one of the sources said.

[snip]

The conversation lasted less than 90 minutes, one person familiar with the meeting said, adding that Mueller’s team asked Kushner to clear up some questions he was asked by lawmakers and details that emerged through media reports. One source said the nature of this conversation was principally to make sure Kushner doesn’t have information that exonerates Flynn.

The meeting took place around the same time the special counsel asked witnesses about Kushner’s role in the firing of former FBI Director James Comey and his relationship with Flynn, these people said.

That means, as we speak, Flynn is providing his side of this story, and explaining why Jared was so intent on firing Mueller because Mueller was actively investigating Flynn.

As I’ve long said, you get to Jared through Flynn. It seems like Jared’s team is now hoping he gets a second chance at testimony before he gets busted himself.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

The Seychelles Meeting Inches Kushner Closer to Quid Pro Quo with Sanctioned Russian Money

The Intercept has an article that has gotten surprisingly little attention, particularly given the reports that Mike Flynn is prepping to flip on Trump and that the House Intelligence Committee will have Erik Prince testify in its investigation.

It reveals that the previously unknown identity of a Russian that Erik Prince met in the Seychelles in January is the CEO of the Russian Direct Investment Fund.

The identity of the Russian individual was not disclosed, but on January 11, a Turkish-owned Bombardier Global 5000 charter plane flew Kirill Dmitriev, CEO of the Russian Direct Investment Fund, to the Seychelles, flight records obtained by The Intercept show. Dmitriev’s plane was an unscheduled charter flight and flew to the island with two other Russian individuals, both women. The RDIF is a $10 billion sovereign wealth fund created by the Russian government in 2011.

[snip]

Although Prince repeatedly stated he couldn’t remember the Russian’s name — “We didn’t exchange cards” — a spokesperson for Frontier Services Group confirmed to The Intercept in September that Prince “crossed paths” with Dmitriev in the Seychelles.

The article goes on to note that the RDIF separated from its parent company Vnesheconombank in 2016 to evade sanctions.

While it is legal to do business with RDIF in certain circumstances, there are several nuanced restrictions that if ignored or overlooked can easily lead to a violation. The resulting uncertainty has created opportunities for companies and individuals to find loopholes to bypass sanctions.

Analysts say RDIF attempted to do this in 2016 when the fund distanced itself from its parent company, the Russian bank Vnesheconombank, or VEB, which is also subject to U.S. sanctions. Legislation signed by Putin in June 2016 enabled RDIF to transfer its management company, known as the RDIF Management Company LLC, to the Russian Federal Agency for State Property Management.

Sadly, the Intercept article doesn’t lay out the timeline this creates:

Early December: Flynn and Kushner meet with Sergei Kislyak

Later December: At the behest of Kislyak, Kushner meets with Vnesheconombank’s Sergey Gorkov

December: Mohammed bin Zayed holds undisclosed meeting in NY with Kushner and Steve Bannon

December 29: Flynn tells Kislyak Trump will ease sanctions

January 11: At behest of Mohammed bin Zayed, Erik Prince meets with Dmitriev

January 17: Anthony Scaramucci meets with RDIF in Davos

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

The Dumb Ass Poker Faces in the White House Just Admitted Their Investigation Coincides with Mike Flynn’s

In a big scoop yesterday, NYT reported that Mike Flynn has withdrawn from a joint cooperation agreement with the White House, leading many people to believe that he is moving towards cooperating with Robert Mueller.

Lawyers for Michael T. Flynn, President Trump’s former national security adviser, notified the president’s legal team in recent days that they could no longer discuss the special counsel’s investigation, according to four people involved in the case — an indication that Mr. Flynn is cooperating with prosecutors or negotiating a deal.

Mr. Flynn’s lawyers had been sharing information with Mr. Trump’s lawyers about the investigation by the special counsel, Robert S. Mueller III, who is examining whether anyone around Mr. Trump was involved in Russian efforts to undermine Hillary Clinton’s presidential campaign.

[snip]

[T]he notification led Mr. Trump’s lawyers to believe that Mr. Flynn — who, along with his son, is seen as having significant criminal exposure — has, at the least, begun discussions with Mr. Mueller about cooperating.

[snip]

Mr. Flynn is regarded as loyal to Mr. Trump, but he has in recent weeks expressed serious concerns to friends that prosecutors will bring charges against his son, Michael Flynn Jr., who served as his father’s chief of staff and was a part of several financial deals involving the elder Mr. Flynn that Mr. Mueller is scrutinizing.

The WaPo confirmed NYT’s scoop, adding the detail that Flynn’s lawyer told Trump’s lawyer on Wednesday evening.

The call from Flynn lawyer Robert Kelner to Trump attorney John Dowd came Wednesday evening and is a potentially ominous sign for Trump and his close associates.

Along with all the reports that Mueller was implicating Flynn, Jr in his dad’s corruption, this timing would also closely follow the hints that Reza Zarrab, whose release Flynn reportedly discussed brokering, is now cooperating with prosecutors. It’s unclear how much Zarrab would have learned in jail about efforts to free him, but it’s certainly possible that the knowledge that he is likely cooperating changed Flynn’s calculus as well. And there may be other reasons, still not public, why Flynn reversed his determination to fight prosecution rather than cooperate.

But there’s something really funny about the White House’s confirmation that Flynn pulled out of the joint defense agreement, along with their pathetic claims this doesn’t mean Trump is in trouble.

Jay Sekulow, an attorney for Trump, said, “This is not entirely unexpected.”

“No one should draw the conclusion that this means anything about General Flynn cooperating against the president,” he said, adding, “It’s important to remember that General Flynn received his security clearance under the previous administration.”

Confirming to the press that Flynn pulled out of the joint defense agreement involves confirming that the White House had a joint defense agreement with his lawyers. And that entails confirming that the President is being targeted in matters closely tied to Flynn’s own actions.

Thus far, the crimes Flynn is most publicly being accused of — largely relating to his unreported influence peddling, for both Turkey and Russia — don’t necessarily impact Trump. Given the details that have thus far been made public, those actions could just reflect his own greed, not any overt work with Trump to implement the policies he promised to the Turks he would deliver. Indeed, there’d be little need for Flynn’s lawyers to work with Trump’s if that were the only criminal charges he was facing.

But now several Trump lawyers are on the record saying they viewed themselves as targeted by the same investigation as Flynn is. Which means (unsurprisingly) Trump was probably in the loop on Flynn’s influence peddling. And which also means Flynn’s discussions with Sergei Kislyak about sanctions relief — and his lies about them to the FBI — directly implicate Trump. That’s the stuff that would justify a joint defense agreement, and that’s the stuff the White House just confirmed by confirming the no longer operative joint defense agreement.

In spite of all the claims that Trump isn’t being investigated, Trump’s lawyers have just admitted that they have been treating Flynn’s criminal exposure as related to the President’s own.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.