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The WikiLeaks Conspiracy: The Government Prepares to Argue WikiLeaks Has Always Been an Organized Crime Syndicate

Last June, I ran into some folks who remain very close to Julian Assange. One of them scheduled dinner with me solely to scold me for writing honestly about the things that WikiLeaks had done in the past three years rather than focusing exclusively on the EDVA Espionage indictment charging Assange for things he did almost a decade ago.

The person complained that my factual reporting on 2016 election and — especially — the Vault 7 leak (I think this was the offending post) would undercut whatever unanimity there was among journalists (unanimity that I joined) that the existing charges against Assange were a dangerous precedent for actual journalists. Reporting true details about shitty things Assange had done in recent years on my humble little blog, it was claimed, would dangerously and singlehandedly undercut Assange’s defense.

No, I did not much appreciate the irony of being criticized for accurate reporting by someone purportedly defending journalism.

But I also thought the concerted effort to suppress what Assange had done recently, while perhaps necessary to generate the statements of support from journalists that were forthcoming, was short-sighted, because it misrepresents what Assange is actually facing. The grand jury in EDVA remains (as far as we know) active. The government specifically said, in June, that it needed Chelsea Manning’s testimony for subjects or charges not yet charged and said such charges were not time barred (as would be true of any ongoing conspiracy).

As the government’s ex parte submissions reflect, Manning’s testimony remains relevant and essential to an ongoing investigation into charges or targets that are not included in the superseding indictment. See Gov’t’s Ex Parte Mem. (May 23, 2019). The offenses that remain under investigation are not time barred, see id., and the submission of the government’s extradition request in the Assange case does not preclude future charges based on those offenses, see Gov’t’s Supplement to Ex Parte Mem. (June 14, 2019).

Since then, Jeremy Hammond has joined Manning in believing he can wait out whatever EDVA has in store.

Most of all, Joshua Schulte’s prosecution for the Vault 7 leak — a leak almost no WikiLeaks supporters I know will offer an enthusiastic defense of — kept chugging along. In recent weeks, Schulte has submitted a number of questionable filings claiming the dog ate his homework so he can’t be prepared in time for his trial:

  • The attorney appointed after defense attorneys said they needed one more attorney to prep for trial in time said he couldn’t prep for trial in time, but can’t talk about why not until he’s done with a week-long vacation
  • The government’s (admittedly long) motion in limine repeating details the government disclosed several times before took the defense by surprise
  • The defense can’t make a constitutional challenge to CIPA generally until the judge rules on CIPA specifically (this is the one arguably reasonable request)
  • The defense had no idea the government wasn’t claiming Schulte downloaded a terabyte of data onto a thumb drive that can’t hold that terabyte even though the government told the defense that a year ago and then again in November

But as of now, Schulte’s trial is due to start on January 13, a month and a half before Assange’s first substantive extradition hearing starting on February 25.

And at that trial, the government is preparing to argue that Schulte intended to harm the United States when he leaked these files to WikiLeaks, a stronger level of mens rea than needed to prove guilt under the Espionage Act (normally the government aims to prove someone should have known it could cause harm, relying on their Non-Disclosure Agreements to establish that), and one the government has, in other places, described as the difference between being a leaker and a spy.

To make that argument, the government is preparing to situate Schulte’s leaks in the context of prior WikiLeaks releases, in a move that looks conspicuously like the kind of ongoing conspiracy indictment one might expect to come out of the WikiLeaks grand jury, one that builds off some aspects of the existing Assange indictment.

In a motion opposing Schulte’s effort to disqualify Paul Rosenzweig as an expert witness (see this post for background), the government lays out some of the things it plans to have Rosenzweig explain to the jury. Some of this is dangerous criminalization of security, most notably tying WikiLeaks’ endorsement of Tor and Tails to Schulte’s own use of it.

But some of it fleshes out the scope the government laid out when it first requested to call Rosenzweig.

The Government recognizes the need to avoid undue prejudice, and will therefore limit Mr. Rosenzweig’s testimony to prior WikiLeaks leaks that have a direct relationship with particular aspects of the conduct relevant to this case, for example by linking specific harms caused by WikiLeaks in the past to Schulte’s own statements of his intent to cause similar harms to the United States or conduct. Those leaks include (i) the 2010 disclosure of documents provided to WikiLeaks illegally by Chelsea Manning; (ii) the 2010 disclosure of U.S. diplomatic cables; (iii) the 2012 disclosure of files stolen from the intelligence firm Stratfor; and (iv) the 2016 disclosure of emails stolen from a server operated by the Democratic National Committee.

For example, it will tie WikiLeaks’ failure to redact the identities of US sources in Chelsea Manning’s leaks — something charged in counts 15 through 17 of Assange’s indictment — to Schulte’s behavior. It sounds like Rosenzweig will explain something I’ve alluded to: WikiLeaks apparently left the names of some of Schulte’s colleagues unredacted, which given WikiLeaks’ big show of redacting the files could only have been intentional and would have required coordination with Schulte to do.

Mr. Rosenzweig will testify that WikiLeaks does not typically redact the information that it publicly discloses (even when that information may reveal confidential sources). The Government will introduce evidence, however, that the Classified Information was purportedly redacted when posted online. Mr. Rosenzweig’s testimony will help the jury understand the significance of WikiLeaks’ unique claim to have redacted the Classified Information, including, for example, the period of delay between when Schulte disclosed the Classified Information to WikiLeaks (in or about the spring of 2016) and when WikiLeaks first announced that it would begin to disclose the Classified Information (in or about the spring of 2017). [my emphasis]

One reason Assange made a show of redacting the identities was because he was attempting to extort a pardon at the time, so he had to appear willing to negotiate with DOJ. But it seems likely Rosenzweig will explain that that was just a show and that even as WikiLeaks was making that show it was also ensuring that other CIA SysAdmins might be targeted by foreign governments.

Likewise, Rosenzweig will tie the embarrassment caused by Manning’s releases to Schulte’s own intent to cause damage with his self-described Information War against the US.

The Government intends to introduce evidence (including his statements) of Schulte’s knowledge of Manning’s leak and the need for the U.S. government to maintain secrecy over certain information. Furthermore, the Government also plans to introduce evidence of how Schulte, from the Metropolitan Correctional Center (the “MCC”), declared an “information war” against the United States, pursuant to which he intended to publicly disclose classified information and misinformation, including through WikiLeaks (such as the Fake FBI Document), for the purpose of destroying the United States’ “diplomatic relationships,” and encouraged other U.S. government employees to disclose confidential information to WikiLeaks. Mr. Rosenzweig will explain to the jury generally information other leakers have transmitted to WikiLeaks that the organization published and how foreign governments reacted negatively to WikiLeaks’ disclosure of that information—leading, for example, to the highly-publicized resignation of the U.S. Ambassador to Mexico.

Effectively, the government will argue that if you want to conduct an Information War on the US, you choose to leak to WikiLeaks and ensure it will be as damaging as possible. Whatever the circumstances of Manning’s leaks, this uses Schulte’s stated desire to damage the US to retroactively taint what WikiLeaks has claimed in the past was mere journalistic exposure of wrong-doing. That doesn’t necessarily change the First Amendment danger in charging Assange. But it surely attempts to undercut WikiLeaks’ brand as a journalistic entity.

Most interestingly, the government will point to a claim Schulte made to a journalist while writing from jail (one that is plausible given some of his past public postings, but if true, is an unfathomable indictment of CIA’s vetting process) that he once belonged to Anonymous. Rosenzweig will tie this to Anonymous’ decisions to leak the Stratfor cables to WikiLeaks in 2012.

As described in the Government Motions in Limine, in encrypted communications from one of the Contraband Cellphones, Schulte (posing as a third person) stated that he had previously been a member of Anonymous, a group of online hacker activists. Mr. Rosenzweig will testify about how, in 2012, Anonymous and WikiLeaks worked together to release information from a private U.S. intelligence firm.

Of course, Anonymous didn’t just leak the Stratfor cables to WikiLeaks. They also shared files stolen during the Arab Spring and the Syria files. The latter leak provides one of the earliest indicators where the process by which WikiLeaks obtained files may have involvement of Russia, because somehow a file that would have been very damning for Russia never got published. But both would make the story the US wants to tell more complex (though still potentially consistent).

In any case, the focus on Stratfor may explain why the government is holding Jeremy Hammond in contempt to try to get him to testify in the EDVA grand jury, particularly if the government has reason to believe that Schulte was part of that hack.

Finally, the government will use Rosenzweig to explain how, in the wake of the DNC leak and at a time he was in a huff at his CIA bosses again, Schulte did … something in August 2016.

The Government intends to introduce evidence that Schulte transmitted the Classified Information to WikiLeaks in the spring of 2016, that WikiLeaks did not begin to disclose the Classified Information until March 2017, that Schulte was angry with CIA management in August 2016 over a performance review he received, that Schulte’s protective order against Employee-1 was vacated in August 2016, and that, around that same time (i.e., in August 2016), Schulte began to conduct extensive research online about WikiLeaks. The Government intends to offer evidence relating to those searches, including the specific queries Schulte conducted. Schulte has argued in his writings that his August 2016 research was related to WikiLeaks’ August 2016 disclosure of information stolen from a Democratic National Committee server (the “DNC Leak”). Mr. Rosenzweig will testify about the DNC Leak, including the type of information that WikiLeaks actually disclosed in connection with that leak, which will demonstrate why Schulte’s WikiLeaksrelated searches include queries that had nothing to do with the DNC Leak

Side note: Part of the media blitz Assange did in the wake of the DNC leaks included a claim to Chuck Todd that if WikiLeaks ever received information from US intelligence, they would publish it.

Well, it’s a meta story. If you’re asking would we accept information from U.S. intelligence that we had verified to be completely accurate, and would we publish that, and would we protect our sources in U.S. intelligence, the answer is yes, of course we would.

No one else would have, but Schulte would presumably have recognized this as a nod to him, reassurance provided on heavily watched TV that WikiLeaks was progressing towards releasing the files Schulte had leaked. Which is why the likelihood that Schulte also stole a single file reflecting CIA collecting information on who might win the 2012 French presidential election, which WikiLeaks subsequently falsely portrayed as proof that CIA had infiltrated political parties in France rather than asked well-placed sources for readily available information, is of particular interest.

The government, however, is going to point to other Google searches by Schulte from August 2016 that lump Edward Snowden and Shadow Brokers in with WikiLeaks.

For example, in addition to searching for information about WikiLeaks and Julian Assange, its primary leader, Schulte also conducted searches using the search terms “narcissist snowden,” “wikileaks code,” “wikileaks 2017,” “shadow brokers,” and “shadow broker’s auction bitcoin.” “Snowden” was presumably a reference to Edward Snowden, the former NSA contractor who disclosed information about a purported NSA surveillance program, and “Shadow Brokers” was a reference to a group of hackers who disclosed online computer code that they purportedly obtained from the NSA, beginning in or about August 2016.

I have long wondered whether Vault 7 was not a free-standing leak but instead part of the Shadow Brokers operation.  This seems to suggest the government knows they are. If that’s right, it would suggest that in the period when the government was trying to figure out precisely what Russia had done in 2016, both the NSA and CIA’s ability to spy on Russia (and other countries) would have been been deliberately burnt to the ground. And if Schulte knowingly participated in that — in an effort to ensure that the US would struggle to even learn what Russia had done in 2016 — it would explain why they’re planning on arguing he is more of a spy than a leaker.

Which would, in turn, explain why they took the first steps towards arresting Assange as FBI started putting together the evidence needed to charge Schulte on these leaks in 2017.

Let me be clear: I’m not saying I’m sure they’ll fill all these details in a superseding Assange indictment (though the government said it could not provide Assange the underlying evidence even for the 2010 charges until around Christmas — at which point Schulte will have gone through the CIPA process of declassifying classified information for use in his defense, and they could add charges at least until the February 25 hearing). It may still be that the government won’t want to get into the level of classified detail they’d need to to flesh out that case, particularly if they can’t coerce Manning and Hammond to cooperate.

I’m also not making a normative judgment that this eliminates the very real problems with the way Assange is charged now. Without seeing the government’s case, it’s too soon to tell.

What I’m trying to do is lay out what the government seems to be preparing to argue about WikiLeaks in the Schulte case. No doubt this will get me invited for another stern scolding at dinner, but it’s time to stop pretending Assange is being prosecuted for the understanding of WikiLeaks that existed in 2010. By all means, people can and will still defend Assange for taking on an imperialist America. For much of the world (though presumably not among any Five Eyes governments, including Assange’s home country), that still makes him an important dissident taking on a superpower. There is some merit to that stance, but it also requires arguing that superpowers shouldn’t have democratic elections.

But the government is preparing to argue that, after helping Russia tamper in America’s election, WikiLeaks deliberately burned some of CIA’s collection abilities to the ground, making it harder for the US to figure out how Russia did so. The government is preparing to argue that such actions are consistent with what WikiLeaks has been up to since 2010.

I’ve been expecting we might see an indictment alleging WikiLeaks and its associates were and remain engaged in an ongoing conspiracy (a possibility that, if Manning and Hammond’s lawyers haven’t warned them about, they are being utterly negligent, because the government could well argue that obstructing this investigation by refusing to provide immunized testimony is an overt act furthering the conspiracy).

The citations the government has used to justify Rosenzweig’s testimony are heavily focused on terrorism and mob cases (United States v. Farhane and United States v. Mustafa, which are al Qaeda cases; United States v. El Gammal, which is an ISIL one, and United States v. Rahimi, the self-radicalized Chelsea bomber; United States v. Lombardozzi and United States v. Locascio which are Gambino cases, United States v. Amuso, a Lucchese case), including one RICO case. That’s undoubtedly why Schulte’s lawyers really want Rosenzweig’s testimony excluded, to avoid having WikiLeaks treated like an organized crime syndicate.

But if the government is preparing to claim that WikiLeaks worked with Schulte not only to obtain files it tried to use to extort a pardon but then released them in a way that would hurt America’s efforts to respond to Russia’s 2016 operation, that’s a pretty compelling analogy.

Update: After comments from Stefania Maurizi, I’ve rephrased how I described what happened with the Syria Files. I want to be clear the statement in the post was not based on what I’ve been told by reliable sources about the process by which those files got shared with WikiLeaks.

As I disclosed last year, 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. 

The Government Prepares to Argue that Transmitting Information *To* WikiLeaks Makes the Vault 7 Leak Different

In a long motion in limine yesterday, the government suggested that if Joshua Schulte had just been given a “prestigious desk with a window,” he might not have leaked all of CIA’s hacking tools in retaliation and caused what the government calls “catastrophic” damage to national security.

Schulte grew angrier at what he perceived was his management’s indifference to his claim that Employee-1 had threatened him. Schulte also began to complain about what, according to him, amounted to favoritism toward Employee-1, claiming, for example, that while the investigation was ongoing, Schulte was moved to an “intern desk,” while Employee-1 had been moved to a “prestigious desk with a window.”

[snip]

The Leaks are the largest illegal disclosure of CIA information in the agency’s history and, as noted above, caused catastrophic damage to national security.

Along the way, the motion provides the most detailed description to date about how the government believes Schulte stole the Vault 7 files from CIA. It portrays him as an arrogant racist at the beginning of this process, and describes how he got increasingly belligerent with this colleagues at CIA leading up to his alleged theft of the CIA’s hacking files, leading his supervisors to recognize the threat he might pose, only to bollox up their efforts to restrict his access to CIA’s servers.

The motion, along with several other submitted yesterday, suggests that the government would like to argue that leaking to WikiLeaks heightens the damage that might be expected to the United States.

Along with laying out that it intends to argue that the CIA charges (stealing the files and leaking them to WikiLeaks) are intertwined with the MCC charges (conducting “information war” against the government from a jail cell in the Metropolitan Correction Center; I explained why the government wants to do so here), the government makes the case that cybersecurity expert Paul Rosenzweig should testify as a witness about WikiLeaks.

Rosenzweig will testify about (i) WikiLeaks’s history, technical and organizational structure, goals, and objectives; (ii) in general terms, prior leaks through WikiLeaks, in order to explain WikiLeaks’s typical practices with regard to receiving leaked classified information, its practices or lack thereof regarding the review and redaction of sensitive information contained in classified leaks, and certain well-publicized harms to the United States that have occurred as a result of disclosures by WikiLeaks; and (iii) certain public statements by WikiLeaks regarding the Classified Information at issue in this case.

Rosenzweig’s testimony would come in addition to that of classification experts (probably for both sides) and forensic experts (again, for both sides; Steve Bellovin is Schulte’s expert).

The expert witnesses were allowed to testify as to the background of the organization Wikileaks; how the U.S. Government uses certain markings and designations to identify information that requires special protection in the interests of national security; the meaning of certain computer commands and what they would do; how various computers, servers, and networks work; how data is stored and transferred by various computer programs and commands; and the examination of data that is stored on computers and other electronics.

The only motion in limine Schulte submitted yesterday objected to Rosenzweig’s testimony. Schulte argues that the government’s expert notice neither provides sufficient explanation about Rosenzweig’s intended testimony nor proves he’s an expert on WikiLeaks. More interesting is Schulte’s  argument that Rosenzweig’s testimony would be prejudicial. It insinuates that Rosenzweig’s testimony would serve to substitute for a lack of proof about how Schulte sent the CIA files to WikiLeaks (Schulte is alleged to have used Tor and Tails to transmit the files, which would leave no forensic trace).

In Mr. Schulte’s case, the government has no reliable evidence of how much information was taken from the CIA, how it was taken, or when it was provided to WikiLeaks. The government cannot overcome a lack of relevant evidence by introducing evidence from other cases about how much information was leaked or how information was leaked in unrelated contexts. The practices of WikiLeaks in other contexts and any testimony about alleged damage from other entirely unrelated leaks is completely irrelevant.

Schulte’s claimed lack of evidence regarding transfer notwithstanding, that’s not how the government says they want to use Rosenzweig’s testimony. They say they want to use his testimony to help prove that Schulte intended to injure the US.

The Government is entitled to argue that Schulte intended to harm the United States, by transmitting the stolen information to WikiLeaks, because he knew or had reason to know what WikiLeaks would do with the information. The fact that WikiLeaks’ prior conduct has harmed the United States and has been widely publicized is powerful evidence that Schulte intended or had reason to believe that “injury [to] the United States” was the likely result of his actions—particularly given that the Government will introduce evidence that demonstrates Schulte’s knowledge of earlier WikiLeaks disclosures, including his own statements.

It does so by invoking WikiLeaks’ past leaks and the damage those leaks have done.

Accordingly, proof that it was foreseeable to Schulte that disclosure of classified information to WikiLeaks could cause “injury [to] the United States” is a critical element in this case. Indeed, the Senate Select Committee on Intelligence has explicitly stated “that WikiLeaks and its senior leadership resemble a non-state hostile intelligence service.” S. Rep. 115-151 p. 10. In order to evaluate evidence related to this topic, the jury will need to understand what WikiLeaks is, how it operates, and the fact that WikiLeaks’ previous disclosures have caused injury to the United States. The Government is entitled to argue that Schulte intended to harm the United States, by transmitting the stolen information to WikiLeaks, because he knew or had reason to know what WikiLeaks would do with the information.

Notably, the government motion invokes the Senate’s recognition that WikiLeaks resembles “a non-state hostile intelligence service.” That may well backfire in spectacular fashion. That statement didn’t come until over a year after Schulte is alleged to have stolen the files. And the statement was a follow-up to Mike Pompeo’s similar claim, which was a direct response to Schulte’s leak. If I were Schulte, I’d be preparing a subpoena to call Pompeo to testify about why, after the date when Schulte allegedly stole the CIA files, on July 24, 2016, he was still hailing the purported value of WikiLeaks’ releases.

The thing is, showing that the specific nature of the intended recipient of a leak is an element of the offense has never been required in Espionage leak cases before. Indeed, the government’s proposed jury instructions are based off the instruction in the Jeffrey Sterling case. While the government flirted with naming James Risen an unindicted co-conspirator in that case, they did not make any case that leaking to Risen posed unique harm.

Moreover, even before getting into Schulte’s statements about WikiLeaks (most of which have not yet been made public, as far as I’m aware), by arguing the CIA and MCC charges together, the government will have significant evidence not just about Schulte’s understanding of WikiLeaks, but his belief and that they would lie to harm the US. The government also has evidence that Schulte knew that WikiLeaks’ pretense to minimizing harm with the Vault 7 files was false, and that instead WikiLeaks did selective harm in its releases, though it doesn’t want to introduce that evidence at trial.

In other words, this seems unnecessary, superfluous to what the government has done in past Espionage cases, and a dangerous precedent (particularly given the way the government suggested that leaking to The Intercept was especially suspect in the Terry Albury and Reality Winner cases).

That’s effectively what Schulte argues: that the government is trying to argue that leaking to WikiLeaks is particularly harmful, and that if such testimony goes in, it would be forced to call its own witnesses to testify about how past WikiLeaks releases have shown government malfeasance.

This testimony could also suggest that the mere fact that information was released by WikiLeaks necessarily means that it was intended to—and did—cause harm to the United States. These are not valid evidentiary objectives. Instead, this type of testimony would create confusion and force a trial within a trial on the morality of WikiLeaks and the extent of damage caused by prior leaks. If the government is allowed to introduce this evidence, the defense will necessarily have to respond with testimony about how WikiLeaks is a non-profit news organization, that it has previously released information from government whistle-blowers that was vital to the public understanding of government malfeasance, and that any assertion of damages in the press is not reliable evidence.

The government, in a show of reasonableness, anticipates Schulte’s argument about the prejudice this will cause by stating that it will limit its discussion of prior WikiLeaks releases to a select few.

The Government recognizes the need to avoid undue prejudice, and will therefore limit Mr. Rosenzweig’s testimony to prior WikiLeaks leaks that have a direct relationship with particular aspects of the conduct relevant to this case, for example by linking specific harms caused by WikiLeaks in the past to Schulte’s own statements of his intent to cause similar harms to the United States or conduct. Those leaks include (i) the 2010 disclosure of documents provided to WikiLeaks illegally by Chelsea Manning; (ii) the 2010 disclosure of U.S. diplomatic cables; (iii) the 2012 disclosure of files stolen from the intelligence firm Stratfor; and (iv) the 2016 disclosure of emails stolen from a server operated by the Democratic National Committee.

The selected cases are notable, as all of them (with Manning’s leaks seemingly listed twice) involve cases the government either certainly (with the EDVA grand jury seeking Manning and Jeremy Hammond’s testimony) or likely (with ongoing investigations into Roger Stone) currently has ongoing investigations into.

As a reminder: absent an unforeseen delay, this trial will start January 13, 2020 and presumably finish in the weeks leading up to the beginning of Julian Assange’s formal extradition process on February 25. The government has maintained it can add charges up until that point, and US prosecutors told British courts it won’t provide the evidence against Assange until two months before the hearing (so around Christmas).

Schulte’s trial, then, appears to be the opening act for that extradition, an opening act that will undermine the claims WikiLeaks supporters have been making about the journalistic integrity of the organization in an attempt to block Assange’s extradition. Rosenzweig’s testimony seems designed, in part, to heighten that effect.

Which may be why this instruction appears among the government’s proposed instructions.

Some of the people who may have been involved in the events leading to this trial are not on trial. This does not matter. There is no requirement that everyone involved in a crime be charged and prosecuted, or tried together, in the same proceeding.

You may not draw any inference, favorable or unfavorable, towards the Government or the defendant from the fact that certain persons, other than the defendant, were not named as defendants in the Indictment. Do not speculate as to the reasons why other persons were not named. Those matters are wholly outside your concern and have no bearing on your function as jurors.

Whether a person should be named as a co-conspirator, or indicted as a defendant in this case or another separate case, is a matter within the sole discretion of the United States Attorney and the Grand Jury.

As noted, a number of different WikiLeaks supporters have admitted to me that they’re grateful Assange has not (yet) been charged in conjunction with the Vault 7 case, because even before you get to his attempt to extort a pardon with the files, there’s little journalistic justification for what it did, and even more reason to criticize WikiLeaks’ actions as the case against Schulte proceeded.

Yet the obscure proceedings before the EDVA grand jury suggests the government may be pursuing a conspiracy case that starts in 2010 and continues through the Vault 7 releases, with the same variety of Espionage and CFAA charges continuing through that period.

By arguing the CIA and MCC charges in tandem, the government can pretty compellingly make the case that WikiLeaks’ activities went well beyond journalism in this case. But it seems to want to use Rosenzweig’s testimony to make the case more broadly.

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

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

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

They may be in for a disappointment.

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

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

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

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

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

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

He’ll use indictments.

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

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

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

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

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

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

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

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