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Why Would Don McGahn (and His Lawyer) Cooperate in a Piece Claiming He Cooperated with Mueller (on Obstruction)?

As I laid out here, the latest NYT obstruct-a-palooza on Don McGahn “cooperating” with Robert Mueller spins what is probably a lawyer covering his own legal jeopardy with a claim of full cooperation.

But why did he (and his lawyer, William Burck) cooperate in it? Why spin a fanciful tale of being disloyal to your boss, even if it’s just to blame him for it before he blames you?

The most obvious answer is he’s trying to convince Mueller he’s not responsible for the legal shenanigans of (as the NYT continues to spin it) the obstruction of the investigation, or of the legal shenanigans of Trump generally.

There may well be an aspect of that, though I wouldn’t want to be (and hope I’m not) in a position where my legal jeopardy relied on how successfully I could spin Maggie and Mike, even if I were as expert at doing so as Don McGahn is.

A better answer may lie in this observation from my last post:

By far the most telling passage in this 2,225+ word story laying out Don McGahn’s “cooperation” with the Mueller inquiry is this passage:

Though he was a senior campaign aide, it is not clear whether Mr. Mueller’s investigators have questioned Mr. McGahn about whether Trump associates coordinated with Russia’s effort to influence the election.

Over two thousand words and over a dozen sources, and Maggie and Mike never get around to explaining whether Don McGahn has any exposure in or provided testimony for the investigation in chief, the conspiracy with Russia to win the election.

Consider: the story Maggie and Mike (and Don McGahn’s lawyer) spin is that Don McGahn let Trump bully him around on some issues in early 2017, which led to some things that might look like obstruction of justice. An unfortunate occurrence, surely. But McGahn might be forgiven for fucking things up in early January 2017. After all, he was new to the whole White House Counseling thing; he had never worked in a White House before. Beginner’s mistake(s), you might call the long list of things he fucked up at the beginning of his tenure, which Maggie and Mike nod to but don’t describe in full resplendent glory.

His relationship with the president had soured as Mr. Trump blamed him for a number of fraught moments in his first months in office, including the chaotic, failed early attempts at a ban on travelers from some majority-Muslim countries and, in particular, the existence of Mr. Mueller’s investigation.

Don McGahn’s skills, it turns out, lie elsewhere.

While he has bolloxed most of the things White House Counsels are supposed to do (like keeping the White House out of legal and ethical trouble), he has had unsurpassed success at stacking the courts. I doubt there’s an ideological Republican in the country who isn’t thrilled with McGahn’s success at stacking the courts.

Update: Case in point.

Indeed (this becomes important in just a bit), McGahn’s success at stacking the courts is one of the biggest reasons why Republicans in Congress put up with the rest of Trump’s shit. Being President, for many Republicans, isn’t about governing; it’s about stacking the courts.

It turns out, though, that McGahn had another job before he became an expert court-stacker. For decades, Don McGahn has been one of the Republican party’s key campaign finance lawyers.

That’s how he grew to be close to Trump when, as Maggie and Mike describe,

McGahn joined the Trump team as an early hire said to like the candidate’s outsider position.

Don McGahn had come to prominence in the party at the NRCC and was rewarded for it with a seat on the FEC, where he made campaign finance more slushy.

But probably not slushy enough.

Here’s where Maggie and Mike’s failure to get an answer for whether longtime Republican campaign finance expert Don McGahn has been questioned about his role in the conspiracy with Russians to win the election (not to mention their failure to pin down when his third interview with Mueller’s team took place, after he happily revealed when the first two did) becomes important.

Don McGahn might be forgiven for bolloxing up the White House Counsel job. He was new at that (and he was busy, anyway, stacking the courts).

But at least three of the areas where Mueller’s team might find a conspiracy with Russia (or other foreigners) to win the election involve campaign finance issues — Don McGahn’s expertise. Those are:

  • Whether knowingly employing British Cambridge Analytica employees without getting them proper visas constitutes illegal foreign influence?
  • Whether accepting a Trump Tower meeting with Russians offering dirt on Hillary Clinton constitutes accepting a thing of value?
  • Whether the campaign was sufficiently firewalled from the  dodgy shit Roger Stone was doing (which has been a focus of the last six months of Mueller’s time)?

My wildarse guess is that campaign finance expert Don McGahn might find a way to finesse hiring foreign Cambridge Analytica employees. My wildarse guess is that campaign finance expert Don McGahn could claim ignorance about the illegal details of the Trump Tower and other foreign influence peddling meetings.

My wildarse guess is that campaign finance expert Don McGahn did not sufficiently firewall Stone off from the campaign. Especially given that he was involved in both incarnations of Stop the Steal — the effort to stamp down a convention rebellion, and the effort (which worked in parallel to a Russian one) to use claims of a “rigged” election to suppress Democratic voters. Especially given that he was loved in the Republican party for leaning towards slush over legal compliance.

Given how central campaign finance violations are in any question of a conspiracy with Russia, it is malpractice for Maggie and Mike to publish a story without determining whether — after being grilled by Mueller’s team for two days last fall about whether he fucked up White House Counseling — McGahn has more recently been grilled extensively about whether he fucked up campaign finance, the thing he got hired for in the first place. The thing he’s supposed to be an expert in.

But Maggie and Mike believe Trump is only being investigated for obstruction, so seeding a big puff piece with them is a sure bet you won’t get asked about your obviously central role (or not) in any conspiracy involving campaign finance.

That’s just part of a potential explanation for why Don McGahn (and his lawyer) would seed a big puff piece with Maggie and Mike, making it look like McGahn had cooperated a lot on something he was never an expert in — White House Counseling — but remaining utterly silent on whether he cooperated on something he is undoubtedly an expert in (even if he tends to prefer slush to law). Better to get in trouble for cooperating on the stuff Trump and his lawyers have been successfully distracting with for the last six months rather than cooperating with prosecutors on a case about conspiring with Russian spies to win an election, the stuff that will elicit cries of Treason and with it badly tarnish the Republican party.

Then there’s this, the last great court-stack. Numerous people have noted, but Maggie and Mike did not, even while noting that McGahn is in the middle of a SCOTUS fight:

Mr. McGahn is still the White House counsel, shepherding the president’s second Supreme Court nominee, Brett M. Kavanaugh, through the confirmation process.

William Burck, McGahn’s lawyer, is his partner-in-crime in his last great court-stack.

When Trump (presumably based on the advice of his chief court-stacker, Don McGahn) nominated Brett Kavanaugh to the Supreme Court, people (including Mitch McConnell) warned him of the danger of nominating someone with such an extensive paper record. Nevertheless, Republicans started with an assumption that that record would be made public. Until July 24, when Republicans had a private meeting and realized they had to suppress Kavanaugh’s record as White House Staff Secretary.

It is not surprising then, that on July 19, 2018, while discussing preparations for Judge Kavanaugh’s confirmation hearing, Senator Cornyn — the Majority Whip and a senior member of the Judiciary Committee — said that the production of documents Judge Kavanaugh had “generated . . . authored…or contributed to” during his tenure as White House Staff Secretary should be produced to the Committee.  He stated that it “just seems to be common sense.”

However, less than a week later, following a White House meeting with you on the records production on July 24, the Republican position abruptly and inexplicably shifted.  Since that meeting, Senate Republicans refused to request any and all documents from Judge Kavanaugh’s three years as White House Staff Secretary, regardless of authorship.  Immediately after the meeting, Senator Cornyn described requesting any Staff Secretary records as “a bridge too far.”  Days later, Chairman Chuck Grassley submitted a records request to the National Archives and Records Administration (NARA) and omitted any of Judge Kavanaugh’s records as Staff Secretary.

Since then, William Burck has taken time away from representing Don McGahn and Reince Priebus and Steve Bannon to personally suppress lots of Kavanaugh’s records as White House Staff Secretary. And Chuck Grassley has moved up Kavanaugh’s confirmation process to make sure that some of production being slow-rolled by Don McGahn’s lawyer will not be release before Kavanaugh gets a vote on a lifetime appointment.

There’s clearly something in Kavanaugh’s record as White House Staff Secretary that might lead Susan Collins or Lisa Murkowski to vote against Kavanaugh — or make the entire nomination toxic in time for the mid-terms.

Mind you, whether Don McGahn’s failures on the topic he is supposed to be an expert on, campaign finance, contribute to getting the President’s lackeys indicted for a conspiracy may not directly relate to his last great hurrah in stacking the courts, solidifying a regressive majority on SCOTUS for a generation and with it adding someone who will suppress this investigation.

Then again it might.

Most Republicans, I suspect, will one day become willing to jettison Trump so long as they can continue stacking the courts. Trump, one day, may be expendable so long as McGahn’s expertise at stacking the court holds sway. At that level, McGahn’s political fortunes may actually conflict with Trump’s.

But not if he (and his lawyer) fuck up the last great court-stack. Not if they get blamed for failing on McGahn’s area of expertise — campaign finance — and in so doing lead to a delay in and with it the demise of the Kavanaugh confirmation.

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

 

Iran-Contra Cover-Up King Doesn’t Address Sessions’ Other Lies, or Conspiracy-in-Chief

Fresh off several witnesses revealing that Jeff Sessions wasn’t as offended by George Papadopoulos’ plan to pitch meetings with Putin as he claims he was, ABC reported that, Andrew McCabe approved an investigation into whether Jeff Sessions lied to Congress about his ties with Russia.

Nearly a year before Attorney General Jeff Sessions fired senior FBI official Andrew McCabe for what Sessions called a “lack of candor,” McCabe oversaw a federal criminal investigation into whether Sessions lacked candor when testifying before Congress about contacts with Russian operatives, sources familiar with the matter told ABC News.

An anonymous source tried to claim that Sessions would not have known that McCabe briefly oversaw an investigation into Sessions’ own perjury, but Sessions’ lawyer pointedly refused to confirm that.

One source told ABC News that Sessions was not aware of the investigation when he decided to fire McCabe last Friday less than 48 hours before McCabe, a former FBI deputy director, was due to retire from government and obtain a full pension, but an attorney representing Sessions declined to confirm that.

Sessions’ lawyer is Chuck Cooper. Most recently, he got famous failing spectacularly to defend Prop 8. But years and years ago, he played a key role in excusing Iran-Contra, notably by inventing the concept of pixie dusting executive orders.

Given his past as a great cover-up artist, take note of how carefully he words his more general denial.

Two months ago, Sessions was interviewed by Mueller’s team, and the federal inquiry related to his candor during his confirmation process has since been shuttered, according to a lawyer representing Sessions.

“The Special Counsel’s office has informed me that after interviewing the attorney general and conducting additional investigation, the attorney general is not under investigation for false statements or perjury in his confirmation hearing testimony and related written submissions to Congress,” attorney Chuck Cooper told ABC News on Wednesday.

The AG is not under investigation for any lies in his confirmation hearing testimony, Cooper said.

Here’s what that leaves out:

  • Obstruction charges for inventing the reason to fire Comey, pretending to be involved in the firing of US Attorneys including Preet Bharara, and for firing McCabe
  • False statements charges tied to Sessions’ later testimony before Congress
  • False statements charges tied to his Mueller testimony about whether he opposed the Russian outreach (we now know Mueller has gotten conflicting statements on this point)
  • Implication in the Russian conspiracy directly

It’s the last one that is most interesting (and where all these false statements charges are headed anyway). We now know some of the people at the March 31, 2016 meeting believe Sessions was not opposed to the Russian outreach. We know that Sessions’ close aide, Stephen Miller, was in the thick of things.

And then there’s this bizarre exchange from a November exchange with Patrick Leahy (who seems to have known that Sessions was then under investigation for lying to Congress).

Leahy asked about each item in turn.

Leahy: Let’s take this piece by piece. Did you discuss any of the following: Emails?

Sessions: Repeat the question again about emails.

Leahy: Since the 2016 campaign, have you discussed with any Russian connected official anything about emails?

Sessions: Discuss with them. I don’t recall having done any such thing.

Right after this exchange, Sessions totally balks when Leahy asks him if he has been interviewed or asked for an interview by Mueller, saying he should clear it with the Special Counsel.

Now, there was some imprecision in this questioning. It’s clear that Sessions believed he was answering the question about during the campaign, not since it.

But of the things Leahy asked about — emails, Russian interference, sanctions, or any policies or positions of the Trump campaign or presidency — Sessions ultimately not-recalled in response to just one question: the emails.

Based on the past practice Leahy had just laid out, Sessions claimed to not recall issues that he had actually done. Which would suggest Sessions is worried that there’s evidence he has discussed emails — with someone. It’s just not clear how he interpreted that question.

Sessions refused to deny he had discussed emails with a “Russian connected official” since the election.

None of these potential ties in the conspiracy are included in Cooper’s carefully worded denial (nor is Sessions’ knowing that McCabe had okayed an investigation into him for failing to meet his duty of candor, the same thing Sessions just fired McCabe for).

That speaks volumes.

In any case, it seems we’ll be hearing a lot more about Sessions’ implication in all this, in the wake of his firing of McCabe.

Asha Rangappa Demands Progressive Left Drop Bad Faith Beliefs in Op-Ed Riddled with Errors Demonstrating [FBI’s] Bad Faith

It’s my fault, apparently, that surveillance booster Devin Nunes attacked the FBI this week as part of a ploy to help Donald Trump quash the investigation into Russian involvement in his election victory. That, at least, is the claim offered by the normally rigorous Asha Rangappa in a NYT op-ed.

It’s progressive left privacy defenders like me who are to blame for Nunes’ hoax, according to Rangappa, because — she claims — “the progressive narrative” assumes the people who participate in the FISA process, people like her and her former colleagues at the FBI and the FISA judges, operate in bad faith.

But those on the left denouncing its release should realize that it was progressive and privacy advocates over the past several decades who laid the groundwork for the Nunes memo — not Republicans. That’s because the progressive narrative has focused on an assumption of bad faith on the part of the people who participate in the FISA process, not the process itself.

And then, Ragappa proceeds to roll out a bad faith “narrative” chock full of egregious errors that might lead informed readers to suspect FBI Agents operate in bad faith, drawing conclusions without doing even the most basic investigation to test her pre-conceived narrative.

Rangappa betrays from the very start that she doesn’t know the least bit about what she’s talking about. Throughout, for example, she assumes there’s a partisan split on surveillance skepticism: the progressive left fighting excessive surveillance, and a monolithic Republican party that, up until Devin Nunes’ stunt, “has never meaningfully objected” to FISA until now. As others noted to Rangappa on Twitter, the authoritarian right has objected to FISA from the start, even in the period Rangappa used what she claims was a well-ordered FISA process. That’s when Republican lawyer David Addington was boasting about using terrorist attacks as an excuse to end or bypass the regime. “We’re one bomb away from getting rid of that obnoxious [FISA] court.”

I’m more peeved, however, that Rangappa is utterly unaware that for over a decade, the libertarian right and the progressive left she demonizes have worked together to try to rein in the most dangerous kinds of surveillance. There’s even a Congressional caucus, the Fourth Amendment Caucus, where Republicans like Ted Poe, Justin Amash, and Tom Massie work with Rangappa’s loathed progressive left on reform. Amash, Mike Lee, and Rand Paul, among others, even have their name on legislative attempts to reform surveillance, partnering up with progressives like Zoe Lofgren, John Conyers, Patrick Leahy, and Ron Wyden. This has become an institutionalized coalition that someone with the most basic investigative skills ought to be able to discover.

Since Rangappa has not discovered that coalition, however, it is perhaps unsurprising she has absolutely no clue what the coalition has been doing.

In criticizing the FISA process, the left has not focused so much on fixing procedural loopholes that officials in the executive branch might exploit to maximize their legal authority. Progressives are not asking courts to raise the probable cause standard, or petitioning Congress to add more reporting requirements for the F.B.I.

Again, there are easily discoverable bills and even some laws that show the fruits of progressive left and libertarian right efforts to do just these things. In 2008, the Democrats mandated a multi-agency Inspector General on Addington’s attempt to blow up FISA, the Stellar Wind program. Progressive Pat Leahy has repeatedly mandated other Inspector General reports, which forced the disclosure of FBI’s abusive exigent letter program and that FBI flouted legal mandates regarding Section 215 for seven years (among other things). In 2011, Ron Wyden started his thus far unsuccessful attempt to require the government to disclose how many Americans are affected by Section 702. In 2013, progressive left and libertarian right Senators on the Senate Judiciary Committee tried to get the Intelligence Community Inspector General to review how the multiple parts of the government’s surveillance fit together, to no avail.

Rangappa’s apparent ignorance of this legislative history is all the more remarkable regarding the last several surveillance fights in Congress, USA Freedom Act and this year’s FISA Amendments Act reauthorization (the latter of which she has written repeatedly on). In both fights, the bipartisan privacy coalition fought for — but failed — to force the FBI to comply with the same kind of reporting requirements that the bill imposed on the NSA and CIA, the kind of reporting requirements Rangappa wishes the progressive left would demand. When a left-right coalition in the House Judiciary Committee tried again this year, the FBI stopped negotiating with HJC’s staffers, and instead negotiated exclusively with Devin Nunes and staffers from HPSCI.

With USAF, however, the privacy coalition did succeed in a few reforms (including those reporting requirements for NSA and CIA). Significantly, USAF included language requiring the FISA Court to either include an amicus for issues that present “a novel or significant interpretation of the law,” or explain why it did not. That’s a provision that attempts to fix the “procedural loophole” of having no adversary in the secret court, though it’s a provision of law the current presiding FISC judge, Rosemary Collyer, blew off in last year’s 702 reauthorization. (Note, as I’ve said repeatedly, I don’t think Collyer’s scofflaw behavior is representative of what FISC judges normally do, and so would not argue her disdain for the law feeds a “progressive narrative” that all people involved in the FISA process operated in bad faith.)

Another thing the progressive left and libertarian right won in USAF is new reporting requirements on FISA-related approvals for FISC, to parallel those DOJ must provide. Which brings me to Rangappa’s most hilarious error in an error-ridden piece (it’s an error made by multiple civil libertarians earlier in the week, which I corrected on Twitter, but Rangappa appears to mute me so wouldn’t have seen it).

To defend her claim that the FISC judge who approved the surveillance of Carter Page was operating, if anything, with more rigor than in past years, Rangappa points to EPIC’s tracker of FISA approvals and declares that the 2016 court rejected the highest number of applications in history.

We don’t know whether the memo’s allegations of abuse can be verified. It’s worth noting, however, that Barack Obama’s final year in office saw the highest number of rejected and modified FISA applications in history. This suggests that FISA applications in 2016 received more scrutiny than ever before.

Here’s why this is a belly-laughing error. As noted, USAF required the FISA Court, for the first time, to release its own record of approving applications. It released a partial report (for the period following passage of USAF) covering 2015, and its first full report for 2016. The FISC uses a dramatically different (and more useful) counting method than DOJ, because it counts what happens to any application submitted in preliminary form, whereas DOJ only counts applications submitted in final form. Here’s how the numbers for 2016 compare.

Rangappa relies on EPIC’s count, which for 2016 not only includes an error in the granted number, but adopts the AOUSC counting method just for 2016, making the methodology of its report invalid (it does have a footnote that explains the new AOUSC numbers, but not why it chose to use that number rather than the DOJ one or at least show both).

Using the only valid methodology for comparison with past years, DOJ’s intentionally misleading number, FISC rejected zero applications, which is consistent or worse than other years.

It’s not the error that’s the most amusing part, though. It’s that, to make the FISC look good, she relies on data made available, in significant part, via the efforts of a bipartisan coalition that she claims consists exclusively of lefties doing nothing but demonizing the FISA process.

If anyone has permitted a pre-existing narrative to get in the way of understanding the reality of how FISA currently functions, it’s Rangappa, not her invented progressive left.

Let me be clear. In spite of Rangappa’s invocation (both in the body of her piece and in her biography) of her membership in the FBI tribe, I don’t take her adherence to her chosen narrative in defiance of facts that she made little effort to actually learn to be representative of all FBI Agents (which is why I bracketed FBI in my title). That would be unfair to a lot of really hard-working Agents. But I can think of a goodly number of cases, some quite important, where that has happened, where Agents chased a certain set of leads more vigorously because they fit their preconceptions about who might be a culprit.

That is precisely what has happened here. A culprit, Devin Nunes — the same guy who helped the FBI dodge reporting requirements Rangappa thinks the progressive left should but is not demanding — demonized the FISA process by obscuring what really happens. And rather than holding that culprit responsible, Rangappa has invented some other bad guy to blame. All while complaining that people ever criticize her FBI tribe.

On the Sessions and Trump Interviews: It’s Not Just Obstruction of Justice

There are two stories out (in addition to this piece I did for TNR) renewing the frenzy around the Mueller investigation.

First, NYT reveals that Mueller interviewed Jeff Sessions for a few hours last week.

Attorney General Jeff Sessions was questioned for several hours last week by the special counsel’s office as part of the investigation into Russia’s meddling in the election and whether the president obstructed justice since taking office, according to a Justice Department spokeswoman.

Then, WaPo reports that Mueller wants to interview Trump about the Mike Flynn and Jim Comey firings.

Within the past two weeks, the special counsel’s office has indicated to the White House that the two central subjects that investigators wish to discuss with the president are the departures of Flynn and Comey and the events surrounding their firings.

Commenters and the WaPo piece (which cites information that should only be available from a member of Trump’s legal team) suggest these developments mean Trump is looking at obstruction.

Mueller’s interest in the events that led Trump to push out Flynn and Comey indicates that his investigation is intensifying its focus on possible efforts by the president or others to obstruct or blunt the special counsel’s probe.

I’m sure obstruction absolutely is one of the things Mueller is assessing when interviewing Sessions and Trump.

But neither of these interviews, particularly not the Sessions one, is necessarily focused exclusively on obstruction.

Sessions, for example, was in a key early meeting where setting up a meeting between Putin and Trump was discussed (though Sessions claims he opposed the idea). I have noted, for example, how Sessions played dumb when asked whether he had any discussions about emails and that key Sessions aide Stephen Miller is a top candidate to have heard about emails from George Papadopoulos.

[I]t seems highly likely that on April 27 (or whenever Papadopoulos was next in DC), Miller learned that Russia had some kind of emails from Hillary.

[Stephen] Miller, recall, is Jeff Sessions’ close aide, his installment in the Administration. The NYT makes clear that Miller was interviewed by Mueller’s team recently, which means he was one of the people the government planned to interview just after locking in Papadopoulos’ plea.

Which makes this exchange from Jeff Sessions’ most recent congressional appearance, on October 18, all the more interesting. First, Patrick Leahy got the Attorney General to admit that there was a difference between not recalling something and affirmatively denying something. Leahy then pointed out that, once the meetings he had denied were disclosed, Sessions started not recalling certain things about the meetings that he had previous affirmatively denied.

Leahy: Later in March, when you did disclose such meetings, you said you could not recall what was said at the meetings. Your answer to my question was an emphatic no. It wasn’t, “I don’t recall.” You are a lawyer, I am a lawyer. You are, in fact, our nation’s top lawyer. Is there a difference between responding “no” and “I do not recall”?

Sessions: Yes.

Leahy: Thank you.

Sessions: Certainly it is, Senator Leahy.

Leahy: So if you could not recall, then you could not answer have answered my first question, yes or no, if later you said that you don’t recall what was discussed. The reason I ask is that, US intelligence intercepts reported in July that it would appear you did in fact discuss campaign issues with the Russian Ambassador.

Leahy then asked Sessions whether he had, since the election, had conversations with Russian officials about a slew of things, starting with emails. Sessions got even squirrelier than he normally is, and first attempted to answer a question Leahy didn’t ask.

Sessions: I have never had a meeting with any Russian officials to discuss any kind of coordinating campaign efforts.

So then Leahy asked about each item in turn.

Leahy: Let’s take this piece by piece. Did you discuss any of the following: Emails?

Sessions: Repeat the question again about emails.

Leahy: Since the 2016 campaign, have you discussed with any Russian connected official anything about emails?

Sessions: Discuss with them. I don’t recall having done any such thing.

Right after this exchange, Sessions totally balks when Leahy asks him if he has been interviewed or asked for an interview by Mueller, saying he should clear it with the Special Counsel.

Now, there was some imprecision in this questioning. It’s clear that Sessions believed he was answering the question about during the campaign, not since it.

But of the things Leahy asked about — emails, Russian interference, sanctions, or any policies or positions of the Trump campaign or presidency — Sessions ultimately not-recalled in response to just one question: the emails.

Based on the past practice Leahy had just laid out, Sessions claimed to not recall issues that he had actually done. Which would suggest Sessions is worried that there’s evidence he has discussed emails — with someone. It’s just not clear how he interpreted that question.

And while Trump’s firing of Comey after attempting him to drop the Flynn investigation is a key prong in any obstruction case, his role in Flynn’s non-firing is far more interesting, especially given the likelihood, given Republican efforts to claim privilege, that he was on the Mar-a-Lago side of orders directing Flynn to ask Sergey Kislyak to hold off on a response to Obama’s sanctions. While it’s certainly possible that Mueller may hold off on any examination of Trump’s personal role in any hypothetical quid pro quo with the Russians, there’s plenty of reason to believe Trump was in the loop.

And in early discussions about Sally Yates’ testimony, Adam Schiff had said she might explain why Trump waited so long to fire Mike Flynn after she warned Don McGahn he had been compromised. One obvious reason is that it allowed Flynn, who had helped set up a meeting days later, attend it. That might change the connotation of the timing of the Comey firing, just in time to report back to Russia that the firing had “taken off” the pressure created by the investigation.

President Trump told Russian officials in the Oval Office this month that firing the F.B.I. director, James B. Comey, had relieved “great pressure” on him, according to a document summarizing the meeting.

“I just fired the head of the F.B.I. He was crazy, a real nut job,” Mr. Trump said, according to the document, which was read to The New York Times by an American official. “I faced great pressure because of Russia. That’s taken off.”

Mr. Trump added, “I’m not under investigation.”

It’s crystal clear that Trump fired Comey in an attempt to stave off investigation of Mike Flynn.

But the why behind that obstruction led to the rest of the guts of the Russia investigation. And the why may implicate both Trump (as unindicted co-conspirator) and Sessions (most likely as witness) more directly in any quid pro quo pertaining to the election.

Maybe Stephen Miller’s Discussions with George Papadopoulos Are Why Jeff Sessions Can’t Recall Any Email Discussions?

Over the weekend, the NYT published the best reported piece yet on the George Papadopoulos plea. I’m most intrigued by the description of how a young Russian intern turned Joseph Mifsud into a Russian expert in 2014. But the most important detail in the story is that the loathsome Stephen Miller is the Senior Policy Adviser described in the plea.

The day before he learned about the hacked emails, Mr. Papadopoulos emailed Mr. Miller, then a senior policy adviser to the campaign, saying Mr. Trump had an “open invitation” from Mr. Putin to visit Russia. The day after, he wrote Mr. Miller that he had “some interesting messages coming in from Moscow about a trip when the time is right.”

Those emails were described in court papers unsealed Oct. 30 disclosing that Mr. Papadopoulos had pleaded guilty to lying about his contacts to the F.B.I. But the documents did not identify Mr. Miller by name, citing only a “senior policy adviser.” Neither he nor his lawyer responded on Friday to requests for comment.

During interviews with Mr. Mueller’s investigators, former campaign officials now working at the White House have denied having advance knowledge of the stolen emails, according to an official familiar with those discussions. Mr. Miller was among those recently interviewed.

The NYT hints at what I laid out explicitly: FBI charged Papadopoulos for his lies because they were designed to hide whether he told the campaign about the emails Mifsud told him about. And given the timing, it seems highly likely Papadopoulos’ reference in his April 27 email (the government cites just one line from the email, so it may not be the most exciting detail) to “interesting messages coming in from Moscow,” those interesting messages included discussion about the “dirt” Russia had on Hillary in the form of emails.

That is, it seems highly likely that on April 27 (or whenever Papadopoulos was next in DC), Miller learned that Russia had some kind of emails from Hillary.

Miller, recall, is Jeff Sessions’ close aide, his installment in the Administration. The NYT makes clear that Miller was interviewed by Mueller’s team recently, which means he was one of the people the government planned to interview just after locking in Papadopoulos’ plea.

Which makes this exchange from Jeff Sessions’ most recent congressional appearance, on October 18, all the more interesting. First, Patrick Leahy got the Attorney General to admit that there was a difference between not recalling something and affirmatively denying something. Leahy then pointed out that, once the meetings he had denied were disclosed, Sessions started not recalling certain things about the meetings that he had previous affirmatively denied.

Leahy: Later in March, when you did disclose such meetings, you said you could not recall what was said at the meetings. Your answer to my question was an emphatic no. It wasn’t, “I don’t recall.” You are a lawyer, I am a lawyer. You are, in fact, our nation’s top lawyer. Is there a difference between responding “no” and “I do not recall”?

Sessions: Yes.

Leahy: Thank you.

Sessions: Certainly it is, Senator Leahy.

Leahy: So if you could not recall, then you could not answer have answered my first question, yes or no, if later you said that you don’t recall what was discussed. The reason I ask is that, US intelligence intercepts reported in July that it would appear you did in fact discuss campaign issues with the Russian Ambassador.

Leahy then asked Sessions whether he had, since the election, had conversations with Russian officials about a slew of things, starting with emails. Sessions got even squirrelier than he normally is, and first attempted to answer a question Leahy didn’t ask.

Sessions: I have never had a meeting with any Russian officials to discuss any kind of coordinating campaign efforts.

So then Leahy asked about each item in turn.

Leahy: Let’s take this piece by piece. Did you discuss any of the following: Emails?

Sessions: Repeat the question again about emails.

Leahy: Since the 2016 campaign, have you discussed with any Russian connected official anything about emails?

Sessions: Discuss with them. I don’t recall having done any such thing.

Right after this exchange, Sessions totally balks when Leahy asks him if he has been interviewed or asked for an interview by Mueller, saying he should clear it with the Special Counsel.

Now, there was some imprecision in this questioning. It’s clear that Sessions believed he was answering the question about during the campaign, not since it.

But of the things Leahy asked about — emails, Russian interference, sanctions, or any policies or positions of the Trump campaign or presidency — Sessions ultimately not-recalled in response to just one question: the emails.

Based on the past practice Leahy had just laid out, Sessions claimed to not recall issues that he had actually done. Which would suggest Sessions is worried that there’s evidence he has discussed emails — with someone. It’s just not clear how he interpreted that question.

Luckily, he’s due in the House Judiciary Committee tomorrow, when Democrats can try to get him to recall whether he spoke to his top aide, Stephen Miller, about emails the Russians were promising.

[Photo: National Security Agency via Wikimedia]

If a Tech Amicus Falls in the Woods but Rosemary Collyer Ignores It, Would It Matter?

Six senators (Ron Wyden, Pat Leahy, Al Franken, Martin Heinrich, Richard Blumenthal, and Mike Lee) have just written presiding FISA Court judge Rosemary Collyer, urging her to add a tech amicus — or even better, a full time technical staffer — to the FISA Court.

The letter makes no mention of Collyer’s recent consideration of the 702 reauthorization certificates, nor even of any specific questions the tech amicus might consider.

That’s unfortunate. In my opinion, the letter entirely dodges the real underlying issue, at least as it pertains to Collyer, which is her unwillingness to adequately challenge or review Executive branch assertions.

In her opinion reauthorizing Section 702, Collyer apparently never once considered appointing an amicus, even a legal one (who, under the USA Freedom structure, could have suggested bringing in a technical expert). She refused to do so in a reconsideration process that — because of persistent problems arising from technical issues — stretched over seven months.

I argued then that that means Collyer broke the law, violating USA Freedom Act’s requirement that the FISC at least consider appointing an amicus on matters raising novel or significant issues and, if choosing not to do so, explain that decision.

In any case, this opinion makes clear that what should have happened, years ago, is a careful discussion of how packet sniffing works, and where a packet collected by a backbone provider stops being metadata and starts being content, and all the kinds of data NSA might want to and does collect via domestic packet sniffing. (They collect far more under EO 12333.) As mentioned, some of that discussion may have taken place in advance of the 2004 and 2010 opinions approving upstream collection of Internet metadata (though, again, I’m now convinced NSA was always lying about what it would take to process that data). But there’s no evidence the discussion has ever happened when discussing the collection of upstream content. As a result, judges are still using made up terms like MCTs, rather than adopting terms that have real technical meaning.

For that reason, it’s particularly troubling Collyer didn’t use — didn’t even consider using, according to the available documentation — an amicus. As Collyer herself notes, upstream surveillance “has represented more than its share of the challenges in implementing Section 702” (and, I’d add, Internet metadata collection).

At a minimum, when NSA was pitching fixes to this, she should have stopped and said, “this sounds like a significant decision” and brought in amicus Amy Jeffress or Marc Zwillinger to help her think through whether this solution really fixes the problem. Even better, she should have brought in a technical expert who, at a minimum, could have explained to her that SCTs pose as big a problem as MCTs; Steve Bellovin — one of the authors of this paper that explores the content versus metadata issue in depth — was already cleared to serve as the Privacy and Civil Liberties Oversight Board’s technical expert, so presumably could easily have been brought into consult here.

That didn’t happen. And while the decision whether or not to appoint an amicus is at the court’s discretion, Collyer is obligated to explain why she didn’t choose to appoint one for anything that presents a significant interpretation of the law.

A court established under subsection (a) or (b), consistent with the requirement of subsection (c) and any other statutory requirement that the court act expeditiously or within a stated time–

(A) shall appoint an individual who has been designated under paragraph (1) to serve as amicus curiae to assist such court in the consideration of any application for an order or review that, in the opinion of the court, presents a novel or significant interpretation of the law, unless the court issues a finding that such appointment is not appropriate;

For what it’s worth, my guess is that Collyer didn’t want to extend the 2015 certificates (as it was, she didn’t extend them as long as NSA had asked in January), so figured there wasn’t time. There are other aspects of this opinion that make it seem like she just gave up at the end. But that still doesn’t excuse her from explaining why she didn’t appoint one.

Instead, she wrote a shitty opinion that doesn’t appear to fully understand the issue and that defers, once again, the issue of what counts as content in a packet.

Without even considering an amicus, Collyer for the first time affirmatively approved the back door searches of content she knows will include entirely domestic communications, effectively affirmatively permitting the NSA to conduct warrantless searches of entirely domestic communications, and with those searches to use FISA for domestic surveillance. In approving those back door searches, Collyer did not conduct her own Fourth Amendment review of the practice.

Moreover, she adopted a claimed fix to a persistent problem — the collection of domestic communications via packet sniffing — without showing any inkling of testing whether the fix accomplished what it needed to. Significantly, in spite of 13 years of problems with packet sniffing collection under FISA, the court still has no public definition about where in a packet metadata ends and content begins, making her “abouts” fix — a fix that prohibits content sniffing without defining content — problematic at best.

I absolutely agree with these senators that the FISC should have its own technical experts.

But in Collyer’s case, the problem is larger than that. Collyer simply blew off USA Freedom Act’s obligation to consider an amicus entirely. Had she appointed Marc Zwillinger, I’m confident he would have raised concerns about the definition of content (as he did when he served as amicus on a PRTT application), whether or not he persuaded her to bring in a technical expert to further lay out the problems.

Collyer never availed herself of the expertise of Zwillinger or any other independent entity, though. And she did so in defiance of the intent of Congress, that she at least explain why she felt she didn’t need such outside expertise.

And she did so in an opinion that made it all too clear she really, really needed that help.

In my opinion, Collyer badly screwed up this year’s reauthorization certificates, kicking the problems created by upstream collection down the road, to remain a persistent FISA problem for years to come. But she did so by blowing off the clear requirement of law, not because she didn’t have technical expertise to rely on (though the technical expertise is probably necessary to finally resolve the issues raised by packet sniffing).

Yet no one but me — not even privacy advocates testifying before Congress — want to call her out for that.

Congress already told the FISA court they “shall” ask for help if they need it. Collyer demonstrably needed that help but refused to consider using it. That’s the real problem here.

I agree with these senators that FISC badly needs its own technical experts. But a technical amicus will do no good if, as Collyer did, a FISC judge fails to consult her amici.

Senate Narrowly Avoids Voting Themselves to Become “Typos”

The McCain (Cornyn) amendment to the Judiciary Appropriations bill that would let them get Electronic Communication Transaction Records with a National Security Letter just narrowly failed to get cloture, with Dan Sullivan flipping his vote to yes near the end but Mike Crapo, a likely no vote, not voting. The final vote was 59-37.

The floor debate leading up to the vote featured a few notable exchanges. Richard Burr was an absolutely douchebag, saying Ron “Wyden is consistently against providing LE the tools it needs to defend the American people.” He did so in a speech admitting that, “My colleague says this wouldn’t stop SB or Orlando. He’s 100% correct.”

Burr also insisted that we can’t let the Lone Wolf provision, which allegedly has never been used, expire. It was extended just last year and doesn’t expire until 2019.

More interesting though was the debate between Burr and Leahy over whether the FBI can’t obtain ECTRs because of a typo in the law as passed in 1993. Leahy basically described that Congress had affirmatively decided not to include ECTRs in NSLs (implicit in this, Congress also did not decide to include it in the 2001 expansion). Burr claimed that Congress meant to include it but didn’t in some kind of oversight.

Here’s how Mazie Hirono and Martin Heinrich described the debate in the report on the Intelligence Authorization, which has a version of the ECTR change.

The FBI has compared expanding these authorities to fixing a “typo” in the Electronic Communications Privacy Act (ECPA).

However, during consideration of ECPA reform legislation in 1993, the House Judiciary Committee said in its committee report that “Exempt from the judicial scrutiny normally
required for compulsory process, the national security letter is an extraordinary device. New applications are disfavored.”

The House Judiciary Committee report also makes clear that the bill’s changes to Section 2709(b) of ECPA were a “modification of the language originally proposed by the
FBI.”

This does not support claims that the removal of the ECTR language was a “typo.”

Burr effectively argued that because law enforcement wanted ECTRs to be included back in 1993, they were meant to be included, and Congress’ exclusion of them was just a typo.

In short, a member of the Senate just argued that if Congress affirmatively decides not to capitulate to every demand of law enforcement, it must be considered a “typo” and not legally binding law.

For the moment, the Senate voted down making itself a “typo,” but Mitch McConnell filed a motion to reconsider, meaning he can bring the vote back up as soon as he arm twists one more vote.

 

Why Is the Government Poison-Pilling ECPA Reform?

Back in 2009, the Obama Administration had Jeff Sessions gut an effort by Dianne Feinstein to gut an effort by Patrick Leahy to gut an effort by Russ Feingold to halt the phone and Internet dragnet programs (as well as, probably, some Post Cut Through Dialed Digit collections we don’t yet know about).

See what Jeff Sesssions–I mean Barack Obama–did in complete secrecy and behind the cover of Jeff Sessions’ skirts the other night?

They absolutely gutted the minimization procedures tied to pen registers! Pen registers are almost certainly the means by which the government is conducting the data mining of American people (using the meta-data from their calls and emails to decide whether to tap them fully). And Jeff Sesssions–I mean Barack Obama–simply gutted any requirement that the government get rid of all this meta-data when they’re done with it. They gutted any prohibitions against sharing this information widely. In fact, they’ve specified that judges should only require minimization procedures in extraordinary circumstances. Otherwise, there is very little limiting what they can do with your data and mine once they’ve collected it. [no idea why I was spelling Sessions with 3 ses]

At each stage of this gutting process, Feingold’s effort to end bulk collection got watered down until, with Sessons’ amendments, the Internet dragnet was permitted to operate as it had been. Almost the very same time this happened, NSA’s General Counsel finally admitted that every single record the agency had collected under the dragnet program had violated the category restrictions set back in 2004. Probably 20 days later, Reggie Walton would shut down the dragnet until at least July 2010.

But before that happened, the Administration made what appears to be — now knowing all that we know now — an effort to legalize the illegal Internet dragnet that had replaced the prior illegal Internet dragnet.

I think that past history provides an instructive lens with which to review what may happen to ECPA reform on Thursday. A version of the bill, which would require the government to obtain a warrant for any data held on the cloud, passed the House unanimously. But several amendments have been added to the bill in the Senate Judiciary Committee that I think are designed to serve as poison pills to kill the bill.

The first is language that would let the FBI resume obtaining Electronic Communication Transaction Records with just a National Security Letter (similar language got added to the Intelligence Authorization; I’ll return to this issue, which I think has been curiously reported).

The second is language that would provide a vast emergency exception to the new warrant requirement, as described by Jennifer Daskal in this post.

[T]here has been relatively little attention to an equally, if not more, troubling emergency authorization provision being offered by Sen. Jeff Sessions. (An excellent post by Al Gidari and op-ed by a retired DC homicide detective are two examples to the contrary.)

The amendment would allow the government to bypass the warrant requirement in times of claimed emergency. Specifically, it would mandate that providers turn over sought-after data in response to a claimed emergency from federal, state, or local law enforcement officials. Under current law, companies are permitted, but not required, to comply with such emergency — and warrantless — requests for data.

There are two huge problems with this proposal. First, it appears to be responding to a problem that doesn’t exist. Companies already have discretion to make emergency disclosures to governmental officials, and proponents of the legislation have failed to identify a single instance in which providers failed to disclose sought-after information in response to an actual, life-threatening emergency. To the contrary, the data suggest that providers do in fact regularly cooperate in response to emergency requests. (See the discussion here.)

Second, and of particular concern, the emergency disclosure mandate operates with no judicial backstop. None. Whatsoever. This is in direct contrast with the provisions in both the Wiretap Act and Foreign Intelligence Surveillance Act (FISA) that require companies to comply with emergency disclosure orders, but then also require subsequent post-hoc review by a court. Under the Wiretap Act, an emergency order has to be followed up with an application for a court authorization within 48 hours (see 18 U.S.C. § 2518(7)). And under FISA, an emergency order has to be followed with an application to the court within 7 days (see 50 U.S.C. § 1805(5)). If the order isn’t filed or the court application denied, the collection has to cease.

The proposed Sessions amendment, by contrast, allows the government to claim emergency and compel production of emails, without any back-end review.

Albert Gidari notes that providers are already getting a ton of emergency requests, and a good number of them turn out to be unfounded.

For the last 15 years, providers have routinely assisted law enforcement in emergency cases by voluntarily disclosing stored content and transactional information as permitted by section 2702 (b)(8) and (c)(4) of Title 18. Providers recently began including data about emergency disclosures in their transparency reports and the data is illuminating. For example, for the period January to June 2015, Google reports that it received 236 requests affecting 351 user accounts and that it produced data in 69% of the cases. For July to December 2015, Microsoft reports that it received 146 requests affecting 226 users and that it produced content in 8% of the cases, transactional information in 54% of the cases and that it rejected about 20% of the requests. For the same period, Facebook reports that it received 855 requests affecting 1223 users and that it produced some data in response in 74% of the cases. Traditional residential and wireless phone companies receive orders of magnitude more emergency requests. AT&T, for example, reports receiving 56,359 requests affecting 62,829 users. Verizon reports getting approximately 50,000 requests from law enforcement each year.

[snip]

Remember, in an emergency, there is no court oversight or legal process in advance of the disclosure. For over 15 years, Congress correctly has relied on providers to make a good faith determination that there is an emergency that requires disclosure before legal process can be obtained. Providers have procedures and trained personnel to winnow out the non-emergency cases and to deal with some law enforcement agencies for whom the term “emergency” is an elastic concept and its definition expansive.

Part of the problem, and the temptation, is that there is no nunc pro tunc court order or oversight for emergency requests or disclosures. Law enforcement does not have to show a court after the fact that the disclosure was warranted at the time; indeed, no one may ever know about the request or disclosure at all if it doesn’t result in a criminal proceeding where the evidence is introduced at trial. In wiretaps and pen register emergencies, the law requires providers to cut off continued disclosure if law enforcement hasn’t applied for an order within 48 hours.  But if disclosure were mandatory for stored content, all of a user’s content would be out the door and no court would ever be the wiser. At least today, under the voluntary disclosure rules, providers stand in the way of excessive or non-emergency disclosures.

[snip]

A very common experience among providers when the factual basis of an emergency request is questioned is that the requesting agency simply withdraws the request, never to be heard from again. This suggests that to some, emergency requests are viewed as shortcuts or pretexts for expediting an investigation. In other cases when questioned, agents withdraw the emergency request and return with proper legal process in hand shortly thereafter, which suggests it was no emergency at all but rather an inconvenience to procure process. In still other cases, some agents refuse to reveal the circumstances giving rise to the putative emergency. This is why some providers require written certification of an emergency and a short statement of the facts so as to create a record of events — putting it in writing goes a long way to ensuring an emergency exists that requires disclosure. But when all is in place, providers respond promptly, often within an hour because most have a professional, well-trained team available 7×24.

In other words, what seems to happen now, is law enforcement use emergency requests to go on fishing expeditions, some of which are thwarted by provider gatekeeping. Jeff Sessions — the guy who 7 years ago helped the Obama Administration preserve the dragnets — now wants to make it so these fishing expeditions will have no oversight at all, a move that would make ECPA reform meaningless.

The effort to lard up ECPA reform with things that make surveillance worse (not to mention the government’s disinterest in reforming ECPA since 2007, when it first started identifying language it wanted to reform) has my spidey sense tingling. The FBI has claimed, repeatedly, in sworn testimony, that since the 2010 Warshak decision in the Sixth Circuit, it has adopted that ruling everywhere (meaning that it has obtained a warrant for stored email). If that’s true, it should have no objection to ECPA reform. And yet … it does.

I’m guessing these emergency requests are why. I suspect, too, that there are some providers that we haven’t even thought of that are even more permissive when turning over “emergency” content than the telecoms.

 

District Attorneys Use Spying as Cover To Demand a Law Enforcement Back Door

In response to a question Senate Intelligence Committee Chair Richard Burr posed during his committee’s Global Threat hearing yesterday, Jim Comey admitted that “going dark” is “overwhelmingly … a problem that local law enforcement sees” as they try to prosecute even things as mundane as a car accident.

Burr: Can you, for the American people, set a percentage of how much of that is terrorism and how much of that fear is law enforcement and prosecutions that take place in every town in America every day?

Comey: Yeah I’d say this problem we call going dark, which as Director Clapper mentioned, is the growing use of encryption, both to lock devices when they sit there and to cover communications as they move over fiber optic cables is actually overwhelmingly affecting law enforcement. Because it affects cops and prosecutors and sheriffs and detectives trying to make murder cases, car accident cases, kidnapping cases, drug cases. It has an impact on our national security work, but overwhelmingly this is a problem that local law enforcement sees.

Much later in the hearing Burr — whose committee oversees the intelligence but not the law enforcement function of FBI, which functions are overseen by the Senate Judiciary Committee — returned to the issue of encryption. Indeed, he seemed to back Comey’s point — that local law enforcement is facing a bigger problem with encryption than intelligence agencies — by describing District Attorneys from big cities and small towns complaining to him about encryption.

I’ve had more District Attorneys come to me that I have the individuals at this table. The District Attorneys have come to me because they’re beginning to get to a situation where they can’t prosecute cases. This is town by town, city by city, county by county, and state by state. And it ranges from Cy Vance in New York to a rural town of 2,000 in North Carolina.

Of course, the needs and concerns of these District Attorneys are the Senate Judiciary Committee’s job to oversee, not Burr’s. But he managed to make it his issue by calling those local law enforcement officials “those who complete the complement of our intelligence community” in promising to take up the issue (though he did make clear he was not speaking for the committee in his determination on the issue).

One of the responsibilities of this committee is to make sure that those of you at at the table and those that comp — complete the complement of our intelligence community have the tools through how we authorize that you need. [sic]

Burr raised ISIS wannabes and earlier in the hearing Comey revealed the FBI still hadn’t been able to crack one of a number of phones owned by the perpetrators of the San Bernardino attack. And it is important for the FBI to understand whether the San Bernardino attack was directed by people in Saudi Arabia or Pakistan that Tashfeen Malik associated with before coming to this country planning to engage in Jihad.

But only an hour before Jim Comey got done explaining that the real urgency here is to investigate drug cases and car accident cases, not that terrorist attack.

The balance between security, intelligence collection, and law enforcement is going to look different if you’re weighing drug investigations against the personal privacy of millions than if you’re discussing terrorist communications, largely behind closed doors.

Yet Richard Burr is not above pretending this about terrorism when it’s really about local law enforcement.

CISA Overwhelmingly Passes, 74-21

Update: Thought I’d put a list of Senators people should thank for voting against CISA.

GOP: Crapo, Daines, Heller, Lee, Risch, and Sullivan. (Paul voted against cloture but did not vote today.)

Dems: Baldwin, Booker, Brown, Cardin, Coons, Franken, Leahy, Markey, Menendez, Merkley, Sanders, Tester, Udall, Warren, Wyden


Just now, the Senate voted to pass the Cyber Information Sharing Act by a vote of 74 to 21. While 7 more people voted against the bill than had voted against cloture last week (Update: the new votes were Cardin and Tester, Crapo, Daines, Heller, Lee, Risch, and Sullivan, with Paul not voting), this is still a resounding vote for a bill that will authorize domestic spying with no court review in this country.

The amendment voting process was interesting of its own accord. Most appallingly, just after Patrick Leahy cast his 15,000th vote on another amendment — which led to a break to talk about what a wonderful person he is, as well as a speech from him about how the Senate is the conscience of the country — Leahy’s colleagues voted 57 to 39 against his amendment that would have stopped the creation of a new FOIA exemption for CISA. So right after honoring Leahy, his colleagues kicked one of his key issues, FOIA, in the ass.

More telling, though, were the votes on the Wyden and Heller amendments, the first two that came up today.

Wyden’s amendment would have required more stringent scrubbing of personal data before sharing it with the federal government. The amendment failed by a vote of 55-41 — still a big margin, but enough to sustain a filibuster. Particularly given that Harry Reid switched votes at the last minute, I believe that vote was designed to show enough support for a better bill to strengthen the hand of those pushing for that in conference (the House bills are better on this point). The amendment had the support of a number of Republicans — Crapo, Daines, Gardner, Heller, Lee, Murkowksi, and Sullivan — some of whom would vote against passage. Most of the Democrats who voted against Wyden’s amendment — Carper, Feinstein, Heitkamp, Kaine, King, Manchin, McCaskill, Mikulski, Nelson, Warner, Whitehouse — consistently voted against any amendment that would improve the bill (and Whitehouse even voted for Tom Cotton’s bad amendment).

The vote on Heller’s amendment looked almost nothing like Wyden’s. Sure, the amendment would have changed just two words in the bill, requiring the government to have a higher standard for information it shared internally. But it got a very different crowd supporting it, with a range of authoritarian Republicans like Barrasso, Cassidy, Enzi, Ernst, and Hoeven — voting in favor. That made the vote on the bill much closer. So Reid, along with at least 7 other Democrats who voted for Wyden’s amendment, including Brown, Klobuchar, Murphy, Schatz, Schumer, Shaheen, and Stabenow, voted against Heller’s weaker amendment. While some of these Democrats — Klobuchar, Schumer, and probably Shaheen and Stabenow — are affirmatively pro-unconstitutional spying anyway, the swing, especially from Sherrod Brown, who voted against the bill as a whole, makes it clear that these are opportunistic votes to achieve an outcome. Heller’s vote fell just short 49-47, and would have passed had some of those Dems voted in favor (the GOP Presidential candidates were not present, but that probably would have been at best a wash and possibly a one vote net against, since Cruz voted for cloture last week). Ultimately, I think Reid and these other Dems are moving to try to deliver something closer to what the White House wants, which is still unconstitutional domestic spying.

Richard Burr seemed certain that this will go to conference, which means people like he, DiFi, and Tom Carper will try to make this worse as people from the House point out that there are far more people who oppose this kind of unfettered spying in the House. We shall see.

For now, however, the Senate has embraced a truly awful bill.

Update, all amendment roll calls

Wyden: 41-55-4

Heller: 47-49-4

Leahy: 37-59-4

Franken: 35-60-5

Coons: 41-54-5

Cotton amendment: 22-73-5

Final passage: 74-21-5