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DOJ Was Still Working to Access Joshua Schulte’s Phone in September 2019

Glenn Greenwald is making factually unsupported defenses of Russia on Twitter again.

Yesterday, he made an argument about what he sees as one of the most overlooked claims in the Yahoo piece suggesting there was an assassination plot against Julian Assange and then, 100-something paragraphs into the thing, admitting that discussions of killing Assange were really regarded in the CIA as, “a crazy thing that wastes our time.”

Glenn doesn’t, apparently, think the overlooked detail is that the timeline in the story describing the changing US government understanding towards Assange, including Edward Snowden’s central role in that, shows that Assange’s defense lied shamelessly about the timeline in his extradition hearing.

Nor does Glenn seem interested that DOJ didn’t charge Assange during the summer of 2017 after Mike Pompeo started plotting against the Australian, but only did so on December 21, 2017, as the US and UK prepared for what they believed to be an imminent exfiltration attempt by Russia.

Intelligence reports warned that Russia had its own plans to sneak the WikiLeaks leader out of the embassy and fly him to Moscow, according to Evanina, the top U.S. counterintelligence official from 2014 through early 2021.

The United States “had exquisite collection of his plans and intentions,” said Evanina. “We were very confident that we were able to mitigate any of those [escape] attempts.”

[snip]

Narvaez told Yahoo News that he was directed by his superiors to try and get Assange accredited as a diplomat to the London embassy. “However, Ecuador did have a plan B,” said Narvaez, “and I understood it was to be Russia.”

Aitor Martínez, a Spanish lawyer for Assange who worked closely with Ecuador on getting Assange his diplomat status, also said the Ecuadorian foreign minister presented the Russia assignment to Assange as a fait accompli — and that Assange, when he heard about it, immediately rejected the idea.

On Dec. 21, the Justice Department secretly charged Assange, increasing the chances of legal extradition to the United States. That same day, UC Global recorded a meeting held between Assange and the head of Ecuador’s intelligence service to discuss Assange’s escape plan, according to El País. “Hours after the meeting” the U.S. ambassador relayed his knowledge of the plan to his Ecuadorian counterparts, reported El País.

What Glenn thinks is important is that, on April 13, 2017, when Mike Pompeo labeled WikiLeaks a non-state hostile intelligence service, the CIA did not yet have proof that “WikiLeaks was operating at the direct behest of the Kremlin,” though of course Glenn overstates this and claims that they had “no evidence.”

Glenn then claimed that CIA’s lack of proof on April 13, 2017 is proof that all claims about Assange’s ties with Russia made in the last five years — that is, from roughly October 7, 2016 through October 12, 2021 — lacked (any!) evidence. In other words, Glenn claims that CIA’s lack of proof, before UC Global ratcheted up surveillance against Assange in June 2017 and then ratcheted it up much more intensively in December 2017, and before US intelligence discovered the Russian exfiltration attempt, and before they had enough evidence to charge Joshua Schulte in 2018, and before they seized Assange’s computer in 2019, and before Snowden wrote a book confirming WikiLeaks’ intent in helping him flee, is proof that they never acquired such proof in the 1600 days since then.

At the time Pompeo made his comments, FBI was just five weeks into the Vault 7 investigation. They were chasing ghosts in the Shadow Brokers case, which also implicated Assange. Robert Mueller had not yet been appointed and, perhaps a month after he was, Andrew Weissmann discovered that, “the National Security Division was not examining what the Russians had done with the emails and other documents they’d stolen from those servers.” Pompeo’s comments came four months before Mueller obtained the first warrant targeting Roger Stone. They came seven months before Mueller obtained a warrant targeting Assange’s Twitter account. They came sixteen months before Mueller obtained a warrant describing a hacking and foreign agent investigation into WikiLeaks and others. They came 25 months before Mueller released his report while redacting the revelation that multiple strands of the investigation into Stone were ongoing (though also stating they did not have enough admissible evidence to prove Assange knew that Russia continued to hack the DNC). They came three years before DOJ kept the warrants reflecting the foreign agent investigation into WikiLeaks and others largely redacted, presumably because that investigation remained ongoing. They came three and a half years before the government withheld almost all of WikiLeaks lawyer Margaret Kunstler’s two interviews with Mueller’s team because of an ongoing investigation.

And all that’s separate from the long-standing WikiLeaks investigation at EDVA that led to Assange’s charges, which Rod Rosenstein has said never fully moved under Mueller.

On April 13, 2017, the investigation into Assange’s activities in 2016 had barely begun. Yet the fact that CIA couldn’t prove Assange was a Russian agent before most investigation into these things had started, Glenn claims, is proof that Assange is not a Russian agent.

It’s a logically nonsensical argument, but because certain gullible WikiLeaks boosters don’t see the flaws in the argument, I’d like to point to something fascinating disclosed just recently in the Joshua Schulte case: as late as September 2019, DOJ was still trying to get a full forensic image of the the phone Schulte was using when he was first interviewed on March 15, 2017.

That was revealed in the government’s response to a Schulte motion to suppress evidence from the Huawei he used at the time, in the early stages of the FBI’s investigation. We saw many of these warrants from Schulte’s first attempt to get these early warrants suppressed (in which his attorney noted that the government got a second device-specific warrant). But Schulte is challenging the search on a basis that even Sabrina Shroff didn’t raise two years ago.

As the government tells it, FBI agents used a subpoena to get Schulte to hand over his phone during the interview on March 15 before they all returned to his apartment where they had a warrant for all his devices, then got a separate warrant at 1:26AM that night to search the phone specifically. They were unable to do so because it was locked, so in an interview on March 21 — at which time the search warrant was still valid — they got Schulte to open his phone (something his attorney at the time boasted he did voluntarily during a 2017 bail hearing).

Someone must have lost their job at FBI, though, because after Schulte opened the phone, it rebooted, preventing them from obtaining a full forensic copy of the device.

On March 20 and 21, 2021, the defendant, accompanied by his attorneys, was interviewed by the Government and law enforcement agents at the U.S. Attorney’s Office. At the interview on March 21, 2021, the defendant, in the presence of counsel, consented to a search of the Cellphone and entered his password to unlock it. (Id. ¶ 13(b)). When the Cellphone was unlocked, however, it rebooted, and FBI was able to obtain only a logical copy of the Cellphone rather than a complete forensic image. (Id. ¶ 13(c)).

However, in its response to Schulte, the government is relying on two documents that it released for the first time. First, a location warrant/pen register targeting three different phones, which the government submitted to show that Schulte’s Google history obtained on March 14 showed that he searched for ways to delete files in the time period he is accused of stealing the CIA files and deleting evidence of doing so. The affidavit is useful for explaining how Schulte was using phones in that period of 2017. In addition to the Huawei, for example, Schulte had a phone with a Virginia number he used to call at least one of his CIA colleagues between March 7 and when he canceled the phone on March 12. Then, after he gave the FBI his Huawei phone, he bought one that night he used to call Bloomberg (his employer), and another on March 17.

More importantly, the government released the affidavit and warrant from September 9, 2019, providing more explanation why they weren’t able to fully exploit the phone in 2017.

After Schulte unlocked the phone, FBI personnel attempted to forensically image the Subject Device so that the FBI could review its contents. However, because the Subject Device rebooted during that process, the FBI was able to obtain only a logical forensic image of the Subject Device (the “Logical Forensic Image”). Although the Logical Forensic Image contains some content from the Subject Device, the Logical Forensic Image does not contain all data that may be on the Subject Device, including deleted information and data from applications. The data and information from the Subject Device that is missing from the Logical Forensic Image would likely be captured on a complete forensic image of the phone (“Complete Forensic Image”). However, in March 2017, the FBI was unable to obtain a Complete Forensic Image of the Subject Device because the Subject Device locked after it rebooted and the FBI did not know the password to unlock the phone again to attempt to obtain a Complete Forensic Image.

On or about August 12, 2019, FBI personnel involved in this investigation successfully unlocked the Subject Device using a portion of a password identified during the course of the investigation (“Password-1”). Forensic examiners with the FBI believe that they will be able to obtain a Complete Forensic Image of the Subject Device using Password-1.

After unlocking the Subject Device using Password-1, an FBI agent promptly contacted the Assistant United States Attorneys involved in this investigation to inform them of this development, and the decision was made to seek a warrant to search the Subject Device for evidence, fruits, and instrumentalities of the Subject Offense.

The affidavit explains, among other things, that Schulte first obtained the phone on September 21, 2016 and logged into Google right away (somewhere in the vast paperwork released in the case, Schulte admitted that Google was his big weakness — and how!).

In the government response, they describe that the government did search the phone. They say the phone contains images of a woman Schulte lived with that he was charged, in Virginia, with assaulting in 2015.

The FBI searched the Cellphone pursuant to that warrant. The Cellphone contains, among other things, images of an individual identified as Victim-1 in the Government’s prior filings.

It’s an interesting defense of the import of the warrant. As the government explained in 2017 when it first informed Judge Paul Crotty of the Virginia assault charge, the incriminating photos had already been found on one of Schulte’s phones (it’s unclear whether these were found on the Huawei or the phone shut down on March 12), so the State of Virginia presumably doesn’t need any images discovered after 2019 to prosecute him on the assault charge.

As relevant here, the Government discussed several photographs recovered from the defendant’s cellphone that depicted an unknown individual using his hands to sexually assault an unconscious female woman (the “Victim”). (See Exhibit A, Aug. 24, 2017 Tr. at 12-13). At the time, the Government was aware that the Victim knew the defendant and had lived in his apartment as a roommate in the past. (Id.) Magistrate Judge Henry B. Pitman, who presided over the presentment, did not consider the information proffered by the Government regarding the Victim, explaining that “facts have [not] been proffered that . . . tie Mr. Schulte to the conduct in that incident.” (Id. at 48-89). Nevertheless, Judge Pitman detained the defendant concluding that the defendant had not rebutted the presumption that he was a danger to the community. (Id. at 47-49).

[snip]

On or about November 15, 2017, the defendant was charged in Loudoun County Virginia with two crimes: (i) object sexual penetration, a felony, in violation Virginia Code Section 18.2-67.2; and (ii) the unlawful creation of an image of another, a misdemeanor, in violation of Virginia Code Section 18.2-386.1. The Government understands that these charges are premised on the photographs of the Victim. Specifically, the Loudoun County Commonwealth’s Attorneys Office has developed evidence that the defendant was the individual whose hands are visible in the photographs sexually penetrating the Victim.

But whatever they found on the phone, the government made an effort to make clear that even this 2019 search — which might have obtained deleted WhatsApp or Signal texts, both of which Schulte has used — was covered by a search warrant, something Schulte is currently trying to suppress only on a poison fruit claim.

This wasn’t the only evidence the government obtained years after Schulte became the primary suspect, though. They didn’t obtain full cooperation from Schulte’s closest buddy from when he was at the CIA, Michael, until January 2020, just before his first trial (which is one of the reasons the government provided fatally late notice to Schulte that the friend had been placed on leave at CIA). Michael helped Schulte buy the disk drives the government seems to suspect Schulte used in the theft, he also knew of Schulte’s gaming habits, and the CIA believed he might know more about Schulte’s theft from CIA.

So it’s clear that for most of the time that Glenn says the investigation as it stood in April 2017 must reflect all the evidence about Schulte, Assange, and Russia, the government continued to investigate.

None of that says DOJ obtained information from Schulte in that time implicating Assange in ties with Russia (though, as I’ve noted, someone close to WikiLeaks told me Schulte reached out to Russia well before ambiguous references to Russia showed up at Schulte’s trial). But to suggest all the evidence the government might now have was already in their possession on April 13, 2017, requires ignoring everything that has happened since that time.

Timeline

October 7, 2016: In statement attributing DNC hack to Russia, DHS and ODNI include documents released by WikiLeaks; an hour later WikiLeaks starts Podesta release

January 6, 2017: Intelligence Community Assessment assesses, with high confidence, that GRU released stolen documents via exclusives with WikiLeaks

March 7, 2017: First Vault 7 release, including unredacted names of key CIA developers

March 13, 2017: Affidavit supporting covert warrant approving search of Schulte’s apartment, including the devices found there

March 14, 2017: Affidavit supporting overt warrant approving search of Schulte’s apartment, including devices

March 14, 2017: Search warrants for Schulte’s Google account and other electronic accounts

March 15, 2017: 302 from interview with Schulte and testimonial subpoena and cell phone subpoena handed to him at interview

March 16, 2017: Affidavit supporting search warrant authorizing search of Schulte’s Huawei smart phone

March 31, 2017: Warrant and pen register for three different Schulte phones — one serviced by Sprint that he had used through all of 2016 but canceled on March 12, 2017, one he obtained after his phone was seized on March 15, 2017 serviced by Virgin, another he bought on March 17, 2017 serviced by AT&T

April 13, 2017: Mike Pompeo declares WikiLeaks a non-state hostile intelligence service

May 17, 2017: Robert Mueller appointed

August 7, 2017: Mueller obtains first warrant targeting Stone, covering hacking

August 23, 2017: Schulte charged with possession of child pornography

September 6, 2017: Schulte indicted on child pornography charges

September 26, 2017: Roger Stone testifies before HPSCI, lies about source for advance knowledge

October 19, 2017: Stone falsely claims Credico is his intermediary with WikiLeaks

November 6, 2017: Mueller obtains warrant targeting Assange’s Twitter account, citing hacking, conspiracy, and illegal foreign political contribution

November 8, 2017: Schulte claims to have been approached by foreign spies on Subway between his house and court appearance

November 9, 2017: WikiLeaks releases source code, billing it Vault 8

November 14, 2017: Assange invokes CIA’s source code (Vault 8) in suggesting Don Jr should get him named Ambassador to the US

November 16, 2017: Schulte tells FBI story about approach on Subway, accesses Tor

November 17, 2017: Schulte accesses Tor

November 26, 2017: Schulte accesses Tor

November 30, 2017: Schulte accesses Tor

December 5, 2017: Schulte accesses Tor

December 7, 2017: Schulte detained pursuant to charges of sexual assault in VA and violating release conditions

December 12, 2017: Randy Credico invokes the Fifth

December 21, 2017: Assange first charged with CFAA charge

March 6, 2018: Assange indicted on single CFAA charge

June 18, 2018: Superseding Schulte indictment adds Vault 7 leak charges

June 19, 2018: WikiLeaks links to Schulte diaries

August 20, 2018: Mueller obtains warrant describing investigation of WikiLeaks and others into conspiracy, hacking, illegal foreign contribution, and foreign agent charges

September 25, 2018: Schulte posts diaries from jail

October 31, 2018: Second Schulte superseding indictment adds charges for leaking from MCC

April 11, 2019: Assange seized from Embassy

May 23, 2019: Superseding Assange indictment adds Espionage Act charges

August 16, 2019: After FBI interview, CIA places Schulte buddy, “Michael” on leave

September 9, 2019: Affidavit in support of warrant authorizing search of Huawei phone

February 4, 2020: Schulte trial opens

February 12, 2020: Schulte attorneys reveal “Michael” was put on paid leave in August 2019

March 6, 2020: In effort to coerce Jeremy Hammond to testify, AUSA twice tells Hammond that Julian Assange is a Russian spy

March 9, 2020: Judge Paul Crotty declares mistrial on most counts in Schulte case

April 28, 2020: DOJ continues to redact Foreign Agent warrants targeting WikiLeaks and others because of ongoing investigation

June 8, 2020: Third superseding Schulte indictment adds clarification to the charges

June 24, 2020: Second superseding Assange indictment extends CFAA conspiracy through 2015, citing efforts to use Snowden to recruit more leakers

November 2, 2020: BuzzFeed FOIA reveals that Mueller referred “factual uncertainties” regarding possible Stone hacking charge to DC US Attorney for further investigation, but also finding that it did not have admissible evidence that Assange knew Russia continued to hack the DNC

September 3, 2021: Schulte submits motion to suppress cell phone content

September 31, 2021: Schulte’s motion to suppress docketed

October 1, 2021: Government response to Schulte motion to suppress

Snowden

WikiLeaks’ Intent in Publishing (and Not Publishing) CIA’s Hacking Tools Was To Wreck the Agency

Several things are missing from Yahoo’s clickbait story about the things CIA was not permitted to do in the wake of learning its hacking tools had been stolen. An important one is any mention that WikiLeaks helped Edward Snowden flee Hong Kong with the specific intent of inspiring someone like Joshua Schulte, the alleged Vault 7 leaker, to steal those files with the goal of “wrecking” the CIA.

In Yahoo’s original story, it mentions the first superseding indictment against Assange, but not the second.

The U.S. government unsealed its initial indictment of Assange the same day.

That indictment focused exclusively on allegations that in 2010, Assange offered to help Manning, the Army intelligence analyst, crack a password to break into a classified U.S. government network, an act that would have gone beyond journalism. But in a move that drew howls from press advocates, prosecutors later tacked on Espionage Act charges against Assange for publishing classified information — something that U.S. media outlets do regularly.

That’s not uncommon among those reporting on the Julian Assange case who haven’t followed it closely, as is true of the three journalists on this piece. But the omission is particularly problematic for their story.

Then, in a follow-up reporting Mike Pompeo’s comments that some of the story is true (he implies much is fiction, but he’s also a liar so I don’t put much stock in that), Yahoo quoted Ben Wizner twice, identifying him only as an ACLU lawyer.

“We now know that this unprecedented criminal case was launched in part because of the genuinely dangerous plans that the CIA was considering,” said Ben Wizner, director of the American Civil Liberties Union’s Speech, Privacy and Technology Project. “This provides all the more reason for the Biden Justice Department to find a quiet way to end this case.”

[snip]

Wizner, the ACLU lawyer, said Pompeo’s comments effectively “just verified the truth of the [Yahoo News] story. Because the only reason to prosecute someone is that they revealed legitimate classified information. … This was public interest journalism of the first order and the question is whether the public has a right to know that the government is engaged in this kind of conduct.”

Describing Wizner as an ACLU lawyer here, and not the defense attorney for Ed Snowden, is journalistic malpractice. (Plus, Ben is wrong: the Yahoo story makes it clear that the Russian exfiltration attempt was the precipitating event, not what Pompeo had considered but not pursued six months earlier.)

That’s because Snowden is personally implicated in the Vault 7/Vault 8 leak (and in fact named in the superseding indictment that Yahoo chose not to mention). As Snowden himself described in his book, WikiLeaks helped him flee Hong Kong with the specific intent of ensuring that he had a better outcome than Chelsea Manning did.

It was only once we’d entered Chinese airspace that I realized I wouldn’t be able to get any rest until I asked Sarah [Harrison] this question explicitly: “Why are you helping me?” She flattened out her voice, as if trying to tamp down her passions, and told me that she wanted me to have a better outcome. She never said better than what outcome or whose, and I could only take that answer as a sign of her discretion and respect.

As Bart Gellman described in his book, Snowden attempted to take several steps to achieve the same goal.

After meeting with the Post editors, I remembered that I could do an elementary check of the signature on my own. The result was disappointing. I was slow to grasp what it implied.

gpg –verify PRISM.pptx.sig PRISM.pptx

gpg: Signature made Mon May 20 14:31:57 2013 EDT

using RSA key ID ⬛⬛⬛⬛⬛⬛⬛⬛

gpg: Good signature from “Verax”

Now I knew that Snowden, using his Verax alter ego, had signed the PowerPoint file himself. If I published the signature, all it would prove to a tech-savvy few was that a pseudonymous source had vouched for his own leak. What good would that do anyone?

In the Saturday night email, Snowden spelled it out. He had chosen to risk his freedom, he wrote, but he was not resigned to life in prison or worse. He preferred to set an example for “an entire class of potential whistleblowers” who might follow his lead. Ordinary citizens would not take impossible risks. They had to have some hope for a happy ending.

To effect this, I intend to apply for asylum (preferably somewhere with strong Internet and press freedoms, e.g. Iceland, though the strength of the reaction will determine how choosy I can be). Given how tightly the U.S. surveils diplomatic outposts (I should know, I used to work in our U.N. spying shop), I cannot risk this until you have already gone to press, as it would immediately tip our hand. It would also be futile without proof of my claims—they’d have me committed—and I have no desire to provide raw source material to a foreign government. Post publication, the source document and cryptographic signature will allow me to immediately substantiate both the truth of my claim and the danger I am in without having to give anything up. . . . Give me the bottom line: when do you expect to go to print?

Alarm gave way to vertigo. I forced myself to reread the passage slowly. Snowden planned to seek the protection of a foreign government. He would canvass diplomatic posts on an island under Chinese sovereign control. He might not have very good choices. The signature’s purpose, its only purpose, was to help him through the gates.

Whether or not the government will argue that this shared goal amounts to entering into a conspiracy, it is unquestionable that both Snowden and WikiLeaks shared the goal of encouraging more leakers.

And as the second superseding indictment that Yahoo omitted from their story lays out, after successfully delivering Snowden to the protection of Russia, Assange publicly called on people to join the CIA as Systems Administrators with the goal of “wrecking or disabling” the organization.

83. In June 2013, media outlets reported that Edward J. Snowden had leaked numerous documents taken from the NSA and was located in Hong Kong. Later that month, an arrest warrant was issued in the United States District Court for the Eastern District of Virginia, for the arrest of Snowden, on charges involving the theft of information from the United States government.

84. To encourage leakers and hackers to provide stolen materials to WikiLeaks in the future, ASSANGE and others at WikiLeaks openly displayed their attempts to assist Snowden in evading arrest.

85. In June 2013, a WikiLeaks association [Sarah Harrison, described as WLA-4 in the indictment] traveled with Snowden from Hong Kong to Moscow.

86. On December 31, 2013, at the annual conference of the Chaos Computer Club (“CCC”) in Germany, ASSANGE, [Jacob Appelbaum] and [Harrison] gave a presentation titled “Sysadmins of the World, Unite! A Call to Resistance.” On its website, the CCC promoted the presentation by writing, “[t]here has never been a higher demand for a politically-engaged hackerdom” and that ASSANGE and [Appelbaum] would “discuss what needs to be done if we re going to win.” ASSANGE told the audience that “the famous leaks that WikiLeaks has done or the recent Edward Snowden revelations” showed that “it was possible now for even a single system administrator to … not merely wreck[] or disabl[e] [organizations] … but rather shift[] information from an information apartheid system … into the knowledge commons.” ASSANGE exhorted the audience to join the CIA in order to steal and provide information to WikiLeaks, stating, “I’m not saying don’t join the CIA; no, go and join the CIA. Go in there, go into the ballpark and get the ball and bring it out.”

87. At the same presentation, in responding to the audience’s question as to what they could do, [Appelbaum] said “Edward Snowden did not save himself. … Specifically for source protection [Harrison] took actions to protect [Snowden] … [i]f we can succeed in saving Edward Snowden’s life and to keep him free, then the next Edward Snowden will have that to look forward to. And if look also to what has happened to Chelsea Manning, we see additionally that Snowden has clearly learned….” [my emphasis]

Less than three years later, someone — allegedly Joshua Schulte, who is accused of repeatedly hacking development servers to restore his administrator privileges over the backup files that were stolen — did just that.

And all the evidence submitted at Schulte’s trial suggests that his goal in sharing both the development notes that WikiLeaks published and the source code that (with just a few exceptions) WikiLeaks did not was to wreck the Agency out of vengeance for what he saw as unfair treatment of him in a personnel dispute.

One can still believe that it is noble to help a former intelligence official flee to Russia with the goal of encouraging more leaks. One can even explicitly share the goal of wrecking the CIA. But to understand the CIA’s reaction to the leak of its hacking tools in 2017, one has to understand that after Julian Assange helped Snowden flee to Russia, he used having done so to explicitly encourage someone like Joshua Schulte to steal files that would wreck the CIA.

The Yahoo Story about All the Things CIA Wasn’t Allowed to Do Against WikiLeaks

When last we saw Zach Dorfman get a big scoop, he managed to present claims about Eric Swalwell appropriately cooperating with the FBI in a counterintelligence investigation so wildly out of context that the story fed false claims about Swalwell for most of a year.

His big story about Mike Pompeo’s vendetta against WikiLeaks — with Sean Naylor and Michael Isikoff — is bound to be a similar example.

Wherein paragraph 100-something debunks paragraphs 1 and 2

The first two paragraphs claim that there were discussions about assassinating Julian Assange.

In 2017, as Julian Assange began his fifth year holed up in Ecuador’s embassy in London, the CIA plotted to kidnap the WikiLeaks founder, spurring heated debate among Trump administration officials over the legality and practicality of such an operation.

Some senior officials inside the CIA and the Trump administration even discussed killing Assange, going so far as to request “sketches” or “options” for how to assassinate him. Discussions over kidnapping or killing Assange occurred “at the highest levels” of the Trump administration, said a former senior counterintelligence official. “There seemed to be no boundaries.”

Paragraph 12 says that lots of those things described in paragraphs one and two weren’t approved.

There is no indication that the most extreme measures targeting Assange were ever approved, in part because of objections from White House lawyers, but the agency’s WikiLeaks proposals so worried some administration officials that they quietly reached out to staffers and members of Congress on the House and Senate intelligence committees to alert them to what Pompeo was suggesting. “There were serious intel oversight concerns that were being raised through this escapade,” said a Trump national security official.

Around about paragraph 67 the piece describes Mike Pompeo asking for “the art of the possible,” something CIA Directors have a history of doing as a way to think outside the box.

Soon after the speech, Pompeo asked a small group of senior CIA officers to figure out “the art of the possible” when it came to WikiLeaks, said another former senior CIA official. “He said, ‘Nothing’s off limits, don’t self-censor yourself. I need operational ideas from you. I’ll worry about the lawyers in Washington.’” CIA headquarters in Langley, Va., sent messages directing CIA stations and bases worldwide to prioritize collection on WikiLeaks, according to the former senior agency official.

Around the 90s, Yahoo claims someone learned second-hand that Trump asked about killing Assange, but then suggests that wasn’t real, then describes top CIA officials talking about killing Assange, then admits such plans may have never gotten to the White House.

Some discussions even went beyond kidnapping. U.S. officials had also considered killing Assange, according to three former officials. One of those officials said he was briefed on a spring 2017 meeting in which the president asked whether the CIA could assassinate Assange and provide him “options” for how to do so.

“It was viewed as unhinged and ridiculous,” recalled this former senior CIA official of the suggestion.

It’s unclear how serious the proposals to kill Assange really were. “I was told they were just spitballing,” said a former senior counterintelligence official briefed on the discussions about “kinetic options” regarding the WikiLeaks founder. “It was just Trump being Trump.”

Nonetheless, at roughly the same time, agency executives requested and received “sketches” of plans for killing Assange and other Europe-based WikiLeaks members who had access to Vault 7 materials, said a former intelligence official. There were discussions “on whether killing Assange was possible and whether it was legal,” the former official said.

Yahoo News could not confirm if these proposals made it to the White House. Some officials with knowledge of the rendition proposals said they had heard no discussions about assassinating Assange.

And then well past paragraph 100, Yahoo admits the plans to assassinate Assange went nowhere, in significant part because doing so would be illegal.

A primary question for U.S. officials was whether any CIA plan to kidnap or potentially kill Assange was legal. The discussions occurred under the aegis of the agency’s new “offensive counterintelligence” authorities, according to former officials. Some officials thought this was a highly aggressive, and likely legally transgressive, interpretation of these powers.

Without a presidential finding — the directive used to justify covert operations — assassinating Assange or other WikiLeaks members would be illegal, according to several former intelligence officials. In some situations, even a finding is not sufficient to make an action legal, said a former national security official. The CIA’s newfound offensive counterintelligence powers regarding WikiLeaks would not have stretched to assassination. “That kind of lethal action would be way outside of a legitimate intelligence or counterintelligence activity,” a former senior intelligence community lawyer said.

In the end, the assassination discussions went nowhere, said former officials.

The idea of killing Assange “didn’t get serious traction,” said a former senior CIA official. “It was, this is a crazy thing that wastes our time.”

As to the discussions of kidnapping Assange, both the UK and NSC nixed those ideas, though White House Counsel lawyer John Eisenberg (who is presented as the hero of the Yahoo story, and who was a national security lawyer at DOJ during the Bush Administration when such things did get approved) worried that CIA would do it without alerting him and others, and so pressed DOJ to indict Assange if they were going to.

“There was a discussion with the Brits about turning the other cheek or looking the other way when a team of guys went inside and did a rendition,” said a former senior counterintelligence official. “But the British said, ‘No way, you’re not doing that on our territory, that ain’t happening.’” The British Embassy in Washington did not return a request for comment.

In addition to diplomatic concerns about rendition, some NSC officials believed that abducting Assange would be clearly illegal. “You can’t throw people in a car and kidnap them,” said a former national security official.

In fact, said this former official, for some NSC personnel, “This was the key question: Was it possible to render Assange under [the CIA’s] offensive counterintelligence” authorities? In this former official’s thinking, those powers were meant to enable traditional spy-versus-spy activities, “not the same kind of crap we pulled in the war on terror.”

In short, this is a very long story that spends thousands of words admitting that its lead overstates how seriously this line of thought, particularly assassination, was pursued.

I will have lots more to say about several things that discredit this story. But for now that’s the important thing: The story admits that the story oversells its lead.

Yahoo describes the changing view regarding WikiLeaks

The story is useful because it lays out a chronology that few people understand, how over years the US view on Assange gradually changed (the view is entirely based on “former” officials and likely doesn’t reflect even what happened with Assange in the last years of the Trump Administration). The events it describes that led to a gradual change in the way the US treated Assange as depicted in this story are:

  • In response to the 2010 releases, the Obama Administration, “restricted investigations into Assange and WikiLeaks”
  • “In the wake of the Snowden revelations, the Obama administration allowed the intelligence community to prioritize collection on WikiLeaks,” no longer requiring a warrant for intel; but when “top intelligence officials” tried to get the White House to deem people like Laura Poitras and Glenn Greenwald “information brokers,” Obama refused
  • In spite of the changes described as occurring in 2013, in 2015 DOJ remained, “very protective,” of its authorities over whether to charge Assange and whether to treat WikiLeaks “like a media outlet”
  • “The events of 2016 ‘really crystallized’ U.S. intelligence officials’ belief that the WikiLeaks founder ‘was acting in collusion with people who were using him to hurt the interests of the United States,’ … But there was still ‘sensitivity on how we would collect on them.'” [Yahoo says NSA “surveilled” Guccifer 2.0’s Twitter accounts but we know that DOJ obtained warrants to read them, as well, which it doesn’t mention]
  • Yahoo presents a series of seemingly conflicting claims about how things changed in 2016, but does say that shortly before Trump took over Obama’s view on WikiLeaks underwent a “sea change”
  • On April 13, 2017, over a month after the first Vault 7 releases, Pompeo declared WikiLeaks a non-state hostile intelligence agency, thereby accessing “offensive counterintelligence” activities to use against WikiLeaks, including disruption efforts (though the article suggests none were ever used); this label did result in far more collection on WikiLeaks associates traveling around the world
  • In summer 2017, Pompeo embraced proposals to kidnap Assange, which was ultimately pitched to the British, but they refused and NSC officials argued it would be illegal
  • In December 2017, the Five Eyes worked together to thwart a believed Russian exfiltration attempt, and on the same day, DOJ charged Assange by complaint
  • In April 2019, Assange was booted from the Embassy and arrested under a single CFAA count, which DOJ has twice superseded (Yahoo makes no mention of the second superseding indictment and the story seems to drop well before the end of the Trump Administration; it makes no mention of whether Gina Haspel continued the policies pursued by Pompeo after he moved to State in 2018)

The timeline laid out here conflicts with virtually everything Assange claimed about the genesis of his charges during his extradition hearing: showing that Assange’s help getting Snowden out of Hong Kong is what started the process of revising views of WikiLeaks, showing that the US changed their understanding of Assange in 2016, not in 2017, as Assange repeatedly claimed in his extradition hearing, and showing that things really started ratcheting up after the Vault 7 release, at a time when Assange was also under investigation for several things unrelated to journalism (though Yahoo doesn’t mention those investigations, even though they are public), and was therefore separate from Trump’s election or Jeff Sessions’ later leak-driven commitment to crack down on journalists.

In short, amidst a jillion words making claims that the article itself discredits, the article proves that Assange lied, repeatedly, in his extradition hearing, and that the precipitating event in originally charging him was credible information about a Russian exfiltration plot.

Roger Stone reporter Michael Isikoff appears to be unfamiliar with the entire Roger Stone case

One thing that this story never explains is why, if the entire Trump Administration were so opposed to Assange as they claim, Pompeo would have to declare WikiLeaks a non-state hostile intelligence service rather than relying on a Presidential finding to spy on WikiLeaks’ associates.

The immediate question facing Pompeo and the CIA was how to hit back against WikiLeaks and Assange. Agency officials found the answer in a legal sleight of hand. Usually, for U.S. intelligence to secretly interfere with the activities of any foreign actor, the president must sign a document called a “finding” that authorizes such covert action, which must also be briefed to the House and Senate intelligence committees. In very sensitive cases, notification is limited to Congress’s so-called Gang of Eight — the four leaders of the House and Senate, plus the chairperson and ranking member of the two committees.

But there is an important carveout. Many of the same actions, if taken against another spy service, are considered “offensive counterintelligence” activities, which the CIA is allowed to conduct without getting a presidential finding or having to brief Congress, according to several former intelligence officials.

Often, the CIA makes these decisions internally, based on interpretations of so-called “common law” passed down in secret within the agency’s legal corps. “I don’t think people realize how much [the] CIA can do under offensive [counterintelligence] and how there is minimal oversight of it,” said a former official.

That’s what gave Pompeo broader authorities to operate on his own (and thereby creating the risk he might try to assassinate Assange without White House knowledge). But it’s also what limited his options legally. Had Pompeo gotten a finding, kidnapping and assassination would be less obviously prohibited, and just the Gang of Eight would have been briefed. But by making this announcement publicly, everyone learned about it. Ron Wyden predictably raised concerns (and there was a perennial battle over whether Congress would agree with Pompeo’s label as a sense of Congress).

Effectively, Pompeo got fewer authorities and more political pushback, literally the opposite of why Yahoo claims why he went this route.

I don’t know the answer. But I do know that this story’s treatment of Trump is bizarre and ignores a lot of known facts, so it’s possible the answer is the most obvious one: Pompeo couldn’t get a Presidential finding because the President wouldn’t sign off.

As noted above, the article does describe that a source heard second-hand that Trump asked for options to kill Assange, though it doesn’t date it more specifically than spring 2017 and dismisses the statement as one of Trump’s routine attacks.

The story describes that Mike Pompeo was terrified of briefing Trump on the Vault 7 breach, the first releases of which were published on March 7, 2017.

Pompeo, apparently fearful of the president’s wrath, was initially reluctant to even brief the president on Vault 7, according to a former senior Trump administration official. “Don’t tell him, he doesn’t need to know,” Pompeo told one briefer, before being advised that the information was too critical and the president had to be informed, said the former official.

It doesn’t explain, then, whether Pompeo, or Jim Comey, was the source of the briefing that Trump promptly shared with Tucker Carlson literally the day when the FBI would first interview suspected Vault 7 source Joshua Schulte in an urgent attempt to prevent him from fleeing the country with his diplomatic passport. It sure as hell doesn’t explain how the President, in his first known big leak of classified information, almost blew the entire Vault 7 investigation, and how that’s consistent with a plan to assassinate Assange.

Even crazier, especially given Michael Isikoff’s participation in the story, is that there’s no mention of the disclosures that came out as part of the Roger Stone investigation and the Mueller investigation more generally.

No later than November 15 (and possibly even before the election), Trump’s rat-fucker was working with Assange’s lawyer brokering a pardon deal.

In April, Stone called on Pompeo to resign for his comments in the wake of Vault 7.

Stone took to InfoWars on April 18, calling on Pompeo to either provide proof of those Russian ties or resign, defending the release of the Vault 7 tools along the way.

The Intelligence agencies continue to insist that Julian Assange is an active Russian Agent and that Wikileaks is a Russian controlled asset. The agencies have no hard proof of this claim whatsoever. Assange has said repeatedly that he is affiliated with no nation state but the Intelligence Agencies continue to insist that he is under Russian control because it fits the narrative in which they must produce some evidence of Russian interference in our election because they used this charge to legally justify and rationalize the surveillance of Trump aides, myself included.

[snip]

President Donald Trump said on Oct, 10, 2016 “I love Wikileaks” and Pompeo who previously had praised the whistleblowing operation now called Wikileaks “a non-state hostile Intelligence service often abetted by state actors like Russia”. Mr. Pompeo must be pressed to immediately release any evidence he has that proves these statements. If he cannot do so ,the President should discharge him.

[snip]

Julian Assange does not work for the Russians. Given the import of the information that he ultimately disclosed about the Clinton campaign, the Obama administration and the deep secrets in the CIA’s Vault 7, he has educated the American people about the tactics and technology the CIA has used to spy on ordinary Americans.

Assange personally DMed Stone to thank him for the article, while claiming that Pompeo had stopped short of claiming that WikiLeaks had gotten the stolen DNC emails directly, thereby making WikiLeaks like any other media outlet.

On or about April 19, 2017, Assange, using Target Account 2, wrote to Stone, “Ace article in infowars. Appreciated. But note that U.S. intel is engages in slight of hand maoevers [sic]. Listen closely and you see they only claim that we received U.S. election leaks \”not directly\” or via a \”third party\” and do not know \”when\” etc. This line is Pompeo appears to be getting at with his \”abbeted\”. This correspnds to the same as all media and they do not make any allegation that WL or I am a Russia asset.”

The Mueller investigation even showed that in the very same time period where Pompeo was considering assassination attempts on Assange, Trump’s rat-fucker was leveraging the “highest level of Government” to address Assange’s issues.

On June 10, 2017, according to affidavits submitted as part of the Mueller investigation, Roger Stone DMed Julian Assange and told him he was doing everything he could to “address the issues at the highest level of Government.”

57. On or about June 10, 2017, Roger Stone wrote to Target Account 2, “I am doing everything possible to address the issues at the highest level of Government. Fed treatment of you and Wikileaks is an outrage. Must be circumspect in this forum as experience demonstrates it is monitored. Best regards R.” Target Account 2 wrote back, “Appreciated. Of course it is!”

Nine days after the rat-fucker who had a notebook that recorded all the communications he had with Trump during the election described working at the highest level of government to help Assange, Trump attempted to shut down the entirety of the hack-and-leak investigation.

On June 19, 2017, according to the Mueller Report, the President dictated a message for Corey Lewandowski to take to Jeff Sessions, telling the (recused) Attorney General to meet with Robert Mueller and order him to limit his investigation only to future election meddling, not the election meddling that had gotten Trump elected.

During the June 19 meeting, Lewandowski recalled that, after some small talk, the President brought up Sessions and criticized his recusal from the Russia investigation.605 The President told Lewandowski that Sessions was weak and that if the President had known about the likelihood of recusal in advance, he would not have appointed Sessions.606 The President then asked Lewandowski to deliver a message to Sessions and said “write this down.” 607 This was the first time the President had asked Lewandowski to take dictation, and Lewandowski wrote as fast as possible to make sure he captured the content correctly.608 The President directed that Sessions should give a speech publicly announcing:

I know that I recused myself from certain things having to do with specific areas. But our POTUS . .. is being treated very unfairly. He shouldn’t have a Special Prosecutor/Counsel b/c he hasn’t done anything wrong. I was on the campaign w/ him for nine months, there were no Russians involved with him. I know it for a fact b/c I was there. He didn’t do anything wrong except he ran the greatest campaign in American history.609

The dictated message went on to state that Sessions would meet with the Special Counsel to limit his jurisdiction to future election interference:

Now a group of people want to subvert the Constitution of the United States. T am going to meet with the Special Prosecutor to explain this is very unfair and let the Special Prosecutor move forward with investigating election meddling for future elections so that nothing can happen in future elections.610

Days after Roger Stone told Julian Assange that he was trying to resolve matters at the highest level of government, the President of the United States tried to issue a back channel order that would shut down the investigation into Assange — and by association, Stone.

And it went on like that for some time, possibly up to the time when Mueller asked Trump about any pardon discussions for Assange. Only after that did Don Jr’s buddy tell former Sputnik employee Cassandra Fairbanks that the pardon discussion was off, whereupon she flew to London to tell Assange herself.

Particularly pertinent to the question of why CIA was working via offensive counterintelligence authorities rather than a Presidential finding, in October, after weeks of prodding from Trump, Pompeo took a meeting with Bill Binney to hear a theory that would have undermined the entire Intelligence Community’s attribution of the DNC hack via which emails shared with WikiLeaks were stolen. According to The Intercept’s report of the meeting, it led others in the Intelligence Community to worry that Pompeo had stopped heeding intelligence, particularly regarding Russia, that Trump didn’t like.

Some senior CIA officials have grown upset that Pompeo, a former Republican representative from Kansas, has become so close to Trump that the CIA director regularly expresses skepticism about intelligence that doesn’t line up with the president’s views. Pompeo has also alienated some CIA managers by growing belligerent toward them in meetings, according to an intelligence official familiar with the matter.

[snip]

[I]ndications of Pompeo’s willingness to support Trump at the risk of tainting the intelligence process have occasionally broken into the open in recent months. In August, the Washington Post reported that Pompeo had taken the unusual step of having the CIA’s Counterintelligence Mission Center, which would likely play a role in any inquiries by the agency into Russian election meddling, report directly to him. That move has raised concerns within the agency that Pompeo is seeking to personally control the CIA’s efforts to investigate accusations of collusion between the Trump campaign and Russia.

At the very least, by fall this put Pompeo in a more precarious position regarding his vendetta against Assange.

The thing is, the hero of this Yahoo story, John Eisenberg, must know parts of this story, because he was a key part of efforts to protect Trump. He played a role in protecting Mike Flynn after he lied to the FBI and an even bigger role in protecting Trump after he tried to coerce election help from Ukraine, so who knows what his motives really are here. But he certainly must know these details … but they don’t show up in the story.

Crazier still, Isikoff must know parts of these stories, because he reported on the Stone case.

Yet not only don’t those details appear in this story, but the depiction of an entire Administration, save for heroes like John Eisenberg, intent on assassinating Julian Assange is inconsistent with those public facts about Trump’s repeated efforts to undermine any attribution implicating Assange to say nothing of discussions of pardons for Assange.

The truth may be somewhere in the middle, with Trump vacillating between wanting to kill Assange and wanting to liberate him (in this story, however, he’s quoted complaining that Assange was treated badly). But what the President did to undermine the investigation targeting Assange seems to be as important a part of this story as the claim that he mouthed off once about the possibility of assassinating Assange, something he has done with a slew of other journalists and perceived enemies.

The UC Global timeline

Among all the 30 sources cited in the story and the reports that CIA ratcheted up spying on WikiLeaks associates under Pompeo, Yahoo didn’t succeed in getting more clarity on the — by the end of 2017 — very intrusive surveillance of Assange inside the Ecuadorian Embassy by a contractor called UC Global, citing just one source confirming the US did have access to video surveillance without even naming UC Global or revealing which agency UC Global was working with.

A former U.S. national security official confirmed that U.S. intelligence had access to video and audio feeds of Assange within the embassy but declined to specify how it acquired them.

So instead of new information from those 30 sources, Yahoo instead relies on the prior reports from some UC Global whistleblowers. As I noted here, based on their Assange extradition hearing testimony, one of them is quite credible while the other is far less so.

It’s important that Yahoo relies on the whistleblowers, because it provides another way, along with the public details they inexplicably leave out, to test their narrative. Yahoo describes, accurately, that UC Global was sharing information with the US by mid-2017 (the credible witness described key developments in June and July).

By late 2015, Ecuador had hired a Spanish security company called UC Global to protect the country’s London embassy, where Assange had already spent several years running WikiLeaks from his living quarters. Unbeknownst to Ecuador, however, by mid-2017 UC Global was also working for U.S. intelligence, according to two former employees who testified in a Spanish criminal investigation first reported by the newspaper El País.

Yahoo doesn’t note, however, that data collection first started to expand in 2016, and formal vetting for what was presumably this relationship started by January 24, 2017, just one day after Pompeo was confirmed.

I also recall that once Donald Trump won the elections, at the end of 2016, the collection of information intensified as Morales became more obsessed with obtaining as much information as possible.

[snip]

On 24 January 2017, once Donald Trump had acceded to the presidency of the United States, David Morales sent a message over Telegram in which he wrote, “Well, I want you to be alert because I am informed that we are being vetted, so everything that is confidential should be encrypted […] That’s what I’m being told. Everything relates to the UK issue. I am not worried about it, just be alert […] The people vetting are our friends in the USA”.

That is, this process started after WikiLeaks’ cooperation with Russia in 2016 caused a “sea change” in US treatment of Assange, but before Pompeo’s vendetta in response to Vault 7.

And while the surveillance absolutely ratcheted up during that summer (so potentially consistent with Pompeo’s vendetta, but also at a time when WikiLeaks was also under several different criminal investigations), Yahoo neglects to mention that the really intrusive surveillance came in December, at the same time (it reports) that the IC had credible reports of an exfiltration attempt.

In early December 2017, I was instructed by David Morales to travel with a colleague to install the new security cameras. I carried out the new installation over the course of several days. I was instructed by Morales not to share information about the specifications of the recording system, and if asked to deny that the cameras were recording audio. I was told that it was imperative that these instructions be carried out as they came, supposedly, from the highest spheres. In fact, I was asked on several occasions by Mr. Assange and the Political Counsellor Maria Eugenia whether the new cameras recorded sound, to which I replied that they did not, as my boss had instructed me to do. Thus, from that moment on the cameras began to record sound regularly, so every meeting that the asylee held was captured. At our offices in UC Global it was mentioned that the cameras had been paid for twice, by Ecuador and the United States, although I have no documentary evidence to corroborate this assertion.

The story Yahoo tells significantly amounts to Mike Pompeo proposing some illegal options to take out Assange, only to be thwarted by (at a minimum) the lawyers in place to prevent such things — though there’s good reason to believe DOJ played a big role in it too. And then, at a time when Pompeo had lost or was losing his bid to pursue illegal activities, the Five Eyes (presumably including Australia) identified and countered a Russian exfiltration attempt.

That presumably changed a lot of things about how the IC dealt with Assange. But those details don’t appear in this story. Aside from the mentions of DOJ successfully retaining the gatekeeper role on these questions in 2015 and 2017 (something I have some, albeit limited, reason to believe continued through 2019), the story doesn’t consider — at all! — the various criminal investigations at the time, not even the one that Isikoff has covered in the past.

Crazier still, it presents this as a story about the Trump Administration, while ignoring public details about a key player in that Administration — some guy named Trump — was doing that at the least conflicted with Pompeo’s actions.

Pompeo is and was batshit crazy and I’m glad, for once, the lawyers managed to rein in the CIA Director. But this seems to be, largely, a story about crazy Mike Pompeo being reined in by lawyers.

Journalists Getting Suckered by Ass-Covering Sources on Afghanistan

Rather than explaining why the government didn’t know that Ashraf Ghani was going to flee the country, allegedly with bags of cash, national security sources are busy suckering journalists to report that they warned of the quick demise of the Afghan military.

A positively egregious example is this piece from WSJ’s Vivian Salama. What it reports is that 23 people in the State Department concerned about the rapid collapse of the Afghan government warned that the collapse would happen after August 31 — that is, still eleven days in the future from today. It also reports that the Biden Administration was already hastening efforts to get allies out of Afghanistan the day after those 23 people warned Tony Blinken (meaning, State was already aware of and working on the urgency).

The cable was sent to Secretary of State Antony Blinken and Director of Policy Planning Salman Ahmed. Mr. Blinken received the cable and reviewed it shortly after receipt, according to the person familiar with the exchange, who added that contingency planning was already under way when it was received, and that Mr. Blinken welcomed their feedback.

[snip]

The signatories of the dissent channel cable urged the State Department to begin registering and collecting personal data in advance for all Afghans who qualify for Special Immigrant Visas, aimed at those who worked as translators or interpreters; locally employed embassy staff; and for those eligible for other U.S. refugee programs while there was still six weeks left before the withdrawal deadline.

It also urged the administration to begin evacuation flights no later than Aug. 1, the people said.

On July 14, a day after the cable was sent, the White House announced Operation Allies Refuge to support the relocation of interested and eligible Afghan nationals and their immediate families who supported the U.S. government for the special immigrant visas. Evacuations didn’t kick into high gear until last week and have been complicated by the Taliban takeover of Kabul on Sunday.

Several other actions that have since been taken by the administration were consistent with some of the requests and recommendations in the cable, the person familiar with the cable exchange said. [my emphasis]

In other words, the story should be about how top Biden officials were already ahead of where the 23 people who signed this dissent cable were, and where they weren’t, they integrated the recommendations of the cable.

The story should be about how the process worked. The story should be about how, even these 23 people who were really alarmed about the fragile state of the Afghan government were still too optimistic about how long it could survive.

The story probably should also be about how, after Biden made comments on July 8 (which the article quotes) that were far too rosy about the state of the Afghan government, someone got him to stop.

That’s not what the story is about though. The paragraph describing how contingency planning was already underway is the seventh paragraph in the story; the paragraphs describing how the White House had already prepared an attempt to accelerate SIV evacuations appear at paragraphs 16 to 19.

In paragraph two, meanwhile, the story uses the word “imminent” to suggest days when it really means weeks.

The classified cable represents the clearest evidence yet that the administration had been warned by its own officials on the ground that the Taliban’s advance was imminent and Afghanistan’s military may be unable to stop it.

And the headline doesn’t note that the cable’s warning was, like all other warnings, too optimistic about the state of the Afghan government.

Internal State Department Cable Warned of Kabul Collapse

I get that such stories — suggesting that Biden ignored warnings and so owns this collapse — will drive a lot of traffic. Biden does own this collapse, along with Trump, Obama, and (especially) George Bush. But he owns it because of stupid decisions made 18 months and 18 years ago, not the efforts he made in July to mitigate the aftermath of those earlier decisions.

A far more urgent, and honest, story is the explanation for why, thus far, zero anonymous sources have claimed to have an explanation why no one knew that Ghani was going to flee. Another urgent story is to understand what forces helped the Taliban succeed so wildly, and how such efforts were able to so thoroughly evade our intelligence collection. Another interesting story is why Afghan veteran Christopher Miller, who was promoted way outside of his expertise level and was surrounded by flunkies fiercely loyal to the President, is making shit up about what was the real plan he was hired to implement.

Every story claiming prescience published thus far has in fact revealed that the people claiming prescience didn’t know this would happen either. It’s time to stop pretending they did and starting figuring out why they didn’t.

Rudy Giuliani’s Alleged “Cooperation” Is a Threat to Lay out How Bill Barr and Jeffrey Rosen Protected Russian Disinformation

Now that I’ve waded through Rudy Giulilani’s response to learning that SDNY had conducted a covert search on him in November 2019 before it conducted an overt search in April 2021, I’m certain Rudy engaged in just the kind of bad lawyering SDNY hoped he would — more on that in a week or so.

But a big part of his letter was not an attempt to engage in good lawyering, but instead to send messages to a variety of people. He provided co-conspirators a map they can use to understand which of their communications are in SDNY’s hands, and which are not. But he also laid out what he called his “cooperation,” which aside from minimal claims (which SDNY disputed) to have cooperated with SDNY against Lev Parnas and Igor Fruman, really amounts to the corrupt stuff he believed he was protected for because he did it on behalf of Donald Trump. Indeed, he claims that if Judge Paul Oetken only knew he had permission to do all this stuff, then he wouldn’t have approved the warrants against him.

It is unknown if the Government informed the Court of Giuliani’s cooperation with the State Department or his offers to cooperate with the SDNY or his actual cooperation with the Western District of Pennsylvania.

His first claim of “cooperation” revisits claims he made in the wake of the whistleblower complaint in 2019, claiming that he was working closely with State when he was lobbying to fire Marie Yovanovitch.

It was premature and unwarranted for the Government to seize Giuliani’s ESI because Giuliani had already cooperated with the US State Department (“State”) through Mike Pompeo, the Secretary of State, in March 2019 concerning Ukraine. He also cooperated again in July and August of 2019 at the request of the State Department in assisting them with regard to Ukraine.

This is almost certainly the meat of the SDNY investigation, and whatever else Rudy has done by invoking it, he has put Mike Pompeo on the hotseat.

It may not be a coincidence that in the wake of this letter, Gordon Sondland sued Mike Pompeo for covering up what really happened in State in 2019 and provided several excuses — most importantly, that Pompeo refused to let him access his own backup materials before testifying — for why his two existing sessions of sworn testimony might conflict with what SDNY seized from Rudy.

In his other claim of cooperation, Rudy detailed how he shared disinformation from Russian agent Andrii Derkach with DOJ, which he described as “cooperation” with Main Justice in the guise of its delegate, Pittsburgh US Attorney Scott Brady.

Before I repeat Rudy’s description of how he shared disinformation from Andrii Derkach with a hand-picked and very pro-Trump US Attorney, consider several details: first, immediately in the wake of the raid on Rudy in April, there were leaked explanations for how Rudy managed to meet with a known Russian agent — right in the middle of impeachment!! — even though both National Security Advisor Robert O’Brien and FBI’s Counterintelligence folks knew that Russia was feeding Derkach disinformation to feed to Rudy.

The WaPo originally reported that the FBI had warned Rudy, but had to retract that. Rudy never got warned.

Correction: An earlier version of this story, published Thursday, incorrectly reported that One America News was warned by the FBI that it was the target of a Russian influence operation. That version also said the FBI had provided a similar warning to Rudolph W. Giuliani, which he has since disputed. This version has been corrected to remove assertions that OAN and Giuliani received the warnings.

The FBI became aware in late 2019 that Rudolph W. Giuliani was the target of a Russian influence operation aimed at circulating falsehoods intended to damage President Biden politically ahead of last year’s election, according to people familiar with the matter.

Officials planned to warn Giuliani as part of an extensive effort by the bureau to alert members of Congress and at least one conservative media outlet, One America News, that they faced a risk of being used to further Russia’s attempt to influence the election’s outcome, said several current and former U.S. officials. All spoke on the condition of anonymity because the matter remains highly sensitive.

The FBI became aware of the Russian information operation at a time when Giuliani was deeply involved with former president Donald Trump’s 2020 reelection campaign and related activities in Ukraine to surface unflattering or incriminating information about the Biden family.

[snip]

In late 2019, before Giuliani’s trip to Kyiv, U.S. intelligence agencies warned the Trump White House that Giuliani was the target of a Russian influence operation, as The Post reported last year. Officials became concerned after obtaining evidence, including communications intercepts, that showed Giuliani was interacting with people tied to Russian intelligence. The warnings led then-national security adviser Robert C. O’Brien to caution Trump that any information Giuliani brought back from Ukraine should be considered contaminated by Russia.

Then, after matching the WaPo’s original story and similarly having to retract it, NBC offered an explanation why Rudy wasn’t given that briefing: because it would “complicate” what NBC called “the criminal investigation” into Rudy.

The FBI prepared a so-called “defensive” briefing for Rudy Giuliani in 2019 in which agents were poised to warn him he was being targeted by a Russian intelligence influence operation as he sought to gather opposition research on the Biden family, according to a source familiar with the matter.

But that briefing was not given, according to a second source familiar with the matter, because of concerns that the briefing could complicate the criminal investigation into the former New York City mayor.

Yet, at the time Rudy would have gotten this warning, SDNY had already shown probable cause Rudy was an agent of one or another pro-corruption Ukrainians, almost certainly Yuri Lutsenko in his efforts to fire Marie Yovanovitch. Without a Derkach angle to the SDNY investigation — an angle Jeffrey Rosen went to great lengths to prevent them from pursuing — it’s not clear how it would have complicated that investigation.

Rudy didn’t get his warning and instead of warning him, Trump said that was Rudy being Rudy. So Rudy first met with Lutsenko, the subject of the first investigation, and headed from that meeting directly to meet with Derkach.

A month later, Rosen issued a memo prohibiting any prosecutors from expanding the scope of their already opened investigations, which would have had the effect of preventing SDNY from investigating Rudy’s ongoing influence peddling for known Russian agent Andrii Derkach, about whom FBI decided not to warn Rudy even though everyone briefed on it knew it was a Russian intelligence operation.

But that wasn’t the only thing that Billy Barr and Rosen’s efforts to divvy up Ukrainian investigations did. After Rosen wrote that memo (ensuring no one could start an investigation into Rudy’s dalliances with Derkach), but still a week before Trump was acquitted for coercing dirt from Ukraine to use against Joe Biden, per Rudy’s timeline, Barr assigned Pittsburgh US Attorney Scott Brady to oversee intake of all Ukrainian dirt and, within a day, Rudy was in the business of sharing Derkach’s dirt directly with Pittsburgh’s US Attorney’s office.

In his letter, Rudy clearly identifies four of the nine people who rushed to accept Rudy’s dirt, which the government had identified as Russia disinformation before he went to collect it in December.

[I]n January 2020, counsel for Giuliani contacted high officials in the Justice Department, to inform them that Giuliani wanted to provide evidence for their consideration about the Ukraine. Within a day, the United States Attorney for the Western District of Pennsylvania, Scott W. Brady, contacted Giuliani’s counsel and offered to hold a meeting in Pittsburgh with both the United States Attorney’s office personnel and the FBI. Mayor Giuliani immediately accepted, and a meeting was scheduled for January 29, 2020.

On January 29, 2020, Mayor Giuliani and his counsel, flew to Pittsburgh at their own cost, where they were met by agents of the FBI and transported to FBI headquarters in Pittsburgh. Present at that meeting were the United States Attorney, the First Assistant United States Attorney, the Chief of the Criminal Division, and two additional Assistant United States Attorneys (“AUSA’s”) from the Western District of Pennsylvania. The FBI was represented by the Special Agent in Charge (“SAIC”) of the Pittsburgh FBI, the Assistant Special Agent in Charge (“ASAIC”), and three other special agents of the FBI.

Prior to the meeting, Giuliani’s counsel had provided the Pittsburgh United States Attorney’s office with documents and an extensive outline of the subject matter to be discussed, so that the Government could be fully informed and prepared to ask probing questions. Giuliani began the meeting by making a presentation with handouts. During his presentation, and at the end of it, the Mayor and his counsel answered every question they were asked, to the apparent satisfaction of all of the Government officials in the room. In addition to the presentation, Giuliani provided the Government with the names and addresses of individual witnesses, both in the United States and in Ukraine, that could corroborate and amplify the information that the Mayor was providing. Subsequent to that meeting, and covering a period of months, counsel for Giuliani received a number of inquiries, discussions and requests from the First Assistant United States Attorney. All requests were granted and all inquiries were answered. [my emphasis]

And, as Rudy tells it, that First AUSA kept coming back for more, a claim (like his other claims about the personnel involved) that matches a story published in the NYT after those involved knew that Trump had lost. That story also described that Brady kept pushing for inappropriate investigative steps until, ultimately, Seth DuCharme had to get involved.

Officials said that Mr. Brady almost immediately started pushing to take aggressive steps. He had a list of people he wanted F.B.I. agents to question. It was not clear whether they were the same witnesses that Mr. Giuliani and Mr. Costello had submitted, but a former law enforcement official said that Mr. Brady had wanted the F.B.I. to question people mentioned in Mr. Giuliani’s materials.

The steps were outside “normal investigative procedures,” one former senior law enforcement official with knowledge of the events said, particularly in an election year; Justice Department policy typically forbids investigators from making aggressive moves before elections that could affect the outcome of the vote if they become public.
The Pittsburgh F.B.I. office refused to comply without the approval of David L. Bowdich, the F.B.I.’s deputy director, the former official said.

Mr. Brady’s demands soon prompted a tense confrontation with F.B.I. officials at the bureau’s headquarters in Washington. The meeting was mediated by Seth D. DuCharme, now the acting U.S. attorney in Brooklyn and at the time a trusted aide and ally of Mr. Barr’s at the Justice Department in Washington.

Then, after Barr failed to replace Geoffrey Berman with a hand-picked flunky when he fired him on June 20 of last year, Barr instead installed DuCharme in Brooklyn on July 10, thereby making DuCharme (who had already been personally involved in Pittsburgh) the gatekeeper on any investigations pertaining to Ukraine. And sometime months after that — as Rudy continued to share known Russian disinformation during the election — DuCharme approved not an expansion of the investigation in SDNY that Barr tried to shut down by firing Berman, which would have been the logical thing to do if you were concerned about Russians interfering in our elections, but instead a parallel investigation in EDNY that, per the more recent NYT report, by design would not treat Rudy as a subject. Meanwhile, Rosen created repeated roadblocks — higher and higher levels of approvals for a search of Rudy — in an attempt to prevent SDNY from advancing their investigation into Rudy any further.

There are some involved in this story, like the FBI Agents who got promoted into the jobs formerly held by Andrew McCabe and Bill Priestap and Peter Strzok, who probably let all this happen because they knew the best way to advance their careers was to not make the mistake that their predecessors had made by trying to keep the country safe from Russian interference during an election. Others may rationalize what they did as a means to placate the President, perhaps imagining that it wouldn’t do that much damage to the country — that was the excuse cited by the NYT article on the Pittsburgh investigation. But those people, in recognizing Trump would lash out if they tried to investigate Russian interference in the 2020 election, would have therefore understood that Trump wanted Russian spies to interfere in the election and would be furious if they prevented it. They would have had to have understood that the way to keep Trump happy was to let Russia have its way. They would have been operating on the recognition that all the claims about what Trump did in 2016 were true, at least as far as 2020.

Plus, no one who pushed as hard as Scott Brady did can claim to be trying to placate the President.

Finally, worst of all, there are those who took a vow to “protect and defend against enemies foreign and domestic” who made affirmative attempts to protect not just the disinformation that Rudy was feeding to DOJ and FBI, but also protect Rudy for serving as the willful handmaiden of someone they knew was a Russian spy.

The Russian scandal of 2020 is, in many ways, even more scandalous than the Russian scandal of 2016. At least Paul Manafort and Roger Stone were in a position to claim plausible deniability. Bill Barr and Jeffrey Rosen are not.

Update: This email obtained via American Oversight shows that the decision to use Scott Brady to protect the Russian disinformation intake started earlier, by January 3.

Lev Parnas’ Gamble: The Three Nested Investigations

As I noted the other day, Lev Parnas has inserted himself, along with his co-defendants, in the middle of the presumed Special Master review of Rudy Giuliani and Victoria Toensing’s seized devices. He’s doing so as part of a strategy he has pursued since shortly after he was arrested to either make his prosecution unsustainable for Donald Trump (that strategy has presumably failed) or to bring a whole lot of powerful people — possibly up to and including Trump — down with him. The Special Master review will be critical to this strategy, because it will determine whether material that might otherwise be deemed privileged can be reviewed by the Southern District of New York as evidence of a cover-up of crimes that Donald Trump committed.

In this post, I will lay out how there are two — and if Lev is successful, three — sets of crimes in question, each leading to the next.

1a, Conspiracy to donate money: 18 USC 371, 52 USC 30122, 18 USC 1001, 18 USC 1519 and 2, and 18 USC 371, 52 USC 30121.

The first set of crimes pertain to efforts by Parnas, Igor Fruman, and two co-defendants, to gain access to the Republican Party with donations prohibited by campaign finance law. They were first charged — as Parnas and Fruman were about to fly to Vienna to meet with Victor Shokin — on October 9, 2019. The charges relate to allegations that they used their company, Global Energy Partners, to launder money, including money provided by a foreigner, to donate to Trump-associated and other Republican candidates.

These charges almost certainly arose out of a complaint and then a follow-up by Campaign Legal Center.

The overall motive of these crimes, as described, was basically grift: to improve their connections to facilitate a fairly dodgy business proposition. One prong of the business, explicitly funded by a Russian businessman, involved funding recreational marijuana efforts.

But along the way, one of their alleged acts was to give Pete Sessions $20,000 in a way that associated that donation with an effort to get rid of Marie Yovanovitch, possibly on behalf of Yuri Lutsenko.

[T]hese contributions were made for the purpose of gaining influence with politicians so as to advance their own personal financial interests and the political interests of Ukrainian government officials, including at least one Ukranian government official with whom they were working. For example, in or about May and June 2018, PARNAS and FRUMAN committed to raise $20,000 or more for a then-sitting U.S. Congressman [Sessions],

[snip]

At and around the same time PARNAS and FREEMAN committed to raising those funds for [Sessions], PARNAS met with [Sessions] and sought [his] assistance in causing the U.S. Government to remove or recall the then-U.S. Ambassador to Ukraine.

1b, Conspiracy to donate money: 18 USC 371, 52 USC 30122, 18 USC 1001, 18 USC 1519 and 2, and 18 USC 371, 52 USC 30121, 18 USC 1349.

The campaign finance indictment was superseded on September 17, 2020 to add a fraud charge associated with Parnas and David Correia’s Fraud Guarantee, which literally was a fraud claiming to insure people against losses from fraud. They got a bunch of investors to invest in the business based on false representations, which Parnas (and to a lesser degree, David Correia) allegedly spent on his personal expenses. The superseding indictment took out the charge related to Yovanovitch.

Shortly after this superseding indictment, Correia flipped, entering into a plea agreement.

2, Foreign influence peddling: 22 USC §§612 and 618, 18 USC §951, 18 USC §2, and 18 USC §371

As you can see already, the first indictment against Parnas and Fruman pertained to an effort — to get Yovanovitch fired — that they were undertaking with Rudy Giuliani. And the superseding indictment adds fraud associated with the Fraud Guarantee they used Rudy’s name to help sell. So Rudy was bound to get dragged into this.

According to a letter submitted by Rudy Giuliani’s lawyer, he is being investigated for a bunch of influence-peddling crimes: FARA, acting as an unregistered Foreign Agent, abetting, and conspiracy.

This investigation may have come out of the way that the whistleblower complaint that launched Trump’s first impeachment magnified an OCCRP profile of Parnas and Fruman’s influence-peddling (which incorporated the profile), and the way that impeachment magnified the influence-peddling that Rudy and the grifters were involved with. The letter that failed to redact the targets of the warrants associated with Rudy listed two of the key players in the OCCRP profile, Yuri Lutsenko and Alexander Levin (Roman Nasirov is the one other person, in addition to Rudy and Victoria Toensing, who was targeted).

Indeed, even as impeachment was rolling out, during the period where Parnas was discussing cooperating with SDNY, he was refusing to admit that some foreigner — likely Lutsenko — was behind all this.

And it seems pretty clear that Parnas and Fruman are subjects of this investigation, too. The government’s response to Parnas’ request for discovery describes that he was notified of search warrants targeting him in January of this year (shortly after Joe Biden’s inauguration).

3. Parnas’ hoped for obstruction investigation

From the start, Parnas has been alleging — credibly — that at least the timing of his arrest was an effort to protect the President and maybe even to shut him up. From early on, he used impeachment as a way to share materials obtained in discovery showing Rudy’s central role in it all. In January 2020, Parnas filed a letter he sent to Billy Barr requesting his recusal, based in part off a claim that DOJ delayed production of discovery past the time he could share it with the impeachment inquiry (in reality, the delay was partly due to the time it took to crack the password to Parnas’ phone). In December, Parnas filed a motion to dismiss his indictment, alleging selective prosecution. He focused closely on the events leading up to impeachment (and falsely suggested these events started in 2019, not 2018). Amid a list of all the times Barr corruptly intervened to protect the President, Parnas described how, just as HPSCI was asking for his testimony, he and Fruman were arrested.

Later that day, Dowd wrote to HPSCI, 6 as he had indicated he would in his e-mail: Kindly refer to my letter of October 3, 2019. This is an update. We continue to meet with Mr. Parnas and Mr. Fruman to gather the facts and documents related to the many subjects and persons detailed in your September 30 letter and to evaluate all of that information in light of the privileges we raised in our last letter. This effort will take some additional time. Accordingly, Messrs. Parnas and Fruman will not be available for depositions scheduled for October 10, 2019. The following day, October 9, 2019, Mr. Parnas met with Mr. Giuliani at the BLT Steakhouse in the Trump Hotel, Washington DC. Mr. Parnas was scheduled to travel later that evening to Frankfurt, Germany, and then on to Vienna, Austria, to meet with the former Prosecutor General of Ukraine, Victor Shokin, to prepare him for an appearance on FOX News’ Shawn Hannity Show to discuss Joe Biden. Although Mr. Giuliani, along with Victoria Toensing and Joseph DiGenova, had originally been scheduled to travel to Vienna with Parnas, Toensing and DiGenova had cancelled several days earlier, and Mr. Giuliani cancelled that day.

After finishing meeting with Mr. Giuliani, Mr. Parnas and Mr. Fruman took a car to Dulles International Airport, where they waited in the Lufthansa lounge for approximately two hours before beginning to board their flight. Unbeknownst to Messrs. Parnas and Fruman, they had been indicted in the SDNY earlier that day.

Parnas also described others involved in his illegal campaign finance activities who were not indicted, including America First Action PAC and Kevin McCarthy.

Among the things Parnas asked for was evidence that was already being collected in the second, influence-peddling investigation.

All internal documents, including memoranda, notes, e-mails, and text messages that, in any way, reference the reasons why individuals and entities including but not limited to, America First Super PAC, [redacted], Rudy Giuliani, President Donald J. Trump, Victoria Toensing, Joseph DiGenova, and John Solomon, were not arrested or charged with Mssrs. Parnas and Igor Fruman;

The government dismissed Parnas’ claim as lacking evidence but also said that some of the materials he was asking for would be covered by various privileges.

Because Parnas’s claim is meritless, the Court need not consider the contours of his discovery request (Parnas Mot. 32-33), but multiple of his requests seek materials that, if they exist, appear to be attorney work product, covered by the deliberative process privilege, and/or are outside of the scope of what would be reasonably necessary to try to advance his asserted claims rather than to gain a strategic advantage at trial.

Judge Oetken has not yet ruled on Parnas’ selective prosecution claim (or a bunch of other pre-trial motions from all defendants).

But as I noted, just the other day, Gordon Sondland provided more evidence of a corrupt cover-up pertaining to impeachment.

In his redaction fail letter, Parnas addressed very specific things he believed to exist to show a cover-up just before the influence peddling warrants got sent out, including emails he deleted.

The seized evidence will also likely contain a number and variety of communications between Giuliani and Toensing and Parnas that are directly discoverable under Fed. R. Crim. P. 16, evidence of any conversations between Giuliani, Toensing, and others, including Parnas, that may have been deleted, communications between Giuliani, Toensing and others about the defendants and how to address their prior relationships, the arrests, and the unfolding investigation, communications between Giuliani and Toensing and others with potential Government witnesses, including communications about the defendants, the offenses charged, and the witnesses’ potential disclosures and characterizations of alleged fraud-loss computations.

If Rudy and Toensing didn’t delete these materials, then they are now in US government custody. And Parnas is doing all he can to make sure the government looks at them.

“Purge:” Gordon Sondland Probably Just Won Himself Another Subpoena

Since we’re talking about people avenging themselves for being targeted by Trump’s corruption, I wanted to look the lawsuit Gordon Sondland filed the other day against the State Department and/or Mike Pompeo in his private capacity. Sondland says that Pompeo promised to reimburse what has amounted to $1.8 million in legal fees for testifying in Trump’s first impeachment, but that Pompeo reneged on that promise. So the suit is explicitly about getting reimbursed.

Maybe the lawsuit will work, as he ostensibly intends, or maybe the government will declare immunity.

But there are several details of his suit that will — and probably were designed (especially in the wake of the news that Rudy Giuliani had his devices seized) to win Sondland an invitation to testify in SDNY, which may have the effect of expanding their existing investigation into Rudy into the cover-up.

First, Sondland says that Pompeo promised to reimburse his legal fees twice. And while Sondland describes others besides Pompeo at State who knew about it, the promise itself was made orally.

On October 16, 2019, Pompeo again reaffirmed that the Indemnity Undertaking was made with his knowledge and approval. Ambassador Sondland spoke with Pompeo via conference call from the Washington, D.C. office of his Private Counsel, who were also in attendance and listening on speakerphone. Pompeo promised without any qualification that the State Department would reimburse Ambassador Sondland the fees and costs of Private Counsel in full. Ambassador Sondland and his Private Counsel understood Pompeo to be stating that he had the authority to bind the Government to such an agreement. Ambassador Sondland relied on Pompeo’s promise and reasonably believed that he had the authority to bind the Government to such an agreement. The Under Secretary for Management and the Counselor to the Secretary of State also confirmed that Ambassador Sondland would be reimbursed in full.

I find it remarkable Pompeo would commit State without putting something in writing, and find it just as remarkable that a successful businessman like Sondland wouldn’t insist on having it in writing. Unless there was an understanding they would not put it in writing.

Sondland describes being “purged” after he testified truthfully, something that will help him make the case the decision not to reimburse him was political retaliation.

During the meeting with the Counselor to the Department of State, Ambassador Sondland stated that he had no intention of leaving his position in the near future. Instead, Ambassador Sondland mentioned that he might consider stepping down in the summer of 2020 to return to lead his businesses, and he wanted to give his colleagues notice to permit a proper transition. In response, he was advised that while the Administration appreciated his testimony, the Administration wanted to purge everyone remotely connected to the Impeachment trial. Accordingly, the Counselor to the Department of State asked for Ambassador Sondland’s resignation. In response, Ambassador Sondland said he would consider that proposal, but asked about his attorneys’ fees. The Counselor to the Department of State told Ambassador Sondland to speak with the Under Secretary for Management, who would take care of his attorneys’ fees. Later that day, Ambassador Sondland confirmed he would not resign because he did not do anything improper. After that, everything changed. Ambassador Sondland did not receive his attorneys’ fees, notwithstanding the promises from the State Department that the attorneys’ fees would be paid.

Sondland describes that he didn’t have access to any of the underlying materials to help prepare, which will at the very least help him explain his first, less-truthful testimony.

As Ambassador Sondland prepared for a second round of testimony, the Department of State continued to restrict Ambassador Sondland’s access to materials essential to his preparation

But it will also support a inference that he was asked to participate in a cover-up of what really happened.

Then there are details that Sondland didn’t necessarily need to include, such as when and how he learned about the whistleblower complaint and how he met with Kurt Volker and Pompeo to discuss the complaint.

22. On September 25, 2019, Ambassador Sondland and Pompeo attended the eighteenth annual Transatlantic Dinner. Ambassador Sondland was the only U.S. ambassador in attendance, which hosted the NATO Secretary General, the EU High Representative for Foreign and Security Policy, and foreign ministers from Europe and Canada. During the dinner, Ambassador Sondland received an urgent phone call from The White House alerting him that his name appeared in a whistleblower complaint received by the Office of the White House Counsel.

23. The following day, September 26, 2019, Ambassador Sondland and Pompeo met to discuss the whistleblower complaint with Ambassador Kurt Volker, United States Special Representative for Ukraine.

When Rudy complained about having his phone seized, he said that he was just cooperating in State Department investigations. Now, a former State Department participant has let it be known that State really didn’t want the full story of what happened to come out.

I’d say SDNY will find it hard to pass up that testimony.

Rudy’s Lawyers Destroy His Reputation in an Attempt to Save It

Just before a long tirade about how, if DOJ had just asked Rudy Giuliani for help proving he’s not a secret Agent of Russian-backed Ukrainians while he was busy at State and WDPA acting as a secret Agent of Russian-backed Ukrainians, he could have avoided a covert search to find out whether he’s a secret Agent of Russian-backed Ukrainians, his lawyers say, in a now-public letter, that it’ll badly damage Rudy’s reputation if it becomes public that DOJ believed he might delete evidence or intimidate witnesses.

In addition, in the original warrant for the iCloud account, there is a nondisclosure order based upon an allegation made to the issuing Court, that if Giuliani were informed of the existence of the warrant, he might destroy evidence or intimidate witnesses. Such an allegation, on its face, strains credulity. It is not only false, but extremely damaging to Giuliani’s reputation. It is not supported by any credible facts and is contradicted by Giuliani’s efforts to provide information to the Government. We should be allowed to question the Government as to what basis it had, if any, to make that assertion. Accordingly, we request the information that was presented in the iCloud warrant to justify the NonNotification Order pursuant to 18 U.S.C. Section 2705 (b) that “there is reason to believe that notification of the existence of this warrant will result in destruction of or tampering with evidence, and/or tamping (sic) with potential witnesses, or otherwise will seriously jeopardize an ongoing investigation.” We also request access to the application for any extension of the non-disclosure provision which originally lasted for a year.

As the single exhibit to prove that Rudy had reached out to DOJ to provide help, his attorneys included a picture of a TV screen with his attorney making that claim (I’m not sure whether this claim is November 25, 2019, or in the wake of the most recent searches) when it might have avoided the search. But then they include all this verbiage which sure seems to describe Rudy acting as an Agent of Russian-backed Ukrainians who just didn’t give a shit about registering as such because why do that if the President can bail you out?

It was premature and unwarranted for the Government to seize Giuliani’s ESI because Giuliani had already cooperated with the U S State Department (“State”) through Mike Pompeo, the Secretary of State, in March 2019 concerning Ukraine. He also cooperated again in July and August of 2019 at the request of the State Department in assisting them with regard to Ukraine. In fact, there has never been an occasion where Mr. Giuliani has refused to cooperate with, or give assistance, to his government. This was as true during the Clinton administration as it was during the Bush administration.

[snip]

As a reminder, this same attorney had cooperated with the State Department and offered, for a year and a half, to answer any questions from the SDNY about any subject or crime, with no limitations except for privileged matters. During that same time period, Giuliani did in fact cooperate with Main Justice, through their designee in Pittsburgh on the subject of the Ukraine. Amazingly, the SDNY continually turned down the offer by stating that while they would be happy to hear anything Mayor Giuliani’s counsel had to say, they refused to identify the subject, although those subjects were disclosed to the media.

Plus, Rudy’s lawyers note — as if it helps him — that they only reached out to offer to help on November 4, 2019, the very same day the warrant was obtained (as if maybe a birdie warned him?), which means he didn’t offer to help for the entire month after the indictment against his business partners Lev Parnas and Igor Fruman was unsealed.

But Rudy’s letter and a similar one from Victoria Toensing’s lawyers lay out certain details of the investigations into the two of them.

There are two sets of warrants. With Rudy, SDNY obtained a sealed warrant for his iCloud account on November 4, 2019 and then the overt one for a shit-ton of devices on April 21, 2021. With Toensing, SDNY obtained a sealed warrant for her iCloud account on November 4, 2019 and another for her Google account on December 13, 2019; they obtained a warrant for a single phone on April 28, 2021.

Rudy says that the earlier warrants showed listed FARA, unregistered Foreign Agent, abetting, and conspiracy as the crimes under investigation.

In essence, the Government was looking for evidence that Giuliani was acting as an agent, unregistered agent or lobbyist of a Ukrainian national, government official, corporation or political party or in violation of the foreign agent registration and lobbying laws or making contributions on behalf of a foreign principal (see attachments to search warrant also citing 22 USC §§612 and 618, 18 USC §951, 18 USC §2, and 18 USC §371).

It’s not entirely clear whether the later warrants against Rudy are the same. He doesn’t say. Plus, he says the later search was only “nearly identical,” as compared to Toensing’s claim that the searches were “virtually” identical. (The content, of course, wouldn’t be identical.)

For her part, Toensing is quite worried that DOJ seized information about a client, who sure seems like Dmitro Firtash.

Rudy’s letter mentions “President President President President” over and over. But in this challenge, unlike the one Michael Cohen made, the President has not filed as an interested party, meaning Rudy’s on his own. Probably, he’s too cheap to pay his share of the presumed Special Master fees.

Rudy also argues, falsely, that the search of the President’s lawyer’s cloud content without the use of a Special Master is unprecedented and especially egregious given that this search came in the wake of the search of Michael Cohen’s devices, which used a Special Master.

Moreover, in the Fall of 2019, during an intense debate over the impeachment and the campaign for the upcoming Presidential Election, with Giuliani publicly acting as President Trump’s personal attorney, the Government decided to take the unprecedented step of seeking a search warrant for Giuliani’s iCloud account. In these circumstances, on the heels of the precautions instilled by Judge Wood in a nearly identical situation, the use of a one-sided “filter” team was highly inappropriate and inadequate to identify privileged materials and thereby protect Giuliani and his clients ’attorney-client privilege, and highly indicative of the appearance of impropriety. Had this been done overtly, or through the Government’s less onerous subpoena powers, we would have requested that a Special Master to be appointed at the time. Instead, the Government has had these private, confidential, and privileged materials in their possession for over eighteen months, and established a Taint Team who acted as prosecutor, defense lawyer, Special Master and Judge entirely in secret, knowing full well this contravened the protocol established in the Cohen case.

Except it’s not remotely unprecedented. That is, literally, the same thing that happened to Cohen. Indeed, his Trump Organization emails were preserved (at Microsoft) and searched by Mueller’s team, then shared with SDNY under a new warrant. And those emails actually did pertain to the President — though from the campaign period, not the period when he was trying to coerce campaign assistance from a foreign government.

Ultimately, a big story here is that someone high up in Billy Barr’s DOJ authorized the sealed searches in November and December 2019, making Rudy’s wails far less convincing. My guess is that after Rudy made Brian Benczkowski look corrupt for taking a related meeting on a bribery case (of the Venezuelan bankrolling the Ukrainian grift) at a time when Rudy was being criminally investigated, Benczkowski wasn’t all that interested in going out on a limb to protect Rudy, especially as it would focus attention on the earlier corrupt review of the whistleblower complaint. My further guess is that after Benczkowski resigned, effective July 3, and after Billy Barr failed to replace Geoffrey Berman with a loyal flunky during precisely the same weeks in June 2020, Barr and Jeffrey Rosen went to epic lengths to prevent this warrant from being approved, with Rosen going so far as to require that a specific person in the Deputy Attorney General’s office be required to sign off on such a warrant on December 30, weeks before the second effort. Whatever the case, Trump’s DOJ approved the covert warrants, the one both lawyers are wailing the most loudly about.

If, as the lawyers wail, SDNY has been sifting through their cloud content, then this warrant shouldn’t hurt them all that much more than their earlier searches (unless Parnas revealed that they weren’t backing up their encrypted apps to the cloud).

Except — particularly given the confirmation that Lev Parnas unsuccessfully deleted his own iCloud account — Rudy’s insistence that he doesn’t have a guilty conscience and wouldn’t have deleted anything rings false.

Despite these two warnings that the SDNY was seeking permission to apply for a search warrant for his electronic devices and because he had no guilty conscience, Giuliani took no steps to destroy evidence or wipe the electronic devices clean. Since Giuliani was not under subpoena, he had no legal obligation to preserve that evidence, but he did so because he is an innocent man who did nothing wrong.

At about this stage in the Michael Cohen litigation, we learned that he, too, had deleted some information.

Not only has SDNY been sorting through these files for 18 months, they had Parnas and Fruman’s content for far longer, and since then Parnas has been trying hard to take Rudy down. So I would imagine SDNY had good reason to believe that Rudy may have destroyed evidence.

Key related posts

October 14, 2019: The Criminal Investigation into Paul Manafort Was (and May Still be) Ongoing–and Likely Pertains to Trump’s Ukraine Extortion

The Parnas and Fruman grift was, in many ways, the direct continuation of Manafort’s efforts to cash in on Trump’s win. You’d think that would raise the stakes of Rudy’s privilege claims — but Trump doesn’t appear to care.

October 16, 2019: On the Potential Viability of Foreign Agent Charges for Rudy Giuliani

I argued that doubts that Rudy could be prosecuted for FARA were not only too pat, but ignored his other criminal exposure for precisely the crimes that would be named in his warrant weeks later.

October 22, 2019: How DOJ Worked Overtime to Avoid Connecting the Dots in the Whistleblower Complaint

I laid out that Criminal Division didn’t do any of the things they’re supposed to do with the whistleblower complaint. That may have forced their hand to approve of the initial warrants against Rudy and VicToe.

October 25, 2019: Main Justice Now Looking for the Evidence in Plain Sight They Ignored in August

Just before the sealed warrants were obtained, Main Justice got more involved in the SDNY investigation.

November 4, 2019: When Your Joint Defense Agreement with the Russian Mob Blows Up in Your Face

I’ve written several posts about the ridiculous claims John Dowd made to try to cover this up in a network of privilege claims. The original is linked in the linked post. But I’m linking this one because I posted it on the same day DOJ got a warrant for Rudy’s iCloud.

November 23, 2019: Timeline: How Rudy Made It Hard for Mike Pompeo to Show Any Leadership

This post includes all the foreign influence peddling that Rudy was doing during the period covered by his warrant.

January 28, 2020: SDNY Prosecutors Protect Trump’s Privacy to Enter into a Joint Defense Agreement with the Russian Mob

There were a bunch of discovery issues in the case in January 2020, including the revelation that Lev Parnas had deleted iCloud data and an affirmative assertion that Parnas could not waive attorney-client privilege for Dmitro Firtash.

May 7, 2021: Four Ways Billy Barr Obstructed the Investigation into Rudy Giuliani

Barr was working hard to kill the Ukraine investigation during the period through which Rudy’s subpoena extends.

Two One-Time Devin Nunes Flunkies Under Investigation for Leaks

Michael Ellis, the Devin Nunes flunky who had been installed as NSA General Counsel over more qualified people, resigned from NSA after being placed on leave since Inauguration Day. I hadn’t realized until I read Ellen Nakashima’s report on Ellis’ resignation that he was being investigated for leaking classified information, though Catherine Herridge reported that investigation in real time, the very same day that Ellis’ attorney wrote NSA inquiring about the investigation.

Meanwhile, a long David Ignatius profile of another Nunes flunky, Kash Patel, mentions that he, too, is under investigation for leaking classified information.

Patel repeatedly pressed intelligence agencies to release secrets that, in his view, showed that the president was being persecuted unfairly by critics. Ironically, he is now facing Justice Department investigation for possible improper disclosure of classified information, according to two knowledgeable sources who requested anonymity because of the sensitivity of the probe. The sources said the investigation resulted from a complaint made this year by an intelligence agency, but wouldn’t provide additional details.

Both of these men (along with a third Nunes flunky, Derek Harvey) have been a real threat to national security and both have a history of writing crappy reports for Nunes (recent reporting reminds that Ellis was the author of an unnecessarily shitty Edward Snowden report, for example). There’s little doubt they have released the kinds of material that have never before been released, but much of that would either be legal and/or protected by Speech and Debate.

But the fact that both are being investigated for leaking classified information raises questions whether leak investigations are just being used as an easy way to take out intelligence community critics, whether they’re both suspected of leaking the same information, or whether there’s more there.

The Ignatius story, in particular, is of interest, not least because he’s the guy who first reported Mike Flynn’s conversation with Sergey Kislyak in a seemingly sanctioned leak, making this report a kind of book-end to the Trump Administration. All the more so given that Ignatius not only notes the sensitivity of the probe into Patel, but then tells a story that likely relies on classified information of how Patel’s incompetence almost blew up a SEAL rescue mission in Niger.

Anger toward Patel within the national security bureaucracy mounted after an Oct. 31, 2020, hostage rescue mission in Nigeria. The incident, never previously reported in detail, was described by four high-level sources.

It was a rescue mission that was nearly aborted partly because of inadequate coordination by Patel. SEAL Team Six had been assigned to rescue 27-year-old Philip Walton, a missionary’s son who had been kidnapped by gunmen in Niger, near the border with Nigeria. Patel, as a senior counterterrorism adviser, had assured colleagues that the mission had a green light, according to several sources. The SEALs were ready to parachute into the rescue site from high altitude (one source estimated 30,000 feet) when there was a last-minute hitch.

But as the SEALs were about to jump, military commanders and State Department officials realized that one necessary item hadn’t been completed: The Nigerian government hadn’t been informed prior to the operation inside their country, as required.

A frantic last-minute effort to obtain the necessary permission ensued. The SEAL team’s aircraft held over the target, flying in a racetrack pattern, for about 45 minutes while the State Department tried to locate a Nigerian national security official who could receive the official notice. Finally, just 15 minutes before the operational window closed, the Nigerians were given word, the SEALs parachuted down, and the hostage was rescued.

Secretary of State Mike Pompeo and Gen. Mark A. Milley, chairman of the Joint Chiefs of Staff, were angry that, in their view, Patel had prematurely said the operation was fully cleared, according to knowledgeable officials. One senior Pentagon official said he was “incensed” at Patel. A second senior Pentagon official described Patel’s actions as potentially “dangerous” for the SEALs.

The attack on Patel’s role in the hostage rescue may be a signal about what Patel is suspected of leaking.

While Ignatius provides no indication of what Patel is suspected of leaking, the WaPo columnist does link to an interview Patel did with Aaron Maté. The interview is about what you’d expect from a propagandist interviewing a propagandist.  Patel makes a slew of false claims that Maté encourages: the purpose of FISA, what normally goes in FISA applications, the intelligence against Carter Page, what servers the FBI obtained as part of its investigation into the hack (Maté still ascribes the single server fallacy!), what Crowdstrike actually had access to, what Bruce Ohr’s FBI interviews actually showed. Perhaps the most hysterical part of the interview is where Patel claimed that the way to conduct an investigation is to follow the money, but Maté never asked him why HPSCI didn’t follow the money on a single Trump associate, to say nothing of Trump’s role in money laundering for Russian oligarchs.

Nevertheless, in their discussion about the Russian investigation, Patel was quite careful to avoid revealing non-public information, not even for a report he authored claiming poor tradecraft on the Intelligence Community Assessment of the Russian attack that both SSCI and John Durham have investigated and dismissed.

Maté similarly let Patel dodge really answering questions about his conduct on January 6, even though some of the biggest questions about that day pertain to why DOD delayed for three hours before reinforcing the Capitol, including why it took over 30 minutes for an order to deploy to get from Acting Secretary of Defense Christopher Miller to Guard Commander General William Walker who had been waiting on stand-by. In response to Maté’s question, Patel first repeated his selective breach of Executive Privilege to claim that Trump had already authorized Guard deployments, then answered a totally different question than the one Maté asked — not why DOD let the attack continue for 3 hours, long after it had gotten repeated requests for help, but how quickly DOD deployed the Guard after they had allowed an attack to happen across town while they watched.

We activated, from a start, the fastest augmentation and mobilization of uniformed military troops in the DC area since World War II, and we put 24,000 boots on the ground in less than 48 hours. I don’t know who’s saying we slow-rolled anything, because these are Guardsmen, they’re not active duty military.

While Patel violated Executive Privilege, there’s nothing classified about the belated Guard deployment.

It’s in-between those two conversations, though, where Patel may have succumbed to Maté’s persistent questioning about the very same topic about which Ignatius’ sources attack Patal: hostage rescues. Maté asked about a report that Patel had tried to negotiate the release of Austin Tice. Patel first responded to Maté by saying that he wouldn’t address whether Tice is alive or not. But then Maté followed up, and Patel told a self-serving story about his role in an attempt to free Tice. In it, Patel provided non-public details about his meeting with Assad representatives in Syria and may have confirmed an intercept on Bashar al-Assad.

Maté: Can you tell us anything about your discussions with Syrian officials, what they were asking from you, their level of openness to having talks with the US government?

Patel: Sure, I mean, look, that didn’t happen overnight. You know, one of President Trump’s priorities was, “go get American hostages home,” and I think we got over 50 — 53ish, hostages, detainees back — from 20-some countries maybe. Maybe a little less. But Austin Tice had been missing for, going on eight years, and we had made no headway, really, on it, so we made it a priority. We started working with our counterparts in the region. That trip was almost 18 months in the making. And we finally were able to land a meeting in Damascus because I told them, I said, “I’ll come see you. You send someone who can represent President Assad directly, because I can represent President Trump directly on this matter. And let’s go sit down.” And they said, “okay, come to Damascus.” And I don’t know if they thought we would show up or not. We did. And we were very clear. We said, “look, I understand I’m not getting Austin home on this trip, but I would like a proof of life. What would you like in return for that?” We had very frank conversations. They said, we want X amount of movement for the United States military. Troops stuff, and this and that. And I said, “look, all of that’s on the table. We can discuss all those things. I need a proof of life.” And they said they would take it back to Assad. Which they did. I know they did that. And then, I think shortly thereafter, I switched over to the Department of Defense, and tried to continue that mission, but, um, that one was one I just, unfortunately, didn’t succeed on. [my emphasis]

The most likely way that Patel would come to learn, with certainty, that whatever go-betweens he met with in Damascus actually did report back to Assad would be via an NSA or CIA intercept. If that is how he learned, then confirming that he knew Assad got a report back might have burned the intercept. Doing so with Maté at the Grayzone, which personally and as an outlet produce a lot of Assad apology, might be particularly sensitive. And the ease with which Maté appealed to Patel’s ego to get him to reveal these details would raise real questions about whether Patel played a role in the earlier WSJ story about the meeting, which was published on October 18, days before Patel almost fucked up the October 31 Niger mission.

That is, this Ignatius story seems like an effort to undermine Patel’s self-interested stories of heroism on hostage rescues, after he disclosed non-public details about one of them.

Which would also suggest that, whatever the merit of the investigation into Ellis (and I think GOP concerns about it have some merit), the investigation into Patel may be substantive.

Productive Ways to Hold Trump Accountable

On Friday, Jonathan Rauch published a god-awful argument for pardoning Trump. Today, Quinta Jurecic published a much better argument that a Truth Commission would be the ideal way to hold Trump accountable, but because that probably won’t work, we need to pursue other alternatives, including prosecution.

I’ve already laid out one reason why I think we need to prosecute Trump for his role in the insurrection: because if we don’t, it’ll hamper the ability to hold dangerous people accountable. Another reason is that so many defendants are excusing their actions because the then-President ordered them to storm the Capitol (indeed, that’s one reason, according to a new WaPo report, why DOJ might not charge some of the insurrectionists), the government must make it clear that order was illegal.

Still, I think there are solutions to the problem that both Rauch and Jurecic want to resolve: how to find accountability without derailing President Biden’s Administration.

Jurecic acknowledges that Republican resistance to accountability measures will exacerbate current political divisions.

[A] post-Trump investigation pursued along partisan lines could be doomed from the start. This is the irony: The exact conditions that led to and sustained the Trump era—white grievance, a polluted media ecosystem, and political polarization—are the same conditions that will likely prevent a truth commission from succeeding.

[snip]

In the short run, any of these measures could risk making the country’s social and political divisions worse.

Rauch argues that prosecutions will derail the Biden Administration.

If we want Biden’s presidency to succeed, accountability to be restored and democracy to be strengthened, then a pardon would likely do more good than harm.

Consider, first, Biden’s presidency.

Biden has made clear in every way he can that he does not want or intend to be President Not Trump. He has his own agenda and has been impressively disciplined about not being defined by opposition to Trump. He knows Trump will try to monopolize the news and public discourse for the next four years, and he needs Trump instead to lose the oxygen of constant public attention.

Legal proceedings against Trump, or even the shadow of legal proceedings, would only keep Trump in the headlines.

Rauch also argues (fancifully, for precisely the reasons Jurecic gives that a Truth Commission would be undermined by polarization) that a non-criminal counterintelligence investigation will succeed in a way criminal investigations won’t.

It is important, then, that Trump’s presidency be subjected to a full-scale, post hoc counterintelligence scrub. There should be a public element, modeled on the 9/11 commission, and also a nonpublic, classified element. Both elements could be complicated and hindered by the criminal investigation of Trump. The criminal and counterterrorism investigations would need to be continually deconflicted; Congress would be asked to back away from inquiries and witnesses that step on prosecutors’ toes; Trump himself could plead the Fifth Amendment—an avenue not open to him were he to accept a pardon.

Ignoring for the moment the necessity of including Trump in an investigation into January 6, I agree that, to the extent possible, there needs to be some kind of accounting of what happened during the Trump Administration without turning it into partisan warfare.

Here are some ways to contribute to doing that.

Drain the swamp

Investigations into Trump for things that either are already (Russia or Ukraine) or can be (the election) turned into a tribal issue will absolutely exacerbate political division.

But there are some topics where former Trump supporters can quickly be shown how he hurt them.

For example, an inquiry into Trump’s trade war, especially into the harm done to farmers, will provide a way to show that Trump really devastated a lot of the rural voters who, for tribal reasons, nevertheless support him.

Or Trump’s grifting. In the wake of the Steve Bannon pardon, a number of Trump supporters were furious that Bannon was pardoned for cheating them, even while rioters or other more favored pardon candidates were not. Bannon’s not the only Trump grifter whose corruption demonstrably hurt Trump voters. There’s Brad Parscale’s grifting. There’s Jared Kushner’s favoritism in COVID contracting, which made the country less safe. There’s PPP abuse by big corporations at the expense of small businesses. None of this has to be explicitly about Trump; it can instead be an effort to crack down on corruption generally which by its very nature will affect Trump’s flunkies.

Have Trump dead-enders approve charges

With the exception of some egregious US Attorneys, Biden has asked the remaining US Attorneys to stay on for the moment. That defers any political blowback in the case of John Durham (who in addition to being CT US Attorney is also investigating the Russian investigation) and David Weiss (who is investigating Hunter Biden).

But it also allows people who are nominally Trump appointees to preside over at least the charging of existing investigations targeting Trump or his flunkies. The one place this is known to be true is in Southern District of New York (where Rudy is being investigated). It might be true in DC US Attorney’s office (though Billy Barr shut a lot of investigations, including into Roger Stone and Erik Prince, down). There’s Texas, where Ken Paxton is under investigation.There were hints of investigations into Jared in Eastern District of New York and, possibly, New Jersey.

If Trump US Attorneys aren’t replaced before they charge Trump or his allies, then the act of prosecution will be one approved by a Trump appointee.

Give Republicans what they think they want

Because they’re gullible, Republicans believe that the record of the Russian investigation shows corruption. What is in fact the case is that a cherry-picked and selectively-redacted set of records from the Russian investigation can be gaslit to claim corruption.

But since they’ve been clambering for Trump to declassify it all (even while both John Ratcliffe and Andrew McCabe have suggested that might not show what Republicans expect), it gives Biden’s Administration a way to declassify more. For example, there’s at least one Flynn-Kislyak transcript (from December 22, 2016) that Trump’s Administration chose not to release, one with closer Trump involvement then the others. There are materials on Alex Jones’ interactions with Guccifer 2.0. There are Peter Strzok notes showing him exhibiting no ill-will to Mike Flynn. There are records regarding Paul Manafort’s interactions with Konstantin Kilimnik on April 2016. That’s just the tip of an iceberg of very damning Russian-related records that Trump chose not to release, but which GOP demands for more can be used to justify.

Fully empower Inspectors General

One particularly absurd part of Rauch’s piece is his claim that we know all of Trump’s criminal exposure.

If he committed crimes that we don’t already know about, they are probably not of a new kind or magnitude.

As for what we do know about, it seems clear that he committed criminal obstruction of justice, for example by ordering his White House counsel to falsify federal records. But his obstruction was a process crime, already aired, of limited concern to the public and hard to get a conviction on as a stand-alone charge. There might be more to the Ukraine scandal than we know, but that matter, too, has been aired extensively, may not have been a legal violation and was appropriately (if disappointingly) handled by impeachment. Trump might have committed some form of sedition when he summoned his supporters to the streets to overturn the election, but he would have a colorable First Amendment defense, and sedition is a complicated and controversial charge that would open a legal can of worms. The real problem with Trump is not that we do not know his misdeeds but that we know so much about them, and yet he remained in office for a full term.

One piece of evidence Rauch is mistaken is his certainty that Trump’s only exposure in the Russian investigation is regarding obstruction, when (just as one example) there’s an ongoing investigation into an Assange pardon that appears to be closer to a quid pro quo; or the closed investigation into a potential bribe from Egypt. Democrats were denied a slew of documents pertaining to the Ukraine scandal, especially from the State Department. Democrats were similarly denied records on Trump’s abuse of clearance and non-official records.

One way to deal with the outstanding questions from the Trump Administration is simply to fully staff and empower the Inspectors General who have been undermined for four years. If, for example, State’s IG were to refer charges against Mike Pompeo or DOD’s IG were to refer charges pertaining to Kash Patel’s tenure, it wouldn’t be Democrats targeting them for investigation, it would be independent Inspectors General.

DOJ must be a key part of this. DOJ’s IG has already said it is investigating BJ Pak’s forced resignation. Democrats should insist this is expanded to review all of Barr’s politicized firings of US Attorneys.

As part of an effort to make sure Inspectors General do the work they should have done in real time, Biden should support the end of the OPR/IG split in DOJ, which means that the decisions of lawyers at DOJ (including those pertaining to the Ukraine scandal) are only reviewed by inspectors directly reporting to the Attorney General.

Respect FOIA

Joe Biden might not want to focus on Trump. But the press will continue to do so.

And if Biden orders agencies to treat FOIA like it is supposed to be treated, rather than forcing the press to sue if they want anything particularly interest, the press will do a lot of the accountability that courts otherwise might (and might provide reason for prosecutions). The press already has FOIAs in that have been undermined by improper exemption claims. For example, Jason Leopold has an existing FOIA into Bill Barr’s interference into the Roger Stone and Mike Flynn prosecutions. American Oversight has a FOIA into why Paul Manafort was sprung from jail when more vulnerable prisoners were not. FOIA into Trump’s separation policies have been key at reuniting families.

If such FOIAs obtained more visibility than they currently do, it would provide the visibility into some of the issues that people would love criminal investigations into.

One of the biggest scandals of the Trump Administration is how he undermined normal institutions of good governance, especially Inspectors General. If those institutions are restored and empowered, it will likely do a surprising amount of the accountability work that is so badly needed.