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With the Corey Lewandowski Interview, Devin Nunes Confirms He’s No More Than Trump’s Mole

In the wake of Michael Wolff’s publication of Steve Bannon’s insistence that Donald Trump met with the attendees at the June 9, 2016 Trump Tower meeting, we got word that Bannon — who claims never to have interviewed with Robert Mueller’s team — has hired the same lawyer representing Reince Priebus and Don McGahn for an interview this week with the House Intelligence Committee.

Two sources tell us Burck is helping Bannon prepare for an interview with the House intelligence committee, which is currently scheduled for next week. Sources also said Bannon plans to “fully cooperate” with investigators.

Burck also represents White House Counsel Don McGahn and former Chief of Staff Reince Priebus for the purposes of the Russia probe, as Law360 reported last September.

It is not unheard of for one attorney to represent more than one client on the same matter. But the fact that several key players with Trump administration ties have the same lawyer could irk investigators.

Then, yesterday, news broke that Corey Lewandowski will interview with HPSCI this week. He, too, claims he has never interviewed with Mueller’s team.

Former Trump campaign manager Corey Lewandowski says that he has yet to be contacted by Special Counsel Robert Mueller as part of the ongoing Russia investigation.

Lewandowski, who was interviewed by WABC’s Rita Cosby on Sunday, also confirmed reports that he will be interviewed on either Wednesday or Thursday by the House Intelligence Committee as part of its Russia probe.

“I have nothing to hide. I didn’t collude or cooperate or coordinate with any Russian, Russian agency, Russian government or anybody else, to try and impact this election,” Lewandowski says he plans to tell the House panel.

Daily Caller is right — it’s odd that Mueller hasn’t interviewed Lewandowski, given that he had these critically timed interactions with George Papadopoulos.

April 27: Papadopoulos to Corey Lewandowski

“to discuss Russia’s interest in hosting Mr. Trump. Have been receiving a lot of calls over the last month about Putin wanting to host him and the team when the time is right.”

April 27: Papadopoulos authored speech that he tells Timofeev is “the signal to meet”

[snip]

May 4, Papadopoulos to Lewandowski (forwarding Timofeev email):

“What do you think? Is this something we want to move forward with?”

May 14, Papadopoulos to Lewandowski:

“Russian govemment[] ha[s] also relayed to me that they are interested in hostingMr. Trump.”

[snip]

June 19: Papadopoulos to Lewandowski

“New message from Russia”: “The Russian ministry of foreign affairs messaged and said that if Mr. Trump is unable to make it to Russia, if campaign rep (me or someone else) can make it for meetings? I am willing to make the trip off the record if it’s in the interest of Mr. Trump and the campaign to meet specific people.”

The decision to call two key Trump people whom Mueller hasn’t met happens in the wake of events that haven’t gotten sufficient attention. On January 3, Rod Rosenstein and Christopher Wray met with Paul Ryan to request that he limit the documents Nunes had requested from FBI. Ryan backed Nunes, which led Rosenstein and Wray to agree to show a bunch of highly sensitive documents to HPSCI investigators, as well as agree to interviews with the FBI and DOJ people who had either touched the Steele dossier or been witnesses to Jim Comey’s claims that Trump demanded loyalty from him.

At Wednesday’s meeting — initiated at Rosenstein’s request — Rosenstein and Wray tried to gauge where they stood with the House speaker in light of the looming potential contempt of Congress showdown and Nunes’ outstanding subpoena demands, sources said. CNN is told the discussion did not involve details of the separate Russia investigation being led by special counsel Robert Mueller.

While Ryan had already been in contact with Rosenstein for months about the dispute over documents, Rosenstein and Wray wanted to make one last effort to persuade him to support their position. The documents in dispute were mostly FBI investigative documents that are considered law enforcement sensitive and are rarely released or shared outside the bureau.

During the meeting, however, it became clear that Ryan wasn’t moved and the officials wouldn’t have his support if they proceeded to resist Nunes’ remaining highly classified requests, according to multiple sources with knowledge of the meeting.

Sources also told CNN that the Justice Department and the FBI also had learned recently that the White House wasn’t going to assert executive privilege or otherwise intervene to try to stop Nunes.

The focus on all the reporting has been on the dossier; indeed, one of CNN’s sources says Mueller’s investigation didn’t come up. It’s not clear that makes sense, given the implication that Trump might claim executive privilege over something being discussed, unless the privilege claim pertained to the two-page summary of the dossier given to him and Obama.

Moreover, the letter memorializing what Nunes forced Rosenstein and Wray to give up suggests the discussion involved all “investigative documents that relate to the Committee’s investigations into (a) Russian involvement in the 2016 Presidential election,” as well as its efforts to find evidence of politicization at DOJ.

As agreed, designated Committee investigators and staff will be provided access to all remaining investigative documents, in unredacted form, for review at DOJ on Friday, January 5, 2018. The documents to be reviewed will include all FBI Form-1023s and all remaining FBI Form FD-302s responsive to the Committee’s August 24, 2017 subpoenas. The only agreed-upon exception pertains to a single FD-302, which, due to national security interests, will be shown separately by Director Wray to myself and my senior investigators during the week of January 8, 2018.

You further confirmed that there are no other extant investigative documents that relate to the Committee’s investigations into (a) Russian involvement in the 2016 Presidential election or (b) other investigatory documents germane to the Committee’s investigations regardless of form and/or title. If, somehow, “new” or “other” responsive documents are discovered, as discussed, you will notify me immediately and allow my senior investigators to review them shortly thereafter.

[snip]

It was further agreed that all documents made available to the Committee will also be available for review by the minority Ranking Member and designated staff.

If that’s right — if the document requests pertain to both the Steele dossier and the Mueller investigation, then on January 5, HPSCI would have been able to determine everyone who had been interviewed and what they had said (which is a good way to ensure that witnesses not cooperate with Mueller). And last week, Nunes, would have been able to review a 302 (the forms FBI uses to report their interviews with witnesses) that, for some reason, was even more sensitive than the FISA orders and confidential human source reports they had reviewed the previous Friday. From his language, it’s not clear whether Adam Schiff would have been included in that review.

Last Wednesday, Wray and Rosenstein gave briefings to Adam Schiff, reportedly by himself, and Richard Burr and Mark Warner together. If Schiff wasn’t included in the review of that 302, then that may explain what the briefing pertained to.

Just last month, Nunes was digging in and refusing to let Democrats call obvious witnesses. So the news that HPSCI will interview two key Trump people with whom Mueller has not yet met makes it clear — if it wasn’t already — that Nunes is trying to identify everything that Mueller might learn, so that he can then give Trump a clean bill of health and insist the entire investigation was just a political stunt drummed up from the Steele dossier (which is what Paul Manafort seems to have recommended last year).

And as all these machinations have gone on, Trump has vacillated about whether or not he’ll submit to an interview with Mueller. Perhaps Nunes has told him that the one thing that might make Mueller’s case is either a confirmation or denial from the President whether he knew or attended that June 9 meeting?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

And it describes his obstruction this way:

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

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

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

What FBI (probably) learned when

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

Late July 2016

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

Before January 27, 2017

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

Before February 16, 2017

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

By July 28, 2017

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

By October 5, 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Embarrass Mitch McConnell Provision of the Intel Authorization

I’ve got a piece coming out on all the Russian-related provisions in the Intelligence Authorization bill for next year, which are for the most part really laudable policy proposals. But I wanted to look more closely at this one.

SEC. 606. REPORT ON CYBER ATTACKS BY FOREIGN GOVERNMENTS AGAINST UNITED STATES ELECTION INFRASTRUCTURE.
(a) Report Required.—Not later than 60 days after the date of the enactment of this Act, the Under Secretary of Homeland Security for Intelligence and Analysis shall submit to congressional leadership and the congressional intelligence committees a report on cyber attacks and attempted cyber attacks by foreign governments on United States election infrastructure in States and localities in connection with the 2016 presidential election in the United States and such cyber attacks or attempted cyber attacks as the Under Secretary anticipates against such infrastructure. Such report shall identify the States and localities affected and shall include cyber attacks and attempted cyber attacks against voter registration databases, voting machines, voting-related computer networks, and the networks of secretaries of State and other election officials.

(b) Form.—The report submitted under subsection (a) shall be submitted in unclassified form, but may include a classified annex.

(c) Definitions.—In this section:

(1) CONGRESSIONAL LEADERSHIP.—The term “congressional leadership” includes the following:

(A) The majority leader of the Senate.

(B) The minority leader of the Senate.

(C) The Speaker of the House of Representatives.

(D) The minority leader of the House of Representatives.

(2) STATE.—The term “State” means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States.

It requires the Department of Homeland Security to submit an unclassified report on all the hacking attempts on election infrastructure last year. It will involve declassifying information that Reality Winner is facing prison time for liberating, which seems like a concession that such information has public value. 

But I’m particularly interested in the emphasis on the distribution of this report: both to the intelligence committees and to Congressional leadership, spelled out by job title. Mitch McConnell, Chuck Schumer, Paul Ryan, and Nancy Pelosi.

That’s interesting because — as part of their investigation into last year’s hack — the Senate Intelligence Committee has already been briefed on this information. Indeed, the day after that testimony, Bloomberg reported — relying on three sources briefed on the investigation — that the hacks were much more severe than publicly known.

Russia’s cyberattack on the U.S. electoral system before Donald Trump’s election was far more widespread than has been publicly revealed, including incursions into voter databases and software systems in almost twice as many states as previously reported.

In Illinois, investigators found evidence that cyber intruders tried to delete or alter voter data. The hackers accessed software designed to be used by poll workers on Election Day, and in at least one state accessed a campaign finance database. Details of the wave of attacks, in the summer and fall of 2016, were provided by three people with direct knowledge of the U.S. investigation into the matter. In all, the Russian hackers hit systems in a total of 39 states, one of them said.

So ultimately, if this bill becomes law, it will require an unclassified report on stuff SSCI has been getting briefing on to be submitted to both SSCI and Congressional leadership.

The move comes in the wake of complaints from Democrats that Mitch McConnell refused to back a stronger statement about such attempted attacks in fall 2016. Now, I think some of the complaints about McConnell’s inaction last year are overblown, a demand that McConnell get ahead of where the Intelligence Community was willing to go publicly. And I think they largely obscure the more pressing question of what Trump advisors Devin Nunes and Richard Burr did. 

But I am cognizant of the fact that in a matter of months, we may get a better sense of the kinds of threats to our voting system that McConnell fought against publicizing.

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

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

National Enquirer’s Serial Spy Novel: Featuring Hillary, Flynn, Assange, Pence, and Ryan

The claim that “Trump catches Russia’s White House spy” — clearly an attempt to smear Mike Flynn — actually got me to drop the $4.99 for a copy of the National Enquirer to read the hit job. And it’s actually more than a contrived effort to claim Flynn is a Russian spy: it’s a four-page spread, implicating Hillary and Mike Pence, too.

The story about Flynn is, instead, mostly a story about Jack Barsky, the former Russian spy who has gotten a lot of press of late tied to the release of his book. Just Thursday, CNN published an interview with him claiming, “What is clear is that email accounts of Democrat operatives were hacked and those hacks originated in Russia. Anything beyond that is pure speculation.” But amid a two-page story of Barsky’s life (as if the details of his life — and Barsky himself — were newly discovered), NE includes two quotes. A “national security intelligence source” warns of other Russian spies:

Jack Barsky is a Russian spy that was caught. But what is really frightening is that there are others out there like him embedded deep into Washington D.C. … Barsky being tracked down will greatly help the president smoke out other rats in his ranks.

And amid a four paragraph discussion of Mike Flynn, NE quotes an “administration source.”

The revelations [about Barsky] come as still-unfolding details continue to worm their way into the public eye about Trump’s own White House “turncoat” — now-ousted national security adviser and retired Lt. Gen. Michael T. Flynn.

Flynn was booted from Trump’s cabinet after intercepted phone calls exposed how he had colluded with Russian officials — and then had the chutzpah to lie about it when questioned by Vice President Mike Pence.

“He was, in essence, the Russian spy in Trump’s midst,” said an administration source who spoke to The ENQUIRER on the condition of anonymity. “Trump was lucky to root him out when he did.”

The unfolding Russian spy drama will overshadow the House of Representatives Intelligence Committee hearing investigating alleged ties between Trump’s campaign and Putin, source said.

Of course, Trump transition official Devin Nunes has already canceled the next hearing into ties between Trump’s campaign and Putin, but perhaps Trump plans on magnifying this hit job in upcoming days, replete with spooky language — “embedded,” “smoke out other rats,” “worm their way,” “turncoat,” “root him out,” — to shift the focus on disloyalty within the Trump Administration.

Which brings us to the other main story in this four-page spread.

It describes how “Trump crushe[d] Clinton coup” designed to install Mike Pence, purportedly revealed by Julian Assange in these two tweets (and some follow-up):

It treats Assange’s claims about his arch enemy as credible because, as a “Beltway insider sniffed … Assange is plugged in and has deep connections to Russian intelligence, along with similar networks around the world.”

The story cites a “White House insider” describing Trump giving Pence a loyalty oath.

President Trump called Pence into the Oval Office and forced him to take a lie detecter test to prove his loyalty. Pence swore he had nothing to do with Hillary and was being moved around like a chess piece in evil Hillary’s game!

After alleging Baywatch’s Pamela Anderson might be a cut-out and/or love interest for Assange, the story then turns on Paul Ryan, citing a quote first published in October, the audio of which was released by Breitbart the same day as the Assange tweets, March 14. The NE claimed that Hillary leaked the call to sow dissent before the health care vote.

The timing of the leak is not a coincidence. The call took place in October and leaked now — just as Ryan and Trump are working to muster support for the health care bill to replace Obamacare. Hillary’s people leaked it to drive a wedge between Trump and Ryan, undermine their efforts to reform health care and destroy the president!

In short, the second article is even more fevered than the one implicating Flynn.

Finally, in addition to a short piece attacking Chris Matthews, the spread includes a non-denial denial of Christopher Steele’s dossier, claiming it showed “Trump orgies” and “graphic sex involving hookers,” which is not precisely what pee gate claimed. It then dismisses the claims because “Trump neither drinks nor uses drugs,” as if that would rule out orgies.

Undoubtedly, all this was placed with the cooperation of the White House, if not direct quotes from Trump (which is something he has a history of doing). While the Flynn story has been viewed — particularly alongside unsubstantiated claims that Flynn is cooperating with the FBI — as an attempt to damage him for snitching, it almost certainly dates to earlier than more recent attacks on Flynn, and in conjunction with stories of loyalty oaths from Pence appears tame by comparison.

Trump wants to justify a witch hunt among the National Enquirer set. And at least thus far, Flynn and warnings of replacement by Pence are no more than the excuse for launching it.

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

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

Trump Is Who He’s Always Been, And Trump Is the Epitome of the GOP; They Have To Own Him

The Washington Post’s David Fahrenthold has come up with another scoop. While scraping for video clips does not seem to be Fahrenthold’s strength, like the KFile boys who bolted Buzzfeed in the middle of the night for the apparently greener pastures of CNN, this clip posted by the Washington Post is bigger than anything that has come before. It doesn’t matter if it is by weight, timing, or the clear combination of the two, it is simply huge. Game changing.

The most striking thing, however, is not that this video exists, nor that it has emerged to public view, it is that the Republican party worthies and press seem to think it is shocking. Seriously, this information, and the Donald Trump it reflects, is exactly who Donald Trump is, and has been, for decades.

Donald Trump is a once and forever informationally ignorant, self serving jackass extreme narcissist. But he has been that for decades to anybody paying attention. Trump was the leader from the start in the Republican primary, and was the easy winner of their nomination. Why? Because the votes on the ground count, much to the consternation of supposed “sane party elders”, and the votes on the ground made Trump an easy winner. He is exactly what the current Republican GOP party embodies at its heart.

Watching holier than though instant moral compasses (well oiled craven weathervanes?) like Jason Chaffetz, Mitch McConnell, John McCain, Mitch McConnell, Orrin Hatch and Paul Ryan squirm and proclaim their shock, like grubby kids with their hand stuck in the cookie jar, is hilarious. What convenient souls they are to suddenly have the inclination of what they have all sowed and reaped for years. They doth protest too much; Trump is them, and they are Trump.

I came home late, but still managed to hear at least two tellings of the story of how John Rhodes, Barry Goldwater and Hugh Scott went down the Hill and gave the hook to Nixon when it was time, with the ideation that such a similar scene could end the Trump moment now. Those are the crazy fever dreams of people like Chris Matthews, David Gergen, Mark Halperin and the rest of the Beltway cocktail weiner gobblers.

Not gonna happen. Rhodes, Goldwater and Scott were men of a different time and more stout character. There are no analogues today. Jason Chaffetz and Mike Lee can conveniently preen and bluster all they want. It is bullshit, as it is with almost all of the rest of today’s Republican party. They do NOT get to suddenly walk away from the monster their party has spent decades creating. They own Trump, Hannity, Roger Ailes, Fox News, Breitbart and Limbaugh. It is who they are, and nobody should forget it.

The Republican party of today has relentlessly stood against women’s rights and ability to control their own bodies, equal rights and protections for LGBT citizens, fair treatment for minorities and immigrants, and the right to vote for anybody other than middle aged fat white men. The current Republican party think that they are the only “suspect class” due “equal protection”, and not the minorities, races, genders, sexual identities and other endangered classes the civil rights laws were designed to protect.

This is exactly what makes the instant kvetching in the GOP aisle over Trump last night so fatuous. It is a boatload of opportunistic self serving fraud. Not for one second should anybody accept that Trump is the sudden exception, he is unequivocally what the GOP has been growing into for years. The modern Republican party has long championed racism, bigotry and misogyny; Donald Trump is just the point of their spear. To the extent there are any “honest brokers” left in the GOP, they are still guilty of benign neglect that allowed the ugliness that is the Trumpian GOP to fester.

The GOP cannot run from Donald Trump, he is who they are now. The last minute panicked contrition of the very women blaming and shaming, racists, bigots and oligarchs that claim to speak for the GOP cannot shed the snake skin of who they are, and what they have created.

Oh, and by the way, the fever dreams of the Chris Matthews and Mark Halperins of the pearl clutching Beltway set are not going to get their wish. It is too late for Trump to be replaced on the ballot by the grand poohbahs of the GOP. As election litigator extraordinaire Marc Elias points out, the ballots for the military and overseas voters have already been sent out pursuant to the UOCAVA, i.e. the Uniformed and Overseas Citizens Absentee Voting Act. Locally, the Arizona ballots are putatively at the printers and being mailed out within five days. Many other states are either on that timetable or ahead of it. In short, the voting has begun. The die is cast.

Also, via Philip Bump and Dave Weigel of the Washington Post:

More than 34,000 Republican voters have already cast their ballots for the 2016 general election according to the U.S. Election Project, 8,000 of them in the battleground state of North Carolina and another 5,000 in Florida. Not all of those ballots were cast for Donald Trump, it’s safe to assume, but it’s more than likely that most of them were. And that, in a nutshell, is why it’s far too late for the Republican Party to dump Donald Trump from their ticket.

More from Bump, Weigel and the WaPo:

Josh Putnam, a University of Georgia lecturer and expert on the machinations of the parties, told me at the time that the rule at issue was Rule 9. Rule 9 reads:

The Republican National Committee is hereby authorized and empowered to fill any and all vacancies which may occur by reason of death, declination, or otherwise of the Republican candidate for President of the United States or the Republican candidate for Vice President of the United States, as nominated by the national convention, or the Republican National Committee may reconvene the national convention for the purpose of filling any such vacancies.

Death, declination or otherwise. No “because we want to” clause.

“Let’s be clear here: The rule is intended to fill vacancies, not to lay the groundwork for a replacement,” Putnam said. “Some have speculated that ‘otherwise’ is ambiguous. Taken out of context it is. However, under the provisions for filling vacancies, it clearly fills in any gap between death and declination (i.e.: an incapacitating illness, but one that leaves the nominee neither dead nor able to decline to run further). And that was the intention.”

Weigel and Bump are superb reporters, and put up a compelling article on a short deadline. But, when it comes to election law, there is nobody better than Rick Hasen. Rick actually contemplated this scenario back in August, over two months ago, when the switch would have been far easier than it is now with ballots already outstanding. His conclusion was that it would be beyond difficult. And that was then, much less now.

But what if the ballots stood as is, could the GOP “electors” find the unanimity to cast enough electoral votes for some person other than Trump? Hasen, at his excellent “Election Law Blog” linked to some thoughts on that effectively imaginary scenario by Ned Foley:

As I write this on Friday night October 7, there is renewed talk of GOP leadership disavowing Trump. True, Trump will still be on the ballot that we citizens cast. But suppose the GOP leadership publicly announces that it will ask GOP electors, when they meet and vote on 12/19, to cast their presidential vote for Pence. Then some GOP-leaning superPACs spend a lot money before 11/8 informing voters of this plan.

Suppose this plan is successful, insofar as it causes on Election Night, 11/8, the media to announce that GOP electors were chosen in enough states to amount to 270 Electoral College votes. Then on 12/19, the GOP electors all do as intended according to this plan: they cast their official Electoral College votes for Pence, not Trump. Pursuant to 3 U.S.C. 9-11, these electors all sign their certificates showing Pence as their choice and send the certificates to Joe Biden, as President of the Senate.

Now, someone might claim that some of these electors violated a previous pledge they made to cast their Electoral College votes for Trump. Maybe this claimant even arranges to send to Biden a separate set of Electoral College votes cast by replacement electors who were substituted because the faithless electors violated their pledge. (This move would be reminiscent of 1876.) We can assume that the claimant wouldn’t send to Biden 270+ Electoral College votes for Trump, but some number short of 270 in the hope of depriving Pence of the presidency.

What would happen when Biden receives two conflicting sets of Electoral College votes from some states, one set for Pence, and the second set for Trump?…

Long story short: There is no way out from Trump for the GOP. They are stuck, and they got there the old fashioned way: they earned it. The Republican Party cannot hide form this event or pretend it is a mistake. It is the culmination of where the Republicans have been headed since the days of Nixon and Lee Atwater. The GOP has tried to mask it with duplicitous bleating about social conservancy and family values, but the truth is out now. It is all about preservation of white bigotry and privilege, and shifting of income and wealth to oligarchs and corporations. When Trump feigned to support that, and the maintenance of women in second class subservient status, the Republican party was willing to ride that horse. Now they want off. Don’t let them.

It is time for change, and that will not, and cannot, be furthered by letting the party of bigotry, hate, misogyny and income inequality off the hook because their avatar has been exposed.. Make them own what they built and earned.

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.

Some Legislative Responses to Clinton’s Email Scandal

The Republicans have reverted to their natural “Benghazi witchhunt” form in the wake of Jim Comey’s announcement Tuesday that Hillary Clinton and her aides should not be charged, with Comey scheduled to testify before the House Oversight Committee at 10 AM.

Paul Ryan wrote a letter asking James Clapper to withhold classified briefings from Hillary. And the House Intelligence Committee is even considering a bill to prevent people who have mishandled classified information from getting clearances.

In light of the FBI’s findings, a congressional staffer told The Daily Beast that the House Intelligence Committee is considering legislation that could block security clearances for people who have been found to have mishandled classified information in the past.

It’s not clear how many of Clinton’s aides still have their government security clearances, but such a measure could make it more difficult for them to be renewed, should they come back to serve in a Clinton administration.

“The idea would be to make sure that these rules apply to a very wide range of people in the executive branch,” the staffer said. (Clinton herself would not need a clearance were she to become president.)

It’s nice to see the same Republicans who didn’t make a peep when David Petraeus kept — and still has — his clearance for doing worse than Hillary has finally getting religion on security clearances.

But this circus isn’t really going to make us better governed or safer.

So here are some fixes Congress should consider:

Add some teeth to the Federal/Presidential Records Acts

As I noted on Pacifica, Hillary’s real crime was trying to retain maximal control over her records as Secretary of State — probably best understood as an understandable effort to withhold anything potentially personal combined with a disinterest in full transparency. That effort backfired spectacularly, though, because as a result all of her emails have been released.

Still, every single Administration has had at least a minor email scandal going back to Poppy Bush destroying PROFS notes pertaining to Iran-Contra.

And yet none of those email scandals has ever amounted to anything, and many of them have led to the loss of records that would otherwise be subject to archiving and (for agency employees) FOIA.

So let’s add some teeth to these laws — and lets mandate and fund more rational archiving of covered records. And while we’re at it, let’s ensure that encrypted smart phone apps, like Signal, which diplomats in the field should be using to solve some of the communication problems identified in this Clinton scandal, will actually get archived.

Fix the Espionage Act (and the Computer Fraud and Abuse Act)

Steve Vladeck makes the case for this:

Congress has only amended the Espionage Act in detail on a handful of occasions and not significantly since 1950. All the while, critics have emerged from all corners—the academy, the courts, and within the government—urging Congress to clarify the myriad questions raised by the statute’s vague and overlapping terms, or to simply scrap it and start over. As the CIA’s general counsel told Congress in 1979, the uncertainty surrounding the Espionage Act presented “the worst of both worlds”:

On the one hand the laws stand idle and are not enforced at least in part because their meaning is so obscure, and on the other hand it is likely that the very obscurity of these laws serves to deter perfectly legitimate expression and debate by persons who must be as unsure of their liabilities as I am unsure of their obligations.

In other words, the Espionage Act is at once too broad and not broad enough—and gives the government too much and too little discretion in cases in which individuals mishandle national security secrets, maliciously or otherwise.

To underscore this point, the provision that the government has used to go after those who shared classified information with individuals not entitled to receive it (including Petraeus, Drake, and Manning), codified at 18 U.S.C. § 793(d), makes it a crime if:

Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted … to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it …

This provision is stunningly broad, and it’s easy to see how, at least as a matter of statutory interpretation, it covers leaking—when government employees (“lawfully having possession” of classified information) share that information with “any person not entitled to receive it.” But note how this doesn’t easily apply to Clinton’s case, as her communications, however unsecured, were generally with staffers who were“entitled to receive” classified information.

Instead, the provision folks have pointed to in her case is the even more strangely worded § 793(f), which makes it a crime for:

Whoever, being entrusted with or having lawful possession or control of [any of the items mentioned in § 793(d)], (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed … fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer …

Obviously, it’s easy to equate Clinton’s “extreme carelessness” with the statute’s “gross negligence.” But look closer: Did Clinton’s carelessness, however extreme, “[permit] … [classified information] to be removed from its proper place of custody or delivered to anyone in violation of [her] trust”? What does that even mean in the context of intangible information discussed over email? The short answer is nobody knows: This provision has virtually never been used at least partly because no one is really sure what it prohibits. It certainly appears to be focused on government employees who dispossess the government of classified material (like a courier who leaves a satchel full of secret documents in a public place). But how much further does it go?

There’s an easy answer here, and it’s to not use Clinton as a test case for an unprecedented prosecution pursuant to an underutilized criminal provision, even if some of us think what she did was a greater sin than the conduct of some who have been charged under the statute. The better way forward is for Congress to do something it’s refused to do for more than 60 years: carefully and comprehensively modernize the Espionage Act, and clarify exactly when it is, and is not, a crime to mishandle classified national security secrets.

Sadly, if Congress were to legislate the Espionage Act now, they might codify the attacks on whistleblowers. But they should not. They should distinguish between selling information to our adversaries and making information public. They should also make it clear that intent matters — because in the key circuit, covering the CIA, the Pentagon, and many contractors, intent hasn’t mattered since the John Kiriakou case.

Eliminate the arbitrariness of the clearance system

But part of that should also involve eliminating the arbitrary nature of the classification system.

I’ve often pointed to how, in the Jeffrey Sterling case, the only evidence he would mishandle classified information was his retention of 30-year old instructions on how to dial a rotary phone, something far less dangerous than what Hillary did.

Equally outrageous, though, is that four of the witnesses who may have testified against Sterling, probably including Bob S who was the key witness, have also mishandled classified information in the past. Those people not only didn’t get prosecuted, but they were permitted to serve as witnesses against Sterling without their own indiscretions being submitted as evidence. As far as we know, none lost their security clearance. Similarly, David Petraeus hasn’t lost his security clearance. But Ashkan Soltani was denied one and therefore can’t work at the White House countering cyberattacks.

Look, the classification system is broken, both because information is over-classified and because maintaining the boundaries between classified and unclassified is too unwieldy. That broken system is then magnified as people’s access to high-paying jobs are subjected to arbitrary review of security clearances. That’s only getting worse as the Intelligence Community ratchets up the Insider Threat program (rather than, say, technical means) to forestall another Manning or Snowden.

The IC has made some progress in recent years in shrinking the universe of people who have security clearances, and the IC is even making moves toward fixing classification. But the clearance system needs to be more transparent to those within it and more just.

Limit the President’s arbitrary authority over classification

Finally, Congress should try to put bounds to the currently arbitrary and unlimited authority Presidents claim over classified information.

As a reminder, the Executive Branch routinely cites the Navy v. Egan precedent to claim unlimited authority over the classified system. They did so when someone (it’s still unclear whether it was Bush or Cheney) authorized Scooter Libby to leak classified information — probably including Valerie Plame’s identity — to Judy Miller. And they did so when telling Vaughn Walker could not require the government to give al Haramain’s lawyers clearance to review the illegal wiretap log they had already seen before handing it over to the court.

And these claims affect Congress’ ability to do their job. The White House used CIA as cover to withhold a great deal of documents implicating the Bush White House in authorizing torture. Then, the White House backed CIA’s efforts to hide unclassified information, like the already-published identities of its torture-approving lawyers, with the release of the Torture Report summary. In his very last congressional speech, Carl Levin complained that he was never able to declassify a document on the Iraq War claims that Mohammed Atta met with a top Iraqi intelligence official in Prague.

This issue will resurface when Hillary, who I presume will still win this election, nominates some of the people involved in this scandal to serve in her White House. While she can nominate implicated aides — Jake Sullivan, Huma Abedin, and Cheryl Mills — for White House positions that require no confirmation (which is what Obama did with John Brennan, who was at that point still tainted by his role in torture), as soon as she names Sullivan to be National Security Advisor, as expected, Congress will complain that he should not have clearance.

She can do so — George Bush did the equivalent (remember he appointed John Poindexter, whose prosecution in relation to the Iran-Contra scandal was overturned on a technicality, to run the Total Information Awareness program).

There’s a very good question whether she should be permitted to do so. Even ignoring the question of whether Sullivan would appropriately treat classified information, it sets a horrible example for clearance holders who would lose their clearances.

But as far as things stand, she could. And that’s a problem.

To be fair, legislating on this issue is dicey, precisely because it will set off a constitutional challenge. But it should happen, if only because the Executive’s claims about Navy v. Egan go beyond what SCOTUS actually said.

Mandate and fund improved communication system

Update, after I posted MK reminded me I meant to include this.

If Congress is serious about this, then they will mandate and fund State to fix their decades-long communications problems.

But they won’t do that. Even 4 years after the Benghazi attack they’ve done little to improve security at State facilities.

Update: One thing that came up in today’s Comey hearing is that the FBI does not routinely tape non-custodial interviews (and fudges even with custodial interviews, even though DOJ passed a policy requiring it). That’s one more thing Congress could legislate! They could pass a simple law requiring FBI to start taping interviews.

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

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

In One of His First Major Legislative Acts, Paul Ryan Trying to Deputize Comcast to Narc You Out to the Feds

Screen Shot 2015-12-07 at 7.53.31 PMAs the Hill reports, Speaker Paul Ryan is preparing to add a worsened version of the Cybersecurity Information Sharing Act to the omnibus budget bill, bypassing the jurisdictional interests of Homeland Security Chair Mike McCaul in order to push through the most privacy-invasive version of the bill.

But several people tracking the negotiations believe McCaul is under significant pressure from House Speaker Paul Ryan (R-Wis.) and other congressional leaders to not oppose the compromise text.

They said lawmakers are aiming to vote on the final cyber bill as part of an omnibus budget deal that is expected before the end of the year.

As I laid out in October, it appears CISA — even in the form that got voted out of the Senate — would serve as a domestic “upstream” spying authority, providing the government a way to spy domestically without a warrant.

CISA permits the telecoms to do the kinds of scans they currently do for foreign intelligence purposes for cybersecurity purposes in ways that (unlike the upstream 702 usage we know about) would not be required to have a foreign nexus. CISA permits the people currently scanning the backbone to continue to do so, only it can be turned over to and used by the government without consideration of whether the signature has a foreign tie or not. Unlike FISA, CISA permits the government to collect entirely domestic data.

We recently got an idea of how this might work. Comcast is basically hacking its own users to find out if they’re downloading copyrighted material.

[Comcast] has been accused of tapping into unencrypted browser sessions and displaying warnings that accuse the user of infringing copyrighted material — such as sharing movies or downloading from a file-sharing site.

That could put users at risk, says the developer who discovered it.

Jarred Sumner, a San Francisco, Calif.-based developer who published the alert banner’s code on his GitHub page, told ZDNet in an email that this could cause major privacy problems.

Sumner explained that Comcast injects the code into a user’s browser as they are browsing the web, performing a so-called “man-in-the-middle” attack. (Comcast has been known to alert users when they have surpassed their data caps.) This means Comcast intercepts the traffic between a user’s computer and their servers, instead of installing software on the user’s computer.

[snip]

“This probably means that Comcast is using [deep packet inspection] on subscriber’s internet and/or proxying subscriber internet when they want to send messages to subscribers,” he said. “That would let Comcast modify unencrypted traffic in both directions.”

In other words, Comcast is already doing the same kind of deep packet inspection of its users’ unencrypted activity as the telecoms use in upstream collection for the NSA. Under CISA, they’d be permitted — and Comcast sure seems willing — to do such searches for the Feds.

Some methods of downloading copyrighted content might already be considered a cyberthreat indicator that Comcast could report directly to the Federal government (and possibly, under this latest version, directly to the FBI). And there are reports that the new version will adopt an expanded list of crimes, to include the Computer Fraud and Abuse Act.

In other words, it’s really easy to see how under this version of CISA, the government would ask Comcast to hack you to find out if you’re doing one of the long list of things considered hacking — a CFAA violation — by the Feds.

How’s that for Paul Ryan’s idea of conservatism, putting the government right inside your Internet router as one of his first major legislative acts?

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

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

As One of First Acts as Speaker, Paul Ryan Retains Devin Nunes on HPSCI

A few weeks ago, I noted that the new Speaker — officially yesterday, Paul Ryan — had an opportunity to name Chairmen of Select committees, most notably Devin Nunes on the House Intelligence Chair. I argued the new Speaker should do just that, with the aim of having more rigorous oversight of the nation’s Intelligence Community.

[I]t seems fair to suggest that Nunes should go too. While Nunes was actually better on Benghazi than his predecessor (raising questions about the CIA’s involvement in gun-running), he has otherwise been a typical rubber stamp for the intelligence community, rushing to pass info-sharing with Department of Energy even while commenting on their shitty security practices, and pitching partisan briefings to give the IC one more opportunity to explain why the phone dragnet was more useful than all the independent reviews say it was.
The Intelligence Community has lost credibility since 9/11, and having a series of rubber stamp oversight Chairs (excepting Silvestre Reyes, who was actually reasonably good) has only exacerbated that credibility problem. So why not call for the appointment of someone like former state judge Ted Poe, who has experience with intelligence related issues on both the Judiciary and Foreign Relations Committees, but who has also been a staunch defender of the Constitution.

[snip]

[N]o place in Congress needs to be reformed more than our intelligence oversight. And while picking a more independent Chair won’t revamp the legal structure of intelligence oversight, it might initiate a process of bringing more rigorous oversight to our nation’s intelligence agencies.

Apparently, Speaker Ryan disagrees. He issued this statement today (I guess Ryan is just a few years too young to remember that the world actually used to be a more dangerous place, but whatev).

The world has gotten only more dangerous, and serious times call for serious leaders. That’s why I’ve asked Rep. Devin Nunes to stay on as chairman of the House Intelligence Committee. Devin and Armed Services Committee Chairman Mac Thornberry have done great work holding the administration accountable for its national-security failures, and I want them to continue their strong partnership. Though Congressman Nunes has been a terrific ally and staunch defender of conservative principles on the Ways and Means Committee, I am grateful for his continued leadership of the Intelligence Committee.

It’s unclear whether this was an affirmative choice, or a bid to make the contest to replace Ryan as Chair of Ways and Means easier.

In accepting Ryan’s request, however, Nunes — apparently also too young to remember the Cold War in his assessment of global threats — pointed to cybersecurity (AKA domestic Internet spying) legislation as one of his priorities.

I am honored to have been asked by the new Speaker of the House, Paul Ryan, to continue serving as Chairman of the House Intelligence Committee. Our nation faces unprecedented global threats ranging from the growing risk of deadly terrorism to debilitating cyber-attacks, and the Intelligence Community’s response to these threats requires diligent Congressional oversight. After careful reflection and in light of the Speaker’s wish for me to continue this important role, I have decided to remain Chairman of the House Intelligence Committee. As we move forward under the leadership of Speaker Ryan, it will be important to complete the good work we have done on an intelligence authorization bill and to get cybersecurity legislation passed to the President’s desk.

Ah well. When Ryan runs for President I guess we can point to this as an indication of his desire to let the intelligence community continue to run roughshod.

Congratulations to James Clapper and the rest of the lot. You still run the joint!

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

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

Another Veep Loser Planning to Quit?

Back when the 2016 GOP nomination kicked off (a good 5 days before Mitt got around to losing officially), here’s one way Paul Ryan’s anonymous advisors envisioned insulating his Presidential ambitions from any damaging votes: quitting.

They say that if he fails, Ryan’s instincts will be to return to the House — he is running for re-election to his House seat at the same time he’s Romney’s running mate — and resume his role as Budget Committee chairman.

Some senior Republicans caution it might not be that easy.

If Romney loses, Ryan will be seen as a leading White House contender in 2016. He will be a national party figure even without being a top member of the House leadership. That could breed resentment among current Republican leaders and perhaps splinter coalitions within the already fractured GOP alliances at the top of the House.

A return also would make Ryan a leading target for Democrats. For the next few years, Democrats would lay traps in legislation, forcing him to take sides on measures that could come back to haunt him during a presidential bid.

That is why some of Ryan’s biggest boosters are considering whether it wouldn’t be better for Ryan to resign from the House.

Never mind the delusion that suggests Ryan would be that enticing a target for Democrats. It gave Ryan’s advisors an excuse to advocate he quit before he has to cast anymore unpopular votes.

As DDay noted, anonymous sources are floating the idea of Ryan quitting again, this time in context of being forced to cast an unpopular vote on the fiscal cliff.

Speaker John A. Boehner has tapped Mr. Ryan, who has returned to his post as the House Budget Committee chairman after an unsuccessful run for vice president, to help strike a deal to avoid big tax increases and spending cuts by the end of the year, and to bring along fellow Republicans.

“He helps us toward creating a product,” said Senator Rob Portman, Republican of Ohio, “and he helps sell the product.”

The test will be whether Mr. Ryan — who declined last year to sit on another Congressional committee charged with taming the deficit, in large part because doing so might have hurt his prospects for national office — can make the transition from House budget philosopher to governing heavyweight who can help negotiate a bipartisan deal and sell it to his colleagues.

[snip]

With his new muscle and increased respect from his colleagues, Mr. Ryan could conceivably scuttle any deal if he loudly opposes a solution that the speaker and the top Republican leaders embrace. But his conservative base might rebel against him if he were to endorse any deal seen as awarding too much to Mr. Obama and the Democrats, particularly on tax rates. Some Republicans think the pitfalls are dangerous enough that Mr. Ryan might consider leaving Congress altogether to work on his policy agenda without the inherent headaches of the Hill.

“He has to think about what he wants his role to be,” said Representative Tom Cole of Oklahoma. “Is he going to run in 2016, or run for something else in Wisconsin, or play a bigger role in the House? He’s going to play an outsize role here because of the national profile he now has, but on the other hand, this conference is quite happy to act independently.” [my emphasis]

The implication being that if he plans to run in 2016, Ryan can’t stick around and–with a vote in favor of a “Grand Bargain”–compromise his governing ideology by admitting does not support a functioning government. Elsewhere, the article notes how much fun he and his wife had visting her grandmother’s home in Iowa.

In other words, he clearly plans to run.

Which leaves the question whether he truly agrees with these anonymous and on-the-record sources advising him to quit if he plans to run for President.

I guess he plans to follow the successful path of President Palin, then, even if he can’t run a marathon as fast as she can.

I just wonder what his Hollywood reality show will be called.

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

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

And They’re Off! 4 GOPers Make Bid for 2016 Over Mitt’s Still-Warm Body

I’m not really sure why the pundits are wasting time deciding whether Nate Silver is a wizard or a washed out baseball junky. There’s another fairly clear sign that insiders believe Obama will win this election: the number of 2016 GOP contenders who are shifting into campaign mode.

Chris Christie can be forgiven for boosting up Obama’s image as President the last week of the campaign. After all it makes him look Presidential. More importantly, it’ll ensure NJ gets lots of quick federal attention. (Though it did remind me that Christie used his coming out party at Mitt’s RNC to talk about Chris Christie.)

Jeb! was a bit more circumspect, spending a Mitt campaign appearance bitching that Obama blames his brother for … things his brother did.

“His entire strategy is to blame others — starting with my brother, of course,” Bush said during a campaign rally for Mitt Romney in Coral Gables, Fla. “Basically, he blames every possible thing rather than having the humility to be able to reach out and to find common ground.”

But the most amusing bid for the 2016 front-runner position comes from Paul Ryan’s unnamed backers (though Governor Kasich is quoted by name) inventing reasons why Ryan wouldn’t fulfill the other position he’s running for (Congressman)–including that his newfound popularity would fracture the Republican caucus or that Democrats would make him cast difficult votes. So, these anonymous advisors say, Ryan should instead write a book or become a Professor or lobby or think tank.

Anything for an opportunity to make public use of PowerPoint.

That is why some of Ryan’s biggest boosters are considering whether it wouldn’t be better for Ryan to resign from the House. He could write a book — “saving America” is a theme often bandied about — or teach at a university.

After all, on the campaign trail, Ryan is as much lecturer as campaigner. Aides routinely set up giant video screens so Ryan can use visual aids to walk audiences through the minutiae of budget politics. Graphs and charts are as common as yard signs and American flags at some events, with Ryan settling into his role as explainer in chief.

Yet curiously, those aides mention a 2016 Presidential bid at least 4 [Update–oops! 5] times in the article.

…future President Ryan?

…biding his time until a presidential run of his own.

a leading White House contender in 2016…

…forcing him to take sides on measures that could come back to haunt him during a presidential bid.

Ryan’s allies aren’t ruling out a bid for the top spot for their friend.

5 mentions of the next Presidential cycle, about a guy who’s on the ticket for this cycle.

And finally there’s this “accidental” email sent by Newt’s people:

“The truth is, the next election has already been decided. Obama is going to win. It’s nearly impossible to beat an incumbent president,” advertiser Porter Stansberry wrote in the email to Gingrich supporters. “What’s actually at stake right now is whether or not he will have a third-term.”

You gotta get an early start, I guess, if you’ll be 73 when you run again.

It’s all rather ghoulish, this campaigning to take over Mitt’s position as the party’s standard bearer before the race has even been called.

I don’t feel all that bad for Mitt, though. After all, he has participated in the weird custom of posthumously baptizing people, basically converting people after they’re dead. Republicans, apparently, follow the opposite strategy, burying you while you’re still technically alive.

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

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